# Amicus Curiae Brief — Blanton v. North Las Vegas

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1989
- **Citation:** 489 U.S. 538

## Text

*wprome Court, U.S,
CS) FI
87-1437 5p ry

No.

IN THE
Supreme Court of the United St

OCTOBER TERM, 1987

MELVIN R. BLANTON and MARK D. FRALEY,

Petitioners,
v.
CITY OF NORTH LAS VEGAS. NEVADA,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF
THE STATE OF NEVADA

BRIEF OF THE STATE OF NEVADA AS AMICUS
CURIAE IN SUPPORT OF THE RESPONDENT

BRIAN McKAY
Attorney General of
the State of Nevada

BRIAN RANDALL HUTCHINS*
Chief Deputy Attorney General
Criminal Justice Division
Heroes’ Memorial Building
Capitol Complex
Carson City, Nevada 8970!
Telephone: (702) 687-3538

Counsel for Anncus Curiae
State of Nevada

*Attorney of Record

J)
JS

IN THE
SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1987

MELVIN R. BLANTON and
MARK D. FRALEY,

Petitioners,
vs.
CITY OF NORTH LAS VEGAS, NEVADA
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF
THE STATE OF NEVADA

BRIEF OF THE STATE OF NEVADA AS AMICUS
CURIAE IN SUPPORT OF THE RESPONDENT

TOPICAL INDEX

Page

TABLE OF AUTHORITIES i, ii, iii
INTEREST OF AMICUS CURIAE 1
SUMMARY OF THE ARGUMENT 2
ARGUMENT 4

Under Nevada Law, The Misde-

meanor Offense Of Driving

Under the Influence Is Not

A Serious Offense That Would

Entitle A Defendant To A

Jury Trial. 4

A. The Nevada Supreme Court
Properly Applied The "Bright
Line" Test. 5

B. The Nevada Federal District
Court Has Improperly Applied A
"Collateral Consequences"
Analysis. 13

C. The Supreme Court Should
Re-Affirm The Bright Line Test
As To When The Right To Jury
Trial Attaches. 26
CONCLUSION 30
APPENDIX A la
APPENDIX B 8a
APPENDIX C lla
APPENDIX D l4a
APPENDIX E 15a

TABLE OF AUTHORITIES

Cases

Baldwin v. New York,
399 U.S. 66 (1970).

Blanton v. North Las Vegas
Municipal Court,
103 Nev. __s,
748 P.2d 494
(Adv.Op. 135, 1987)-

Bronson v. Swinney,
648 F.Supp. 1094
(D.Nev. 1986).

Codispoti v. Pennsylvania,
418 U.S. 506 (1974).

Duncan v. Louisiana,
391 U.S. 145 (1968).

Frank v. United States,
395 u.S. 147 (1969).

Landry v. Hoepfner,
840 F.2d 1201

(Sth Cir. 1988). 12,

Ludwig v. Massachusetts,
427 U.S. 618 (1976).

Matos v. Rodriguez,
440 F.Supp. 673 (D.P.R.

Muniz v. Hoffman,
422 u.S. 454 (1975).

ii

22,

1976).

9,

24,

10,

26

22,

27

13

23

30

20

29

13

13

TABLE OF AUTHORITIES CONTINUED

Rife v. Godbehere,
814 F.2d 563 (9th Cir. 1987).

Solem v. Stumes,
465 U.S. 638 (1984).

United States v. Arbo,
691 F.2d 862 (9th Cir. 1982).

United States v. Craner,
652 F.2d 23 (9th Cir. 1981).

United States v. Fletcher,

505 F.Supp.

1053

(W.D.Va. 1981).

United States v. Hamdan,
552 F.2d 276
(9th Cir. 1977).

United States v. Jenkins,
734 F.2d 1322
(9th Cir. 1983), cert.
denied, 469 U.S. 1217 (1985).

United States v. Rodriguez-

Rodriguez,
742 F.2d 11

94 (9th Cir. 1984).

Constitutional and
Statutory Provisions

U. S. Const.

18 U.S.C. § 1
(Oct. 30, 1

Nev.Rev.Stat.

amends. VI, XIV

984)

§ 207.010 (1987)
iii

14,
17,
23,

10,

15,
18,
27

13,

17,

ll,

11

30

13

28

29

29

13

27

TABLE OF AUTHORITIES CONTINUED

Nev.Rev.Stat. § 453.336 (1987)
Nev.Rev.Stat. § 483.460 (1987)
Nev.Rev.Stat. § 483.473 (1987)
Nev.Rev.Stat. § 483.475 (1987)
Nev.Rev.Stat. § 483.490 (1987)
Nev.Rev.Stat. § 484.3792 (1987)

