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Altherr v. State, 911 So. 2d 1105 - Ala: Court of Criminal Appeals 2004ReadHow citedSearch
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Altherr v. State, 911 So. 2d 1105 - Ala: Court of Criminal Appeals 2004
911 So.2d 1105 (2004)
John Anthony ALTHERR
v.
STATE of Alabama.
CR-02-0437.
Court of Criminal Appeals of Alabama.
August 27, 2004.
1106*1106 Gregory M. Varner, Ashland, for appellant.
William H. Pryor, Jr., and Troy King, attys. gen., and J. Thomas Leverette and Michael B. Billingsley, asst. attys. gen., for appellee.
On Application for Rehearing
COBB, Judge.
The opinion of January 30, 2004, is withdrawn and the following opinion is substituted therefor. We are taking the opportunity in this substituted opinion to address the State's assertion in its application 1107*1107 for rehearing that John Anthony Altherr's conviction for felony driving under the influence ("DUI") need not be reversed and that Altherr is entitled only to a new sentencing hearing. dui lawyer riverside
John Anthony Altherr was convicted of driving under the influence of alcohol after having been previously convicted of three or more DUI offenses, violations of § 32-5A-191(a), Ala.Code 1975, and § 32-5A-191(h), Ala.Code 1975. He was also convicted of unlawfully possessing prohibited liquor, a violation of § 28-4-20, Ala.Code 1975. Altherr was sentenced to 6 years' imprisonment for the DUI conviction and to 12 months in jail for the conviction for violating the prohibition law. The trial court ordered that the sentences were to run concurrently. This appeal followed. dui lawyer riverside
Altherr contends that he received ineffective assistance of trial counsel because counsel failed to object to an officer's testimony concerning the horizontal gaze nystagmus ("HGN") field-sobriety test when the State failed to lay the proper predicate for the admission of the officer's testimony. Altherr did not present his ineffective-assistance-of-counsel claim to the trial court. "Such claims cannot be presented on direct appeal where they were not first presented to the trial court." Willingham v. State, 796 So.2d 440, 445 (Ala.Crim.App.2001). dui lawyer riverside
"`"[A]n ineffective-assistance-of-counsel claim must be presented in a new trial motion filed before the 30-day jurisdictional time limit set by Rule 24.1(b), Ala. R.Crim. P., expires, in order for that claim to be properly preserved for review upon direct appeal."' [Montgomery v. State, 781 So.2d 1007,] at 1010 [(Ala.Crim.App.2000)](quoting Ex parte Ingram, 675 So.2d 863, 865 (Ala.1996))." dui lawyer riverside
Id.
Because Altherr did not present his claim in a motion for a new trial, it was not preserved for appellate review. dui lawyer riverside
Even if Altherr had preserved his claim for review, however, he would not be entitled to any relief. To prevail on an ineffective-assistance-of-counsel claim, Altherr must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Altherr must show that counsel's performance was deficient and that that deficient performance so prejudiced him that he was deprived of a fair trial. Id.
Without finding that counsel's performance was deficient, we find that Altherr has not shown that he has suffered prejudice. Any evidence regarding the HGN test was harmless. In Cumbie v. City of Montgomery, 703 So.2d 423 (Ala. Crim.App.1997), this Court, in applying a harmless-error analysis, held that because the evidence of the defendant's intoxication was overwhelming, even without the evidence provided by the HGN test, any error in the admission of the results of the HGN test was harmless. Here, even without the evidence provided by the HGN test, the evidence of intoxication was overwhelming. Altherr was driving in an erratic manner, running off the right side of the road and crossing over the center line until finally pulling back into his traffic lane. When Altherr got out of his vehicle, he was unsteady on his feet. Altherr smelled of alcohol. Altherr could barely stand when he was asked to perform a series of field-sobriety tests. When the officer asked him to perform the "walk-and-turn test," Altherr declined to do so. The officer testified that Altherr's eyes were red and that his pupils were constricted. After placing Altherr under arrest, the officer found in Altherr's vehicle four unopened 12-ounce cans of beer and one opened can about three-fourths full. Moreover, Altherr refused to take a 1108*1108 breathalyzer test. In addition, as was the case in Cumbie, the HGN evidence was not presented as scientific evidence, was not accorded undue weight, was part of several field-sobriety tests performed by the officer, and was treated as one of many pieces of evidence. Thus, Altherr has not proven that the outcome of his trial would have been different but for his counsel's allegedly deficient performance. Accordingly, even if Altherr had preserved his claim for appellate review, we would find it to be without merit. dui lawyer riverside
However, based on the Alabama Supreme Court's recent decision in Ex parte Bertram, 884 So.2d 889 (Ala.2003), we find that the trial court improperly found four prior DUI convictions applicable for sentence enhancement pursuant to § 32-5A-191(h), Ala.Code 1975.[1] In Ex parte Bertram, the Court held that a prior conviction in Florida for driving under the influence of alcohol was not a "conviction" within the meaning of the Alabama statute prohibiting driving while under the influence of alcohol; therefore, the out-of-state conviction could not be used as a prior conviction in a prosecution for felony driving under the influence of alcohol, a violation of § 32-5A-191(h), Ala.Code 1975. dui lawyer riverside
In the instant case, the State proved four prior convictions for driving under the influence of alcohol. Two of those convictions were in Georgia, and according to the Alabama Supreme Court in Ex parte Bertram, should not have been used toward the total number of convictions necessary to elevate Altherr's conviction for DUI under § 32-5A-191(a), Ala. Code 1975, to a felony offense pursuant to § 32-5A-191(h), Ala.Code 1975. The Alabama Supreme Court in Bertram, having found that the trial court erred in counting the number of convictions necessary to constitute the subsection (h) felony, also found that the trial court "erred in convicting the defendant on that basis." Bertram, 884 So.2d at 892 (emphasis added). The Alabama Supreme Court reversed Bertram's conviction for felony driving under the influence and remanded the case "for proceedings not inconsistent with 1109*1109 [its] opinion." Bertram, 884 So.2d at 892. "[P]roceedings not inconsistent with [its] opinion" appeared to this Court, and to the four Justices dissenting in Bertram, to mean that the conviction for felony DUI was reversed and the case be remanded for the circuit court to enter judgment against Bertram for a lesser-included offense. We note that § 32-5A-191(g), Ala.Code 1975, provides for the sentence enhancement following a defendant's third DUI conviction in violation of § 32-5A-191(a), Ala.Code 1975, and that § 32-5A-191(f), Ala.Code 1975, provides for the sentence enhancement following a defendant's second DUI conviction in violation of § 32-5A-191(a), Ala.Code 1975. These offenses are defined as a misdemeanors. dui lawyer riverside
In our now withdrawn original opinion in this case, we attempted to follow Bertram by reversing Altherr's conviction for felony DUI and remanding the case for the circuit court to enter judgment against Altherr for the lesser punishment under § 32-5A-191(g), Ala.Code 1975, using the two remaining valid prior DUI convictions. However, the State argued on rehearing that because § 32-5A-191(h), Ala.Code 1975, is a sentence enhancement, Altherr's conviction under § 32-5A-191(a), Ala.Code 1975, is not reversed, but rather this cause should be remanded to the trial court for a new sentencing hearing at which the State should be allowed the opportunity to prove additional Alabama DUI convictions on Altherr's record. In support of this contention, the State argues that the enhancement of the sentence following a DUI conviction is no different from that of an enhancement of a sentence after felony convictions under the Habitual Felony Offender Act ("HFOA").[2] The State contends that the instant situation is no different from that in Connolly v. State, 602 So.2d 452 (Ala.1992), in which the Alabama Supreme Court, discussing the HFOA, held:
"[T]he State's failure to offer certain felonies as the basis for HFOA sentence enhancement does not prevent the State's offer of those felonies at any subsequent sentencing hearing. Where the State, between sentencing hearings, learns of previous felony convictions, it is under a duty to attempt to prove them at the subsequent sentencing hearing." dui lawyer riverside
Connolly v. State, 602 So.2d at 455. (Emphasis added.) dui lawyer riverside
The Alabama Supreme Court's recent opinion, Pruitt v. State, 897 So.2d 406 (Ala. 2004), requires this Court to reconsider the assumption it made about Bertram and to find the State's argument on rehearing is well taken. However, in making this determination we must not only carefully consider Pruitt, but also the Alabama Supreme Court cases of Ex parte Parker, 740 So.2d 432 (Ala.1999), Ex parte Formby 750 So.2d 587 (Ala.1999), and Hale v. State, 848 So.2d 224 (Ala.2002). dui lawyer riverside
In Ex parte Parker, 740 So.2d 432 (Ala. 1999), released on February 26, 1999, Parker was charged by indictment with violating what is now § 32-5A-191(h), Ala.Code 1975.[3] Parker filed a motion in limine to prevent the state from offering evidence at trial of Parker's prior DUI convictions, contending that these convictions were evidence 1110*1110 of bad character. The trial court granted the motion in limine, the State appealed the trial court's ruling, and this Court reversed the trial court's ruling. The Alabama Supreme Court granted Parker's petition for a writ of certiorari to address dui lawyer riverside
"the issue whether § 32-5A-191(h) states a substantive offense, of which the three prior convictions referred to in that subsection are elements, or whether the prior offenses referred to in that subsection are properly to be considered only for the purposes of determining whether upon conviction a defendant shall receive an enhanced sentence." dui lawyer riverside
Ex parte Parker, 740 So.2d at 433. The Alabama Supreme Court in Parker determined that the substantive elements of DUI are set forth in § 32-5A-191(a), Ala. Code 1975,[4] and that "the legislative intent" of § 32-5A-191(h), Ala.Code 1975, is that subsection (h) provides for sentence enhancement, rather than stating the elements of an offense. Ex parte Parker, 740 So.2d at 435. dui lawyer riverside
Following Parker, on August 27, 1999, in Ex parte Formby, 750 So.2d 587 (Ala. 1999), the Alabama Supreme Court accepted the State's invitation on application for rehearing to clarify whether the district court or the circuit court had original jurisdiction over a DUI made a felony pursuant to § 32-5A-191(h), Ala.Code 1975. The question naturally arose because if the substantive charge is contained in § 32-5A-191(a), Ala.Code 1975, it is a traffic offense over which the district court has jurisdiction, but the district court does not have jurisdiction over a felony offense defined in § 32-5A-191(h), Ala.Code 1975. Jurisdiction over felony charges is in the circuit court. dui lawyer riverside
Formby was indicted for violating § 32-5A-191(a)(2), Ala.Code 1975, "`after having been convicted of three (3) prior Driving Under the Influence Violations.'" Ex parte Formby, 750 So.2d at 588. As in Parker, the State was allowed to introduce before the jury evidence of Formby's three prior DUI's. Ultimately the Alabama Supreme Court reversed the judgment in Formby on the authority of Parker. On application for rehearing the Alabama Supreme Court answered the following question posed by the State in its brief on application for rehearing: dui lawyer riverside
"`Does the Parker decision render Formby's conviction, and the convictions of all others similarly situated, void for lack of jurisdiction because they are based on indictments which originated in the Circuit Court when the District Court has exclusive original jurisdiction of misdemeanor prosecutions for traffic infractions?'" dui lawyer riverside
Ex parte Formby, 750 So.2d at 589 (quoting the State's brief at page 2.) In reaching the above question, the Alabama Supreme Court clarified in Formby that "Parker held that a fourth or subsequent DUI conviction is a felony conviction, rather than a misdemeanor conviction." Ex parte Formby, 750 So.2d at 589. The Formby 1111*1111 Court again explained that the "import" of its holding in Parker was that prior DUI convictions should not be presented during the "guilt phase" of the trial. Ex parte Formby, 750 So.2d at 590. To allow otherwise would taint the jury's determination of "guilt in regard to the instant offense." Ex parte Formby, 750 So.2d at 590. However, the Court continued by stating:
"Of course, due-process protections also require that the defendant be on notice of the charges against him, so the indictment should put him on notice that he is being charged with a violation of § 32-5A-191(a)(2), made a felony by § 32-5A-191(h)." dui lawyer riverside
Ex parte Formby, 750 So.2d at 590 (emphasis added.) Thus, Formby appeared to require that a charging instrument underlying a charge of felony DUI include the fact that the state was seeking a felony conviction. It appeared in Formby that the purpose behind this requirement was not only to provide notice to the defendant of the state's intent to seek sentence enhancement, but also to resolve the question as to which court had jurisdiction. dui lawyer riverside
The Alabama Supreme Court noted that "[t]he indictment gave Formby appropriate notice of the charges against him." Ex parte Formby, 750 So.2d at 591. Because the indictment in Formby gave him appropriate notice by charging him with a felony, "it was appropriate for the prosecution to proceed in the circuit court." Ex parte Formby, 750 So.2d at 591 (emphasis added) dui lawyer riverside .
"[T]he Legislature's enactment of § 32-5A-191(h) made jurisdiction over a fourth or subsequent DUI charge appropriate in the circuit court, because the offense charged — a fourth or subsequent DUI offense — is a felony. This Court's decision in Parker had no impact on that jurisdictional issue. Prosecutions for felony DUI offenses should have been, and should continue to be, in the circuit court."
Ex parte Formby, 750 So.2d at 590-91 (footnote omitted). dui lawyer riverside
Thus, if an indictment charged felony DUI, the circuit court had jurisdiction, otherwise, the district court had jurisdiction and in the district court there could be no proof of a felony. dui lawyer riverside
Thus, Parker and Formby established: that § 32-5A-191(a), Ala.Code 1975, sets forth the substantive elements of the offense of DUI; that § 32-5A-191(h), Ala. Code 1975, is a sentence enhancement to § 32-5A-191(a), Ala.Code 1975; that an indictment should put a defendant on notice that he is being charged with felony DUI; and that the circuit court has jurisdiction over an indictment charging felony DUI. dui lawyer riverside
On October 11, 2002, the Alabama Supreme Court released Hale v. State, 848 So.2d 224 (Ala.2002). Hale was convicted of unlawful distribution of marijuana, but the case is relevant to this discussion because it was relied upon by the Alabama Supreme Court in disposing of Pruitt, a 2004 opinion involving felony DUI. dui lawyer riverside
Hale was sentenced "as an habitual felony offender with one prior felony conviction, to the maximum of life imprisonment (§ 13A-5-9(a)(2), Ala.Code 1975), plus an additional ten years' imprisonment pursuant to the schoolyard and public housing project enhancement statutes (§§ 13A-12-250 and 13A-12-270, Ala.Code 1975, respectively)." Hale, 848 So.2d at 226. Hale argued that the trial court was without jurisdiction to apply the schoolyard and public-housing-project sentence enhancements because the indictment returned against him did not charge these facts and they were not proven beyond a reasonable doubt to the jury. Hale relied on Apprendi v. New Jersey, 530 U.S. 466, 1112*1112 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),[5] in support of this argument. Adopting this Court's rationale in Poole v. State, 846 So.2d 370, 373 (Ala.Crim.App.2001), the Alabama Supreme Court held "that the absence of sentence enhancement allegations from the indictment does not deprive the trial court of jurisdiction to impose the enhancements." Hale, 848 So.2d at 233. The Hale Court also adopted the holding from Poole that "`[c]onstitutional defects must be objected to in the trial court before we may review them on appeal....'" Therefore, before this Court will review an alleged Apprendi violation, the defendant must object in the trial court....'" Hale, 848 So.2d at 233 (quoting Poole, 846 So.2d at 381) (emphasis omitted).
On May 7, 2004, the Alabama Supreme Court released Pruitt v. State, supra. Pruitt was indicted for two counts of DUI. dui lawyer riverside
"Count one of the indictment charged Pruitt with the offense of `unlawfully operat[ing] a motor vehicle on a public street or road in Sumter County, to-wit: County Road 13 while under the influence of alcohol and having been convicted of three prior offenses of driving under the influence, in violation of [§] 32-5A-191(a)(2) of the Code of Alabama.' The second count of the indictment charged Pruitt with the offense of having `unlawfully operate[d] a motor vehicle on a public street or road in Sumter County, to-wit: County Road 13 while there was 0.08% or more of alcohol by weight in his blood, in violation of [§] 32-5A-191(a)(1) of the Code of Alabama.'" dui lawyer riverside
Pruitt, 897 So.2d at 407. (Emphasis added.) It appeared from the face of the indictment that count I charged a felony and that count II charged a misdemeanor. dui lawyer riverside
During Pruitt's jury trial, the State elected to proceed under count two of the indictment, and the jury found Pruitt guilty of count two. For the incarceration portion of his sentence, the trial court sentenced Pruitt "as a felon to one year and a day based upon his three prior DUI convictions," which sentence "was subject to suspension after Pruitt served 90 days in jail." Pruitt, 897 So.2d at 407. This Court "remanded the case for the trial court to vacate Pruitt's conviction for felony DUI and to adjudge him guilty of a misdemeanor DUI in accordance with count two of the indictment" Pruitt, 897 So.2d at 407-08, because "count two of the indictment contained no reference to § 32-5A-191(h), Ala.Code 1975, which makes a fourth or subsequent conviction for DUI a felony and because Pruitt was not on notice [as required by Formby] that he was being charged with a felony [in count II], the trial court could not have convicted him of felony DUI." Pruitt, 897 So.2d at 407. The state filed an application for rehearing which this Court denied and the Alabama Supreme Court granted certiorari review. dui lawyer riverside
The State, citing Hale, argued that because § 32-5A-191(h), Ala.Code 1975, dui lawyer riverside
"acts as a sentence enhancement rather than to define substantive elements of a separate offense, the failure to reference § 32-5A-191(h) in the indictment does not deprive the trial court of jurisdiction to impose the enhancement portion of the sentence." dui lawyer riverside
Pruitt, 897 So.2d at 408 (emphasis added). dui lawyer riverside
The Alabama Supreme Court, quoting Hale, answered as follows: dui lawyer riverside
1113*1113 "Because subsection (h) merely prescribes punishment for someone convicted under subsection (a), `the absence of [a reference to § 32-5A-191(h)] from the indictment does not deprive the trial court of jurisdiction to impose the [felony sentence].' Hale v. State, supra; see also Ex parte Porter, 850 So.2d 315, 316 (Ala.2002)." dui lawyer riverside
Pruitt, 897 So.2d at 408 (Ala.2004)(bracketed material added in Pruitt) (emphasis added). Furthermore, the Alabama Supreme Court continued:
"[T]he absence of a reference to § 32-5A-191(h) in the indictment does not conflict with this Court's holding in Ex parte Formby ... in which we held that the indictment should put the defendant on notice of the charges against him. The indictment gave Pruitt appropriate notice that he was being charged with a violation of § 32-5A-191(a)(1)." dui lawyer riverside
Pruitt, 897 So.2d at 408 (emphasis added). dui lawyer riverside
Moreover, the Pruitt Court continued citing Hale for the proposition that Pruitt had not preserved for appellate review his claim that he was denied due process on the grounds that he had no notice that count II charged felony DUI, because Pruitt failed to object when the State offered into evidence the three prior DUI convictions. dui lawyer riverside
Thus, as we read Pruitt, if a cause is properly before the circuit court,[6] a finding a guilt pursuant to § 32-5A-191(a), Ala.Code 1975, may be followed by sentence enhancements under §§ 32-5A-191(f), (g), or (h), Ala.Code 1975.[7] The Alabama Supreme Court's instructions in Formby that "the indictment should put [a defendant] on notice that he is being charged with a violation of § 32-5A-191(a)(2), made a felony by § 32-5A-191(h)" were either clarified or implicitly overruled in Pruitt, which clearly stated that the only notice a defendant was entitled to in an indictment charging DUI was notice that he was being charged with a violation of § 32-5A-191(a), Ala.Code 1975. Ex parte Formby, 750 So.2d at 590 (emphasis added). Pruitt underscored that the absence of a reference to § 32-5A-191(h) in an indictment otherwise charging an offense defined in § 32-5A-191(a), Ala.Code 1975, is not a jurisdictional defect, it is a notice defect. Pruitt, 897 So.2d at 408. Lack of notice from the State regarding its intentions to seek application of sentence enhancements is not a jurisdictional defect prohibiting action on the indictment, but rather a constitutional concern the denial of which may not be challenged in the absence of an objection made at trial. dui lawyer riverside
Hopefully, having correctly interpreted the Alabama Supreme Court's intent in Parker, Formby, and Pruitt, we now turn to the question raised on rehearing 1114*1114 by the State in the instant case: May the State prove prior DUI convictions at a subsequent sentencing hearing as allowed under the HFOA. We answer affirmatively. dui lawyer riverside
Based on the cases discussed above, we see no reason to distinguish sentence enhancement under the HFOA from sentence enhancement under the DUI law. Both are used strictly for sentence enhancement and have no effect on the underlying substantive offense: both carry notice requirements that may be waived; and neither requires inclusion in the indictment. dui lawyer riverside
Therefore, because § 32-5A-191(h) is a sentence enhancement similar in purpose and character to sentence enhancements under the HFOA, we see no reason to treat them differently from the sentence enhancements applied under the HFOA. dui lawyer riverside
Thus, for the reasons stated above, Altherr's conviction for felony DUI is reversed and this cause is remanded to the circuit court with instructions to conduct a second sentencing hearing, where the state can "attempt to prove all previous [Alabama DUI] convictions [of which] the State is aware." Connolly v. State, 602 So.2d at 455. However, as with the HFOA, "[t]o enhance a defendant's sentence ... the State must give proper notice of its intent to do so." Connolly v. State, 602 So.2d at 455. dui lawyer riverside
In addition, the trial court's sentence of 12 months for Altherr's conviction of unlawfully selling, possessing, or exchanging prohibited beverages, a violation of § 28-4-20, Ala.Code 1975, is improper. Section 28-4-21, Ala.Code 1975, states that a violation of § 28-4-20, Ala.Code 1975, is a misdemeanor "punishable by a fine of not less than $ 50.00 nor more than $ 500.00, to which ... may be added imprisonment in the county jail or at hard labor for the county for not more than six months for the first conviction." The record does not indicate that Altherr has previously been convicted for violating § 28-4-20, Ala.Code 1975. Thus, Altherr should not have been sentenced to more than six months in jail for violating § 28-4-20, Ala. Code 1975. The trial court is directed to amend Altherr's sentence for possessing prohibited liquor and to resentence Altherr in compliance with § 28-4-21, Ala. Code 1975. dui lawyer riverside
Due return shall be made to this Court at the earliest possible time and within 77 days after the release of this opinion.
APPLICATION GRANTED; OPINION OF JANUARY 30, 2004, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.[*] dui lawyer riverside
dui lawyer riverside
McMILLAN, P.J., and BASCHAB, SHAW, and WISE, JJ., concur.
[1] "On a fourth or subsequent conviction, a person convicted of violating this section shall be guilty of a Class C felony and punished by a fine of not less than four thousand one hundred dollars ($4,100) nor more than ten thousand one hundred dollars ($10,100) and by imprisonment of not less than one year and one day nor more than 10 years. Any term of imprisonment may include hard labor for the county or state, and where imprisonment does not exceed three years confinement may be in the county jail. Where imprisonment does not exceed one year and one day, confinement shall be in the county jail. The minimum sentence shall include a term of imprisonment for at least one year and one day, provided, however, that there shall be a minimum mandatory sentence of 10 days which shall be served in the county jail. The remainder of the sentence may be suspended or probated, but only if as a condition of probation the defendant enrolls and successfully completes a state certified chemical dependency program recommended by the court referral officer and approved by the sentencing court. Where probation is granted, the sentencing court may, in its discretion, and where monitoring equipment is available, place the defendant on house arrest under electronic surveillance during the probationary term. In addition to the other penalties authorized, the Director of Public Safety shall revoke the driving privilege or driver's license of the person convicted for a period of five years. dui lawyer riverside
"Any law to the contrary notwithstanding, the Alabama habitual felony offender law shall not apply to a conviction of a felony pursuant to this subsection, and a conviction of a felony pursuant to this subsection shall not be a felony conviction for purposes of the enhancement of punishment pursuant to Alabama's habitual felony offender law." dui lawyer riverside
§ 32-5A-191(h), Ala.Code 1975. dui lawyer riverside
[2] We note that "[a]ny law to the contrary notwithstanding, the Alabama habitual felony offender law shall not apply to a conviction of a felony pursuant to this subsection, and a conviction of a felony pursuant to this subsection shall not be a felony conviction for purposes of the enhancement of punishment pursuant to Alabama's habitual felony offender law." § 32A-5A-191(h), Ala.Code 1975. dui lawyer riverside
[3] Before May 28, 1996, the provisions of § 32-5A-191(h), Ala.Code 1975, appeared in § 32-5A-191(f), Ala.Code 1975.