Other References

Nevada Drivers Handbook
(rev. 8/31/87)

iv

28

25

25

I. INTEREST OF AMICUS CURIAE

Nevada law presently precludes jury
trials for defendants charged with a first
offense of driving under the influence of
intoxicating liquor or a controlled sub-
stance (DUI). The legislative, judicial
and executive branches of the State of
Nevada have, respectively, enacted laws,
decided controversies, and enforced sta-
tutes of this State based upon the evo-
lution of United States Supreme Court law
regarding the distinction between "petty"
and “serious” offenses and the determina-
tion as to whether a defendant is entitled
to a jury trial. The Nevada Supreme Court
followed this Court's "bright line” test
and determined that jury trials are not
constitutionally required when the maximum
possible jail time upon conviction is six
months. A departure from the “bright
line” test would have severe consequences

for the State of Nevada's legal system

which would involve a restructuring of its

entire judicial and legislative framework.
Should this Court abandon its "bright
line” test in favor of a “collateral con-
sequences” analysis, Nevada courts may
have to determine whether such analysis
also applies to other crimes previously
considered as "petty" offenses. The Nev-
ada Legislature would also have to-con-~
sider whether its attempts to provide
judges with options for punishment, educa-
tion and rehabilitation of those violating
what were “petty” offenses will now be
construed as creating “collateral conse-
quences” which might require jury trials.

II. SUMMARY OF ARGUMENT

The existence of a federal consti-
tutional right to a jury trial in a crim-
inal proceeding turns upon the character-
izaticen of the offense charged as “ser-
ious" or “petty.” In determining whether

an offense is serious or petty, courts

o2e

generally look to the maximum authorized
penalty. It is well established that
offenses punishable by up to six months
imprisonment are “petty” and are not sub-
ject to the sixth and fourteenth amendment
jury trial requirement. For the purpose
of a sixth amendment analysis, the maximum
authorized penalty provides the only ob-
jective indication of the seriousness of
the offense. This objective standard
promotes uniformity, objectivity and effi-
cient judicial administration.

A sixth amendment analysis predicated
upon a review of the collateral conse-
quences of a conviction is inappropriate.
This analysis ignores the legislature's
considered judgment as to the seriousness
of the offense and the state's overriding
interest in efficient law enforcement and
simplified judicial administration re-
sulting from the availability of speedy

and inexpensive non-jury trials.

oj-

First offense DUI is punishable in
Nevada by up to six months imprisonment
and a fine of up to $1000 or both. This
statutory penalty, established by the
Nevada Legisleture, provides the clearest
and most consistent judgment as to the
seriousness of the offense. The offense
of driving under the influence falls with-
in the historic and statutory definitions
of “petty” offense and, therefore, there
is no federal constitutional right to a
jury trial.

III. ARGUMENT

Under Nevada Law, The Misdemeanor
Offense Of Driving Under the Influ-
ence Is Not A Serious Offense That
Would Entitle A Defendant To A Jury
Trial.

In Nevada, a first offense of driving
under the influence is considered to be a
misdemeanor. Punishment for a conviction
includes payment of tuition for and atten-
dance in an educational course on abuse of

alcohol and controlled substances; a sen-

~

tence of imprisonment for not less than
two days nor more than six months or per-
formance of forty-eight hours of community
service; and, a fine of not less than $200
nor more than $1000. Nev.Rev.Stat. §
484.3792 (1987) (reproduced in Appendix
A). In addition, a conviction results in
a ninety-day revocation of the privilege
to drive. Id. § 483.460(1)(c) (reproduced
in Appendix p).! The prior decisions of
this Court dictate that a DUI defendant is
not constitutionally entitled to a jury
trial.

A. The Nevada Supreme Court Properly

Applied The “Bright Line” Test.

The existence of a constitutional

right to a jury trial in a criminal pro-

lohese penalties also are set forth
clearly on pages ten and eleven of the
Nevada Driving Handbook, with which all
prospective Nevada drivers must be fami-
liar in order to pass a required written
examination. Nevada Driving Handbook at
10-11 (rev. 8/31/87) (reproduced in Ap-
pendix C).

ceeding turns upon the characterization of
the offense charged as “serious” or “pet-

ty." In Duncan v. Louisiana, 391 U.S. 145

(1968), this Court held that “the Four-
teenth Amendment guarantees a right of
jury trial in all criminal cases which -
were they to be tried in a federal court -
would come within the Sixth Amendment
guarantee." Id. at 149 (footnote omit-
ted). The Court also reaffirmed the long-
established view that there is a category
of petty offenses “which is not subject to
the Sixth Amendment jury trial provision
and should not be subject to the Four-
teenth Amendment jury trial requirement
here applied to the States." Id. at 159.
The Court further found that “the penalty
authorized for a particular crime is of
major relevance in determining whether it
is serious or not and may in itself, if
severe enough, subject the trial to the

mandates of the Sixth Amendment." Id.

In subsequent decisions, the Supreme
Court concluded that offenses carrying a
punishment in excess of six months impri-
sonment are “serious” and must be tried

before a jury. Codispoti v. Pennsylvania,

418 U.S. 506, 512 (1974); Baldwin v. New

York, 399 U.S. 66, 68 (1970). In Baldwin,

the Court primarily focused on the issue
of imprisonment and the necessity of ob-
jective criteria on which to make a deter-
mination. The Court noted that the over-
whelming practice in the nation was to
provide a jury trial in any case where the
defendant faced a possible sentence in
excess of six months. The Court stated:

This near-uniform judgment of
the Nation [that a jury trial is
provided when an offense is
punishable by imprisonment for
more than six months] furnishes
~ — — ae objective cri-
erion by ch a line could
ever be drawn -- on the basis of
the possible penalty alone --
between offenses that are and
that are not regarded as "seri-
ous” for purposes of trial by
jury.

Baldwin v. New York, 399 U.S. at 72-73

(emphasis added). The Court also indi-
cated that the six month dividing line was
in accordance with the federal statutory
definition of “petty offense" contained in
section 1 of Title 18 to the United States
Code. Id. at 73 n.21.

In establishing the dividing line
between “petty” and “serious” offenses at
six months, and hence the right to a jury
trial, the Court noted that even “the
prospect of imprisonment for however short
a time will seldom be viewed by the ac-
cused as a trivial or ‘petty’ matter and
may well result in quite serious reper-
cussions affecting his career and his
reputation.” Id. at 73. The Court recog-
nized, however, that the disadvantages
resulting from the imposition of a six
month dividing line “may be outweighed by
the benefits that result from speedy and

inexpensive non-jury adjudications.” Id.

In Codispoti, the Court stated that "our

decisions have established a fixed divi-

ding line between petty and serious of-

fenses: those carrying a sentence of more
than six months are serious crimes and
those carrying a sentence of six months or

less are petty crimes." Codispoti v.

Pennsylvania, 418 U.S. at 512 (emphasis

added).

In Muniz v. Hoffman, 422 U.S. 454

(1975), the Supreme Court first considered
the relationship of the amount of a fine
to the determination of whether an offense
was "serious" or “petty.” At the outset,
the Court noted that, in determining whe-
ther an offense was “serious” or "petty,"
the Court has traditionally referred to
the definition of a petty offense con-
tained in federal statutes, 18 U.S.C. §
(1) (3), which, at the time Muniz was de-
cided, defined petty offenses as those

crimes “the penalty for which does not

exceed imprisonment for a period of six
months or a fine of not more than $500 or

both." Id. at 476. See also Baldwin v.

New York, 399 U.S. at 72-73 n.21. The

Court rejected, however, the proposition
that a crime must be considered serious if
it is punishable by a fine in excess of
$500. Id. The Court noted that “impri-
sonment and fines are intrinsically dif-
ferent" and held that a $10,000 fine of a
13,000 member union did not render an

otherwise petty offense serious. Muniz v.

Hoffman, 422 U.S. at 477.

The Ninth Circuit Court of Appeals
relied more strictly upon the provisions
of 18 U.S.C. Section 1(3) and held that a
fine in excess of $500 renders an other-
wise petty offense serious, thereby enti-
tling the defendant to a jury trial.

United States v. Hamdan, 552 F.2d 276,

279-80 (9th Cir. 1977). Recognizing the

historic devaluation of money, however,

-10-

the court stated:
The value of money changes, of
course, as does the wealth of
the economy. But Congress can
be expected to adjust the mone-
tary standard of (18 U.S.C.]
section 1(3) so that it will
continue to represent a fair

judgment as to the appropriate
line between petty and serious
offenses.

Id. at 280 n.3. As predicted, Congress
subsequently amended the definition of a
petty offense to include any misdemeanor
the punishment for which does not exceed
six months imprisonment or a fine of not
more than $5000.00 or both. See 18 U.S.C.
§ 1(3) (as amended October 30, 1984, Pub.
L. 98-596, § 8, 98 Stat. 3138) (reproduced
as Appendix D). The Ninth Circuit Court
of Appeals has nevertheless retained $500
as the fixed dividing line between petty

and serious offenses. See Rife v. Godbe-

here, 814 F.2d 563, 565 (9th Cir. 1987)
(misdemeanor punishable by up to a $1000

fine is a serious offense and therefore

-ll-

the defendant is entitled to a jury
trial).

Recently, the fifth circuit in Landry
v. Hoepfner, 840 F.2d 1201 (5th Cir.

1988), stated that a $500 or $1000 fine
did not make a difference:

As noted, the focus is on the
confinement, not the fine; fur-
ther, Muniz sustained a_ ten
thousand dollars fine, and Con-
gress then found five thousand
dollars appropriate for petty
offenses by individuals. Viewed
historially, it is evident that,
because of inflation, one thou-
sand dollars today (or in 1984)
is worth substantially less than
five hundred dollars was both
when Congress first used that
figure in 18 U.S.C. § 1 (which
was at least as early as 1948)
and when Baldwin was decided in
1970.

Id. at 1216 n.30.