[4] "(a) A person shall not drive or be in actual physical control of any vehicle while: dui lawyer riverside
"(1) There is 0.08 percent or more by weight of alcohol in his or her blood; dui lawyer riverside
"(2) Under the influence of alcohol; dui lawyer riverside
"(3) Under the influence of a controlled substance to a degree which renders him or her incapable of safely driving; dui lawyer riverside
"(4) Under the combined influence of alcohol and a controlled substance to a degree which renders him or her incapable of safely driving; or
"(5) Under the influence of any substance which impairs the mental or physical faculties of such person to a degree which renders him or her incapable of safely driving." dui lawyer riverside
§ 32-5A-191(a), Ala.Code 1975. dui lawyer riverside
[5] Apprendi holds that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Poole v. State, 846 So.2d 370, 375 (Ala.Crim.App.2001)(emphasis omitted). dui lawyer riverside
[6] "Section 12-11-30(2) provides in pertinent part: `The circuit court shall have exclusive original jurisdiction of all felony prosecutions and of misdemeanor or ordinance violations which are lesser included offenses within a felony charge or which arise from the same incident as a felony charge.....' (Emphasis added in Russell.) See also Ala. R.Crim. P. 2.2(a)." Ex parte Russell, 643 So.2d 963, 965 (Ala.1994). "[T]he dismissal of a felony-DUI charge against a defendant did not strip the circuit court of jurisdiction over the remaining misdemeanor charges." Davis v. State, 806 So.2d 404, 406 (Ala.Crim.App.2001), citing Casey v. State, 740 So.2d 1136 (Ala.Crim. App.1998). dui lawyer riverside
[7] An indictment that charged only a violation of § 32-5A-191(a), Ala.Code 1975, could be heard only in the district court because that offense, absent an additional charge in the indictment invoking the circuit court's jurisdiction, charges a misdemeanor. In the district court, enhancements are limited to those found in § 32-5A-191(f) and (g), Ala.Code 1975. dui lawyer riverside
[*] Note from the reporter of decisions: On January 7, 2005, on return to remand, the Court of Criminal Appeals affirmed, without opinion.
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Ex parte Formby, 750 So. 2d 587 - Ala: Supreme Court 1999ReadHow citedSearch
Highlighting dui
750 So.2d 587 (1999) dui lawyer riverside
Ex parte Stanley FORMBY.
(Re Stanley Formby v. State). dui lawyer riverside
1972151.
Supreme Court of Alabama.April 9, 1999.
Opinion Overruling Rehearing August 27, 1999. dui lawyer riverside
588*588 Jerry N. Quick, Trussville, for petitioner. dui lawyer riverside
Bill Pryor, atty. gen., and Andy S. Poole, asst. atty. gen., for respondent. dui lawyer riverside
MADDOX, Justice.
The legal issue presented in this case is the same as that presented in Ex parte Parker, 740 So.2d 432 (Ala.1999). The judgment of the Court of Criminal Appeals is reversed and the cause remanded, based on our holding in that case.
REVERSED AND REMANDED. dui lawyer riverside
HOOPER, C.J., and HOUSTON, KENNEDY, COOK, SEE, LYONS, and JOHNSTONE, JJ., concur.
BROWN, J., recuses herself.
On Application for Rehearing
MADDOX, Justice.
In its application for rehearing the State presents two issues. The State's application is due to be overruled, but we will explain our reasons.
Facts and Procedural History
On November 24, 1995, Stanley Formby was stopped by a Riverside police officer and was arrested for driving under the influence of alcohol. In June 1996, the St. Clair County grand jury returned a two-count indictment against Formby. Before the trial, the defendant moved to require that the State elect which of the two charges it would proceed on, and Judge Robert Austin granted that motion. The State elected to proceed on Count II, which charged: dui lawyer riverside
"The Grand Jury of [St. Clair] County charges that before the finding of this indictment, STANLEY FORMBY, whose true name is otherwise unknown to the Grand Jury, after having been convicted of three (3) prior Driving Under the Influence Violations within the past five (5) years,[1] did on or about November 24, 1995, drive or was in actual physical control of a vehicle on a highway in St. Clair County while under the influence of alcohol to a degree which rendered him incapable of safely operating a motor vehicle, in violation of 589*589 Section 32-5A-191(a)(2) of the Code of Alabama." dui lawyer riverside
Formby objected to Count II, arguing that allowing the jury to be informed of his prior DUI convictions in the guilt phase of his trial would be prejudicial and would bias the jury against him. The trial judge overruled that objection. During its case-in-chief, the state admitted evidence of Formby's three prior convictions, and the jury subsequently found him guilty. The trial judge sentenced him to four years in prison.
The Court of Criminal Appeals affirmed Formby's conviction and sentence. This Court, on April 9, 1999, reversed on the authority of Ex parte Parker, 740 So.2d 432 (Ala.1999). dui lawyer riverside
Discussion
I.
The State's first issue presented in its rehearing application, the answer to which is dispositive, is:
"Does the Parker decision render Formby's conviction, and the convictions of all others similarly situated, void for lack of jurisdiction because they are based on indictments which originated in the Circuit Court when the District Court has exclusive original jurisdiction of misdemeanor prosecutions for traffic infractions?" dui lawyer riverside
(State's application for rehearing, at 2.) Our review of the State's brief indicates that the state may be laboring under the mistaken inference that in Parker this Court held that a "felony DUI," i.e., a fourth or subsequent DUI conviction, is actually a misdemeanor. The State argues:
"The question raised by this Court's application of Parker to this case presents this Court with the opportunity to clarify the application of Parker. The first question is whether this Court's holding in Parker renders void all convictions in circuit courts for felony DUIs, because the circuit courts had no jurisdiction over misdemeanor traffic infractions." dui lawyer riverside
(State's brief and argument in support of application for rehearing, at 8.) We accept the State's invitation to clarify Parker.
In Parker, we held: dui lawyer riverside
"Section 32-5A-191, plainly read, compels the conclusion that the provisions of the present subsection (h) were intended to declare certain DUI convictions to be felony convictions. ..."
dui lawyer riverside
Ex parte Parker, 740 So.2d at 434 (emphasis added). The Code subsection in question provides:
"(h) On a fourth or subsequent conviction, a person convicted of violating this section shall be guilty of a Class C felony and punished by a fine of not less than four thousand one hundred dollars ($4,100) nor more than ten thousand one hundred dollars ($10,100) and by imprisonment of not less than one year and one day nor more than 10 years." dui lawyer riverside
§ 32-5A-191(h), Ala.Code 1975 (emphasis added). dui lawyer riverside
To clarify, then, Parker held that a fourth or subsequent DUI conviction is a felony conviction, rather than a misdemeanor conviction. Parker, thus, is consistent not only with the plain language of § 32-5A-191(h) but also with the general definition of "felony" found in Title 13A, the Criminal Code, which defines a "felony" as "[a]n offense for which a sentence to a term of imprisonment in excess of one year is authorized by this title." § 13A-1-2(4).
Having explained that Parker does not stand for the proposition that "felony DUI" convictions are really misdemeanor convictions, we now discuss our understanding of the effect of that conclusion. We held in Parker: dui lawyer riverside
"[W]e are not persuaded by the State's contention that the phrase `a person [convicted a fourth time] shall be guilty of a Class C felony and punished' evidences a legislative intent to establish a substantive offense in subsection (h). 590*590 Contrary to the State's argument, the legislative intent as we perceive that intent to be, supports our interpretation of subsection (h) as providing for sentence enhancement, rather than as stating the elements of an offense." dui lawyer riverside
Parker, 740 So.2d at 435 (emphasis omitted; new emphasis added). The import of that holding is that during the guilt phase of a defendant's DUI trial the jury should not be presented with evidence of the defendant's prior DUI convictions. In so holding, we sought to prevent prejudicial information of a defendant's prior convictions from tainting the jury's determination of guilt in regard to the instant offense. Of course, due-process protections also require that the defendant be on notice of the charges against him, so the indictment should put him on notice that he is being charged with a violation of § 32-5A-191(a)(2), made a felony by § 32-5A-191(h). dui lawyer riverside
II.
We now apply the law, as explained above, to the facts of this present case. In its opinion affirming Formby's conviction, the Court of Criminal Appeals wrote: dui lawyer riverside
"In any event, the appellant's due process rights were not violated by the fact that the indictment, which was read to the jury, referred to three previous D.U.I. convictions, because `"[t]he obvious purpose of [using a prior conviction as an element of the charged offense is to] ensure that the accused is fully advised and informed of the nature and extent of the offense for which he stands charged. The aggravating circumstance is a statutory element of the crime which must be alleged and proven."' Cain v. State, 562 So.2d 306, 308 (Ala. Cr.App.1990), quoting Hubbard v. State, 500 So.2d 1204, 1215 (Ala.Cr.App.1986). In Cain, we held that the defendant's due process rights were not violated, although the indictment against him, which was read to the jury, referred to a prior conviction for the unlawful possession of marijuana. We based our decision on the fact that a prior conviction of second-degree unlawful possession of marijuana—or unlawful possession of marijuana for personal use—was an element of first-degree unlawful possession of marijuana, and thus, must have been alleged and proven at trial. Similarly, in State v. Parker, 740 So.2d 421 (Ala.Cr. App.1996), opinion on rehearing, 740 So.2d at 424 (Ala.Cr.App.1997), this Court held that an indictment for felony D.U.I. should contain reference to the three prior D.U.I. convictions because those convictions are a material element of the offense."
Formby v. State, 750 So.2d 581, 584-85 (Ala.Crim.App.1997). This is the issue of law at the heart of this Court's opinion in Parker. The Court of Criminal Appeals noted that while Formby objected in limine to having evidence of his prior DUI convictions admitted into evidence, and while he objected during the trial to the admission of the evidence of his prior convictions, he did not assert, when he objected during the trial, that he was objecting for the same reasons he had objected to the court's reading the indictment to the jury. Nonetheless, as a result of this Court's Parker decision, introducing evidence of prior DUI convictions during the guilt phase of a trial will be deemed prejudicial and reversible error. This Court, accordingly, on original submission, reversed the judgment of the Court of Criminal Appeals in Formby, on the authority of Parker.
Conclusion dui lawyer riverside
The State has not convinced us that our holding on original submission was erroneous. In summary, the short answer to the State's first question is that the Legislature's enactment of § 32-5A-191(h) made jurisdiction over a fourth or subsequent DUI charge appropriate in the circuit court, because the offense charged—a fourth or subsequent DUI offense—is a felony. This Court's decision in Parker 591*591 had no impact on that jurisdictional issue. Prosecutions for felony DUI offenses should have been, and should continue to be, in the circuit court.[2] dui lawyer riverside
The indictment gave Formby appropriate notice of the charges against him. Because the indictment charged him with a felony, it was appropriate for the prosecution to proceed in the circuit court. We reversed because the prosecution was allowed, during the guilt phase of Formby's trial, to present evidence of three prior DUI convictions; under Parker, that was reversible error. dui lawyer riverside
We reiterate that Parker stands for the proposition that a conviction for a fourth or subsequent DUI is a felony conviction. Further, as we held in Parker, it is reversible error for a jury, during the guilt phase of a trial, to be presented with evidence of the defendant's prior DUI convictions. The prior convictions are not to be considered until after the jury has passed on the question of the defendant's guilt.
APPLICATION OVERRULED. dui lawyer riverside
HOOPER, C.J., and HOUSTON, COOK, LYONS, and JOHNSTONE, JJ., concur. dui lawyer riverside
BROWN, J., recuses herself. dui lawyer riverside
[1] The statute has since been amended to remove the requirement that the defendant's three prior DUI convictions be within a five-year period. See Act No. 96-705, Ala. Acts 1996.
[2] Because the second issue the State raises in its rehearing application is premised on a "yes" answer to the first question, we need not discuss that second question.
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Ex parte Parker, 740 So. 2d 432 - Ala: Supreme Court 1999ReadHow citedSearch
Highlighting dui
740 So.2d 432 (1999)
Ex parte James Gregory PARKER.
(Re State v. James Gregory Parker).
dui lawyer riverside
1970001.
Supreme Court of Alabama.
February 26, 1999.
433*433 Thomas D. Motley of Motley & Motley, Dothan, for petitioner.
Bill Pryor, atty. gen., and Joseph G.L. Marston III, asst. atty. gen., for respondent. http://www.beatmydui.com
COOK, Justice. dui lawyer riverside
James Gregory Parker was indicted for driving under the influence; the indictment purported to charge a violation of § 32-5A-191(f). Parker was indicted before the May 28, 1996, amendment of § 32-5A-191. See Act No. 96-705 Ala. Acts 1996. That amendment moved the provisions of § 321-5A-191(f), under which Parker was indicted, to § 32-5A-191(h), where they currently appear. The first trial resulted in a mistrial. Subsequently, Parker filed a motion in limine to prevent the State from offering, in a second trial, any evidence of his prior DUI convictions; those prior convictions had been alleged in the indictment. As grounds for his motion, Parker argued that the fact of the prior convictions was not an element of the crime for which he was charged and that evidence of those prior convictions would constitute improper evidence of bad character. The trial court granted his motion. The State appealed from the order granting the motion in limine. The Court of Criminal Appeals reversed that order. State v. Parker, 740 So.2d 421 (Ala.Crim. App.1996). We granted Parker's petition for certiorari review. dui lawyer riverside http://www.beatmydui.com
We address the issue whether § 32-5A-191(h) states a substantive offense, of which the three prior convictions referred to in that subsection are elements, or whether the prior offenses referred to in that subsection are properly to be considered only for the purposes of determining whether upon conviction a defendant shall receive an enhanced sentence. We reverse and remand. dui lawyer riverside
Parker had at least three prior convictions for driving under the influence within the preceding five-year period. Under the provisions of the statute, a person convicted of driving under the influence of alcohol or a controlled substance (the offense dealt with in § 32-5A-191) is guilty of a Class "C" felony if the DUI conviction is the "fourth or subsequent such conviction" within five years. (The "within five years" provision has now been removed from subsection (h).) See § 32-5A-191(h), Ala. Code 1975. dui lawyer riverside
Parker contends that § 32-5A-191(f) (now § 39-5A-191(h)) is a sentence-enhancement provision and does not state a substantive offense. Parker further argues that to allow his prior DUI convictions into evidence during his trial would be to admit evidence of bad character, as opposed to evidence of a substantive offense. Thus, Parker argues that his prior DUI convictions should not be considered as an element of the substantive offense with which he is now charged, but rather should be considered for the purpose of enhancing his sentence if he is convicted of driving under the influence. dui lawyer riverside
434*434 The Court of Criminal Appeals, reversing the order granting the motion in limine, cited several examples of statutes that include a prior conviction or convictions as an element of the substantive offense. See, C. Gamble, McElroy's Alabama Evidence § 69.01(1) (4th ed.1991) (if the defendant's commission of another crime or misdeed is an element of guilt, then proof of that other act is admissible). For example, §§ 13A-10-31(a)(2), 13A-11-72(a), and 13A-12-213(a)(2) each includes, as part of the substantive offense, the fact that the defendant has had one or more prior convictions; this fact of the prior convictions must be charged in the indictment and proved. dui lawyer riverside
Section 13A-10-31(a)(2) states that a person commits the crime of "escape in the first degree" if, "[h]aving been convicted of a felony, he escapes or attempts to escape from custody imposed pursuant to that conviction." dui lawyer riverside
Section 13A-11-72(a) defines the offense commonly referred to as unlawfully carrying a pistol, as follows: dui lawyer riverside
"No person who has been convicted in this state or elsewhere of committing or attempting to commit a crime of violence shall own a pistol or have one in his or her possession or under his or her control." dui lawyer riverside
Section 13A-12-213(a)(2) defines "unlawful possession of possession of marihuana in the first degree" to include the situation in which a person possesses "marihuana for his personal use only after having been previously convicted of unlawful possession of marihuana in the second degree or unlawful possession of marihuana for his personal use only." dui lawyer riverside
However, each of these three examples, all cited in the opinion of the Court of Criminal Appeals, involves a statute that includes the fact of the prior conviction or convictions as part of the substantive offense, not as factors for enhancing a sentence. dui lawyer riverside
In contrast, § 32-5A-191(h) (the current codification of the applicable statute) provides in pertinent part: dui lawyer riverside
"On a fourth or subsequent conviction, a person convicted of violating this section shall be guilty of a Class C felony and punished by [a fine and a sentence within certain ranges]." dui lawyer riverside
(Emphasis added.)
Section 32-5A-191(a) provides in pertinent part: dui lawyer riverside
"A person shall not drive or be in actual physical control of any vehicle while: dui lawyer riverside
"(1) There is 0.08 percent or more by weight of alcohol in his or her blood; dui lawyer riverside
"(2) Under the influence of alcohol...." dui lawyer riverside
Section 32-5A-191, plainly read, compels the conclusion that the provisions of the present subsection (h) were intended to declare certain DUI convictions to be felony convictions and to prescribe punishment, rather than to define the substantive elements of a separate offense. Furthermore, the substantive elements of the offense dealt with by § 32-5A-191 are set out in subsection (a). Judge Long pointed this out in his dissent from the Court of Criminal Appeals' September 26, 1997, opinion on application for rehearing; in that dissent, he noted that the State conceded that the provisions of current subsections (e), (f), and (g)—relating to defendants convicted of a first, a second, or a third DUI conviction—are sentencing provisions and do not state substantive elements of an offense. dui lawyer riverside
Subsection (e) reads: dui lawyer riverside
"Upon first conviction, a person violating this section shall be punished by...." dui lawyer riverside
Subsection (f) reads: dui lawyer riverside
"On a second conviction within a five-year period, a person convicted of violating 435*435 this section shall be punished by...."
Subsection (g) reads:
"On a third conviction, a person convicted of violating this section shall be punished by ...." dui lawyer riverside
The fundamental difference between subsection (h) and subsections (e), (f), and (g) is that subsection (h) makes the fourth conviction punishable as a felony. The State argues that subsection (h) is significantly different from subsections (e), (f), and (g) because subsection (h) changes the offense from a misdemeanor to a felony. Judge Long correctly states in his dissent that this is "a distinction without a difference." 740 So.2d at 430. Subsection (h), while increasing the severity of the punishment, does not alter the substantive offense set out in subsection (a).
Moreover, we are not persuaded by the State's contention that the phrase "a person [convicted a fourth time] shall be guilty of a Class C felony and punished" (emphasis added) evidences a legislative intent to establish a substantive offense in subsection (h). Contrary to the State's argument, the legislative intent as we perceive that intent to be, supports our interpretation of subsection (h) as providing for sentence enhancement, rather than as stating the elements of an offense. The title to Act No. 94-590, Ala. Acts 1994, the act that added the former subsection (f) that is now (h), indicates clearly that the legislature intended, by adopting that subsection, to create an enhancement provision and not to create a separate substantive offense. The title reads as follows: dui lawyer riverside
"AN ACT to amend Section 32-5A-191, Code of Alabama 1975, relating to the offense of driving under the influence of alcohol and drugs to increase the penalties and sanctions for a fourth and subsequent conviction."
(Emphasis added.) The title, which explains in general terms the purpose of the enactment, supports Parker's argument that the subsection is directed toward providing additional punishment rather than creating a separate substantive offense.
For the foregoing reasons, the judgment of the Court of Criminal Appeals is reversed and the cause is remanded.
REVERSED AND REMANDED. dui lawyer riverside
HOOPER, C.J., and MADDOX, HOUSTON, KENNEDY, SEE, and LYONS, JJ., concur. dui lawyer riverside
BROWN, J., recuses herself.
d
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Ex parte Holbert, 4 So. 3d 410 - Ala: Supreme Court 2008ReadHow citedSearch dui lawyer riverside
Highlighting dui
4 So.3d 410 (2008)
Ex parte Arthur Felton HOLBERT.
(In re Arthur Felton Holbert State of Alabama). dui lawyer riverside
1070456.
Supreme Court of Alabama. dui lawyer riverside
July 11, 2008.
Donald A. Chapman, Decatur, for petitioner.
Troy King, atty. gen., and Beth Slate Poe, asst. atty. gen., for respondent. dui lawyer riverside
LYONS, Justice.
Arthur Felton Holbert petitioned this Court for a writ of certiorari to review the decision of the Court of Criminal Appeals affirming his conviction for felony driving under the influence of alcohol ("DUI"), a violation of § 32-5-191(a)(2) and (h), Ala. Code 1975. We granted certiorari review to consider, as a material question of first impression, whether a prior in-state DUI conviction in a municipal court counts toward the total number of prior DUI convictions necessary to constitute the felony offense of DUI under § 32-5A-191(h). For the reasons discussed below, we hold that they do not, and we reverse the judgment of the Court of Criminal Appeals.
I. Facts and Procedural History
On March 22, 2005, a police officer for the City of Decatur arrested Arthur Felton Holbert for DUI, for violating Decatur's open-container ordinance, and for carrying a pistol without a permit.[1] As to the DUI offense, the Morgan County 411*411 grand jury indicted Holbert for felony DUI, a violation of § 32-5A-191(a)(2) and (h), based on numerous prior DUI convictions. Section 32-5A-191 provides, in pertinent part:
"(a) A person shall not drive or be in actual physical control of any vehicle while:
"....
"(2) Under the influence of alcohol;
"....
"(e) Upon first conviction, a person violating this section shall be punished by [stating the penalty].
"(f) On a second conviction within a five-year period, a person convicted of violating this section shall be punished by [stating the penalty].
"(g) On a third conviction, a person convicted of violating this section shall be punished by [stating the penalty].
"(h) On a fourth or subsequent conviction, a person convicted of violating this section shall be guilty of a Class C felony and punished by [stating the penalty]."
(Emphasis added.)
Before Holbert's trial, the State proffered court records showing that Holbert had had four prior DUI convictions. These records reflected a 1981 DUI conviction in the Cullman County District Court, a 1982 DUI conviction in the Hillsboro Municipal Court, a 1994 DUI conviction in the Morgan County District Court, and a 1994 DUI conviction in the Decatur Municipal Court. Holbert orally moved to dismiss the indictment because, he said, his prior DUI convictions in municipal courts cannot be counted toward the total number of prior DUI convictions necessary to enhance his current DUI offense to a felony DUI offense as defined by § 32-5A-191(h). Holbert specifically argued that in Ex parte Bertram, 884 So.2d 889 (Ala.2003), this Court held that only convictions under § 32-5A-191 count toward the number of prior convictions necessary to elevate a DUI offense to a felony offense under § 32-5A-191(h). Thus, Holbert argued that his prior municipal convictions do not count as prior DUI convictions for the purpose of enhancement under § 32-5A-191(h) because, he said, a municipal DUI conviction is a violation of a municipal ordinance and not a violation of § 32-5A-191. The trial court denied Holbert's motion to dismiss.
A jury returned a guilty verdict on the felony DUI charge, and the trial court sentenced Holbert to five years' imprisonment. The trial court then split the sentence and ordered Holbert to serve 18 months in prison followed by a 5-year probationary period. See § 15-18-8, Ala. Code 1975.
Holbert then appealed to the Court of Criminal Appeals, arguing that the trial court improperly denied his motion to dismiss the indictment and allowed the State to use his prior municipal DUI convictions to elevate his DUI charge to a felony offense under § 32-5A-191(h). Holbert contended in the Court of Criminal Appeals, as he did in the trial court, that pursuant to Ex parte Bertram, a municipal DUI conviction is not a conviction under § 32-5A-191 that can elevate a DUI offense to a felony offense as defined by § 32-5A-191(h).
The Court of Criminal Appeals affirmed the judgment of the trial court, without an opinion. Holbert v. State (No. CR-06-1574, Oct. 26, 2007), ___ So.3d ___ (Ala. Crim.App.2007) (table). In an unpublished memorandum, that court first noted that Ex parte Bertram addressed only out-of-state DUI convictions and not municipal DUI convictions. The Court of Criminal Appeals then noted that, before this Court decided Ex parte Bertram, the Court of 412*412 Criminal Appeals had addressed the relationship between municipal DUI convictions and § 32-5A-191(h) in McDuffie v. State, 712 So.2d 1118, 1120 (Ala.Crim.App. 1997). The Court of Criminal Appeals quoted from McDuffie as follows in its memorandum:
"`The appellant further contends that the state should not have been allowed to introduce into evidence two of his prior D.U.I. convictions because, he says, they were convictions for violating a municipal ordinance, rather than convictions for violating § 32-5A-191, Code of Alabama 1975. He argues (1) that the language of § 32-5A-191(h) "refers to three prior violations of that provision as being a pre-requisite to being guilty of felony-DUI" (appellant's brief, p. 8); and (2) that the provisions of a municipal ordinance might not be the same as those in the state statute and[,] thus, the use of any municipal convictions as any of the three prior convictions required by § 32-5A-191(h) would deprive him of proper notice of the charge he was being called upon to defend. We find no merit in these assertions.
"`Our examination of § 32-5A-191(h) reveals no language requiring that the prior convictions required for that section to be applicable be obtained under § 32-5A-191, as the appellant contends.'"
(Quoting 712 So.2d at 1120.) The Court of Criminal Appeals then concluded: "Because Ex parte Bertram held only that out-of-state DUI convictions do not qualify as prior convictions under Alabama law, it is distinguishable from McDuffie. Therefore, [Holbert's] argument is without merit."
Holbert petitioned this Court for certiorari review of the Court of Criminal Appeals' decision. We granted certiorari review to consider, as a material question of first impression, whether a prior in-state DUI conviction in a municipal court can be counted toward the total number of prior DUI convictions necessary to constitute a felony DUI offense as defined in § 32-5A-191(h).[2]
II. Standard of Review
"`This Court reviews pure questions of law in criminal cases de novo.'" Ex parte Morrow, 915 So.2d 539, 541 (Ala.2004) (quoting Ex parte Key, 890 So.2d 1056, 1059 (Ala.2003)).
III. Analysis
Holbert contends that the Court of Criminal Appeals erred in concluding that the trial court had properly denied his motion to dismiss the indictment, holding that a DUI conviction in a municipal court counts toward the total number of prior DUI convictions necessary to constitute a felony DUI offense under § 32-5A-191(h). Holbert asserts that under the plain language of § 32-5A-191(h) only prior DUI convictions for violating § 32-5A-191 can be counted toward those necessary to elevate a DUI conviction to a felony. Holbert contends that his prior DUI convictions in various municipal courts are not violations of § 32-5A-191; rather, he argues, they are violations of municipal ordinances and therefore do not count toward the number 413*413 of prior convictions necessary to constitute a felony DUI offense under § 32-5A-191(h). Holbert acknowledges that in McDuffie the Court of Criminal Appeals held that its "examination of § 32-5A-191(h) reveal[ed] no language requiring that the prior convictions required for that section to be applicable be obtained under § 32-5A-191." 712 So.2d at 1120. However, Holbert then notes that five years after the Court of Criminal Appeals decided McDuffie, this Court decided Ex parte Bertram, which, Holbert argues, held that the plain language of § 32-5A-191(h) requires that prior convictions that elevate a DUI offense to a felony offense must be convictions for violations of § 32-5A-191.
In Ex parte Bertram, this Court granted certiorari review to address the issue "whether Subsection (h) of Section 32-5A-191 means for prior out-of-state convictions for driving under the influence of alcohol to count toward the total of convictions necessary to constitute the felony defined by that subsection." 884 So.2d at 890. This Court first noted well-established rules of statutory construction such as "`"[s]tatutes creating crimes are to be strictly construed in favor of the accused; they may not be held to apply to cases not covered by the words used."'" Ex parte Bertram, 884 So.2d at 891 (quoting Ex parte Jackson, 614 So.2d 405, 406 (Ala. 1993), quoting in turn United States v. Resnick, 299 U.S. 207, 209, 57 S.Ct. 126, 81 L.Ed. 127 (1936)). This Court also noted that "`[o]ne who commits an act which does not come within the words of a criminal statute, according to the general and popular understanding of those words, when they are not used technically, is not to be punished thereunder, merely because the act may contravene the policy of the statute.'" Ex parte Bertram, 884 So.2d at 891 (quoting Clements v. State, 370 So.2d 723, 725 (Ala.1979), citing in turn Fuller v. State, 257 Ala. 502, 505, 60 So.2d 202 (1952)).
This Court then held:
"We read Section 32-5A-191 according to these traditional, well-settled rules of statutory construction. At the very least in favor of the defendant before us, an eminently reasonable construction of this section is that the word conviction means conviction of violating this section everywhere the word conviction appears within the section, including where the word conviction appears in Subsection (h) defining the felony. Such a construction would require that Subsection (h) be read to mean `On a fourth or subsequent conviction [of violating this section], a person convicted of violating this section shall be guilty of a Class C felony and punished by [stating the penalty].' The rules of statutory construction we have quoted require us to adopt this construction rather than the construction urged by the State to the effect that `On a fourth or subsequent conviction [of violating any driving-under-the-influence statute of any state], a person convicted of violating this section shall be guilty of a Class C felony and punished by [stating the penalty].' The construction urged by the State contains an internal inconsistency, extends the purview of the statute beyond its express text, and construes any ambiguity against the defendant and in favor of the State, all contrary to the traditional, well-settled rules of statutory construction."
Ex parte Bertram, 884 So.2d at 892.
Holbert contends that, consistent with the rationale of Ex parte Bertram, § 32-5A-191(h) cannot be interpreted to include DUI convictions from a municipal court because such convictions are not convictions for violations of § 32-5A-191.
414*414 The State contends that Holbert's arguments are without merit because, it argues, the Court of Criminal Appeals' decision in McDuffie has not been overruled or abrogated. The State also asserts that municipal DUI convictions count as prior DUI convictions under § 32-5A-191(h) because § 32-5A-191(h) does not expressly preclude consideration of prior municipal convictions. The State then notes that after this Court issued its decision in Ex parte Bertram, the Court of Criminal Appeals decided Hoover v. State (No. CR-04-0159, June 10, 2005), 926 So.2d 1082 (Ala. Crim.App.2005) (table), holding in an unpublished memorandum that municipal DUI convictions count toward the number of prior DUI convictions necessary to constitute the felony offense of DUI as defined in § 32-5A-191(h). This Court granted certiorari review of the Court of Criminal Appeals' decision in Hoover and then quashed the writ as improvidently granted. See Ex parte Hoover, 928 So.2d 278 (Ala.2005). Justice Stuart dissented from this Court's decision to quash the writ, and the State contends that we should now adopt the reasoning of her dissent.
In her dissent, Justice Stuart stated, in pertinent part:
"I agree with the Court of Criminal Appeals that the holding in Ex parte Bertram should not be read to preclude a violation of a municipal ordinance for driving under the influence of alcohol from counting toward the felony of driving under the influence defined in § 32-5A-191(h). I dissented in Ex parte Bertram because I believe that the majority's holding that the definition of the word `conviction' as used in § 32-5A-191(h), Ala.Code 1975, to mean only a conviction for violating § 32-5A-191 is too limiting. To me the word `conviction' as used in § 32-5A-191 means any conviction for driving under the influence of alcohol, regardless of whether the conviction is for a violation of § 32-5A-191(a) or for a violation of a municipal ordinance or another jurisdiction's statute prohibiting driving under the influence of alcohol or a controlled substance, provided that the underlying conduct would have constituted a conviction for driving under the influence of alcohol or a controlled substance under § 32-5A-191(a), Ala.Code 1975.
"Here, the decision of the Court of Criminal Appeals properly limited the application of this Court's holding in Ex parte Bertram. Because I maintain that this Court needs to revisit its holding in Ex parte Bertram and redefine the word `conviction' to include any conviction for driving under the influence of alcohol that satisfies § 32-5A-191(a), Ala.Code 1975, I would have affirmed the judgment of the Court of Criminal Appeals and overruled this Court's holding in Ex parte Bertram. Thus, I respectfully dissent from the majority's decision to quash the writ."
Ex parte Hoover, 928 So.2d at 280.
In sum, the State contends that the Court of Criminal Appeals properly upheld the trial court's use of Holbert's municipal convictions to elevate Holbert's DUI offense to a felony under § 32-5A-191(h) because, it says, McDuffie and Hoover hold that municipal DUI convictions can be used to enhance a subsequent DUI offense.[3]
415*415 Under this Court's holding in Ex parte Bertram that § 32-5A-191(h) should be read as stating "`On a fourth or subsequent conviction [of violating this section], a person convicted of violating this section shall be guilty of a Class C felony and punished by [stating the penalty],'" 884 So.2d at 892, we must conclude that, independent of § 32-5A-191(o), a DUI conviction in a municipal court does not count toward the total number of prior convictions necessary to constitute a felony DUI offense as defined in subsection (h) because a municipal DUI conviction is not a conviction for violating § 32-5A-191 but merely a conviction for violating a municipal ordinance. Thus, we decline the State's invitation to overrule Ex parte Bertram, and we expressly overrule McDuffie, a decision of the Court of Criminal Appeals, to the extent that it is inconsistent with this holding.[4] As this Court held in Ex parte Bertram, the well-established rule of statutory construction stating that "`[n]o person is to be made subject to penal statutes by implication and all doubts concerning their interpretation are to predominate in favor of the accused,'" 884 So.2d at 891 (quoting Clements, 370 So.2d at 725), requires that § 32-5A-191(h) be read to mean that only convictions under § 32-5A-191 can be counted toward the total number of convictions needed to constitute felony DUI under § 32-5A-191(h).[5] Clements, 370 So.2d at 725.
We recognize that many municipal DUI ordinances have adopted the language of § 32-5A-191. However, an individual convicted of violating a municipal ordinance has not been convicted of violating § 32-5A-191 merely because the ordinance adopted the language of § 32-5A-191. We note that the Court of Criminal Appeals recently and correctly held that, although a municipal DUI ordinance may have adopted the language of § 32-5A-191, the municipal ordinance and § 32-5A-191 set out separate offenses. See City of Decatur v. Lindsey, 989 So.2d 1157, 1164 (Ala.Crim.App.2007), writ quashed Ex parte Lindsey, 989 So.2d 1164 (Ala.2008). In Lindsey, the Court of Criminal Appeals held:
"[W]e note that the penalty provisions set forth in §§ 32-5A-191 and 11-45-9(b),[6] Ala.Code 1975, address different 416*416 subjects. Section 32-5A-191(e), Ala. Code 1975, governs the fines and sentences that may be imposed for the State offense of DUI. Section 11-45-9(b), Ala. Code 1975, governs the fines and sentences that may be imposed for the municipal offense of DUI."
989 So.2d at 1161 (emphasis added).
Based on the foregoing analysis, we conclude that the trial court erred in counting Holbert's prior municipal convictions toward the total number of convictions necessary to constitute the felony offense of DUI under § 32-5A-191(h), and the Court of Criminal Appeals erred in affirming Holbert's conviction for felony DUI.
IV. Conclusion
The judgment of the Court of Criminal Appeals is reversed, and the cause is remanded to that court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
COBB, C.J., and WOODALL, SMITH, BOLIN, and MURDOCK, JJ., concur.
SEE, STUART, and PARKER, JJ., dissent.
STUART, Justice (dissenting).
I respectfully dissent from the majority's refusal to overrule Ex parte Bertram, 884 So.2d 889 (Ala.2003), and its decision to reverse the judgment of the Court of Criminal Appeals. The majority holds:
"Under this Court's holding in Ex parte Bertram that 32-5A-191(h) should be read as stating `"On a fourth or subsequent conviction [of violating this section], a person convicted of violating this section shall be guilty of a Class C felony and punished by [stating the penalty],"' 884 So.2d at 892, we must conclude that, independent of § 32-5A-191(o), a DUI conviction in a municipal court does not count toward the total number of prior convictions necessary to constitute a felony DUI offense as defined in subsection (h) because a municipal DUI conviction is not a conviction for violating § 32-5A-191 but merely a conviction for violating a municipal ordinance."
4 So.3d at 415.
As I stated in my dissents in Ex parte Bertram and Ex parte Hoover, 928 So.2d 278 (Ala.2005), this Court's definition of the term "conviction" as used in § 32-5A-191(h) to mean "conviction of violating this section" is too limiting. This narrow definition finds no basis in the statute, as a reading of the entire statute indicates that the legislature, when drafting this statute, considered several types of convictions for driving under the influence of alcohol or a controlled substance, in addition to convictions for violations of "this section." For example, the legislature in § 32-5A-191(k) provided for fines collected for "violations of this section charged pursuant to a municipal ordinance." Additionally, the legislature considered "generic" driving-under-the-influence-of-alcohol convictions in § 32-5A-191(p) when it provided that the motor-vehicle registration of a repeat driving-under-the-influence-of-alcohol offender, whose offenses result from various "generic" driving-under-the-influence-of-alcohol convictions, shall be suspended.
Furthermore, I note that when the legislature enacted the Alabama Driver License Compact Act, codified at § 32-6-30 et seq., Ala.Code 1975, it established a definition 417*417 for "conviction" with regard to driving offenses, stating:
"(c) `Conviction' means a conviction of any offense related to the use or operation of a motor vehicle which is prohibited by state law, municipal ordinance or administrative rule or regulation, or a forfeiture of bail, bond or other security deposited to secure appearance by a person charged with having committed any such offense and which conviction or forfeiture is required to be reported to the licensing authority." Article II, § 32-6-31, Ala.Code 1975. The legislature further established the effect of a conviction under that Act, stating:
"a) The licensing authority in the home state, for the purpose of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported, pursuant to article III of this compact, as it would if such conduct had occurred in the home state, in the case of conviction for:
"....
"(2) Driving a motor vehicle while under the influence of intoxicating liquor or a narcotic drug, or under the influence of any other drug to a degree which renders the driver incapable of safely driving a motor vehicle."
Article IV, § 32-6-31, Ala.Code 1975. Thus, the legislature has provided in terms of driving offenses a definition of "conviction" that is much broader than the definition given that term by this Court in Ex parte Bertram. Clearly, the legislature, by the language it used in § 32-5A-191(k), § 32-5A-191(p), and § 32-6-31, Ala.Code 1975, intended that the term "conviction" as used in § 32-5A-191(e)-(h)—the sentence-enhancement statutes addressing repeated convictions for driving under the influence of alcohol or a controlled substance—means a conviction for conduct constituting a violation of § 32-5A-191(a), Ala.Code 1975.
In light of the foregoing, I would overrule Ex parte Bertram, and I would affirm the judgment of the Court of Criminal Appeals, holding that a conviction under a municipal ordinance for conduct constituting a violation of § 32-5A-191(a), Ala.Code 1975, can be counted toward the total convictions necessary to constitute the felony defined by § 32-5A-191(h), Ala.Code 1975. Therefore, I dissent.
SEE and PARKER, JJ., concur.
[1] Holbert was convicted of the charges of violating Decatur's open-container ordinance and carrying a pistol without a permit and was sentenced accordingly. Those convictions and sentences are not before us.
[2] In 2006 the legislature added § 32-5A-191(o), which provides:
"A prior conviction within a five-year period for driving under the influence of alcohol or drugs from this state, a municipality within this state, or another state or territory or a municipality of another state or territory shall be considered by a court for imposing a sentence pursuant to this section."
(Emphasis added.) However, § 32-5A-191(o) is not applicable here because it became effective after the commission of the offense that led to Holbert's indictment for felony DUI.
[3] The State erroneously refers to McDuffie and Hoover as decisions of this Court. We assume that error to have arisen from the State's failure to revise the brief filed before the Court of Criminal Appeals before submitting its brief to this Court as opposed to ignorance of the correct court from which these decisions emanated. We have treated the State's contentions before us in a manner consistent with this assumption.
[4] It is not necessary for us to overrule the Court of Criminal Appeals' decision in Hoover because that decision has no precedential value. See Rule 54(d), Ala. R.App. P.
[5] Justice Stuart's dissent relies upon the language of § 32-5A-191(k) and portions of the Alabama Driver License Compact Act, § 32-6-30 et seq., Ala.Code 1975, to conclude that restricting the definition of the term "conviction" as used in § 32-5A-191(h) to a "conviction for violating this section" is too narrow. The dissent states: "[A] reading of the entire statute indicates that the legislature, when drafting this statute, considered several types of convictions for driving under the influence of alcohol or a controlled substance, in addition to convictions for violations of `this section.'" 4 So.3d at 416. The plain language of § 32-5A-191(h) limits the definition of the term "conviction" to a "conviction for violating this section" and, if the legislature had intended the expansive reading urged by the dissent, embracing other sections of the Code, it could have very easily so stated. Further, the dissent would have us look to § 32-5A-191(k) and § 32-6-30 et seq. to construe § 32-5A-191(h) in favor of the State. As this Court noted in Ex parte Bertram: "`[T]he fundamental rule [is] that criminal statutes are construed strictly against the State. See Ex parte Jackson, 614 So.2d 405 (Ala.1993).' Ex parte Hyde, 778 So.2d 237, 239 n. 2 (Ala. 2000)." 884 So.2d at 892.
[6] Section 11-45-9(b), Ala.Code 1975, sets out the penalties that may be imposed for violating municipal ordinances and resolutions:
"No fine shall exceed $500.00, and no sentence of imprisonment or hard labor shall exceed six months except, when in the enforcement of the penalties prescribed in section 32-5A-191, such fine shall not exceed $5,000.00 and such sentence of imprisonment or hard labor shall not exceed one year."
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Ex parte Bertram, 884 So. 2d 889 - Ala: Supreme Court 2003ReadHow citedSearch
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Ex parte Bertram, 884 So. 2d 889 - Ala: Supreme Court 2003
884 So.2d 889 (2003)
Ex parte Patricia Norman BERTRAM.
(In re Patricia Norman Bertram
v.
State of Alabama).
1010892.
Supreme Court of Alabama.March 7, 2003.
Rehearing Denied November 21, 2003.
890*890 Thomas M. Haas, Mobile, for petitioner.
William H. Pryor, Jr., atty. gen., and Andy S. Poole and Yvonne A.H. Saxon, asst. attys. gen., for respondent.
JOHNSTONE, Justice.
The defendant Patricia Norman Bertram was convicted of violating Subsections (a)(2) and (h) of Section 32-5A-191, Ala.Code 1975, "felony driving under the influence." The Court of Criminal Appeals affirmed in an opinion, Bertram v. State, 884 So.2d 886 (Ala.Crim.App.2001).
We granted Bertram's petition for a writ of certiorari to address a single question of first impression: whether Subsection (h) of Section 32-5A-191 means for prior out-of-state convictions for driving under the influence of alcohol to count toward the total of convictions necessary to constitute the felony defined by that subsection. We reverse and remand because traditional rules of statutory construction do not allow that interpretation.
After reserving her right to appeal the adverse rulings of the trial court on the issue now before us, the defendant pleaded guilty to Count I of the indictment, which charged, in pertinent part, that she "did, on or about September 22, 2000, drive or have actual physical control of a vehicle, while [she] was under the influence of alcohol, in violation of § 32-5A-191(a)(2) and (h) of the Code of Alabama...." She admitted that she was under the influence of alcohol while she was driving on September 22, 2000. The State then proffered three prior convictions for driving under the influence of alcohol. The defendant challenged only one of them. Her ground was that the challenged prior conviction was not an Alabama conviction for violating Section 32-5A-191 but was, rather, a Florida conviction for violating a Florida driving-under-the-influence-of-alcohol statute and therefore was not a conviction within the meaning of Subsection (h) of Section 32-5A-191, defining the felony charged against her. The trial court rejected the defendant's challenge, counted the Florida conviction, and convicted the defendant of the Subsection (h) felony.
891*891 Section 32-5A-191 reads, in pertinent part:
"(a) A person shall not drive or be in actual physical control of any vehicle while:
"....
"(2) Under the influence of alcohol;
"....
"....
"(e) Upon first conviction, a person violating this section shall be punished by [stating the penalty].
"(f) On a second conviction within a five-year period, a person convicted of violating this section shall be punished by [stating the penalty].
"(g) On a third conviction, a person convicted of violating this section shall be punished by [stating the penalty].
"(h) On a fourth or subsequent conviction, a person convicted of violating this section shall be guilty of a Class C felony and punished by [stating the penalty]." (Emphasis added.)
The only kind of convictions mentioned by Section 32-5A-191 are convictions for "violating this section." Section 32-5A-191 nowhere mentions any kind of conviction except a conviction for "violating this section." The text of Section 32-5A-191 nowhere mentions generic convictions for "driving under the influence," much less out-of-state generic convictions under out-of-state statutes.
"Words used in a statute must be given their natural, plain, ordinary, and commonly understood meaning, and where plain language is used a court is bound to interpret that language to mean exactly what it says. If the language of the statute is unambiguous, then there is no room for judicial construction and the clearly expressed intent of the legislature must be given effect."
IMED Corp. v. Systems Eng'g Assocs. Corp., 602 So.2d 344, 346 (Ala.1992). "`[I]t is well established that criminal statutes should not be "extended by construction."'" Ex parte Mutrie, 658 So.2d 347, 349 (Ala.1993) (quoting Ex parte Evers, 434 So.2d 813, 817 (Ala.1983), quoting in turn Locklear v. State, 50 Ala.App. 679, 282 So.2d 116 (1973)).
"A basic rule of review in criminal cases is that criminal statutes are to be strictly construed in favor of those persons sought to be subjected to their operation, i.e., defendants. Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956).
"Penal statutes are to reach no further in meaning than their words. Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952).
"One who commits an act which does not come within the words of a criminal statute, according to the general and popular understanding of those words, when they are not used technically, is not to be punished thereunder, merely because the act may contravene the policy of the statute. Fuller v. State, supra, citing [Young v. State], 58 Ala. 358 (1877).
"No person is to be made subject to penal statutes by implication and all doubts concerning their interpretation are to predominate in favor of the accused. Fuller v. State, supra."
Clements v. State, 370 So.2d 723, 725 (Ala.1979) (quoted in whole or in part in Ex parte Murry, 455 So.2d 72, 76 (Ala.1984), and in Ex parte Walls, 711 So.2d 490, 494 (Ala.1997)) (emphasis added).
"`Statutes creating crimes are to be strictly construed in favor of the accused; they may not be held to apply to cases not covered by the words used ....' United States v. Resnick, 299 U.S. 892*892 207, 209, 57 S.Ct. 126, 127, 81 L.Ed. 127 (1936). See also, Ex parte Evers, 434 So.2d 813, 816 (Ala.1983); Fuller v. State, 257 Ala. 502, 60 So.2d 202, 205 (1952)."
Ex parte Jackson, 614 So.2d 405, 406 (Ala.1993) (emphasis added). "[T]he fundamental rule [is] that criminal statutes are construed strictly against the State. See Ex parte Jackson, 614 So.2d 405 (Ala.1993)." Ex parte Hyde, 778 So.2d 237, 239 n. 2 (Ala.2000) (emphasis added). The "rule of lenity requires that `ambiguous criminal statute[s] ... be construed in favor of the accused.'" Castillo v. United States, 530 U.S. 120, 131, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000) (paraphrasing Staples v. United States, 511 U.S. 600, 619 n. 17, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994)).
We read Section 32-5A-191 according to these traditional, well-settled rules of statutory construction. At the very least in favor of the defendant before us, an eminently reasonable construction of this section is that the word conviction means conviction of violating this section everywhere the word conviction appears within the section, including where the word conviction appears in Subsection (h) defining the felony. Such a construction would require that Subsection (h) be read to mean "On a fourth or subsequent conviction [of violating this section], a person convicted of violating this section shall be guilty of a Class C felony and punished by [stating the penalty]." The rules of statutory construction we have quoted require us to adopt this construction rather than the construction urged by the State to the effect that "On a fourth or subsequent conviction [of violating any driving-under-the-influence statute of any state], a person convicted of violating this section shall be guilty of a Class C felony and punished by [stating the penalty]." The construction urged by the State contains an internal inconsistency, extends the purview of the statute beyond its express text, and construes any ambiguity against the defendant and in favor of the State, all contrary to the traditional, well-settled rules of statutory construction.
In the case before us, the defendant's prior Florida conviction is not a conviction of violating Section 32-5A-191. Therefore the trial court erred in counting the Florida conviction toward the total of convictions necessary to constitute the Subsection (h) felony and erred in convicting the defendant on that basis, and the Court of Criminal Appeals erred in affirming the defendant's conviction. Accordingly, the judgment of the Court of Criminal Appeals is reversed and this cause is remanded for proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
HOUSTON, LYONS, HARWOOD, and WOODALL, JJ., concur.
MOORE, C.J., and SEE, BROWN, and STUART, JJ., dissent.
STUART, Justice (dissenting).
I dissent from the majority's holding that the judgment in this case must be reversed and the case remanded. I disagree with the majority's reasoning that the "traditional rules of statutory construction" interpreting § 32-5A-191, Ala.Code 1975, prevent the use of an out-of-state conviction for driving under the influence of alcohol or a controlled substance in determining the appropriate sentence for a conviction pursuant to § 32-5A-191(f), (g), or (h).
As the Court of Criminal Appeals has stated:
"`Although criminal statutes must be strictly construed in favor of those sought to be subject to their operation, 893*893 the interests of justice demand that criminal statutes not be construed irresponsibly. In construing a statute this court has an obligation to ensure that such construction is in line with common sense and practicality of application.' Donley v. City of Mountain Brook, 429 So.2d 603, 607 (Ala.Cr.App.1982). See, also, Nobis v. State, 401 So.2d 191 (Ala.Cr.App.), cert. denied, 401 So.2d 204 (1981).
"In a similar vein, this court noted in Mayberry v. State, 419 So.2d 262, 265 (Ala.Cr.App.1982) that `the construction [of a statute] should not defeat the obvious intent of the legislature, [citation omitted] or destroy the spirit and force of the law the legislature intended to enact.' See, also, § 13A-1-6, Code of Alabama 1975."
Darby v. State, 516 So.2d 775, 783 (Ala.Crim.App.1985)(bracketed language in original; emphasis added). See also Whatley v. Town of Priceville, 672 So.2d 1378, 1381 (Ala.Crim.App.1995).
Section 32-5A-191, Ala.Code 1975, addresses the offense of driving under the influence of alcohol and the appropriate punishments for that offense. The section is entitled "Driving while under influence of alcohol, controlled substances, etc." It is contained in Article 9, which is entitled "Serious Traffic Offenses." The elements of the offense of driving under the influence of alcohol or a controlled substance are defined in § 32-5A-191(a). Subsections (e), (f), (g), and (h) provide the sentence-enhancement provisions.
Act No. 95-784, Ala. Acts 1995, amended § 32-5A-191, Ala.Code 1975, to, among other things, lower the blood-alcohol level at which one is prevented from operating a vehicle from.10 percent to .08 percent. The preamble to Act No. 95-784 specifically states,
"Relating to the offenses of driving a vehicle while under the influence of alcohol or a controlled substance; to amend Section 32-5A-191, Code of Alabama 1975, so as to increase the fines for such offenses and to lower the blood alcohol level at or above which a person is prohibited from operating a motor vehicle from 0.10 to 0.08 percent...."
(Emphasis added.) Act No. 95-784 specifically provided:
"Be It Enacted by the Legislature of Alabama:
"Section 1. The Legislature finds, determines, and declares the following:
"(1) Driving a vehicle while under the influence of alcohol or a controlled substance continues to be a major problem on the highways of our state and causes the death or injury of thousands of our citizens each year.
"(2) The Legislature should use whatever authority is available to it to discourage driving a vehicle while under the influence of alcohol or a controlled substance, including the levying of fines therefor at a level which will discourage such activity.
"....
"(9) This act should be liberally construed to accomplish its purposes and to promote the policies contained therein which are declared to be the public policy of this state."
(Emphasis added.) This policy — to deter individuals from repeatedly driving a vehicle while under the influence of alcohol or a controlled substance — is reiterated in the preamble to Act No. 2000-677, Ala. Acts 2000, another act amending § 32-5A-191. Act No. 200-677 specifically states that its purpose is as follows:
"To amend Section 32-5A-191, relating to driving under the influence of alcohol or a controlled substance; to 894*894 increase the penalties for second and subsequent DUI convictions; to increase the minimum days of imprisonment or, in lieu thereof, community service days that may be imposed on second DUI offenders; to provide for mandatory minimum days of confinement for fourth DUI offenders; and to provide for the suspension of the motor vehicle registration of all vehicles owned by a repeat DUI offender."