Under the Nevada Statute at issue
here, a defendant charged with first of-
fense DUI is exposed to a maximur punish-
ment of not more than six months in jail
and a fine of not more than $1000. In

determining whether the defendant has a

@12e

constitutional right to a jury trial, this
Court should re-affirm the "bright line"

test approved by the decisions in Baldwin,

Codispoti, Muniz and Hamdan and uphold the

decision of the Nevada Supreme Court which
followed this rationale. Because the
maximum potential punishment is less than
six months and a fine considerably less
than the $5000 limit contained in 18
U.S.C. § 1(3), the offense must be char-
acterized as petty. Therefore, there is
no federal constitutional right to a jury

trial. United States v. Fletcher, 505

F.Supp. 1053, 1054 (W.D.Va. 1981); Matos

v. Rodriguez, 440 F.Supp. 673, 676 (D.P.R.

1976).

B. The Nevada Federal District Court Has

Improperly Applied A "Collateral Conse-

quences” Analysis.

Federal courts have split on the

issue of whether DUI is a “serious” of-

fense such that the Constitution requires

-13-

that a jury trial be provided. A few
courts have concluded that DUI on a public
road is malum in se and, additionally,
that the so-called “collateral conse-
quences” attendant upon a conviction (man-
datory incarceration, revocation of dri-
vers license, system of increasing pen-
alties for subsequent offenses, increasing
insurance premiums and public notoriety)
justify classifying DUI as serious. See

United States v. Craner, 652 F.2d 23 (9th

Cir. 1981); Bronson v. Swinney, 648 F.

Supp. 1094 (D. Nev. 1986).

In Bronson v. Swinney, the district

court held that a defendant charged with a
first offense DUI pursuant to section
484.3792 of the Nevada Revised Statutes
had a federal constitutional right to a

jury trial. Bronson v. Swinney, 648 F.2d

at 1100. In reaching its decision, the
court relied heavily upon the ninth cir-

cuit's decision in Craner. Id. at 1097-

-14-

98. The district court in Bronson noted

that the maximum authorized penalty was
the most important factor in determining
whether an offense is serious or petty for
sixth amendment analysis, but held that
other factors such as the collateral con-
sequences of a conviction, nature of the
offense and treatment of the offense at
common law could also be considered. Id.
at 1098-99. The court concluded that the
consequences of a conviction for DUI,
which included an automatic driver's li-
cense revocation, a mandatory jail sen-
tence, a system of increasing penalties
for subsequent convictions, and “the op-
probrious nature of the offense," indicate
it is considered a "“serious" offense by
the people of the State of Nevada and,
therefore, the sixth and fourteenth amend-
ments require a jury trial. Id. at 1100.

The district court's reliance on

Craner was misplaced. In Craner, the

= |=

ninth circuit held that DUI within Yose-
mite National Park, which was punishable
by six months imprisonment or a $500 fine
cr both, was a “serious” offense for which
the Federal Constitution required a jury
trial. This penalty was set by the Secre-
tary of the Interior and not by Congress.
As such, the court concluded that there
was no assurance that the penalty repre-

sented "a considered legislative judgment

of the gravity of the offense." United

States v. Craner, 652 F.2d at 25. The

court held that the possibility of having
a drivers license revoked by the State of
California as a4 result of the federal
court conviction constituted an "addi-
tional consequence" which justified clas-
sifying the crime as serious and entitling
the defendant to a jury trial. Id. at
25-26, 28.

The Craner decision, however, did net

Create a per se rule that the collateral

~16e

consequences of a misdemeanor conviction
transform a “petty” offense into a "“seri-
ous" offense thereby requiring a jury

trial. United States v. Rodriguez-

Rodriguez, 742 F.2d 1194, 1195 (9th Cir.

1984). There are two significant factors
which distinguish the present cases from
Craner. First, the offense of DUI has
been classified by the Nevada Legislature
as a misdemeanor. This constitutes "a
considered legislative judgment of the

gravity of the offense." United States v.

Arbo, 691 F.2d 862, 864 (9th Cir. 1982).
In Craner, “(g]jiven the lack of legisla-
tive judgment, there was good reason ‘to
diminish the importance of the maximum
penalty in determining whether' the of-
fense was ‘petty’ and to ‘focus on the
additional consequences that attend[ed)
conviction of [the] offense.'" Id.,

quoting United States v. Craner, 652 F.2d

at 28 (Sneed, J., concurring).

olJe

In light of the Nevada legislative
judgment of the gravity of the offense,
the importance of the maximum penalty is
not diminished and, therefore, a court
should not consider the collateral con-

sequences of the conviction. See United

States v. Craner, 652 F.2d at 28 (Sneed,

J., concurring) (if the maximum penalty
reflected a considered legislative judg-
ment, DUI offense would be considered
petty regardless of the collateral conse-
quences).

The most recent federal court to
consider this issue was the fifth circuit
in Landry. Landry was convicted of vio-
lating Lc isiana Revised Statutes Section
14:98 which authorizes a maximum sentence
of six months’ imprisonment and a $500.00
fine. The statute also provides for a
minimum incarceration of ten days unless
the offender participates in both driver

improvement and substance abuse programs,

-18-

and performs community service work. The
offender is ordinarily assessed admini-
strative costs.

The Landry court stated its approval
of the United States Supreme Court's
"bright line” test and noted, “the Court
has never held or stated any crime is a
‘serious’ rather than a 'petty' offense on
the basis of any criteria other than whe-
ther its maximum authorized confinement
exceeded six months or whether it was

indictable at common law." Landry v.