(Emphasis added.)
The Legislature's intent in creating the offense of driving under the influence of alcohol or a controlled substance is clear and unambiguous. This State has a valid interest in deterring conduct that risks the safety and lives of its citizens. Individuals who repeatedly drive on our roadways while under the influence of alcohol or a controlled substance endanger our citizens and shall be punished. The Legislature has determined that to deter the individual from repeatedly engaging in such dangerous conduct and to protect this State's citizens a defendant's punishment for driving under the influence of alcohol or a controlled substance must increase with each conviction.
The majority's holding unnecessarily thwarts the objective of the Legislature. In my opinion the majority abandons a common-sense interpretation and practical application of the statute, inserts words into the statute that are not mandated, and construes the language of the statute directly opposite to the intent of the Legislature and to the common understanding of a reasonable person, even the accused.
The majority concludes that "[t]he only kind of convictions mentioned by Section 32-5A-191 are convictions for `violating this section.'" To reach this conclusion, the majority necessarily inserts the bracketed language into the statute:
"(e) Upon first conviction [of violating this section], a person violating this section shall be punished....
"(f) On second conviction [of violating this section] within a five-year period, a person convicted of violating this section shall be punished....
"(g) On a third conviction [of violating this section], a person convicted of violating this section shall be punished....
"(h) On a fourth or subsequent conviction [of violating this section], a person convicted of violating this section shall be guilty of a Class C felony and punished by...."
The majority reasons that the addition of the bracketed language into the introductory phrase is "eminently reasonable" in light of the phrase "violating this section" that appears in the independent clause. I disagree.
The purpose of the language "violating this section" in the independent clauses in subsections (e), (f), (g), and (h) is to identify the present offense for which a defendant is being charged — a violation of § 32-5A-191(a), Ala.Code 1975. The introductory phrases in those subsections determine the type of offense — misdemeanor or felony — and the defendant's punishment. Indeed, the introductory phrases in those subsections provide the sentence-enhancement provisions for a conviction for driving under the influence of alcohol or a controlled substance. Ex parte Parker, 740 So.2d 432, 434 (Ala.1999). The Legislature in those introductory phrases did not limit to Alabama convictions the use for enhancement purposes of prior convictions for driving under the influence of alcohol or a controlled substance; neither did it prohibit the use of non-Alabama convictions. Cf. State v. Rea, 865 S.W.2d 923 (Tenn.Crim.App.1992)(holding that the Tennessee DUI statute did not limit the use of prior convictions for enhancement 895*895 purposes to Tennessee DUI convictions only).
Additionally, I note that the language in § 32-5A-191, Ala.Code 1975, does not contain "words of art" that may require the use of only Alabama convictions. As the Oregon Court of Appeals in State v. Thomas, 34 Or.App. 187, 578 P.2d 452 (1978), explained when determining that Oregon's driving-under-the-influence-of-alcohol statute could not be interpreted to include the use of out-of-state convictions:
"The state also maintains that a construction of ORS [Oregon Revised Statute] 484.365 to include prior foreign convictions is supported by an examination of analogous provisions of the criminal code, i.e. the `ex-convict in possession' statute, ORS 166.270, and the `dangerous offender' statute, ORS 161.725. However, as the state acknowledges, both statutes now expressly provide that foreign convictions are included in the terms of the statute.
"Prior to 1975, ORS 166.270 did not expressly include foreign convictions. In State v. Jones, 4 Or.App. 447, 452, 479 P.2d 1020 (1971), this court held that a prior conviction of a felony in another state was within the terms of the former statute. However, Jones is distinguishable from the situation here because the issue was the interpretation of what constitutes a prior `felony.' The term `felony' is one of general application which can be defined by resort to the statute of the other jurisdiction. This is in contrast to the terms `traffic infraction' and `traffic crime' used in ORS 484.365 which have neither general application nor are defined in other statutes."
34 Or.App. at 193-195, 578 P.2d at 456 (footnotes omitted). Here, we are interpreting the word "conviction," which has general application.
I agree with the majority that criminal statutes should not be extended by construction. However, the majority's interpretation of the statute rejects the basic meaning of the words of the statute to construe it in favor of the defendant. A person is convicted of an offense. See Watson v. State, 392 So.2d 1274, 1278 (Ala.Crim.App.1980). The Legislature specifically identified in § 32-5A-191(a), Ala.Code 1975, the elements of the offense of driving under the influence of alcohol or a controlled substance that must be proven to sustain a conviction. The Legislature also specifically set forth the punishment for individuals who repeatedly engage in driving under the influence of alcohol or a controlled substance. § 32-5A-191(f), (g), and (h), Ala.Code 1975. I think it is "eminently reasonable" to conclude that the Legislature did not intend to exclude out-of-state convictions for driving under the influence of alcohol in determining the appropriate punishment for one driving on the highways of this State in an intoxicated state. The purpose behind the enactment of Alabama's driving-under-the-influence-of-alcohol statute and the Legislature's instruction to liberally construe the statute supports this conclusion. To insert "under this section" in the introductory phrases in those subsections defeats the ability of this statute to deter repeat offenders. As we stated, in Garrison v. Sumners, 223 Ala. 17, 18, 134 So. 675, 676 (1931):
"It is a fundamental rule of construction that penal statutes must be strictly construed, but should not be subjected to strained or unnatural construction in order to work exemption from their penalties. On the other hand, such statutes are not to be extended by construction. `While we disclaim the right to extend a criminal statute to cases out of its letter, yet we hold it to be our duty to apply it to every case clearly within the cause or mischief of making it, when its words 896*896 are broad enough to embrace such case.'"
(Emphasis added; citations omitted.) See also Holmes v. Lambreth, 163 Ala. 460, 50 So. 140 (1909); and Grantland v. State, 8 Ala.App. 319, 62 So. 470 (1913).
It appears ludicrous to me that a defendant would believe that the enhancements referred to in § 32-5A-191 are directed toward a conviction only under the Alabama statute and not toward any conviction for the act of driving a vehicle while under the influence of alcohol or a controlled substance. To so argue abandons common sense, ignores the plain meaning of the statute's words, and unjustly limits the ability of the statute to address an offense the people of the State of Alabama find reprehensible.
The Legislature, in enacting § 32-5A-191, Ala.Code 1975, intended to prevent individuals from repeatedly driving their vehicles while under the influence of alcohol or a controlled substance. In this case, Bertram was convicted of driving under the influence of alcohol. The category of the offense and the level of punishment was determined by the number of prior convictions she had for driving under the influence of alcohol or a controlled substance. Whether the previous convictions for driving under the influence of alcohol were Alabama convictions or convictions from another state is a distinction without a difference. The language of our statute is broad enough to include the use of out-of-state convictions as sentence enhancements. Therefore, I respectfully dissent.
MOORE, C.J., and SEE and BROWN, JJ., concur.
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People v. Coronado, 906 P. 2d 1232 - Cal: Supreme Court 1995ReadHow citedSearch
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People v. Coronado, 906 P. 2d 1232 - Cal: Supreme Court 1995
12 Cal.4th 145 (1995)
906 P.2d 1232
48 Cal. Rptr.2d 77
THE PEOPLE, Plaintiff and Respondent,
v.
ANTONIO CORONADO, Defendant and Appellant.
Docket No. S043032.
Supreme Court of California.
December 21, 1995.
148*148 COUNSEL
Matthew Alger, under appointment by the Supreme Court, for Defendant and Appellant.
Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Michael J. Weinberger and Robert G. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BAXTER, J.
In the companion to this case, People v. Baird (1995) 12 Cal.4th 126 [48 Cal. Rptr.2d 65, 906 P.2d 1220], we conclude that when a 149*149 prior felony conviction is used to establish the ex-felon element of a charge under section 12021 of the Penal Code[1] (ex-felon in possession of a firearm), the prison term resulting from that prior conviction may be used to enhance the defendant's sentence under section 667.5, subdivision (b) (section 667.5(b)) without contravening the reasoning in People v. Jones (1993) 5 Cal.4th 1142 [22 Cal. Rptr.2d 753, 857 P.2d 1163] (Jones) and other earlier decisions.
In this case, we confront related issues involving a section 667.5(b) enhancement and the use of a prior conviction to elevate a driving under the influence charge to a felony under section 23175 of the Vehicle Code. We hold here that the use of a prior conviction and resulting prison term for elevation and enhancement purposes is consistent with the legislative intent underlying Vehicle Code section 23175 and section 667.5(b), and that Jones, supra, 5 Cal.4th 1142, does not support a contrary result. We further conclude that a prior conviction and prior prison term may be utilized in this manner without violating section 654's prohibition against multiple punishment of an act or omission.
I. FACTUAL AND PROCEDURAL BACKGROUND
The pertinent facts are not in dispute. At a bench trial, defendant was found guilty of having driven a vehicle while under the influence of alcohol in violation of Vehicle Code section 23152, subdivision (a) (Vehicle Code section 23152(a)). Defendant then admitted he had suffered three prior driving under the influence convictions within the meaning of Vehicle Code section 23175. Defendant also admitted he had served three prior prison terms for felony convictions within the meaning of section 667.5(b).[2] One of the prior prison terms — for felony drunk driving in violation of Vehicle Code section 23152(a) — stemmed from the third prior conviction used to elevate the current offense to a felony under Vehicle Code section 23175. The superior court sentenced defendant to a total fixed prison term of six years. This consisted of the upper term of three years for the violation of Vehicle Code sections 23152(a) and 23175 and three 1-year enhancements under section 667.5(b) for the prior prison terms.
The Court of Appeal affirmed the judgment, finding that the enhancement is not prohibited under statutory or decisional law. We granted defendant's petition for review.
150*150 II. DISCUSSION
(1a) Defendant contends that one of his enhancements must be stricken because it was based upon a prior prison term that stemmed from one of the convictions used to elevate his current drunk driving charge to a felony under Vehicle Code section 23175. Defendant asserts that imposition of the prior prison term enhancement is contrary to the legislative intent underlying that statute and is improper under Jones, supra, 5 Cal.4th 1142. Defendant also argues that the enhancement is precluded by section 654's ban against multiple punishment. For the reasons that follow, we conclude otherwise.
A. Legislative Intent
As pertinent here, Vehicle Code section 23152(a) makes it unlawful for any person who is under the influence of alcohol to drive a vehicle. Ordinarily, violation of that provision is a misdemeanor offense. (See generally, 2 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) Crimes Against Public Peace and Welfare, § 917, p. 1040.)
Vehicle Code section 23175 provides that a conviction of a violation of Vehicle Code section 23152(a) may be punished as either a misdemeanor or a felony if "the offense occurred within seven years of three or more separate violations of [Vehicle Code] Section 23103, as specified in [Vehicle Code] Section 23103.5, or [Vehicle Code] Section 23152 or 23153, or any combination thereof, which resulted in convictions...." Under Vehicle Code section 23175, punishment shall be "by imprisonment in state prison, or in the county jail for not less than 180 days nor more than one year, and by a fine of not less than three hundred ninety dollars ($390) nor more than one thousand [dollars] ($1,000)." (Veh. Code, § 23175, subd. (a).) In addition, the person's privilege to operate a motor vehicle shall be revoked. (Ibid.)
Defendant first argues that punishment based upon prior drunk driving convictions may not exceed a maximum of three years in state prison under Vehicle Code section 23175.[3] In defendant's view, Vehicle Code section 23175 bars the use of a prior prison term for enhancement purposes if the 151*151 underlying conviction is used to qualify the current offense for felony punishment.
To resolve whether defendant's interpretation of the relevant statutes is correct, we are guided by familiar canons of statutory construction. (2) "[I]n construing a statute, a court [must] ascertain the intent of the Legislature so as to effectuate the purpose of the law." (People v. Jenkins (1995) 10 Cal.4th 234, 246 [40 Cal. Rptr.2d 903, 893 P.2d 1224].) In determining that intent, we first examine the words of the respective statutes: "If there is no ambiguity in the language of the statute, `then the Legislature is presumed to have meant what it said, and the plain meaning of the language governs.' [Citation.] `Where the statute is clear, courts will not "interpret away clear language in favor of an ambiguity that does not exist." [Citation.]'" (Lennane v. Franchise Tax Bd. (1994) 9 Cal.4th 263, 268 [36 Cal. Rptr.2d 563, 885 P.2d 976].) If, however, the terms of a statute provide no definitive answer, then courts may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. (See Granberry v. Islay Investments (1995) 9 Cal.4th 738, 744 [38 Cal. Rptr.2d 650, 889 P.2d 970].) "We must select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences." (People v. Jenkins, supra, 10 Cal.4th at p. 246.)
(1b) As a preliminary matter, we observe defendant makes no contention that either Vehicle Code section 23152(a) or section 667.5(b) precludes the use of a prior prison term to enhance the sentence for a drunk driving conviction where Vehicle Code section 23175 is not applicable. Nor could he. Vehicle Code section 23152(a) simply defines the misdemeanor offense of driving under the influence of alcohol or drugs; its terms do not in any way purport to prohibit the use of a prior prison term to enhance a sentence thereunder. At the same time, section 667.5 provides in explicit and mandatory terms that "[e]nhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows: [¶].... [¶] (b) ... [W]here the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction." (Italics added.) Plainly, this language is not susceptible to a construction providing an exception for new offenses elevated to felony status by virtue of a related prior conviction.
152*152 We now examine the terms of Vehicle Code section 23175. Prior to 1988, that section provided for a county jail term of one hundred eighty days to one year and a fine of $390 to $1,000 where the current Vehicle Code section 23152 offense occurred within seven years of three or more statutorily specified convictions. In 1988, Vehicle Code section 23175 was amended to add imprisonment in state prison as an alternative to imprisonment in county jail (Stats. 1988, ch. 599, § 1, p. 2160; Stats. 1988, ch. 1553, § 2, p. 5580), and was redesignated in 1990 as section 23175, subdivision (a) (Stats. 1990, ch. 44, § 6, p. 255).[4] (3) (See fn. 5.), (1c) Although Vehicle Code section 23175 provides a form of enhanced punishment for habitual drunk drivers,[5] it does not expressly state one way or the other whether a prior prison term enhancement may additionally apply when the prior conviction that resulted in the prison term is relied upon to elevate the current offense to a felony. Nor does the statute specify whether the imposition of felony punishment precludes the imposition of otherwise applicable punishments or enhancements.
Even though Vehicle Code section 23175 contains no language purporting to prohibit a prior prison term enhancement, defendant claims its history demonstrates a legislative intent to permit no more than three years of confinement in state prison in the event felony punishment is imposed. To buttress his position, defendant relies upon legislative documents that describe the subject legislation (1) as providing that a person previously convicted of three prior driving-under-the-influence offenses is "guilty of an alternate felony/misdemeanor, punishable by up to one year in the county jail or 16 months, two or three years in state prison" (Assem. Bill No. 3134 (1987-1988 Reg. Sess.) 3d reading analysis, May 9, 1988, italics added), and (2) as increasing "the maximum [penalty] to up to three years in state prison" (Sen. Ways and Means Com., analysis of Sen. Bill. No. 2651 (1987-1988 153*153 Reg. Sess.) as amended May 27, 1988, italics added).[6] In defendant's view, these documents reflect a legislative purpose to make three years in state prison the maximum punishment for a fourth drunk driving conviction in seven years.
The legislative documents do not support the broad reading advanced by defendant. Even though the documents clearly describe the range of punishment available under Vehicle Code section 23175 when the current offense is elevated to a felony, they contain no indication that its purpose is to place a three-year cap on punishment for recidivist drunk drivers. Rather, the documents, fairly read, simply reflect a determination by the Legislature that "[a] fourth conviction for drunk driving within a 7 year period clearly warrants a sentence to state prison" and that misdemeanor punishment is not appropriate in all cases. (E.g., Assem. Public Safety Com., Republican analysis of Sen. Bill No. 2651 (1987-1988 Reg. Sess.), supra.) The documents also make apparent that the purpose of Vehicle Code section 23175 is to "send a message that the state is serious about habitual drunk drivers." (Assem. Public Safety Com., Republican analysis of Sen. Bill No. 2651 (1987-1988 Reg. Sess.) supra.)
In our view, Vehicle Code section 23175's purpose to authorize felony punishment of habitual drunk drivers is fully compatible with section 667.5(b)'s purpose to provide for additional punishment of a felon whose service of a prior prison term failed to deter future criminality. As it stands, Vehicle Code section 23175 treats both prior misdemeanor and felony habitual drunk drivers in the same manner — for both categories of offenders, the current offense may be elevated to a felony. But where one (or more) of the requisite prior convictions is a felony for which a prison term was served — reflecting a more serious crime and a more blameworthy offender — application of both statutes leads to the rational result that a more culpable habitual drunk driver receives greater punishment.
(4) Defendant next argues that Vehicle Code section 23175 is a "special statute" which controls over section 667.5(b), a "general statute." (In re Shull (1944) 23 Cal.2d 745, 750 [146 P.2d 417].) We are not persuaded.
The "special over the general" rule, which generally applies where two substantive offenses compete, has also been applied in the context of enhancement statutes. (See In re Shull, supra, 23 Cal.2d at p. 750 [when use of a deadly weapon is an integral part of the offense, the additional penalties 154*154 prescribed by predecessor to § 12022 may not be imposed].) The rule does not apply, however, unless "each element of the `general' statute corresponds to an element on the face of the `specific' [sic] statute" or "it appears from the entire context that a violation of the `special' statute will necessarily or commonly result in a violation of the `general' statute." (See People v. Jenkins (1980) 28 Cal.3d 494, 502 [170 Cal. Rptr. 1, 620 P.2d 587]; see also People v. Watson (1981) 30 Cal.3d 290, 295-296 [179 Cal. Rptr. 43, 637 P.2d 279].)
Do the elements of section 667.5(b) correspond to the elements of Vehicle Code section 23175? Clearly not. Among other things, punishment may be imposed under section 667.5(b) only where the defendant has been previously convicted of a felony and has served a prison term therefor. In contrast, felony punishment is permissible under Vehicle Code section 23175 even where the defendant has never been convicted of a felony and has never served a term in state prison.[7] In addition, Vehicle Code section 23175 limits its application to prior convictions involving certain specified drunk driving offenses, while section 667.5(b) applies generally to any felony conviction that resulted in a prison term.
Would a conviction resulting in the application of the felony punishment provisions of Vehicle Code section 23175 "necessarily or commonly" result in the application of the enhancement provisions of section 667.5(b)? Again, the answer is no. Even though both statutes provide for punishment where prior convictions are involved, misdemeanor convictions may often serve to trigger felony punishment under Vehicle Code section 23175 but, by definition, could never trigger application of section 667.5(b). (See, e.g., Veh. Code, §§ 23152, 23103 [as specified in Veh. Code, § 23103.5].) Moreover, even though a felony drunk driving conviction (e.g., Veh. Code, § 23153) may also elevate a current offense to a felony under Vehicle Code section 23175, it is not necessarily or commonly the case that the qualifying felony conviction will have resulted in a state prison term. For example, a trial court may, in granting probation, suspend execution of a sentence for a first or second felony conviction under Vehicle Code section 23153. (Veh. Code, §§ 23181 [initial conviction under Veh. Code, § 23153], 23186 [second 155*155 conviction under Veh. Code, § 23153]; see also Veh. Code, § 23176 [probation for person punished under Veh. Code, § 23175].) Accordingly, a conviction resulting in the application of Vehicle Code section 23175's felony punishment provisions would not necessarily or commonly result in the imposition of a section 667.5(b) enhancement. The "special over general" rule has no application here.
(1d) In sum, section 667.5(b) provides in clear and mandatory terms that a one-year enhancement for a new offense "shall be imposed" "where the new offense is any felony for which a prison sentence is imposed." Because Vehicle Code section 23175 reflects no legislative purpose to disallow additional punishment where a qualifying prior conviction resulted in a prison term, we conclude that "the construction that comports most closely with the apparent intent of the Legislature" is one that gives effect to section 667.5(b) in such cases. (People v. Jenkins, supra, 10 Cal.4th at p. 246.)
B. The Jones Decision
Defendant argues, based on Jones, supra, 5 Cal.4th 1142, that the limitation on the multiple use of enhancements contained in section 667 is applicable to the section 667.5(b) enhancement in this case. This argument must be rejected.
Defendant fails to identify anything in the relevant statutory language or history that might support his position. Jones simply determined that when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, only the greater enhancement may apply. (5 Cal.4th at p. 1150.) Contrary to defendant's assertions, nothing in Jones suggests that section 667's limitation on cumulative enhancements may apply where, as here, no enhancement under section 667 has been imposed.
Additionally, defendant appears to rely upon Jones to argue there is no meaningful distinction between a prior conviction and a prior prison term under Vehicle Code section 23175 and section 667.5(b). Jones recognized, in effect, that prior prison term enhancements under section 667.5(b) are a "subset" of prior conviction enhancements under section 667: "If a prior felony is `violent' enough to qualify for an enhancement under section 667.5, it will a fortiori be noxious enough to qualify as `serious' under subdivision (a) of section 667, and will almost always have resulted in a prison term. The result is that five-year enhancements will become eight-year enhancements in all but a very few cases." (Jones, supra, 5 Cal.4th at p. 156*156 1150.) After observing that the defendant in that case had received a one-year enhancement under section 667.5(b), as opposed to the three-year enhancement under section 667.5, subdivision (a), Jones concluded: "Just as it would be anomalous for the law to impose an eight-year enhancement when the voters specified five, so also would it be for the law to impose a six-year enhancement when the voters specified five." (5 Cal.4th at p. 1150, fn. omitted.) To avoid that result, Jones construed section 667 to bar the cumulative imposition of both enhancements.
This reasoning does not aid defendant in the instant case. Unlike the situation in Jones, it cannot be concluded here that all or nearly all convictions that result in prison terms under section 667.5(b) will qualify to elevate a fourth drunk driving conviction to a felony under Vehicle Code section 23175. Likewise, it cannot be said that all or nearly all of the statutorily enumerated convictions that may be used to elevate a drunk driving conviction to a felony under Vehicle Code section 23175 will have resulted in a prior prison term within the meaning of section 667.5(b). The "subset" analysis in Jones has no application here.
C. Section 654
(5) Section 654 provides in its entirety: "An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other."
By its own terms, section 654 applies only to an "act or omission" made punishable in different ways by different statutes. The issue here is whether the increased punishment authorized by Vehicle Code section 23175 and the sentence enhancement provided by section 667.5(b) punish defendant twice for an act or omission within the meaning of section 654. If so, then defendant is correct that the one-year enhancement should be stricken.
Initially, we observe there are at least two types of sentence enhancements: (1) those which go to the nature of the offender; and (2) those which go to the nature of the offense. (See People v. Tassell (1984) 36 Cal.3d 77, 90 [201 Cal. Rptr. 567, 679 P.2d 1], overruled on other grounds, People v. Ewoldt (1994) 7 Cal.4th 380, 398-401 [27 Cal. Rptr.2d 646, 867 P.2d 757].) Prior prison term enhancements, such as those authorized by section 667.5(b), fall into the first category and are attributable to the defendant's status as a repeat offender. (See People v. McClanahan (1992) 3 Cal.4th 860, 869 [12 Cal. Rptr.2d 719, 838 P.2d 241]; In re Foss (1974) 10 Cal.3d 910, 922 [112 Cal. Rptr. 649, 519 P.2d 1073], disapproved on other grounds, People v. White (1976) 16 Cal.3d 791, 796-797, fn. 3 [129 Cal. Rptr. 769, 157*157 549 P.2d 537].) The second category of enhancements, which are exemplified by those authorized under sections 12022.5 and 12022.7,[8] arise from the circumstances of the crime and typically focus on what the defendant did when the current offense was committed. (See People v. Tassell, supra, 36 Cal.3d at p. 90.)
We recently recognized that the appellate courts have disagreed on whether section 654 applies to enhancements. (Jones, supra, 5 Cal.4th at p. 1152; compare, e.g., People v. Price (1992) 4 Cal. App.4th 1272 [6 Cal. Rptr.2d 263], People v. Rodriguez (1988) 206 Cal. App.3d 517 [253 Cal. Rptr. 633] (Rodriguez), and People v. Boerner (1981) 120 Cal. App.3d 506 [174 Cal. Rptr. 629] with People v. Hopkins (1985) 167 Cal. App.3d 110 [212 Cal. Rptr. 888], People v. Carter (1983) 144 Cal. App.3d 534 [193 Cal. Rptr. 193], and People v. Moringlane (1982) 127 Cal. App.3d 811 [179 Cal. Rptr. 726].) For purposes of this case, we need only decide whether section 654 bars the prior prison term enhancement imposed here.
In a closely analogous context, Rodriguez, supra, 206 Cal. App.3d 517, held that a single prior robbery conviction and resulting prison term could be used both to upgrade a subsequent petit theft from a misdemeanor to a felony under section 666 and to enhance the sentence therefor under section 667.5(b). In rejecting the argument that section 654 precludes such a result, Rodriguez reasoned that prior prison term enhancements are not imposed for "acts or omissions" within the meaning of the statute: "Section 654 applies to an `act or omission,' i.e., criminal conduct or neglect. Both sections 666 and 667.5 apply to facts, not acts; they relate to the status of the recidivist offender engaging in criminal conduct, not to the conduct itself." (Rodriguez, supra, 206 Cal. App.3d at p. 519, italics added; see also People v. Price, supra, 4 Cal. App.4th at p. 1277 [§ 654 is inapplicable to enhancements under § 666 and § 667, subd. (a)].)
Rodriguez further reasoned: "To hold that section 654 applies to enhancements to forbid the dual use of any fact [such as a prior conviction or prison term] as well as to forbid multiple punishment for any act would render provisions of Penal Code section 1170, subdivision (b) superfluous and negate an amendment thereto. Section 1170, subdivision (b) presently provides in pertinent part that `[t]he court may not impose the upper term by using the fact of any enhancement upon which sentence is imposed under 158*158 section 667.5 ... or under any other section of law.' If section 654 prohibited all dual uses of facts, this section ... would be superfluous. [¶] When section 1170, subdivision (b) was enacted in 1976, it also provided: `In no event shall any fact be used twice to determine, aggravate, or enhance a sentence.' Immediately prior to the effective date of this legislation, this provision of 1170, subdivision (b) was deleted. [¶] This provision would have prohibited the sentences here as the same conviction and prison term is used to `determine' the sentence as a felony and to enhance the sentence. It would be anomalous to apply this rule enacted in 1976 and repealed in 1977 before becoming effective under the guise of interpretation of section 654 which has been in existence since 1872." (Rodriguez, supra, 206 Cal. App.3d at pp. 519-520, fn. omitted.)
We find the reasoning of Rodriguez persuasive. As explained above, prior prison term enhancements are attributable to the defendant's status as a repeat offender (People v. McClanahan, supra, 3 Cal.4th at p. 869; In re Foss, supra, 10 Cal.3d at p. 922); they are not attributable to the underlying criminal conduct which gave rise to the defendant's prior and current convictions. Because the repeat offender (recidivist) enhancement imposed here does not implicate multiple punishment of an act or omission, section 654 is inapplicable.
Defendant argues that People v. Hopkins, supra, 167 Cal. App.3d 110, People v. Carter, supra, 144 Cal. App.3d 534, and People v. Moringlane, supra, 127 Cal. App.3d 811, support application of section 654 under the circumstances of this case. We disagree.
Significantly, two of the cases applied section 654 to section 667.5(b) and other repeat offender enhancement statutes only after concluding that the "acts" made punishable by those enhancements are those prior offenses committed by the defendant which resulted in the prior convictions or prison terms. (People v. Hopkins, supra, 167 Cal. App.3d at p. 118;[9] People v. Carter, supra, 144 Cal. App.3d at p. 542.) That notion, however, has long been discredited. (People v. Biggs (1937) 9 Cal.2d 508, 512 [71 P.2d 214, 116 A.L.R 205] [repeat offender enhancements are not attributable to the underlying criminal conduct which gave rise to the defendant's prior conviction and prison term]; People v. Dutton (1937) 9 Cal.2d 505, 507 [71 P.2d 218] [same]; see also People v. McClanahan, supra, 3 Cal.4th at p. 869 159*159 [prior felony conviction or prison term enhancements are based on the offender's status as a previously convicted felon]; In re Foss, supra, 10 Cal.3d at p. 922 [increased penalties for subsequent offenses are attributable to the defendant's status as a repeat offender].) Because their applications of section 654 were premised on the erroneous assumption that a recidivist enhancement relates to the defendant's conduct underlying a prior conviction, People v. Hopkins, supra, and People v. Carter, supra, are to that extent flawed and hereby disapproved.
People v. Moringlane, supra, 127 Cal. App.3d 811, likewise is unhelpful. In that case, the defendant had been convicted of, among other things, (1) assault with intent to murder William McDowell, (2) assault with intent to murder Javior Silva, and (3) assault with intent to murder Michael Rico. At sentencing, the trial court imposed three enhancements — one on each of those three counts — for the infliction of great bodily injury upon the same person, William McDowell. The Court of Appeal struck two of the three enhancements (from the Silva and Rico counts) pursuant to section 654, even though it noted that statutory language did not literally prohibit imposition of the three sentence enhancements. Relying upon settled case law, the court concluded that the statute "prohibits the imposition of multiple enhancements for the single act of inflicting great bodily injury upon one person." (127 Cal. App.3d at p. 817.)
People v. Moringlane, supra, 127 Cal. App.3d 811, does not support defendant's position. In the first place, that case did not concern a recidivist type of enhancement. Even if it is assumed that an enhancement for the infliction of great bodily injury during the commission of an offense is properly viewed as punishing a defendant for an "act" within the meaning of section 654, such enhancements are plainly distinguishable from those attributable to a defendant's status as a repeat offender. (See People v. Tassell, supra, 36 Cal.3d at p. 90.) Moreover, unlike the apparent situation in People v. Moringlane, supra, the same statutory enhancement was not imposed more than once in this case.
Consistent with the reasoning of Rodriguez, supra, 206 Cal. App.3d 517, we hold that a single prior conviction and resulting prison term may be used both to elevate a violation of Vehicle Code section 23152 to a felony under Vehicle Code section 23175 and to enhance the sentence therefor under section 667.5(b) without violating section 654's bar against multiple punishment of an act or omission.[10]
160*160 III. DISPOSITION
The judgment of the Court of Appeal is affirmed.
Lucas, C.J., Arabian, J., George, J., and Werdegar, J., concurred.
KENNARD, J., Concurring.
May a single prior felony conviction for driving under the influence (Veh. Code, § 23152, subd. (a); hereafter DUI) be used both to elevate a new DUI offense from a misdemeanor to a felony and to support a prior prison term enhancement (that is, the imposition of an additional and consecutive prison term when the person committing a felony has previously served a term in state prison)? The majority holds that it may. I agree.
In my dissent in the companion case of People v. Baird (1995) 12 Cal.4th 126, 136 [48 Cal. Rptr.2d 65, 906 P.2d 1220] I explain that there is a general rule of statutory construction, based on a reasonable inference of legislative intent, that a single fact may not be used both to prove a crime and to increase the punishment for that crime. And I explain there that this inference of legislative intent is strongest when the fact that is an element of the offense will, in every instance, also satisfy the requirements for the increased punishment. The inference becomes weaker, and the rule ceases to apply, if the fact that is an element of the offense does not frequently or typically also satisfy the requirements for the increased punishment.
Here, the majority persuades me that persons convicted of DUI do not frequently or typically serve prison terms for this offense. (Maj. opn., ante, at pp. 154-155.) Therefore, I agree that we should not infer a legislative intent to preclude use of a single prior DUI conviction both to elevate a new DUI offense from a misdemeanor to a felony and to support a prior prison term enhancement.
I also agree, for the reasons stated by the majority, that using a single prior DUI conviction for these two distinct purposes does not violate the multiple punishment proscription of Penal Code section 654.
Accordingly, I concur in the judgment.
161*161 MOSK, J.
I dissent. The majority's result amounts to a form of triple jeopardy.
Unquestionably, driving a motor vehicle while voluntarily under the influence of intoxicants is a serious offense. It carries great potential for harm to the offender and others. "[T]here is no doubt that the effects of drunk driving are cruel indeed." (Gikas v. Zolin (1993) 6 Cal.4th 841, 860 [25 Cal. Rptr.2d 500, 863 P.2d 745] (dis. opn. of Mosk, J.), italics deleted.) Hence, within the bounds prescribed by law, such a crime deserves severe punishment.
However, the Legislature cannot have intended the punishment conferred on defendant as a result of his present and prior misconduct.
Defendant admitted that in 1990 he violated Vehicle Code section 23152, subdivision (a), and served a prison term therefor. It was at the time his third violation of section 23152. The court also found him guilty of violating section 23152, subdivision (a), in the proceeding before us.
In sentencing defendant, the court invoked his 1990 offense, along with his two other prior convictions under Vehicle Code section 23152, to convict him of a felony for driving under the influence of alcohol on the present occasion. (Id., § 23175, subd. (a).) He received a three-year prison sentence. In other words, he was again punished under law for his prior conduct.
Then the court invoked the service of a prison term for the same 1990 offense to enhance defendant's sentence by an additional year. (Pen. Code, § 667.5, subd. (b) [providing under certain conditions that an individual sentenced to prison for "any felony" who served a prior prison term for "any felony" shall receive a one-year enhancement of the sentence imposed].) The sentence was also enhanced because he served two other prior terms for felony offenses. (Ibid.)
The result is that, for a drunk-driving conviction resulting in no injury, defendant received a six-year prison sentence. Although the majority are able to parse various statutes in affirming the sentence, ultimately their reasoning is "`hypertechnical'" and "`"supertechnical"'" (People v. Jones (1993) 5 Cal.4th 1142, 1148 [22 Cal. Rptr.2d 753, 857 P.2d 1163] [explaining a prior opinion's characterization of "the distinction between prior prison terms and prior felonies for enhancement purposes"]). They cannot escape the core fact that by the time of his release defendant will have been punished three times for his 1990 offense: when he was convicted thereof, when it was used to elevate the current offense to a felony, and when the prison term he received for it was used to enhance his sentence yet again.
162*162 At bottom, the question we must decide is the Legislature's intent in determining punishment under the extremely complicated sentencing schemes it has created. "A statute must be construed `in the context of the entire statutory system of which it is a part, in order to achieve harmony among the parts.'" (People v. Woodhead (1987) 43 Cal.3d 1002, 1009 [239 Cal. Rptr. 656, 741 P.2d 154].) So it is with Penal Code section 667.5, subdivision (b). No matter how elegantly the majority may explain how the various statutes in question mesh, I submit that they miss the essential point. Specifically, I doubt that the Legislature intended to sentence anyone to six years' imprisonment for a drunk-driving offense in which no injury resulted. This outcome is particularly dubious given that, if defendant's prior prison term were not invoked in deciding his punishment, he would still receive five years' imprisonment.
I believe that the Legislature intended to give a person in defendant's position five years' imprisonment. Therefore I dissent.
Appellant's petition for a rehearing was denied February 22, 1996. Mosk, J., was of the opinion that the petition should be granted.
[1] Unless otherwise indicated, all further statutory references are to the Penal Code.
[2] The information alleged that defendant previously had been convicted and had served prison terms for the felony offenses of: (1) voluntary manslaughter (§ 192.1 [sic]); (2) robbery (§ 211); and (3) felony drunk driving (Veh. Code, §§ 23152(a), 23175).
[3] Because Vehicle Code section 23175 does not prescribe otherwise, a felony conviction thereunder "is punishable by imprisonment in any of the state prisons for 16 months, or two or three years." (§ 18.)
Although defendant claims that one of the prison term enhancements should be stricken, he makes no argument that the trial court erred in imposing the upper felony term of three years. The record reflects the trial court found as circumstances in aggravation the fact that defendant was on parole at the time of the offense and the fact that his prior performance on parole or probation was not satisfactory. (See Cal. Rules of Court, rule 421(b)(4) & (5).)
[4] The 1990 legislation also added subdivision (b) to Vehicle Code section 23175, providing that any person convicted of a violation of Vehicle Code section 23152 punishable under section 23175 shall be designated as an habitual traffic offender for three years subsequent to conviction. (Stats. 1990, ch. 44, § 6, p. 255.)
[5] The prior conviction provisions of Vehicle Code section 23175 do not define a substantive offense, but rather result in increased punishment for a current conviction under Vehicle Code section 23152. For this reason, Vehicle Code section 23175 has been described as a sentence-enhancing statute and not a substantive offense statute. (People v. Weathington (1991) 231 Cal. App.3d 69, 87-90 [282 Cal. Rptr. 170], analogizing to People v. Bouzas (1991) 53 Cal.3d 467, 479 [279 Cal. Rptr. 847, 807 P.2d 1076] [holding that § 666, which allows a petty theft to be charged as a felony if it is demonstrated that the defendant suffered a prior theft-related conviction, is a sentence-enhancing statute and not a substantive offense statute].) This conclusion is consistent with the view expressed in certain legislative documents that described the subject legislation as "a solid sentence enhancement measure." (E.g., Assem. Public Safety Com., Republican analysis of Sen. Bill No. 2651 (1987-1988 Reg. Sess.) dated June 24, 1988.)
[6] Both Senate Bill No. 2651 and Assembly Bill No. 3134 (both 1978-1988 Reg. Sess.) were enacted so as to allow for imprisonment in the state prison under Vehicle Code section 23175. (Stats. 1988, ch. 599, § 1, p. 2160; Stats. 1988, ch. 1553, § 2, p. 5580.)
[7] Under Vehicle Code section 23175, subdivision (a), the three prior convictions must be based upon violations of Vehicle Code section 23152, Vehicle Code section 23153 (causing bodily injury to others while driving under the influence), and/or Vehicle Code section 23103 (reckless driving), as specified in Vehicle Code section 23103.5 (acceptance of guilty or nolo contendere plea to violation of Veh. Code, § 23103 in place of charge for violation of Veh. Code, § 23152).
As indicated previously, a charge under Vehicle Code section 23152 is ordinarily a misdemeanor. A charge under Vehicle Code section 23103 is likewise a misdemeanor, while a charge under Vehicle Code section 23153 is punishable as either a misdemeanor or a felony.
[8] Among other things, section 12022.5 authorizes a sentence enhancement for any person who personally uses a firearm in the commission or attempted commission of a felony. (§ 12022.5, subd. (a).) Section 12022.7 authorizes an enhancement for, inter alia, any person who, with the intent to inflict injury, personally inflicts great bodily injury on any person other than an accomplice in the commission or attempted commission of a felony. (§ 12022.7, subd. (a).)
[9] People v. Hopkins held, relying upon section 654, that the same prior convictions could not be used to cumulatively enhance the defendant's sentence under sections 667 and 667.5. (167 Cal. App.3d at pp. 117-118.) Jones, supra, 5 Cal.4th 1142, reached the same result based upon the statutory intent underlying section 667. In so doing, Jones declined to decide whether section 654 applies to enhancements. (5 Cal.4th at p. 1152.)
[10] Defendant seems to additionally argue that the "dual use" of his prior conviction to elevate his current offense to a felony and to enhance his sentence is prohibited. As we have previously recognized, however, "[o]nly two express `dual use' prohibitions appear in the Determinate Sentencing Act. Section 1170, subdivision (b), prohibits imposition of an upper term based upon `the fact of any enhancement upon which sentence is imposed [under section 667.5]....' California Rules of Court, rule 425(b), states that a fact that is an element of the crime, or that is used to impose an upper term or otherwise enhance a defendant's prison sentence, may not be used also to justify imposition of a consecutive rather than a concurrent sentence." (People v. Jenkins, supra, 10 Cal.4th at p. 252, fn. 10.) The facts of the present case do not fit within the parameters of those two dual-use prohibitions.
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People v. Hua, 70 Cal. Rptr. 3d 559 - Cal: Court of Appeal, 1st Appellate Dist., 5th Div. 2008ReadHow citedSearch
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People v. Hua, 70 Cal. Rptr. 3d 559 - Cal: Court of Appeal, 1st Appellate Dist., 5th Div. 2008
70 Cal.Rptr.3d 559 (2008)
158 Cal.App.4th 1027
The PEOPLE, Plaintiff and Respondent,
v.
John HUA, Defendant and Appellant.
No. A116578.
Court of Appeal of California, First District, Division Five.
January 11, 2008.
560*560 Gordon S. Brownell, under appointment by the Court of Appeal, St. Helena, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Martin S. Kaye and Ronald E. Niver, Deputy Attorneys General for Plaintiff and Respondent.
SIMONS, J.
Two Pacifica police officers observed several individuals smoking marijuana in an apartment rented by appellant John Hua. The officers entered, without either a warrant or consent, and eventually discovered growing marijuana plants and a cane sword. Appellant was originally charged with cultivation of marijuana (Health & Saf.Code, § 11358) (count 1), possession for sale of marijuana (Health & Saf.Code, § 11359) (count 2), and felony possession of a cane sword (Pen.Code, § 12020, subd. (a)) (count 3).
In the trial court, appellant challenged the police entry and the subsequent search of his apartment in a motion to suppress the evidence seized by the police. (Pen. Code, § 1538.5.) The trial court denied the motion, concluding the entry was justified by exigent circumstances. Appellant then entered a plea of nolo contendere to cultivation of marijuana (Health & Saf.Code, § 11358) and misdemeanor possession of a cane sword (Pen.Code, § 12020, subd. (a).) On appeal, appellant challenges the denial of his motion to suppress (Pen.Code, § 1538.5, subd. (m)). We reject the People's contention that exigent circumstances justified the warrantless entry of appellant's home. Under Welsh v. Wisconsin (1984) 466 U.S. 740, 753-754, 104 S.Ct. 2091, 80 L.Ed.2d 732 (Welsh), a finding of exigent circumstances is categorically precluded when the only crime the police are aware of when they enter a residence to arrest the occupant and/or seize contraband is possession of no more than 28.5 grams of marijuana.
BACKGROUND[1]
At 11:08 p.m. on March 27, 2005, uniformed Pacifica Police Officer Patrick Mostasisia (Mostasisia) and Pacifica Police Corporal Darci Mix (Mix) received a dispatch report regarding a "noise disturbance" at an apartment building on Talbot Avenue in apartment No. 308 (the apartment). As the officers approached the apartment, they noticed the "distinct odor" of burnt marijuana coming from it. Mostasisia knocked on the apartment door and awaited a response.
From her vantage point, standing; in a common area in front of the window next to the front door of the apartment, Mix looked through the open vertical blinds and saw several people socializing in the living room area. Mix saw one person put an object to his lips and smoke from it. Based on her training and experience, Mix testified this conduct was consistent with someone smoking marijuana.
After Mostasisia knocked repeatedly for about 45 seconds, appellant, who resided in the apartment, answered the door. Mostasisia and Mix stood right outside the front door on a walkway common to all apartments on that floor. When Mostasisia advised appellant that they were responding to a noise disturbance call, appellant said he had been using a drill earlier that evening. When Mostasisia asked appellant about the marijuana odor, appellant denied he was smoking marijuana, implying there might be others who were smoking marijuana in the apartment. 561*561 When Mix told appellant she saw someone smoking what appeared to be marijuana, appellant denied it. Because of the amount of smoke evident inside the apartment, the officers told appellant they were concerned about the destruction of evidence and asked for consent to enter. Appellant did not want the officers to enter. Appellant responded "no" when Mix asked if he had a medical marijuana card. When the officers again asked appellant for his permission to enter, he stepped aside and allowed them in. On cross-examination, Mostasisia conceded that he made it clear to appellant that the officers wanted to enter the apartment and that in his report he stated, "[Appellant] succumbed to our request and stepped aside."
As the officers entered the apartment, Mostasisia first noticed the smell of marijuana and a cloud of smoke in the living room. Aside from appellant, five other persons were inside the living room area. Mostasisia observed two "blunts," or "smoked-out" marijuana cigarettes on the living room coffee table. For safety purposes, Mostasisia asked if any other persons were inside the apartment and a couple of people said "no." When Mix asked if anyone had a medical marijuana card, several persons said they did not. No one claimed ownership of the blunts.
Mostasisia asked if there were any weapons or animals[2] in the apartment and someone said "no." Thereafter, all of the persons in the living room consented to a search of their persons, and the search turned up no contraband. Mix then performed a 30 to 45 second protective sweep of the apartment for officer safety, to ensure no animals or other individuals were present. Mix testified that conducting such a protective sweep was "standard practice for [her]." During the protective sweep 46 marijuana plants growing in plastic dirt-filled tubs were found in plain view inside appellant's bedroom.[3] No drawers or closets were opened during the protective sweep.
Appellant was detained and handcuffed, but advised he was not under arrest. He said there was a letter which allowed him to cultivate or possess marijuana. Mostasisa believed that appellant was giving the officers permission to find the letter, so Mix retrieved it from an open safe. A very large quantity of empty plastic baggies was also found in or around the safe. The letter did not give appellant permission to possess or grow marijuana, but instead named someone not present at the apartment. Aside from the plants, the police observed, in plain view, a bag of potting soil in the hallway, three bottles of liquid plant food in the living room, and a small digital scale. Inside the bathroom, a "Cannabis Grow Bible" and plastic planter trays were found. A cane sword was found on the top bookshelf in the living room. Each of these items was seized. Sometime after Mix conducted her protective sweep of the apartment, other officers arrived and took control of the scene.
Thereafter, appellant was given Miranda admonitions (Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694) and agreed to be interviewed at the police station. Appellant said he grew marijuana as a hobby to use it as wallpaper. However, there were no marijuana leaves or plants embedded in the walls of the apartment. Appellant also said he did smoke marijuana with his 562*562 friends but denied selling it. Appellant was:not arrested on the evening the officers entered his apartment.
In moving, to suppress, appellant argued that the officers' warrantless entry and search of his entire apartment was nonconsensual and unjustified by exigent circumstances. The People opposed the suppression motion on the grounds that the plain view exception to the warrant requirement justified the officers' actions, the officers' warrantless entry was justified by their concern regarding the imminent destruction of drug evidence and the officers' concern for their safety justified" the protective sweep of the apartment. The magistrate denied appellant's motion to suppress all evidence seized after finding persuasive the prosecution's argument and authorities.
Thereafter, appellant renewed the motion to suppress in the trial court on the ground that there were no exigent circumstances justifying the officers' warrantless search of his apartment. (Pen.Code, § 1538.5, subd. (i).) The People opposed the motion, arguing that the officers had probable cause to believe that an offense was being committed inside the apartment and entered out of concern that evidence would be destroyed. The court denied the renewed suppression motion after concluding there were exigent circumstances.
DISCUSSION
I. Standard of Review
Where, as here, a motion to suppress is submitted to the superior court on the preliminary hearing transcript, "the appellate court disregards the findings of the superior court and reviews the determination of the magistrate who ruled on the motion to suppress, drawing all presumptions in favor of the factual determinations of the magistrate, upholding the magistrate's express or implied findings if they are supported by substantial evidence, and measuring the facts as found by the trier against the constitutional standard of reasonableness." (People v. Thompson (1990) 221 Cal.App.3d 923,' 940, 270 Cal.Rptr. 863.) "We exercise our independent judgment in determining whether, on the facts presented, the search or seizure was reasonable under the Fourth Amendment. [Citation.]" (People v. Lenart (2004) 32 Cal.4th 1107, 1119, 12 Cal.Rptr.3d 592, 88 P.3d 498.) We affirm the trial court's ruling if correct under any legal theory. (People v. Zapien (1993) 4 Cal.4th 929, 976, 17 Cal.Rptr.2d 122, 846 P.2d 704.)
II. The Officers' Warrantless Entry Was Not Justified by Exigent Circumstances
"It is axiomatic that the `physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.' [Citation.] And a principal protection against unnecessary intrusions into private dwellings is the warrant requirement imposed by the Fourth Amendment on agents of the government who seek to enter the home for purposes of search or arrest. [Citation.] It is not surprising, therefore, that the [United States Supreme] Court has recognized, as `a "basic principle of Fourth Amendment law[,]" that searches and seizures inside a home without a warrant are presumptively unreasonable.' [Citations.]" (Welsh, supra, 466 U.S. at pp. 748-749, 104 S.Ct. 2091, fn. omitted.)
"Yet, as with so much of its Fourth Amendment jurisprudence, the high court has stopped short of erecting a categorical bar. The presumption of unreasonableness that attaches to a warrantless entry into the home `can be overcome by a showing of one of the few "specifically established 563*563 and well-delineated exceptions" to the warrant requirement [citation], such as "`hot pursuit of a fleeing felon, or imminent destruction of evidence, ... or the need to prevent a suspect's escape, or the risk of danger to the police or to other persons inside or outside the dwelling'" [citation]. The United States Supreme Court has indicated that entry into a home based on exigent circumstances requires probable cause to believe that the entry is justified by one of these factors such as the imminent destruction of evidence or the need to prevent a suspect's escape.' [Citation.]" (People v. Thompson (2006) 38 Cal.4th 811, 817-818, 43 Cal.Rptr.3d 750,135 P.3d 3 (Thompson).)
"An exigent circumstance is needed for a warrantless entry into one's home regardless of the strength of the probable cause to arrest [citation] or the existence of a statute authorizing the arrest. [Citations.]" (People v. Ortiz (1995) 32 Cal. App.4th 286, 291, 38 Cal.Rptr.2d 59.)
For good reason, appellant does not contest the existence of probable cause to believe a crime was being committed by those inside the apartment. Responding to a noise complaint, the police detected the odor of burning marijuana and observed what appeared to be one or more individuals smoking marijuana. These observations were confirmed by appellant's equivocal answer to an officer's question regarding the marijuana odor.
Appellant focuses his challenge to the warrantless entry on Welsh's requirement that an entry into a home to preserve evidence from imminent destruction is limited to evidence of crimes that are not minor. (Welsh, supra, 466 U.S. at p. 750, 104 S.Ct. 2091.) Appellant argues the entry was illegal because the offense known to the officers at the time of entry, the simple possession of marijuana (Health & Saf.Code, § 11357, subd. (b)),[4] is a nonjailable offense and, therefore, cannot justify an entry to prevent the imminent destruction of evidence. In Welsh, officers went to the defendant's home after developing probable cause to believe he had recently driven a car under the influence of alcohol. The officers entered the home without a warrant to arrest the defendant, in part, because they feared the imminent destruction of evidence that would result from the dissipation of the alcohol in his blood. (Welsh, at pp. 753-754, 104 S.Ct. 2091.) Welsh reasoned that "an important factor to be considered when determining whether any exigency exists [to justify a warrantless entry] is the gravity of the underlying offense for which the arrest is being made." (Id at p. 753, 104 S.Ct. 2091.) Welsh was arrested for his first driving under the influence (DUI) offense, and, in Wisconsin, such offenses were classified as noncriminal, civil forfeiture offenses for which no imprisonment could be imposed. On that basis, the Supreme Court determined the warrantless entry was unreasonable. (Id at p. 754, 104 S.Ct. 2091.)