Hoepfner, 840 F.2d at 1209. The Landry

court stated that, to add a third cri-
terion -- the judicial perception of the
seriousness of the offense “is to inject
an inherently and inescapably subjective
and imprecise factor into the calculus.
Essentially, this would involve judges in
applying the same sort of criteria that
the legislative branch did in the first

place when it fixed the maximum sentence."

-19-

Id. The court emphasized the right of
each state legislature to determine what
conduct shall be punishable within its
borders: "What is ‘serious’ in Vermont
may not be ‘serious’ in Louisiana, in
terms either of a particular problem's
concrete manifestations or of the popular
perception or evaluation of it in each of
those states." Id. at 1210. While re-
cognizing the gravity of the problem of
drunken drivers, the Landry court none-
theless stated,

The nature of the governmental

response to the problem... is

a matter for legislative deter-

mination .. . . Moreover, the

problem is not necessarily the

same in each state. . . and even

if it were, this would not re-

guire each state to address it

in the same fashion. There is

more than one way to skin a cat.
Id. at 1213 n.25.

The argument that recent years have

been characterized by a strong public

outcry against drunk drivers does not make

-20-

the offense malum in se as DUI may not, in
and of itself, result in harm.” Driving
under the influence of liquor is not an
inherently evil and injurious act as the
act itself does not necessarily injure
another person and is not universally
considered as immoral. Nonetheless, driv-
ing under the influence carries enough
potential for harm that it is, in the
State of Nevada as well as in other
states, prohibited conduct. And the leg-
islature of each state has, after evaluat-
ing various relevant factors, such as
public opinion, the state's judicial

framework, and the practicality and desir-

2malum In Se is defined as a “wrong in
itself; an act .. . involving illegality
from the very nature of the transaction,
upon principles of natural, moral, and
public law. An act .. . inherently and
essentially evil, that is, immoral in its
nature and injurious in its consequences
- « « « Such are most or all of the
offenses cognizable at common law. . .as
murder, larceny, etc." Black's Law
Dictionary at 865 (5th ed. 1979).

-2l-

ability of various methods of punishing
the offense, enacted code sections appro-
priate to that state.

The Nevada Supreme Court, in deciding
_ this case below, cited numerous other
jurisdictions which had reached the con-
clusion that there is no right to jury
trial for misdemeanor DUI defendants.

Blanton v. North Las Vegas Muncipal Court,

103 Nev. ’ , 748 P.2d 494, 503 (Adv.

Op. at 14, 1987). The Nevada Supreme
Court further stated that ". . .we have

respectfully concluded that Bronson, and

the decisions of the 9th Circuit panels
upon which the federal district court
relied, represent an unnecessary and un-
warranted expansion of the Supreme Court's

_ holding in Baldwin.” Id. at , 748 P.2d

at 500 (Adv.Op. at 10).
A second factor distinguishing the
present cases from Craner is the existence

of a significant fiscal impact on the

=22<

State of Nevada. The United States Su-
preme Court has recognized that the
six-month dividing line between petty and
serious offenses strikes a balance between
the legitimate interests of the state and

the rights of the defendant. See Duncan

v. State of Louisiana, 391 U.S. at 160.

See also Baldwin v. New York, 399 U.S. at

73.

In the present case, it is respect-
fully submitted that the balancing of
interests tips significantly in the favor
of the State of Nevada. Even the court in

Bronson noted the significant financial

impact its decision would have upon the
state, counties and municipalities.

Bronson v. Swinney, 648 F.Supp. at 1100.

First offense DUI prosecutions in Nevada
are not a “comparative rarity” as was the
case in Craner. There is a further impact
upon the interests of the State of Nevada

by the fact that municipal courts, which

=23-

also handle misdemeanor DUI cases, are
precluded by law from holding jury trials.
Nev.Rev.Stat. § 266.550 (1987). Accord-
ingly, as noted by the Nevada Supreme
Court, the benefits of efficient law
enforcement and financial savings from
non-jury trials clearly outweigh the
disadvantages to the individual defendant

charged with a petty offense. Blanton v.

North Las Vegas Municipal Court, 103 Nev.

at __, ~2748 P.2d at 501-02 (Adv.Op. at
11-14).

If this Court decides to abandon the
bright line test in favor of a collateral
consequences type of review, it is re-
spectfully requested that the court con-
sider several factors, not considered by

the court in Bronson, which mitigate the

impact of the asserted “collateral conse-
quences." First of all, most first time
offenders are receiving a sentence sub-

stantially less than the maximum potential

-24-

sentence. In the vast majority of these
cases, the defendants are receiving a jail
term of less than five days and a fine of
approximately $500. Community service is
also available in lieu of incarceration.
Nev.Rev.Stat. § 484.3792(1) (A)(2) (1987).
As a result of this alternative, many
first-time offenders avoid serving any
jail time. Lastly, the inconvenience of
driver's license revocation can be mini-
mized by the issuance of a restricted
license. Id. § 483.490 (1987) (reproduced
as Appendix E). A defendant may receive a
restricted license to drive a motor ve-
hicle to and from work or in the course of
his work, and to acquire food and medical
care for himself or an immediate family
member after half the period of the revo-
cation has expired. Id.