Illinois v. McArthur (2001) 531 U.S. 326, 121 S.Ct. 946, 148 L.Ed.2d 838 (McArthur) delineated the scope of exigency in circumstances closely related to our own. In McArthur, the police suspected that marijuana had been hidden in a trailer where McArthur was living. The police contacted McArthur outside the trailer and sought permission to search the trailer, 564*564 which McArthur denied. While one officer went to get a search warrant, McArthur was barred from reentering the trailer without a police officer accompanying him. About two hours later, an officer returned with the warrant and found a small amount of marijuana in the trailer. (Id. at p. 329, 121 S.Ct, 946.) McArthur relied on Welsh to argue that misdemeanor possession of marijuana, punishable in Illinois by up to 30 days in jail, was too minor an offense to justify the warrantless restraint he had suffered. (McArthur, at pp. 335-336, 121 S.Ct. 946.) The high court disagreed, concluding that "`"the penalty that may attach to any particular offense seems to provide the clearest and most consistent indication of the State's interest in arresting individuals suspected of committing that offense"' [citations] and finding `significant distinctions' between `crimes that were "jailable," not "nonjailable."' [Citation.]" (Thompson, supra, 38 Cal.4th at p. 822, 43 Cal.Rptr.3d 750,135 P.3d 3.)
Finally, in Thompson, our Supreme Court distinguished Welsh and relied on McArthur to uphold a warrantless entry into a home to effect a suspect's arrest for DUI because, unlike Wisconsin, California classifies a first DUI offense as a criminal act, punishable by a jail term. (Thompson, supra, 38 Cal.4th at p. 821, 43 Cal. Rptr.3d 750, 135 P.3d 3.) Thompson also reasoned that, in California, DUI "is not an `extremely minor' offense" and limited Welsh to Wisconsin's decision to classify DUI as a civil nonjailable offense. (Thompson, at p. 821, 43 Cal.Rptr.3d 750, 135 P.3d 3.)
Possession of less than 28.5 grams of marijuana is a misdemeanor punishable by a fine of no more than $100, which is less than the punishment imposed by Wisconsin in Welsh. Relying on the line clearly drawn between jailable and nonjailable offenses in McArthur and Thompson, we conclude that the crime observed by the Pacifica police officers cannot support a warrantless entry, based on exigent circumstances.
This conclusion is confirmed by certain policy factors considered during the enactment of Senate Bill No. 95, which amended Health and Safety Code section 11357, subdivision (b), to reduce the penalties for simple possession of marijuana. For example, in its analysis, the State Office of Narcotics and Drug Abuse recited as reasons for the amendment: (1) "[U]se of a substance with a comparatively low health and social hazard such as marijuana does not warrant jail or imprisonment;" and (2) "The [personnel] and dollar costs of enforcing present marijuana laws could be better spent for other, more beneficial social purpose." (State Off. of Narcotics and Drug Abuse, Enrolled Bill Rep. on Sen. Bill No. 95 (1975-1976 Reg. Sess.) July 1, 1975, p. 3.)
The minor nature of this crime is also revealed in its treatment of repeat offenders. If a person who possesses less than 28.5 grams of marijuana "has been previously convicted three or more times of an offense described in this subdivision during the two-year period immediately preceding the date of commission of the violation to be charged" the person must be placed in a drug diversion program pursuant to Penal Code sections 1000.1 and 1000.2. (Health & Saf.Code, § 11357, subd. (b).) And, if not accepted into a diversion program, the person shall be subject to the $100 fine. (Ibid.) In addition, a person arrested for a violation of this subdivision is to be cited and released "and shall not be subject to booking." (Ibid.) This mandatory citation-only procedure appears to be unique among misdemeanor offenses. Finally, the preservation of the records of arrest and conviction for this offense is limited. Health and Safety Code section 565*565 11361.5, subdivision (a), expressly provides that records "pertaining to the arrest or conviction of any person for a violation of subdivision (b), (c), (d), or (e) of Section 11357 ... shall not be kept beyond two years from the date of the conviction...."
The People do not challenge this legal analysis. Instead, they argue that at the time of entry, the two officers had probable cause to believe that two crimes more serious than a violation of Health and Safety Code section 11357, subdivision (b), were being committed. "[T]he officers had reason to believe that appellant possessed [more than 28.5 grams of marijuana], which exposed him to a possible sentence of a year in jail. (Health & Safe Code, § 11357, subd. (a).)" While we accept the reasonable possibility that there was more marijuana in the apartment than the two blunts observed by the officers, it is mere conjecture to conclude that there was enough to constitute a jailable offense.
The People also argue, "the act of furnishing marijuana to others is a felony punishable by imprisonment for as many as four years. (Health & Saf.Code, § 11360, subd. (a).)" But this argument ignores Health & Safety Code section 11360, subdivision (b), which provides that "Except as authorized by law, every person who gives away ... not more than 28.5 grams of marijuana ... is guilty of a misdemeanor and shall be punished by a fine of not more than" $100.[5] Thus, even had the officers observed one individual in the apartment furnish another with marijuana, the officers did not have probable cause to believe that a jailable offense was being committed at the time they entered.
We recognize that in Welsh and Thompson the officers entered a residence to obtain evidence of a crime that had occurred in the past, outside of the officers' presence. Here, the Pacifica police officers observed the commission of a crime that was ongoing at the time they entered the apartment. At least one court has concluded that Penal Code section 836 authorizes a warrantless entry to effect an arrest in such circumstances. (People v. Robinson (1986) 185 Cal.App.3d 528, 531, 229 Cal.Rptr. 851.) Section 836, subdivision (a), provides that a peace officer may arrest a person without a warrant whenever "(1) The officer has reasonable cause to believe that the person to be arrested has committed a public offense in the officer's presence." We join several other courts in expressly rejecting the Robinson analysis. "A statute does not trump the Constitution. Under the Fourth Amendment, `"To be arrested in the home., is simply too substantial an invasion to allow without a warrant, at least in the absence of exigent circumstances, even when it is accomplished under statutory authority...."' [Citations.]" (People v. Ortiz, supra, 32 Cal.App.4th at p. 292, fn. 2, 38 Cal.Rptr.2d 59.) Conway v. Pasadena Humane Society (1996) 45 Cal.App.4th 163, 176, 52 Cal. Rptr.2d 777, and People v. Hull (1995) 34 Cal.App.4th 1448, 1453, 41 Cal.Rptr.2d 99, have adopted the reasoning of Ortiz, as do we.
California has chosen to treat the offense of possession of less than 28.5 grams of marijuana as a minor offense that is nonjailable even for repeat offenders. Under Welsh, McArthur and Thompson, one consequence of that decision is to preclude officers who see this offense being committed from entering a home without a warrant or consent to seize the offender or the contraband, in order to prevent the imminent destruction of evidence of the offense.
566*566 Because the Pacifica police officers' entry into the apartment was unjustified, appellant's motion to suppress the evidence seized was erroneously denied.
DISPOSITION
The judgment is reversed.
We concur. JONES, P.J., and GEMELLO, J.
[1] The background facts are derived from the preliminary hearing transcript.
[2] Mostasisia said his question regarding animals mainly concerned the possible presence of "guard dogs, pit bulls, Rottweilers."
[3] Expert testimony was later presented that the marijuana found in appellant's apartment was being cultivated and was possessed for both personal use and sale.
[4] Pursuant to Health and Safety Code section 11357, subdivision (b), a person who possesses not more than 28.5 grams of marijuana, other than concentrated cannabis, is guilty of a" misdemeanor, punishable by a fine of not more than $100. Pursuant to subdivision (c) of that section, possession of more than 28.5 grams of marijuana, other than concentrated cannabis, is punishable by not more than six months in jail or a fine up to $500, or both.
[5] This provision also contains a mandatory citation requirement, like the one contained in Health and Safety Code section 11357, subdivision (b).
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People v. Forrester, 67 Cal. Rptr. 3d 740 - Cal: Court of Appeal, 2nd Appellate Dist. 2007ReadHow citedSearch
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People v. Forrester, 67 Cal. Rptr. 3d 740 - Cal: Court of Appeal, 2nd Appellate Dist. 2007
67 Cal.Rptr.3d 740 (2007)
156 Cal.App.4th 1021
The PEOPLE, Plaintiff and Respondent,
v.
Jason Michael FORRESTER, Defendant and Appellant.
No. B198662.
Court of Appeal of California, Second District.
November 8, 2007.
741*741 Law Offices of Tony Marlow, Anthony J. Marlow, Paso Robles, and Midori Hill Feldman, for Defendant and Appellant.
Gerald T. Shea, District Attorney, Kathleen Philpot Secrest, Deputy District Attorney, County of San Luis Obispo, for Plaintiff and Respondent.
GILBERT, P.J.
In People v. Sweet (1989) 207 Cal.App.3d 78, 254 Cal.Rptr. 567 (Sweet), defendant pled guilty to driving under the influence of alcohol (DUI). At the time of his plea, a defendant convicted of a subsequent DUI offense within five years receives increased punishment. After Sweet's plea, the Legislature amended the statute to extend the five years to seven years. Sweet reoffended more than five but less than seven years later. In Sweet, we held that the statute may constitutionally be applied to prior DUI convictions entered when five years was the maximum period in which prior convictions could be used for increased sentence. (Id. at p. 83, 254 Cal. Rptr. 567.)
Jason Michael Forrester is in a similar predicament. The statute was again amended to extend the seven years to ten years. (Veh.Code, §§ 23540 & 23546.)[1] Faced with the seemingly insuperable Sweet precedent, Forrester asks us to reexamine our holding in light of Stogner v. California (2003) 539 U.S. 607, 123 S.Ct. 2446, 156 L.Ed.2d 544. We have, and conclude nothing has changed. Forrester's enhanced sentence does not violate ex post facto or due process principles. We affirm the judgment.
Factual and Procedural Background
Forrester suffered two DUI convictions, one in 1997 and another in 2001. In 1997, sections 23540 and 23546 provided that DUI-related convictions increase punishment for subsequent DUI convictions occurring within seven years. Effective January 742*742 1, 2005, the California Legislature amended these statutes to extend the period to 10 years.[2]
In March 2006, Forrester was again charged with DUI offenses. (§§ 23152, subd. (a) & 23152, subd. (b).) The People alleged his two prior convictions to enhance his sentence.
Forrester moved to strike his prior 1997 conviction. He argues, as did defendant Sweet, that to enhance his sentence with this prior conviction violates the ex post facto clause. The trial court denied the motion and Forrester pled no contest to a violation of section 23152, subdivision (b), and admitted the two prior convictions. He was sentenced to confinement in county jail. The trial court stayed execution of his sentence pending appeal and granted him a certificate of probable cause.
The Appellate Division of the Superior Court affirmed. It concluded that use of the 1997 prior conviction to enhance Forrester's sentence does not violate ex post facto principles. We granted Forrester's request to transfer the case here for resolution of the constitutional issues.
Ex Post Facto Clause and Due Process
Forrester acknowledges our analysis in Sweet aid other precedent. Ex post facto laws (1) criminalize formerly innocent actions after their commission; (2) aggravate a crime after its commission; (3) increase the punishment associated with the crime after its commission; or (4) alter the legal rules of evidence required to convict the offender. (Miller v. Florida (1987) 482 U.S. 423, 429, 107 S.Ct. 2446, 96 L.Ed.2d 351; Sweet, supra, 207 Cal.App.3d at p. 82, 254 Cal.Rptr. 567.) "Statutes enacting punishment for a defendant convicted of violating section 23152 with prior convictions do not have the effect of being ex post facto laws. [Citations.] It is the law in effect at the time of commission of the offense which controls. [Citations.]" (Sweet, at p. 82, 254 Cal.Rptr. 567.)
In 2006, when Forrester committed the current DUI offense, the law provided that an individual with prior section 23103.5 convictions within the last 10 years would be subject to enhanced punishment if convicted of violating section 23152, subdivision (a). (23540, 23546, 23550.) "There is no constitutional bar preventing application of the statute to later offenses solely because the prior conviction which serves as a basis for enhancement was committed before the habitual offender statute was enacted." (Sweet, supra, 207 Cal.App.3d at p. 83, 254 Cal.Rptr. 567.) The crime Forrester is punished for is not the prior conviction, but the subsequent offense of which the prior conviction constitutes only one element. [Citation.] (Ibid.)
Courts have routinely rejected ex post facto challenges to statutes that increase penalties for recidivism. Courts reason that the sentence imposed upon a habitual offender is not an additional punishment for the earlier crime, but a punishment for the later crime, which is aggravated because of its repetitive nature. (See, e.g., Gryger v. Burke (1948) 334 U.S. 728, 732, 68 S.Ct. 1256, 92 L.Ed. 1683; People v. Snook (1997) 16 Cal.4th 1210, 1221, 69 Cal.Rptr.2d 615, 947 P.2d 808; People v. 743*743 Eribarne (2004) 124 Cal.App.4th 1463, 1469, 22 Cal.Rptr.3d 417 [three strikes law]; People v. Wohl (1991) 226 Cal. App.3d 270, 273, 276 Cal.Rptr. 35 [rejecting ex post facto contention where DUI conviction is elevated to felony on fourth conviction].). Additionally, it is well established that even expungement of a conviction will not eliminate all consequences associated with that conviction. (People v. Jacob (1985) 174 Cal.App.3d 1166, 1173, 220 Cal.Rptr. 520.)
Forrester argues that Sweet is no longer good law because Stogner v. California, supra, 539 U.S. 607, 123 S.Ct. 2446, 156 L.Ed.2d 544, compels a different result. In Stogner, the State of California attempted to revive the statute of limitations for the crime of child molestation after the original statute of limitations had expired. The United States Supreme Court held that California was barred from doing so because the new statute of limitations attached criminal liability "`... where the party was not, by law, liable to any punishment.'" (Id. at p. 613, 123 S.Ct. 2446.)
The Appellate Division correctly noted the difference between reviving a prosecution in its entirety after the statute of limitations has run, and enhancing the sentence in a new criminal prosecution stemming from new criminal conduct. Here Forrester's prosecution stems from a law that became effective more than one year before the date of his arrest, and one that apprised him of the possible consequences of a new violation. Unlike Stogner, Forrester has not been charged with a crime for which the statute of limitations has run. He has not been deprived of a vested defense because the statute extending the maximum period of prior offenses was enacted before the current offense. (See Sweet, supra, 207 Cal.App.3d at pp. 82, 86, 254 Cal.Rptr. 567.)
Violation of Forrester's 1997 Plea Agreement and Estoppel
Forrester next contends that the plea agreement he signed in 1997 is a contract in which the district attorney promised he would receive an enhanced sentence only for DUI offenses committed within seven years. He relies on language in the plea form stating that the court and counsel advised him of the elements of the offense, the possible defenses, and the direct consequences of his plea, including the minimum and maximum sentences listed on a chart appearing on the second page of the plea form. A chart lists the penalties for DUI convictions effective January 1, 1994, depending upon the number of prior DUI offenses committed within the previous seven years. The chart simply provides information concerning the relevant law at that time. No language in the plea agreement, nor any evidence supports the contention that Forrester relied on the information in the chart in entering his plea. Nor would such reliance have been reasonable.
For these reasons, there is no merit to Forrester's contention the state is estopped from using his 1997 conviction. (See Hair v. State of California (1991) 2 Cal.App.4th 321, 328-329, 2 Cal.Rptr.2d 871.)
The judgment is affirmed.
We concur: YEGAN, and COFFEE, JJ.
[1] All statutory references are to the Vehicle Code.
[2] Section 23540 currently provides in part: "If a person is convicted of a violation of Section 23152 and the offense occurred within 10 years of a separate violation of Section 23103, as specified in Section 23103.5, 23152, or 23153, that resulted in a conviction, that person shall be punished by imprisonment in the county jail for not less than 90 days nor more than one year and by a fine of not less than ($390) nor more than ($1000)." Section 23546 provides for additional punishment if a person has two prior qualifying convictions (e.g., "wet reckless" driving convictions).
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People v. McCarnes, 179 Cal. App. 3d 525 - Cal: Court of Appeal, 4th Appellate Dist., 2nd Div. 1986ReadHow citedSearch
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People v. McCarnes, 179 Cal. App. 3d 525 - Cal: Court of Appeal, 4th Appellate Dist., 2nd Div. 1986
179 Cal.App.3d 525 (1986)
224 Cal. Rptr. 846
THE PEOPLE, Plaintiff and Respondent,
v.
CHARLES FRANCIS McCARNES III, Defendant and Appellant.
Docket No. E001605.
Court of Appeals of California, Fourth District, Division Two.
March 31, 1986.
527*527 COUNSEL
Robert E. Dowd and Rex W. Kellough for Defendant and Appellant.
John K. Van de Kamp, Attorney General, Peter Quon, Jr., and Raquel M. Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
TAYLOR, J.[*]
A jury convicted Charles Francis McCarnes III (defendant) of two counts of second degree murder (Pen. Code, §§ 187, 189); two counts of vehicular manslaughter (then Pen. Code, § 192, subd. 3(a), now Pen. Code, § 192, subd. (c)(1)); one count of driving under the influence of alcohol and drugs so as to cause bodily injury to another (Veh. Code, § 23153, subd. (a)); one count of driving with 0.10 percent or more of alcohol in the blood so as to cause bodily injury to another (Veh. Code, § 23153, subd. (b)); and one count of failing to give the proper information or render the proper assistance at the scene of the accident (Veh. Code, § 20001). In addition, defendant admitted four previous convictions for driving under the influence of alcohol or alcohol and drugs, and pled guilty to one count of driving with knowledge that his driving privileges had been suspended or revoked for driving under the influence of alcohol or drugs (Veh. Code, § 14601.2, subd. (a)). Defendant was sentenced to state prison for a determinate term of four years and eight months and a consecutive indeterminate term of fifteen years to life. This appeal followed.
FACTS
About 2 p.m. on a summer Saturday afternoon, defendant was driving his Chevrolet west on Allesandro Boulevard just west of its intersection with 528*528 Moreno Beach Boulevard, east of Riverside. His blood alcohol level was about .27 percent.[1] He tried to pass a Datsun station wagon at a speed of "65-plus."[2] During the passing maneuver, defendant drove into the eastbound lane of Allesandro (a two-lane highway) and collided head-on with a VW station wagon. There were six people in the VW: Frank Ferreira and his wife Jacqueline; their baby daughter Jennifer, who was almost two; their niece Lisa; their teenage nephew Patrick, and Frank's fifteen-year-old sister Elizabeth.
After the collision, defendant walked over to the vicinity of the VW. A bystander was giving artificial respiration to the baby, who, according to a witness, was missing "a big chunk of her head." Defendant leaned over, said "`Don't die, baby, don't die,'" and walked away. A deputy sheriff arrived on the scene and was told that defendant had left the scene. The sheriff drove after defendant. When the sheriff approached him, defendant ran into a field. The sheriff ran after him and overtook him. Defendant told the sheriff that he had tried "to do CPR on the baby."
A CHP officer administered a field sobriety test to defendant within an hour of the collision. The officer testified at trial that in his opinion defendant was "extremely intoxicated." The criminalist (see fn. 1, ante) testified that a person had to be a "pretty experienced drinker" to reach a level of .27 percent, and that many persons would become unconscious with a blood alcohol level of less than .30 percent.
As a result of injuries received in the collision, Frank Ferreira and his baby daughter died; Frank's wife Jacqueline had four broken ribs; their nephew Patrick had two broken arms, a broken femur and a broken pelvic bone; their niece Lisa had torn ligaments in her knee, and Frank's sister Elizabeth had a broken nose and front teeth knocked out.
SYNOPSIS OF PROCEEDINGS IN THE TRIAL COURT
Defendant was charged by information with: two counts of murder; two counts of vehicular manslaughter; one count of driving under the influence of alcohol and drugs so as to cause bodily injury to another; one count of driving with 0.10 percent or more of alcohol in the blood so as to cause bodily injury to another; having previously been convicted of driving under the influence of alcohol or alcohol and drugs (then Veh. Code, § 23102, 529*529 now Veh. Code, § 23152) in 1975, 1979, 1980, 1981 and 1982; having previously been convicted of reckless driving (Veh. Code, § 23103) in 1978; one count of failing to give information or assistance at the scene of the accident, and one count of driving with suspended or revoked driving privileges.
Defendant pleaded not guilty to the charges, and denied the previous convictions. He then filed a motion, pursuant to Penal Code section 995, to set aside the murder counts on the grounds, incredibly, that the preliminary hearing evidence as to his driving before the collision (see infra) and his blood alcohol level were insufficient to support a finding of implied malice. After a hearing, the motion was denied.
At the outset of trial, the People made a motion, pursuant to Evidence Code section 402, to admit defendant's earlier convictions for driving under the influence and for reckless driving, supra, for the purpose of proving the element of implied malice in the murder counts. After extensive argument (48 pages in the reporter's transcript) the motion was granted. Shortly afterwards, the court limited its ruling to the 1979, 1980, 1981 and 1982 convictions, and refused to admit the 1975 and 1978 convictions. Thereupon the People dismissed the charges as to those two convictions.
After the court denied his motion to bifurcate the trial on the previous convictions, defendant withdrew his denial of the four remaining convictions, and admitted the truth thereof.
Defendant also withdrew his plea of not guilty to the driving with a suspended or revoked license charge, and pleaded guilty thereto. The prosecutor then made a motion to introduce that conviction on the implied malice issue. The court denied the motion, on the grounds that such evidence would be more prejudicial than probative.
At the end of the People's case the prosecutor read the jury a stipulation as to the four previous convictions, and the court admonished the jury that it could consider the convictions only on the issue of implied malice in the murder counts. Defendant then made a motion, pursuant to Penal Code section 1118.1, for a judgment of acquittal on the murder counts. The motion was denied.
After the conviction, defendant substituted two retained attorneys for the public defender. The new attorneys, who are also representing defendant on appeal, filed a motion for a new trial on the grounds that the trial court had erred in admitting the previous convictions, and, because the jury had returned verdicts convicting defendant of both murder and manslaughter, 530*530 that he could be convicted only of manslaughter. After a lengthy hearing, the motion for a new trial was denied.
DISCUSSION
On appeal, defendant contends: (1) the trial court prejudicially erred in admitting evidence of four of defendant's previous convictions for driving under the influence; (2) there was insufficient evidence to support the verdicts on the murder counts; and (3) the jury verdicts on the murder and the manslaughter counts preclude defendant from being convicted of murder.
I
THE ADMISSION OF DEFENDANT'S PREVIOUS CONVICTIONS FOR DRIVING UNDER THE INFLUENCE
(1) As noted, the trial court allowed the People to present evidence of defendant's 1979, 1980, 1981 and 1982 convictions for driving under the influence, and instructed the jury that it could consider the convictions only on the issue of implied malice in the murder counts. On implied malice the jury was instructed as follows:
"Malice is implied when the killing results from an intentional act involving a high degree of probability that it will result in death, which act is done for a base, antisocial purpose and with a wanton disregard for human life or when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life." (CALJIC No. 8.11 (1983 rev.), italics added.)
In deciding to admit the previous convictions, the trial court relied on the second concept of implied malice, supra (hereinafter the "dangerous to life" concept), and reasoned that evidence of the convictions "would be highly probative that the defendant ... did possess the knowledge that his conduct would endanger the lives of others as well as ... that he consciously and deliberately disregarded such knowledge and did so with a conscious disregard for the lives of other[s]." On the section 352 issue, the court stated, although the evidence was highly prejudicial, that it was "so substantial" on the issues of knowledge and conscious disregard, that its probative value outweighed the danger of undue prejudice. We agree.
Without citing any relevant authority, defendant contends that the court erred in relying on the "dangerous to life" concept of implied malice to 531*531 admit the previous convictions, and in including that concept in the jury instruction, supra. Defendant argues that the "high probability that it will result in death" concept is the "proper" definition of implied malice, and the "dangerous to life" concept is not. We do not agree.
The alternative definition of implied malice in the 1983 revision of CALJIC No. 8.11 is based on the following language in People v. Watson (1981) 30 Cal.3d 290 [179 Cal. Rptr. 43, 637 P.2d 279]: "We have said that second degree murder based on implied malice has been committed when a person does `"`an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life'"....' (People v. Sedeno, supra, 10 Cal.3d at p. 719 [112 Cal. Rptr. 1, 518 P.2d 913], quoting from People v. Phillips, supra, 64 Cal.2d 574, 587 [51 Cal. Rptr. 225, 414 P.2d 353].) Phrased in a different way, malice may be implied when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life. (People v. Washington (1965) 62 Cal.2d 777, 782 [44 Cal. Rptr. 442, 402 P.2d 130].)" (Id., at p. 300, italics added.)
In an effort to retain the "high probability [of] death" language, defendant's attorney argued at length to the trial court that the two concepts of implied malice which were stated disjunctively in Watson and in CALJIC No. 8.11 should be stated conjunctively in the jury instruction. The trial court rejected that argument, and used the alternative language of 8.11. On appeal defendant goes one step further, and argues, not that the two concepts should be used conjunctively, but that the "dangerous to life" concept should not be used at all (this, despite the fact, as pointed out by the prosecutor to the trial court, that the "dangerous to life" concept is the first [and therefore impliedly the preferred] concept stated in Watson).
Although defendant concedes that our Supreme Court "equated" the two concepts in Watson, he argues that the concepts are not equivalent, and that an act whose "natural consequences ... are dangerous to life" is not as risky as one which has a "high probability that it will result in death." In support of his argument, defendant cites post-Watson cases in which implied malice was defined only in terms of the "high probability [of] death" concept. However, because only one concept was used in those cases does not necessarily mean either it was the only concept which was proper, or it was the more rigorous concept. Moreover, in the cases of People v. Sedeno (1974) 10 Cal.3d 703 [112 Cal. Rptr. 1, 518 P.2d 913], People v. Phillips (1966) 64 Cal.2d 574 [51 Cal. Rptr. 225], and People v. Eagles (1982) 133 532*532 Cal. App.3d 330 [183 Cal. Rptr. 784], implied malice was defined only in terms of the "dangerous to life" concept, suggesting that either of the two concepts is proper, and that they are but "different way[s]" (Watson) of saying the same thing.
Defendant also contends that his previous convictions for driving under the influence were not probative on the knowledge element of implied malice, because the convictions showed only that he knew such driving was unlawful, but not that he knew it was dangerous. However, the reason that driving under the influence is unlawful is because it is dangerous, and to ignore that basic proposition, particularly in the context of an offense for which the punishment for repeat offenders is more severe (Veh. Code, §§ 23165, 23170, 23175), is to make a mockery of the legal system as well as the deaths of thousands each year who are innocent victims of drunken drivers.
Moreover, included in the evidence of two of defendant's convictions, as shown to the jury, was the sentence that he enroll in and complete a drinking driver's education program. Even if we assume defendant did not realize after his convictions that it was dangerous to drink alcohol and drive, surely realization would have eventually arrived from his repeated exposure to the driver's educational program. To argue otherwise is little short of outrageous.
Finally, defendant's reliance on People v. Esparza (Cal. App.) and People v. Dellinger (1984) 163 Cal. App.3d 284 [209 Cal. Rptr. 503] is misplaced. Our Supreme Court has ordered that Esparza not be published in the Official Reports, and Dellinger is distinguishable, in that the defendant denied committing the act (furnishing cocaine to the victim) to which the previous crime evidence (defendant's prior use of cocaine) was applied. "Generally, knowledge, intent, or state of mind evidence is admissible if there is no doubt that defendant has committed the act, but there is some question as to his or her mental state at the time." (Dellinger, supra, at p. 298, italics added.) In Dellinger, whether or not the defendant furnished the cocaine was in doubt; in the case here, whether or not defendant drove the Chevrolet was not.
(2) Defendant also contends that evidence of the prior convictions should not have been admitted because to do so was substantially more prejudicial than probative. (Evid. Code, § 352.) We do not agree. This issue was argued at length in the trial court, and, as noted, the court concluded that the evidence was "so substantial" on the issues of knowledge and conscious disregard, that its probative value outweighed the danger of undue prejudice. In the light of our foregoing analysis, we conclude that the admission 533*533 of the evidence was not and could not even remotely be considered an abuse of discretion.
II
SUBSTANTIAL EVIDENCE OF MALICE
(3) Defendant contends that the evidence of his driving before the collision was insufficient to support a finding of malice. This contention is not supported by the record. Viewed in a light most favorable to the People, the evidence was as follows: defendant was driving with a blood alcohol level of .27 percent, almost three times the percentage necessary to support a finding that he was legally intoxicated. Moments before the collision on Allesandro, defendant passed a pickup truck on Moreno Beach Boulevard (a 2-lane road with a speed limit of 45 miles per hour) at a speed of close to 70, and continued to drive a substantial distance in the opposite lane before pulling over. He then tried to pass a van and a boat, and pulled out so far to his left that he went into the dirt shoulder on the opposite side of the road. From the shoulder he cut across sharply in front of the van and the boat, just before the stop sign at the intersection of Moreno Beach Boulevard and Allesandro Boulevard. He turned west on Allesandro, which has a speed limit of 55 miles per hour (no one saw whether or not he stopped at the stop sign), and shortly afterwards tried to pass a Datsun station wagon at a speed of over 65 miles per hour, at a time when the VW station wagon he collided with could be clearly seen approaching in the opposite direction. The collision occurred a few feet beyond the Datsun station wagon.
In sum, defendant is arguing, as a matter of law, that there is no substantial evidence that driving by a person who has a blood alcohol level of .27 percent, and who executes two extremely reckless passing maneuvers and embarks on a third in the face of an oncoming vehicle, has "natural consequences ... which are dangerous to life," or "a high probability [of] result[ing] in death." (People v. Watson, supra, 30 Cal.3d 290, 300.) This is nonsense, if not an affront to this court. The foregoing evidence, coupled with the defendant's four previous convictions for driving under the influence, is not only sufficient but overwhelmingly upholds the finding of implied malice. Were it not for the reluctance expressed in Watson (at p. 301) we would be inclined to hold this evidence sufficient to prove implied malice as a matter of law.
On the dangerousness of the act of driving while intoxicated, the California Supreme Court observed in Burg v. Municipal Court (1983) 35 Cal.3d 257 [198 Cal. Rptr. 145, 673 P.2d 732]: "The drunk driver cuts a wide swath of death, pain, grief, and untold physical and emotional injury 534*534 across the roads of California and the nation. The monstrous proportions of the problem have often been lamented in graphic terms by this court and the United States Supreme Court. (See Taylor v. Superior Court (1979) 24 Cal.3d 890, 898-899 [157 Cal. Rptr. 693, 598 P.2d 854]) [quoting U.S. Dept. Health, Ed. & Welf., 3d Special Rep. U.S. Cong. on Alcohol and Health (1978)];...) ... Indeed, in the years 1976 to 1980 there were many more injuries to California residents in alcohol-related traffic accidents than were suffered by the entire Union Army during the Civil War, and more were killed than in the bloodiest year of the Vietnam War. (Compare Cal. Highway Patrol, 1980 Ann. Rep., Fatal & Injury Motor Vehicle Traffic Accidents, p. 2, tables 1a, 1b, 1c, 1d, and p. 58, tables 6a, 6b, with Statistical Abstract of U.S. (103d ed. 1982) p. 361, tables 598, 599.) Given this setting, our observation that `[d]runken drivers are extremely dangerous people' (Taylor v. Superior Court, supra, 24 Cal.3d 890, 899) seems almost to understate the horrific risk posed by those who drink and drive." (Id., at p. 262, italics added.)
Additionally, every year in the United States more than 50,000 people are killed on U.S. highways as a result of traffic accidents. Approximately one-half of these traffic fatalities are alcohol-related. (U.S. Dept. Transp., 1977 Highway Safety Act Rep., Appen. A-9, table A-1; cf. Jones & Joscelyn, Alcohol and Highway Safety 1978: A Review of the State of Knowledge (U.S. Dept. of Transp. 1978) pp. 11-26.)
Finally, the California Legislature has recognized just how dangerous driving under the influence can be by making the punishment for repeat offenders much more severe (Veh. Code, §§ 23165, 23170, 23175).
On defendant's knowledge and conscious disregard that his driving while intoxicated endangered the lives of others, in Watson the Supreme Court held, citing Taylor v. Superior Court, supra, that "`One who wilfully consumes alcoholic beverages to the point of intoxication, knowing that he thereafter must operate a motor vehicle, thereby combining sharply impaired physical and mental faculties with a vehicle capable of great force and speed, reasonably may be held to exhibit a conscious disregard of the safety of others.'" (People v. Watson, supra, 30 Cal.3d 290, 300-301.)
Here, of course, we have an additional element, which was not present in Watson, namely, defendant's four previous convictions for drunken driving, and his repeated exposure to a drinking driver's education program.
Defendant claims that his driving was far less dangerous than the defendants in the vehicular murder cases of Watson, supra, and People v. Fuller (1978) 86 Cal. App.3d 618 [150 Cal. Rptr. 515], where the defendants drove 535*535 at higher speeds and ran through red lights.[3] This contention is absurd. The case at bench, unlike Watson or Fuller, presents a portentous pattern of reckless, high-speed passing maneuvers on two-lane roads, involving repeated and deliberate driving into oncoming traffic, and culminating in a head-on collision. Defendant's conduct was even more egregious because the oncoming vehicle he collided with was clearly visible to defendant as he entered the opposing lane.
Moreover, "nowhere does the opinion in Watson state that all of the factors present in that case are necessary to a finding of second degree murder ... Watson ... deliberately declin[ed] to prescribe a formula for analysis of vehicular homicide cases, instead requiring a case-by-case approach." (People v. Olivas (1985) 172 Cal. App.3d 984, 988-989 [218 Cal. Rptr. 567].) Olivas, incidentally, was a Watson-type vehicular homicide case in which the defendant was charged with murder, convicted of second degree murder in a court trial, and sentenced to a prison term of 15 years to life for the murder. We note this in response to defendant's comment in his brief that "[n]o case has come to our attention in which the defendant in a Watson-type case has received a sentence as severe as that imposed here." Moreover, in Olivas there was only one homicide victim. Here there were two. Although the court here could have imposed consecutive sentences on the two murder counts (Cal. Rules of Court, rule 425(a)(4); see also People v. Eagles (1982) 133 Cal. App.3d 330 [183 Cal. Rptr. 784]), and the People so requested, the court chose not to do so.
III
THE VERDICTS ON THE MURDER AND THE MANSLAUGHTER COUNTS
During its deliberations, the jury asked the court whether it should process verdicts on the murder and the manslaughter counts. The court responded that a verdict must be processed on each such count. Despite that response, the jury returned guilty verdicts on the murder counts and blank verdicts on the manslaughter counts. The court instructed the jury to resume deliberations and to return verdicts on the manslaughter counts. It did so, and returned guilty verdicts on those counts. Defense counsel requested that the jurors be polled on the murder counts only. The jurors were polled on those counts, and all answered in the affirmative.
536*536 (4) In his motion for a new trial, defendant argued that the jury's guilty verdicts on the manslaughter counts indicated that it had a reasonable doubt as to malice, and that he therefore could not be convicted of murder. The court disagreed, noting that the jury "clearly found malice" when it returned guilty verdicts on the murder counts and blank verdicts on the manslaughter counts, and that any error in the procedure which resulted in the guilty verdicts on the manslaughter counts was not prejudicial. At the People's request, the court then dismissed the manslaughter counts.
On appeal, defendant ignores the manner in which the verdicts were returned, and relies on People v. Dewberry (1959) 51 Cal.2d 548 [334 P.2d 852], where the court said that when "reasonable doubt exists as between degrees of the same offense or as between [an] inclusive and included offense, the jury can only convict of the crime whose elements have been proved beyond a reasonable doubt." (Id., at p. 556.) However, Dewberry is inapposite because, as the trial court found here, the manner in which the verdicts were returned showed that the jury "clearly found malice," i.e., murder. Thus no reasonable doubt as to that offense existed. Moreover, assuming, as defendant argued below, that vehicular manslaughter is a lesser included offense of murder (People v. Watson (1983) 150 Cal. App.3d 313 [198 Cal. Rptr. 26]), the jury's guilty verdicts as to both offenses should result in the dismissal of the lesser offense (People v. Tideman (1962) 57 Cal.2d 574, 582 [21 Cal. Rptr. 207, 370 P.2d 1007]), as was done here. Such dismissal "would not affect the integrity of the conviction and sentence for the greater [offense]." (Id.)
DISPOSITION
The judgment is affirmed.
Rickles, Acting P.J., and McDaniel, J., concurred.
Appellant's petition for review by the Supreme Court was denied July 31, 1986.
[*] Assigned by the Chairperson of the Judicial Council.
[1] A blood sample taken from defendant about two hours later revealed an alcohol level of .23 percent. A criminologist testified that the average burn-off rate was about .02 an hour, and that the .23 figure was equivalent to .27 two hours earlier.
[2] This estimate of defendant's speed was given at trial by a passenger in the Datsun.
[3] Defendant also relies on In re Peter F. (Cal. App.) which has been deleted by our Supreme Court, and on People v. Pulley (1964) 225 Cal. App.2d 366 [37 Cal. Rptr. 376], which was disapproved by the Supreme Court in People v. Williams (1965) 63 Cal.2d 452, 458, fn. 5 [47 Cal. Rptr. 7, 406 P.2d 647], and in any event is distinguishable because it is a felony murder case.
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People v. Landon, 183 Cal. App. 4th 1096 - Cal: Court of Appeal, 1st Appellate Dist., 2nd Div. 2010ReadHow citedSearch
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People v. Landon, 183 Cal. App. 4th 1096 - Cal: Court of Appeal, 1st Appellate Dist., 2nd Div. 2010
183 Cal.App.4th 1096 (2010)
107 Cal. Rptr. 3d 847
THE PEOPLE, Plaintiff and Respondent,
v.
BRENDA LOUISE LANDON, Defendant and Appellant.
No. A123779.
Court of Appeals of California, First District, Division Two.
April 13, 2010.
1098*1098 Matthew Zwerling and L. Richard Braucher, under appointments by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, Laurence K. Sullivan and René A. Chacon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LAMBDEN, J.—
On August 14, 2008, defendant pleaded guilty to driving under the influence (DUI) with a blood-alcohol level greater than 0.08 percent (Veh. Code, § 23152, subd. (b)); she admitted four prior DUI 1099*1099 convictions. Subsequently, defendant was arrested for another DUI and, on September 18, 2008, she pleaded guilty to a DUI with prior convictions within 10 years (Veh. Code, §§ 23152, subd. (a), 23550, subd. (a)) and admitted committing the crime while released on her own recognizance (Pen. Code, § 12022.1, subd. (b)).[1] The court held a sentencing hearing for both of these cases and sentenced defendant to state prison for a total of four years eight months.
On appeal, defendant urges us to remand the matter to the trial court for a new sentencing hearing. Defendant contends the lower court erred and violated her due process rights under the Fourteenth Amendment when it found her statutorily ineligible for probation under section 1203, subdivision (e)(4). We will not remand for a new sentencing hearing because defendant failed to establish prejudice.
While this appeal was pending, the Legislature amended section 4019, which changed the calculation of presentence conduct credit. Defendant filed a motion in the trial court requesting that her presentence conduct credits be calculated in accordance with the amended statute. The lower court denied this request, finding that the amended statute did not apply retroactively. Defendant appealed from this ruling.
We note that the Third Appellate District has held that the amended statute applies retroactively (People v. Brown (2010) 182 Cal.App.4th 1354 (Brown)), while the Fifth Appellate District has held that it applies prospectively only (People v. Rodriguez (2010) 182 Cal.App.4th 535 [105 Cal.Rptr.3d 345] (Rodriguez)). We agree with the reasoning of the Third Appellate District and therefore hold that the amended statute applies retroactively.
BACKGROUND
The Two Arrests and Pleas
At 9:49 p.m., on November 21, 2007, an officer received a dispatch report regarding a female driving a white van and a possible DUI. The officer spotted the white van, which was traveling at an extremely high rate of speed and without lit headlights. The officer saw the van proceed through two intersections without stopping or slowing. The officer had to drive approximately 70 miles per hour to come close enough to stop the van.
Defendant was the driver of the white van. As defendant got out of the vehicle, the officer saw her almost fall over. Defendant had an "extremely 1100*1100 unsteady gait." The officer noticed that the left side of defendant's nose had blood from a scratch and defendant had a cut on the right side of her forehead. Defendant was too intoxicated to respond to the officer's question about what had happened. The officer had defendant perform field sobriety tests. She refused to submit to a preliminary alcohol screening test. Dispatch advised the officer that defendant was on probation for a DUI and that she had a suspended driver's license. The officer arrested defendant. She was transported to a medical center where a blood sample was taken and she had a blood-alcohol content of 0.26 percent.
On March 13, 2008, an information was filed in case No. SCUKCRCR0781676, which charged defendant with two counts of DUI with prior convictions within 10 years (Veh. Code, §§ 23152, subds. (a) & (b), 23550, subd. (a)), and one count of misdemeanor driving while privileges were suspended (Veh. Code, § 14601.2, subd. (a)). The information alleged defendant had a blood-alcohol content of 0.15 percent or higher (Veh. Code, § 23578) and was driving 20 miles per hour over the maximum speed limit (Veh. Code, § 23582, subd. (a)).
On April 8, 2008, defendant pleaded not guilty to all charges and denied all allegations.
At 8:55 p.m., on June 28, 2008, an officer received a report of a woman driving a beige Mazda recklessly northbound on Main Street in Willits. The report stated that the driver, later identified as defendant, was swerving in and out of lanes of traffic and tailgating.
An officer stopped defendant's car as she was driving from a gas station. When defendant got out of her vehicle and approached the officer, the officer smelled alcohol and marijuana on defendant's breath and person. The officer also noticed that defendant's eyes were red and watery and that she was slurring her speech. Defendant told the officer that she had numerous joint and skeletal problems making her unable to perform the field sobriety tests. She submitted to an in-field preliminary alcohol screening that showed a blood-alcohol content of 0.10 percent. The officer arrested defendant.
On July 21, 2008, an information in case No. SCWLCRCR0885031 was filed. This information charged defendant with one count of DUI with prior convictions within 10 years (Veh. Code, §§ 23152, subd. (a), 23550, subd. (a)), one count of transporting marijuana (Health & Saf. Code, § 11360, subd. (a)), and one count of misdemeanor driving while privileges were suspended (Veh. Code, § 14601.2, subd. (a)). The information alleged that the crimes were committed while defendant was released on her own recognizance (Pen. Code, § 12022.1, subd. (b)).
1101*1101 On August 14, 2008, pursuant to a negotiated disposition in case No. SCUKCRCR0781676, defendant pleaded guilty to a DUI with a blood-alcohol level greater than 0.08 percent (Veh. Code, § 23152, subd. (b)), and admitted four prior DUI convictions.
On September 18, 2008, pursuant to a negotiated disposition in case No. SCWLCRCR0885031, defendant pleaded guilty to a DUI with prior convictions within 10 years (Veh. Code, §§ 23152, subd. (a), 23550, subd. (a)), and admitted committing the crime while released on her own recognizance (Pen. Code, § 12022.1, subd. (b)).
Defendant's Competency
The matter was set for sentencing but, on December 2, 2008, defense counsel expressed doubt regarding defendant's competency under section 1368. The court suspended proceedings and appointed two psychologists to evaluate defendant's competence. On December 17, 2008, the court reviewed the psychologists' reports and found defendant legally competent and reinstated criminal proceedings.
The Probation Report
The probation officer filed her report and recommendation. The probation officer recommended that the court deny probation and sentence defendant to a total of five years. The probation report set forth the following convictions of defendant in Louisiana: soliciting for prostitution in February 1989, "access device fraud" in 1992, forgery in 1993, and issuing worthless checks in 1993.
Defendant's current probation officer spoke with Felix Indest, defendant's probation officer in Louisiana. According to Indest, defendant had a history of substance abuse and prostitution.
With regard to criteria affecting probation, the California probation officer stated that the circumstances of the crimes as compared to other instances of the same crime were more serious because of defendant's high blood-alcohol level and the speed she was traveling in her vehicle. The circumstances in aggravation, according to the probation report, were defendant's numerous prior convictions as an adult, which increased in seriousness. Additionally, defendant was on probation when the crime was committed and defendant's prior performance on probation had been unsatisfactory. Defendant appeared remorseful but the probation officer warned that defendant's DUI history was likely to persist and that she would continue to endanger others if not imprisoned. With regard to circumstances in mitigation, the probation officer 1102*1102 noted that defendant suffered from an alcohol addiction, which possibly reduced her culpability for the crime.
The probation officer noted that defendant had pleaded guilty to her fifth DUI. The probation officer stated that defendant had been provided ample opportunity to address her alcohol problems, but had failed to do so and continued to be a serious danger to the community. At the time of the probation report, defendant had a pending matter in the court for her sixth DUI. The probation officer stated that defendant had four prior felony convictions in Louisiana and was presumptively ineligible for probation, except in unusual cases where the interest of justice would be served. The probation officer stated that she did "not see any circumstances in this case, which would justify this case as unusual."
The Sentencing Hearing
Defendant testified at the sentencing hearing and promised never to drink alcohol again and requested probation conditioned on a long-term residential treatment program. Defense counsel argued that the court did not have reliable evidence that two of the convictions in Louisiana would have been punishable as felonies in California within the meaning of section 1203, subdivision (e)(4). Further, even if defendant had two or more prior felony convictions, defense counsel argued that probation was proper in this case.
At the end of the hearing on January 6, 2009, the court found defendant statutorily ineligible for probation; it did not find that there were sufficient unusual circumstances to grant probation. The court sentenced defendant to a total of four years eight months for both cases. The court awarded a total of 289 days' credit for time served (193 actual days in custody, plus 96 conduct credit days under former § 4019, subds. (b) & (c)).
On January 15, 2009, defendant filed a timely notice of appeal.
Presentence Credits
On January 25, 2010, section 4019 was amended to provide for one day of work time credit and one day of conduct credit for each four-day period in custody. On February 9, 2010, defendant filed a motion under section 1237.1 in superior court, requesting an order to recalculate her presentence credits in accordance with amended section 4019. Defendant argued that the amended version of the statute entitled her to an increase in presentence credits. After a hearing on February 19, 2010, the court denied the motion.
1103*1103 On February 23, 2010, defendant filed a notice of appeal from the denial of her request for presentence credits. Defendant requested permission from this court to file a supplemental brief to address this issue and we granted this request on March 3, 2010.
DISCUSSION
I. Denial of Probation
Defendant contends that the lower court's refusal to grant her probation based on section 1203, subdivision (e)(4)[2] violated her due process rights under the Fourteenth Amendment. The trial court found that she was presumptively ineligible for probation because she had two convictions in Louisiana. Defendant maintains that the two convictions in another state have to be punishable in California as a felony and the evidence did not show that defendant's four convictions in Louisiana constituted a felony if committed in California. Defendant concedes that her prior forgery conviction in Louisiana qualified as a felony under California law, but maintains that the record is insufficient to show that any of the other three convictions met the statutory requirements. She asserts that we should remand the matter for a new sentencing hearing.
The People do not challenge defendant's argument that the record does not establish that any of the convictions in Louisiana, other than the forgery conviction, satisfies the statutory requirements under section 1203, subdivision (e)(4). The People contend, however, that even if the statutory requirements were not met, defendant cannot prevail because she cannot demonstrate prejudice from any sentencing error. (People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)
We agree with the People that defendant cannot demonstrate prejudice. Had the trial court not found defendant presumptively ineligible for probation as the result of her two prior convictions in Louisiana, the trial court would still undoubtedly have terminated probation and sentenced her to state prison. The trial court was presented with overwhelming evidence that defendant's conduct while on probation was unsatisfactory. Defendant's criminal history consisted of six misdemeanor California convictions and four Louisiana convictions. At the time of defendant's arrest in case 1104*1104 No. SCUKCRCR0781676, defendant was on two grants of summary probation from Lake County for two DUI convictions.
The probation officer stated in her report that defendant "is appearing before the court, having pled guilty to a fifth felony [DUI]. She has been given several opportunities to address her alcohol problems, but they have had little effect on her. She continues to be a serious danger to the community. The defendant has a pending matter in superior court for her sixth [DUI] matter. It appears that the defendant has not realized society will not accept this type of behavior."
(1) Rather than provide evidence to show prejudice, defendant claims the sentencing hearing did not comport with the most basic of procedural safeguards and maintains that the information considered by the court was not reliable. (See People v. Peterson (1973) 9 Cal.3d 717, 726 [108 Cal.Rptr. 835, 511 P.2d 1187] [probation hearings do not require the same procedural safeguards as trials on the issue of guilt, but "an applicant for probation is nevertheless entitled to relief on due process grounds if the hearing procedures are fundamentally unfair"]; see also People v. Arbuckle (1978) 22 Cal.3d 749, 754-755 [150 Cal.Rptr. 778, 587 P.2d 220] ["Reliability of the information considered by the court is the key issue in determining fundamental fairness."]; People v. Eckley (2004) 123 Cal.App.4th 1072, 1080 [20 Cal.Rptr.3d 555] ["A court's reliance, in its sentencing and probation decisions, on factually erroneous sentencing reports or other incorrect or unreliable information can constitute a denial of due process."].) Defendant argues that a sentence cannot be based on false information. (See U.S. v. Weston (9th Cir. 1971) 448 F.2d 626, 634 [the defendant denied the information contained in the presentencing report and the Ninth Circuit held that the hearsay information in the report was of so little value that the trial court should not have relied upon this information when imposing the maximum term].)
Defendant's argument lacks merit because most of the evidence presented at the sentencing hearing was reliable. Although the evidence may not have satisfied the requirements of section 1203, subdivision (e)(4), the evidence did show defendant would be unable to comply with the conditions of probation in the future. This evidence was both reliable and overwhelming. Indeed, when sentencing defendant to the midterm for case No. SCUKCRCR0781676, the court commented on defendant's repeated offenses and stated, "This is a borderline aggravated [case]."
We decline to order a remand because it is not reasonably probable the trial court would impose a different sentence. (People v. Coelho (2001) 89 Cal.App.4th 861, 889-890 [107 Cal.Rptr.2d 729] [where the trial court was 1105*1105 unaware of the breadth of its discretion, no reversal and remand for resentencing is necessary as the remand would be an idle act that exalts form over substance because it is not reasonably probable the court would impose a different sentence]; see also People v. Fuhrman (1997) 16 Cal.4th 930, 945-946 [67 Cal.Rptr.2d 1, 941 P.2d 1189] [no remand required where record shows that it is unlikely that the trial court would strike the prior conviction in a three strikes case].) Defendant gave the court no reason to believe that she would comply with the conditions of her probation in the future.
II. Presentence Credit
(2) Under section 2900.5, a person sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a criminal defendant may earn additional presentence credit against his or her sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). These forms of presentence credit are called, collectively, conduct credit. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3 [95 Cal.Rptr.3d 408, 209 P.3d 623].)