As a practical matter, the conse-
quences which face a first-time DUI of-

fender in Nevada represent what the people

of this state, through their legislature,
believe to be an effective and innovative
method of decreasing the probability that
a second DUI offense will occur. A great
deal of flexibility is given the judge in
fashioning a sentence appropriate to the
circumstances, so that education and reha-
bilitation rather than strictly punish-
ment-by-incarceration may be accomplished.
The collateral consequences attendant to a
first-time DUI conviction in Nevada are
for the most part treated as alternatives
to incarceration, not additions to incar-
ceration. The federal district court
failed to consider these factors properly
in Bronson. That decision should not be
followed.

C. The Supreme Court Should Re-Affirm The
Bright Line Test As To When The Right To

Jury Trial Attaches.
Only the “bright line test" which

looks to the maximum authorized penalty,

-~26-

promotes the interests of uniformity,
objectivity and practical judicial admini-
stration. A collateral consequences re-
view, similar to that employed by the

courts in Craner and Bronson, is not an

equitable or practical method of deter-
mining whether there is a constitutional
right to a jury trial. As such, amicus
respectfully suggests that the bright line
test be applied to resolve the issue in
this case.

Given the complexity of our modern
criminal statutes, almost every misde-
meanor conviction carries collateral con-
sequences, the most serious of which may
subject the defendant to a more severe
penalty if subsequent crimes are commit-
ted. See id. § 207.010 (repeat misde-
meanor offenses punishable as felony). In
addition, drivers convicted of multiple
driving offenses within one year can be

subjected to license revocation pursuant

———

to the state's demerit points system. Id.
$§ 483.473; 483.475. The punishment for a
person under twenty-one years of age con-
victed of possession of less than one
ounce of marijuana includes the possible
suspension of his or her driver's license
for up to six months. Id. § 453.336(3)
(a) (2).

Similarly, the violation of any crim-
inal statute must be viewed by society as
a serious matter. If the court adopts a
collateral consequences analysis, it may
be necessary to review each misdemeanor
offense to determine if the consequences
of a particular conviction render the
offense “serious.” Such a procedure would
be subjective, burdensome and unworkable.

United States v. Hamden, 552 F.2d at 279-

80.

The subjectiveness and unpredictabil-
ity of the collateral consequences analy-
sis is further evidenced by a review of

-28-

what courts consider to be significant
collateral consequences. Courts have held
that an extended sentence of probation,
which is potentially a very significant
infringement of personal freedom, is in-
sufficient to classify a petty offense as

serious. See Frank v. United States, 395

U.S. 147 (1969); United States v. Jenkins,

734 F.2d 1322 (9th Cir. 1983), cert. den-

ied, 469 U.S. 1217 (1985). Similarly, the
notably serious collateral consequences of
conviction for crossing the border ille-
gally does not entitle an alien to a jury

trial. United States v. Rodriguez~Rodri-

guez, 742 F.2d at 1195.

The Supreme Court has consistently
held that the maximum authorized penalty
provides the clearest, most objective
indication of the seriousness of the of-
fense. See Ludwig v. Massachusetts, 427
U.S. 618, 624-625 (1976) (no right to jury
trial for petty offenses which is defined

-29-

by reference to the maximum authorized

punishment); Frank v. United States, 395

U.S. at 148 (severity of the authorized
penalty is the most relevant indication of
the seriousness of an offense). The right
to a jury should not be dependent upon the
subjective values of an individual judge.
The maximum authorized sentence is the
only objective benchmark of the serious-

ness of a criminal offense. This standard

promotes the interest of uniformity, objec-

tivity and judicial administration.”

CONCLUSION

Based upon the analysis above, the
State of Nevada as amicus curiae
respectfully urges the Court to affirm the
judgment below of the Nevada Supreme

Court.

’ Should this Court decide to reverse
the decision of the Nevada Supreme Court
and hold that a collateral consequences
analysis is appropriate, the Court at some
time will have to decide whether its ru-
ling is retroactive. See Solem v. Stumes,
465 U.S. 638, 643 (1984).

-30-

Respectfully submitted,

BRIAN McKAY
Attorney General of the
State of Nevada

BRIAN RANDALL HUTCHINS*

Chief Deputy Attorney General
Criminal Justice Division
Heroes' Memorial Building
Capitol Complex

Carson City, Nevada 89701
Telephone: (702) 687-3538

Counsel for Amicus Curiae
State of Nevada

*Attorney of Record

APPENDICES

APPENDIX A

Nev.Rev.Stat. § 484.3792 (1987)

Section 484.3792: Driving under the
influence of intoxicating liquor or
controlled substance: Penalties;
segregation of offender; probation,
suspension of sentence and plea bargaining
restricted; intermittent confinement;
consecutive sentences.

1. Any person who violates the provi-
sions of NRS 484.379:

(a) For the first offense within 7
years, is guilty of a misdemeanor.
Unless he is allowed to undergo treatment
as provided in NRS 484.3794, the court
shall:

(1) Except as otherwise provided in
subsection 6, order him to pay tuition for
an educational course on the abuse of
alcvuhol and controlled substances approved
by the department and complete the course
within the time specified in the order and
the court shall notify the department if

he fails to complete the course within the

la

specified time;

(2) Unless the sentence is reduced
pursuant to NRS 484.3794, sentence him to
imprisonment for not less than 2 days nor
more than 6 months in jail, or to perform
48 hours of work for the community while
dressed in distinctive garb which identi-
fies him as having violated the provisions
of NRS 484.379; and

(3) Fine him not less than $200 nor
more than $1,000.

The teacher of the educational course
shall evaluate the offender and, if he
finds the offender is an abuser of alcohol
or controlled substances, he shall prompt-
ly report his findings to the court for
its use.

(b) For a second offense within 7 years,
is guilty of a misdemeanor. Except as
provided in NRS 484.3794, the court shall
sentence him to imprisonment for not less

than 10 days nor more than 6 months in

2a

jail and fine him not less than $500 nor
more than $1,000.

(c) For a third or subsequent offense
within 7 years, shall be punished by
imprisonment in the state prison for not
less than 1 year nor more than 6 years and
must be further punished by a fine of not
less than $2,000 nor more than $5,000. An
offender so imprisoned must be segregated
insofar as practicable from offenders
whose crimes were violent, and must be
assigned to an institution of minimum
security or, if space is available, to an
honor camp restitution center or similar
facility.

2. Any offense which occurred within 7
years immediately preceding the date of
the principal offense or after the prin-
cipal offense constitutes a prior offense
for the purposes of this section when evi-
denced by a conviction, without regard to

the sequence of the offenses and convic-

3a

tions. The facts concerning a prior
offense must be alleged in the complaint,
indictment or information, must not be
read to the jury or proved at trial but
must be proved at the time of sentencing
and, if the principal offense is alleged
to be a felony, must be shown at the
preliminary examination or presented to
the grand jury.

3. No person convicted of violating the
provisions of NRS 484.379 may be released
on probation, and no sentence imposed for
violating those provisions may be suspend-
ed except, as provided in NRS 4.373 and
5.055, a portion of the sentence imposed
that exceeds the mandatory minimum. No
prosecuting attorney may dismiss a charge
of violating the provisions of NRS 484.379
in exchange for a plea of guilty or nolo
contendere to a lesser charge or for any
other reason unless he knows or it is

obvious that the charge is not supported

4a

by probable cause or cannot be proved at
the time of trial.

4. Any term of confinement imposed
under the provisions of this section may
be served intermittently at the discretion
of the judge or justice of the peace,
except that a person who is convicted of a
second or subsequent offense ‘within 7
years must be confined for at least one
segment of not less than 48 consecutive
hours. This discretion must be exercised
after considering all the circumstances
surrounding the offense, and the family
and employment of the offender, but any
sentence of 30 days or less must be served
within 6 months after the date of convic-
tion or within 6 months after the date of
sentencing if the offender underwent
treatment pursuant to NRS 484.3794. Any
time for which the offender is eoptines
must consist of not less than 24 consecu-

tive hours.

5. Jail sentences simultaneously
imposed under this section and NRS 483.560
or 485.330 must run consecutively.

6. If the person who violated the
provisions of NRS 484.379 possesses a
driver's license issued by a state other
than Nevada and does not reside in Nevada,
in carrying out the provisions of subpara-
graph (1) of paragraph (a) of subsection
1, the court shall:

(a) Order the person to pay tuition for
and submit evidence of completion of an
educational course on the abuse of alcohol
and controlled substances approved by a
governmental agency of the state of his
residence within the time specified in the
order; or

(b) Order him to complete an educational
course by correspondence on the abuse of
alcohol and controlled substances approved
by the department within the time speci-
fied in the order, and the court shall

6a

notify the department if the person fails
to complete the assigned course within the
specified time.

7. As used in this section, unless the
context otherwise requires, “offense”
means a violation of NRS 484.379 or
484.3795 or homicide resulting from the
@riving of a vehicle while under the
influence of intoxicating liquor or a
controlled substance, or the violation of
a law of any other jurisdiction which

prohibits the same conduct.

7a

APPENDIX B

Nev.Rev.Stat. § 483.460
Section 483.460 Mandatory revocation of
license, permit or privilege to drive;
periods of revocation.

1. Unless otherwise provided by stat-
ute, the department shall revoke the
license, permit or privilege of any driver
upon receiving a record of his conviction
of any of the following offenses, when
that conviction has become final, and the
driver is not eligible for a license,
permit or privilege to drive for the
period indicated:

(a) For a period of 3 years if the
offense is:

(1) Violation of NRS 484.3795 or
subsection 2 of NRS 484.377 or homicide
resulting from driving a vehicle while
under the influence of intoxicating liquor
or a controlled substance.

(2) A third or subsequent violation
within 7 years of NRS 484.379.

(b) For a period of 1 year if the
offense is:

(1) Any other manslaughter resulting
from the driving of a motor vehicle or
felony in the commission of which a motor
vehicle is used, including the unlawful
taking of a motor vehicle.

(2) Pailure to stop and render aid as
required under the laws of this state in
the event of a motor vehicle accident
resulting in the death or bodily injury of
another.

(3) Perjury or the making of a false
affidavit or statement under oath to the
department under NRS 483.010 to 483.630,
inclusive, or under any other law relating
to the ownership or driving of motor
vehicles.

(4) Conviction, or forfeiture of bail
not vacated, upon three charges of reck-
less driving committed within a period of

12 months.

(5) A second violation within 7 years
of NRS 484.379 and the driver is not
eligible for a restricted license during
any of that period.

(c) For a period of 90 days, if the
offense is a first violation within 7

years of NRS 484.379.

10a

APPENDIX C

Nevada Driving Handbook (Rev. 8-87)

DRINKING AND DRIVING

The penalty for driving under the
influence of alcohol and/or drugs is
severe. There are two penalties which can
occur with each offense. First, an
administrative penalty (license
revocation), secondly, a criminal penalty
(court conviction).

Administrative Penalty

When a law enforcement officer
requests a driver to submit to a chemical
test of his blood alcohol content, the
driver is required to take the test by law
(see Implied Consent Law, page 11).

If the driver is found to have 0.10
or more percent blood alcohol content ,the
driver's privilege to drive is immediately

revoked. The law enforcement officer is

lla

authorized to take the license at the time

29f arrest.

The period of revocation is 90 days.

Criminal Penalty

First offense within seven years:
Jail sentence: Two days to six
months (or 48 hours community service) ;
Fine: $200 to $1,000;
DUI school: Tuition average is
$150;

License revocation: 90 days.

Second offense within 7 years:
Jail sentence: Ten days to six

months;
Fine: $500 to $1,000;

License revocation: One year.

Third or more offense within 7 years:
Prison sentence: One year to six

years;

Fine: $2,000 to $5,000;

12a

License revocation: Three years.

DUI causing death or serious injury:

Prison sentence: One year to twenty

years;
Fine: $2,000 to $5,000;

License revocation: Three years.

If an individual receives a license
revocation for the administrative penalty
and also for the criminal penalty, the
revocation periods run concurrently.

A restricted license can be issued
after serving one-half of the revocation
period, however, a restricted license

cannot be given on a second offense.

l3a

APPENDIX D

Section 1, 18 U.S.C., provides:

Notwithstanding any Act of Congress
to the contrary:

(1) Any offense punishable by death
or imprisonment for a term exceeding one
year is a felony.

(2) Any other offense is a misde-
meanor.

(3) Any misdemeanor, the penalty for
which, as set forth in the provision defin-
ing the offense, does not exceed imprison-
ment for a period of six months or a fine
of not more than $5,000 for an individual
and $10,000 for a person other than an

individual, or both, is a petty offense.

l4a

APPENDIX E

Nev.Rev.Stat. § 483.490 (1987)
Section 483.490 Period of suspension or
revocation: issuance of restricted license
upon evidence of hardship; penalties.

1. Unless otherwise provided by specific
statute, the department may not suspend a
license for a period of more than 1 year.

2. After a driver's license has been
suspended or revoked for an offense other
than a second violation within 7 years of
NRS 484.379 and half the period during
which the driver is not eligible for a
license has expired, the department may,
unless the statute authorizing the suspen-
sion prohibits the issuance of a restrict-
ed license, issue a restricted driver's
license to an applicant permitting the
applicant to drive a motor vehicle:

(a) To and from work or in the course of
his work or both; or

(b) To acquire supplies of medicine or

food or receive regularly scheduled

15a

medical care for himself or a member of
his immediate family. Before a restricted
license may be issued, the applicant must
submit sufficient documentary evidence to
satisfy the department that a severe
hardship exists because the applicant has
no alternative means of transportation and
that the severe hardship outweighs the
risk to the public if he is issued a
restricted license.

3. A driver who violates a condition of
a restricted license issued under sub-
section 2 or by another jurisdiction is
guilty of a misdemeanor, and if his
license was suspended or revoked for a
violation of NRS 484.379, 484.3795,
484.384 or homicide resulting from driving
@ vehicle while under the influence of
intoxicating liquor or a_- controlled
substance, or the violation of a law of
any other jurisdiction which prohibits the

same conduct, he shall be punished in the

l6a

manner provided by subsection 2 of NRS
483.560.

4. The periods of suspensions and
revocations under this chapter and under
NRS 484.384 must run consecutively, except
as provided in NRS 483.465 and 483.475,
when the suspensions must run concurrent-
ly.

5. Whenever the department suspends or
revokes a license, the period of suspen-
sion, or of ineligibility for a license
after the revocation, begins upon the
effective date of the revocation or
suspension as contained in the notice

thereof.

17a

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1428%3A15. Public record. Not legal advice.