When defendant was sentenced in January 2009, under the version of section 4019 then in effect, conduct credit could be accrued at the rate of two days for every four days of actual presentence custody. (Former § 4019.) In October 2009, the Legislature passed Senate Bill No. 18 (2009-2010 3d Ex. Sess.) (Senate Bill 18). Senate Bill 18 "addresses the fiscal emergency declared by the Governor by proclamation on December 19, 2008." (Stats. 2009, 3d Ex. Sess., ch. 28, § 62.) Its provisions provide various means by which prison populations may be reduced, thereby easing prison overcrowding and lowering the cost. This bill, among other things, amended section 4019, effective January 25, 2010, to provide that any person who is not required to register as a sex offender and is not being committed to prison for, or has not suffered a prior conviction of, a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5, subdivision (c), to accrue conduct credit at the rate of four days for every four days of presentence custody.
(3) Defendant contends that the amendment applies retroactively and, because her conviction was not final on January 25, 2010, the amendment applies to her. "[A]bsent a saving clause, a criminal defendant is entitled to the benefit of a change in the law during the pendency of his appeal . . . ." (People v. Babylon (1985) 39 Cal.3d 719, 722 [216 Cal.Rptr. 123, 702 P.2d 205].) "`[F]or the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for 1106*1106 petitioning for a writ of certiorari in the United States Supreme Court has passed. [Citations.]' [Citation.]" (People v. Vieira (2005) 35 Cal.4th 264, 306 [25 Cal.Rptr.3d 337, 106 P.3d 990].)
The People argue that the amendment does not apply retroactively and therefore the lower court properly calculated defendant's conduct credit based on former section 4019.
This issue has recently been addressed by the Third Appellate District in Brown, supra, 182 Cal.App.4th 1354 and the Fifth Appellate District in Rodriguez, supra, 182 Cal.App.4th 535. The Third Appellate District held that the amended statute applies retroactively, while the Fifth Appellate District held that it applies prospectively only. For the reasons discussed below, we agree with the reasoning of the Third Appellate District.
(4) Section 3 provides that "[n]o part of [the Penal Code] is retroactive, unless expressly so declared." Thus, "`[a] new statute is generally presumed to operate prospectively absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended otherwise. [Citation.]'" (People v. Alford (2007) 42 Cal.4th 749, 753 [68 Cal.Rptr.3d 310, 171 P.3d 32].)
Here, the 2010 amendment to section 4019 contains no express language that it has retroactive application. However, the Supreme Court created an exception to section 3 in In re Estrada (1965) 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948] (Estrada). In Estrada, the court considered whether a statute mitigating the punishment for escape should be applied retroactively to a defendant who escaped before the effective date of the mitigating statute; the statute was silent on the issue of retroactivity. (Id. at p. 744.) In deciding that the statute should be applied retroactively, the court explained: "When the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply. The amendatory act imposing the lighter punishment can be applied constitutionally to acts committed before its passage provided the judgment convicting the defendant of the act is not final. This intent seems obvious, because to hold otherwise would be to conclude that the Legislature was motivated by a desire for vengeance, a conclusion not permitted in view of modern theories of penology." (Id. at p. 745.) Thus, "where the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed." (Id. at p. 748.)
1107*1107 Senate Bill 18 does not have a saving clause and, as already stated, no express statement of intent. Under Estrada, if the amendment is a reduction in punishment, we must presume retroactive application, at least as to cases not yet final on the effective day. The Brown court held that Senate Bill 18 is a reduction of punishment and therefore has a retroactive application. (Brown, supra, 182 Cal.App.4th at p. 1365.) It cited People v. Hunter (1977) 68 Cal.App.3d 389 [137 Cal.Rptr. 299] (Hunter), where the court held that an amendment to section 2900.5, which permitted an award of presentence custody credits, had retroactive application despite the legislation containing no express statement of retroactive or prospective application. (Hunter, supra, at p. 392.)
The People here, as they did in Brown, argue that Hunter, supra, 68 Cal.App.3d 389 is distinguishable because Hunter involved actual custody credits rather than conduct credits. The latter's purpose is to create an incentive for good behavior while the objective for actual credits is to reduce the remaining punishment imposed. This distinction, however, is not significant. As the Brown court pointed out, an amendment to a statute involving conduct credits was applied retroactively in People v. Doganiere (1978) 86 Cal.App.3d 237 [150 Cal.Rptr. 61]. The Doganiere court concluded, "[I]t must be presumed that the Legislature thought the prior system of not allowing credit for good behavior was too severe." (Doganiere, supra, at p. 240.)
Here, the People argue that the reasoning in People v. Doganiere is unsound and attempt to bolster this assertion by citing to In re Stinnette (1979) 94 Cal.App.3d 800 [155 Cal.Rptr. 912]. In Stinnette, the court considered an amendment to section 2931 under the Determinate Sentencing Act (DSA), which allowed prisoners to earn conduct credits but restricted application of the amendment to time served after the effective date. (Stinnette, supra, at p. 803.) The DSA expressly provided for prospective application and therefore the issue before the court was whether this prospective application violated equal protection. (Stinnette, supra, at p. 804.) The court concluded that it did not. (Id. at pp. 805-806.) The amendment to section 4019, unlike the amendment in Stinnette, does not specify the Legislature's intent regarding its retroactive or prospective application and therefore Stinnette is not relevant to determining the Legislature's intent when amending section 4019.
The People also cite Rodriguez, supra, 182 Cal.App.4th 535, a recent Fifth Appellate District decision, which concluded that the amendment to section 4019 does not apply retroactively. The Fifth Appellate District in Rodriguez concluded that Estrada concerned a reduction in the penalty for a specific offense and therefore the Legislature must have determined that the penalty for that offense was too severe. (Rodriguez, supra, at pp. 540-541.) In 1108*1108 contrast, the Rodriguez court emphasized that the amendment to section 4019 increases the rate at which a criminal defendant can earn conduct credit and does not reflect a determination that a penalty for a particular crime is too severe. (Rodriguez, supra, at pp. 541-542.) Furthermore, the Rodriguez court reasoned that conduct credit should not apply retroactively because its purpose is to provide an incentive for good behavior while incarcerated. (Id. at pp. 542-543.)
(5) We do not agree with the Rodriguez court that the present case is significantly different from the situation in Estrada. In Estrada, the amendment at issue lessened the punishment for a group of offenders. Here, the amendment to section 4019 reduces the punishment for a subset of prisoners who have good conduct in jail while awaiting trial. We do not deem it significant that the reduction in time is tied to conduct rather than to a specific offense.
Further, we agree with the Brown court that it may be reasonably inferred from section 59 of Senate Bill 18, that the Legislature intended a retroactive application. Section 59 of Senate Bill 18 reads: "The Department of Corrections and Rehabilitation shall implement the changes made to this act regarding time credits in a reasonable time. However, in light of limited case management resources, it is expected that there will be some delays in determining the amount of additional time credit to be granted against inmate sentences resulting from changes in law pursuant to this act. An inmate shall have no cause of action or claim for damages because of any additional time spent in custody due to reasonable delays in implementing the changes in the credit provisions of this act. However, to the extent that excess days in state prison due to delays in implementing this act are identified, they shall be considered as time spent on parole, if any parole period is applicable." (Stats. 2009, 3d Ex. Sess., ch. 28, § 59.) As the Brown court pointed out, if the Legislature did not intend retroactive application, it would not have been concerned with "delays in determining the amount of additional time credits to be granted against inmate sentences resulting from changes in law pursuant to this act." (Stats. 2009, 3d Ex. Sess., ch. 28.)
(6) Here, the sentencing court originally awarded defendant 289 days of presentence custody credit (193 actual days in custody plus 96 work and conduct credits). We conclude that amended section 4019 applies retroactively[3] and therefore defendant is entitled to custody credits totaling 385 days (193 actual days in custody plus 192 work and conduct credits).
1109*1109 DISPOSITION
The denial of probation is affirmed. The trial court is directed to prepare an amended abstract of judgment reflecting an additional 96 days of presentence custody credit for a total custody credit of 385 days, and to forward a certified copy of said amended abstract to the Department of Corrections and Rehabilitation. As amended, the judgment is affirmed.
Kline, P. J., and Richman, J., concurred.
[1] All further unspecified code sections refer to the Penal Code.
[2] Section 1203, subdivision (e)(4) provides: "Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any of the following persons:" "Any person who has been previously convicted twice in this state of a felony or in any other place of a public offense which, if committed in this state, would have been punishable as a felony."
[3] We need not consider defendant's equal protection argument.
Save trees - read court opinions online on Google Scholar.of America, Plaintiff-Appellee,
v.
Wesley G. CRANER, Defendant-Appellant.
No. 80-1344.
United States Court of Appeals, Ninth Circuit.Argued and Submitted November 10, 1980.
Decided July 27, 1981.
Rehearing and Rehearing Denied October 16, 1981.
Martha J. Holden, Asst. Federal Public Defender, Sacramento, Cal., for defendant-appellant.
24*24 William Shubb, U.S. Atty., Sacramento, Cal., argued, for plaintiff-appellee; Fern Segal, Asst. U.S. Atty., Sacramento, Cal., on brief.
Before BROWNING, Chief Judge, PECK[*], and SNEED, Circuit Judges.
Rehearing and Rehearing En Banc Denied October 16, 1981.
PECK, Circuit Judge.
Appellant Craner was convicted at a bench trial of driving under the influence of alcohol in Yosemite National Park, a violation of regulations promulgated by the Secretary of the Interior.[1] On appeal, Craner contends that the district court erred in denying his motion for a jury trial.
Although Craner was sentenced only to probation and to attendance at traffic school, the offense of which he was charged carries a maximum penalty of six months' imprisonment or a $500 fine, or both, plus payment of costs. 36 C.F.R. § 1.3 (1980). Craner's appeal raises the issue whether this offense is a "serious" one for which the Federal Constitution[2] guarantees a trial by jury.
The Supreme Court has accorded constitutional stature to the common-law rule that "petty" offenses may be tried without the intervention of a jury. See, e. g., Bloom v. Illinois, 391 U.S. 194, 210, 88 S.Ct. 1477, 1486, 20 L.Ed.2d 522 (1968); Duncan v. Louisiana, 391 U.S. 145, 160, 88 S.Ct. 1444, 1453, 20 L.Ed.2d 491; Callan v. Wilson, 127 U.S. 540, 557, 8 S.Ct. 1301, 1307, 32 L.Ed. 223 (1888). Traditionally, the Court has looked to the nature of an offense in ranking it "serious" or "petty." See District of Columbia v. Colts, 282 U.S. 63, 72-73, 51 S.Ct. 52, 53, 75 L.Ed. 177 (1930); Callan, supra, 127 U.S. at 552, 555, 8 S.Ct. at 1305-1306. The Court has more recently stressed the maximum authorized penalty as an objective criterion of the gravity of an offense. See Duncan, supra, 391 U.S. at 161-62, 88 S.Ct. at 1453-1454. In a recent spate of cases involving criminal contempts — crimes for which the punishment is not set by legislatures — the Court looked only to the punishment actually imposed to determine defendants' rights to jury trials. See Muniz v. Hoffman, 422 U.S. 454, 476-77, 95 S.Ct. 2178, 2190-2191, 45 L.Ed.2d 319, (1975); Codispoti v. Pennsylvania, 418 U.S. 506, 511, 94 S.Ct. 2687, 2690, 41 L.Ed.2d 912 (1974); Taylor v. Hayes, 418 U.S. 488, 496, 94 S.Ct. 2697, 2702, 41 L.Ed.2d 897 (1974); Bloom, supra, 391 U.S. at 211, 88 S.Ct. at 1487; Cheff v. Schnackenberg, 384 U.S. 373, 380, 86 S.Ct. 1523, 1526, 16 L.Ed.2d 629 (1966) (plurality opinion). The importance in these cases of the objective criterion of actual punishment, is, however, limited: the Court recognized that criminal contempt is an offense sui generis. It is "not a crime of the sort that requires the right to jury trial regardless of the penalty involved." Bloom, supra, 391 U.S. at 211, 88 S.Ct. at 1487; accord, Muniz, supra, 422 U.S. at 476, 95 S.Ct. at 2190; Cheff, supra, 384 U.S. at 380, 86 S.Ct. at 1526 (plurality opinion). In the quest for objectivity, the Supreme Court has not thrown out the rule that an offense may be serious enough, apart from its assigned penalty, that the Constitution would require that it be tried by a jury. United States v. Sanchez-Meza, 547 F.2d 461, 463-64 (9th Cir. 1976).
An offense is not "serious" because it is severely punished; it is severely punished because it is "serious." The severity of prescribed sanctions is regarded as the best objective indication of the general normative judgment of the seriousness of an offense. Baldwin v. New York, 399 U.S. 66, 25*25 68, 90 S.Ct. 1886, 1887, 26 L.Ed.2d 437 (1970) (plurality opinion). The extent of possible punishment does not, however, alone determine whether an offense is serious or petty. Although Congress has established the sanctions of six months' imprisonment or $500 in fines as the bright line between serious and petty offenses, see 18 U.S.C. § 1(3), the Supreme Court has not found "talismanic significance" in this formula when determining whether a constitutional right to a jury trial exists. Muniz, supra, 422 U.S. at 477, 95 S.Ct. at 2190. Inquiry into the seriousness of an offense does not end where Title 18 begins. Otherwise the constitutional right to a jury trial would exist only at the sufferance of the legislative branch.
Nothing in the plurality opinion in Baldwin, on which the government particularly relies, is to the contrary. Justice White, writing for three members of the Court in Baldwin, stated that "a potential sentence of more than six months' imprisonment is sufficiently severe by itself to take the offense out of the category of `petty'." No member of the Court expressed the view that a lesser potential sentence requires classification of an offense as petty. On the contrary, Justices Black and Douglas, who concurred only in the judgment in Baldwin, thought that the Constitution guaranteed the right to a jury trial of all crimes. See 399 U.S. at 74-75, 90 S.Ct. at 1891 (concurring opinion).
This is not disingenuous interpretation. It is the explanation of Baldwin offered by the Court itself. See Codispoti, supra, 418 U.S. at 512 n. 4, 94 S.Ct. at 2691 n. 4.
Authorized punishment reflects the seriousness of an offense. It does not determine it. To gauge the seriousness of an offense, the Supreme Court has in recent years looked to the authorized penalty and to the "relevant rules and practices followed by the federal and state regimes." Muniz, supra, 422 U.S. at 476, 95 S.Ct. at 2190. See also Duncan v. Louisiana, supra, 391 U.S. at 159-61, 88 S.Ct. at 1452-1453.
Without question, the maximum penalty for an offense is usually more important than any other criterion used in characterizing the offense as serious or petty. As a rule, the penalty best shows, or is taken to best show, the public's measure of the gravity of an offense. Frank v. United States, 395 U.S. at 147, 149, 89 S.Ct. 1503 at 1505, 23 L.Ed.2d 162. In the present case, however, Congress, as the public's surrogate, did not set the six-month, $500 maximum penalty as the appropriate one for the specific offense of driving under the influence (DUI). The Secretary of the Interior did. See 36 C.F.R. § 1.3 (1980). The penalty for drunken driving is the severest one the Secretary may authorize. See 16 U.S.C. § 3. It is the same penalty authorized for a myriad of offenses — from climbing Mount Rushmore (16 C.F.R. § 7.77 [1980]) to digging for bait in a national park (16 C.F.R. § 2.13(d) [1980]). See 16 C.F.R. § 1.3 (1980). We cannot hazard that the Secretary's indiscriminate authorization of this penalty for varied offenses, or Congress's general limitation on the sentences the Secretary may authorize, represents a considered legislative judgment of the gravity of the offense of DUI.
Craner argues that there is an additional consequence of a DUI conviction beyond the sentence he faced: he could lose his California driver's license. The government contends that under United States v. Hamdan, 552 F.2d 276 (9th Cir. 1977), this Court must refuse to consider "collateral consequences" of a conviction in determining if the Constitution requires a charge to be tried to a jury. In Hamdan, two defendants were charged with making false statements in documents filed with the Immigration and Naturalization Service. The crime was punishable with six months' imprisonment or a fine of $1,000, or both. A divided panel of this Court held that the possibility of imposition on an individual of a fine greater than $500 automatically takes an offense from the "petty" class; the court therefore ruled that the defendants were entitled to a jury trial. Muniz, supra, was distinguished: in Muniz, the defendant to a criminal contempt charge was a 13,000-member union. The $10,000 fine 26*26 imposed on the union was paltry when reckoned per capita. Denial of a jury trial was upheld. In Hamdan, the possible fines per capita were $1,000; this court, stressing the need for a standard of seriousness applicable to all individual defendants, adopted 18 U.S.C. § 1(3)'s $500 figure as the fine beyond which any offense became a serious one. See 552 F.2d at 278-79. The specific holding of Hamdan was that the court would not look to an individual defendant's ability to pay to decide whether a maximum fine itself rendered a crime serious.
Hamdan does not forbid consideration of the future legal significance of a conviction in deciding whether an offense is a serious one. Although a license revocation is itself a regulatory, not a punitive action, United States v. Best, 573 F.2d 1095, 1099 (9th Cir. 1978), the threat of loss of a license as important as a driver's license, a deprivation added to penal sanctions, is another sign that the DUI defendant's community does not view DUI as a petty offense. It is irrelevant to the determination of Craner's rights to a jury trial whether this loss has occurred, will surely occur, or simply could occur. Cf. Duncan, supra, 391 U.S. at 159-60, 88 S.Ct. at 1452-1453 (possible penalty, not the one actually imposed, is the gauge of a locality's "social and ethical judgments" of the gravity of an offense).
Federal and state precedent and practices counsel ranking DUI as a "serious" crime. In 1930 the Supreme Court held that the analogous offense of reckless driving was a serious offense within the constitutional guarantee of trial by jury. See District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177 (1930). The Court in Colts reasoned that reckless driving was both indictable at common law[3] and malum in se, and hence, serious.
There is no legally meaningful distinction between the present case and Colts. The government, therefore, understandably argues that Colts is superannuated and, as precedent, abandoned. Yet Colts was cited by Justice White without disapproval in Baldwin — the very case that supposedly doomed "the nature of the offense" as the determinant of the right to a jury trial. See Baldwin, supra, 399 U.S. at 69 n. 6, 90 S.Ct. at 1888 n. 6 (plurality opinion). This Court has rejected the argument that the Colts line of cases should not be followed; the Supreme Court has never repudiated Colts, although it has had many opportunities to do so. United States v. Sanchez-Meza, supra, 547 F.2d at 463-64. See also United States v. Stewart, 568 F.2d 501, 503 (6th Cir. 1978); United States v. Woods, 450 F.Supp. 1335, 1342 (D.Md.1978); Brady v. Blair, 427 F.Supp. 5, 9 (S.D.Ohio 1976).[4]
27*27 At least seven of the states in this Circuit guarantee the DUI defendant the right to a jury trial.[5] This is a better objective gauge of the common perception of the gravity of the offense than the broad formula for classifying crimes found in 18 U.S.C. § 1. It accords with the relevant state and federal practice that Craner have the jury trial he seeks.
This holding is not an impractical one. Given the comparative rarity of federal DUI prosecutions, the administrative benefits afforded by summary proceedings in these cases are slight, particularly since a high rate of waiver of jury trials may be expected.[6] We cannot say that as a constitutional matter these benefits outweigh defendants' interests in being tried by their peers if they so choose.
Reversed and remanded.
SNEED, Circuit Judge, concurring in the result only:
I concur in the result reached by the majority.
I agree that neither Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), nor Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974), hold that all offenses with respect to which the authorized prison term is six months or less and the fine $500 or less are "petty." Their holdings point the other way, viz., offenses carrying terms in excess of six months and fines of more than $500 must be tried before a jury. The upshot is that the latter type of offense is never "petty," while the former usually is. It is also true that this court in United States v. Sanchez-Meza, 547 F.2d 461 (9th Cir. 1976), recognized that factors other than the maximum sentence possible are relevant in determining whether an offense is "petty."
I also agree with the majority that under the circumstances of this case the maximum penalty imposed by the Secretary of Interior does not, as the majority observes, represent the considered legislative judgment of the gravity of the offense. Nor does it, in my opinion, represent a considered executive judgment of the gravity. The Secretary could impose no greater penalty; the 28*28 range of penalties available to him was too narrow. As a consequence, the DUI offense and digging for bait in a national park are, as the majority point out, given the same maximum penalty.
Under these circumstances it is appropriate to diminish the importance of the maximum penalty in determining whether the DUI offense is "petty" and focus on the additional consequences that attend conviction of this offense. Under California law these consequences are substantial. See Cal.Veh.Code §§ 13210, 13352, 13352.5. Their substantiality justifies treating the DUI offense as "serious." Had the maximum penalty here available reflected considered legislative or executive judgment I would be inclined to treat the DUI offense as "petty" notwithstanding these consequences. Put another way, a maximum penalty of six months and a $500 fine in the absence of extraordinary circumstances such as are present in this case should indicate the offense is petty.
The flaw I find in the majority opinion is that it is open to the interpretation that the maximum penalty is only one of several possible factors of approximately equal weight to be employed in determining whether an offense is petty. I write to indicate that that interpretation is not my understanding of the law.
[*] The Honorable John W. Peck, Senior Circuit Judge, United States Court of Appeals for the Sixth Circuit, sitting by designation.
[1] 16 C.F.R. § 4.6 (1980) prohibits driving under the influence of intoxicating liquor or drugs in park areas.
[2] Article III, governing the federal judiciary, provides: "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury." U.S.Const. art. III, § 2, cl. 3. The Sixth Amendment says that "[i]n all criminal prosecutions, the accused shall enjoy the right to a ... trial, by an impartial jury...."
[3] A questionable proposition. The Court cited United States v. Hart, 26 Fed.Cas. 193 (D.Pa.1817), which flatly stated that driving a carriage wildly through crowded city streets was a breach of the peace indictable at common law. The Court also cited State v. Rodgers, 91 N.J.L. 212, 102 A. 433 (1917), which held that simple DUI (not compounded by noticeably dangerous driving) was not such a breach of the peace.
The utility of applying the standard of "indictability at common law" to the present case is doubtful. The phrase "indictable at common law," standing alone, has little meaning. In the fourteenth century, even the pettiest crimes were indictable at common law. Frankfurter & Corcoran, Petty Federal Offenses and the Right to Trial by Jury, 39 Harv.L.Rev. 917, 923 (1926). From Tudor times, Parliament reacted to the problem of overcrowded criminal dockets by excepting specific offenses from jury procedures. Id. at 925-26. ("Plus ca change ....") The Congressional attempt in 18 U.S.C. § 1 to define the class of petty offenses by a general formula does not follow this traditional model. See id. at 927.
Even if the era of the adoption of the Constitution is taken as the relevant epoch of the common law, we doubt that there is a common-law analog to the modern offense of DUI. Around the time of the American Revolution, violations of liquor laws and traffic laws were often tried before magistrates alone. Id. at 928. But cars are not horses, and the traffic and speeds of the eighteenth century are not those of the twentieth. Even Frankfurter and Corcoran, who exhaustively document colonial history, "conclude by saying that history presents a body of experience expressive of the judgment of its time, but does not save Congress nor the Supreme Court from the necessity for judgment in giving past history present application." Id. at 982.
[4] But see, contra, Justiniano Matos v. Gaspar Rodriguez, 440 F.Supp. 673, 676-77 (D.P.R.1976), a reckless driving case in which the district court ruled that Baldwin had, in effect, overruled Colts. This holding not only mistakes a plurality opinion for a majority one, it also misreads the plurality opinion, which was pointedly narrowed by its author, who wrote: "In this case, we decide only that a potential sentence in excess of six months' imprisonment is sufficiently severe by itself to take the offense out of the category of `petty'." Baldwin, supra, 399 U.S. at 69 n. 6, 90 S.Ct. at 1888 n. 6 (opinion of White, J.)
Under the court's reasoning in Justiniano Matos, a legislature could for strategic purposes take universally reprehended crimes, as, for example, rape or child molesting, out of the constitutional guarantees of jury trials by simply reducing the sentences authorized for the offenses.
[5] The right is guaranteed under the following authorities:
Alaska: Baker v. Fairbanks, 471 P.2d 386 (Alaska 1970).
Arizona: Rothweiler v. Superior Ct., 100 Ariz. 37, 410 P.2d 479 (1966).
California: Mills v. Municipal Ct., 10 Cal.3d 288, 110 Cal.Rptr. 329, 515 P.2d 273 (1973); Cal.Const. art. 1, § 16; Cal.Penal Code § 689; Cal.Veh.Code § 23120.
Hawaii: Baldwin v. New York, supra; State v. Shak, 51 Haw. 612, 466 P.2d 422, cert. denied, 400 U.S. 930, 91 S.Ct. 191, 27 L.Ed.2d 190 (1970) (applied to Hawaii Rev.Stat. § 291-4, which authorizes up to one year's imprisonment as sentence for DUI).
Idaho: Miller v. Winstead, 75 Idaho 262, 270 P.2d 1010 (1954) (held that under former law, defendant had right to jury trial de novo on appeal from municipal court judgment); Idaho Code §§ 19-1901, 19-1902, 49-1102, 49-1104.
Montana: Mont.Rev.Codes Ann. §§ 46-16-102, 46-17-201, 46-17-403.
Oregon: Brown v. Multnomah Cty. Dist. Ct., 280 Or. 95, 570 P.2d 52 (1977) (Oregon Constitution requires jury trial of DUI charge despite legislative effort to "decriminalize" first-offense DUI).
The present case does not raise the question whether a legislature may effectively "decriminalize" DUI, so that deprivation of a jury trial would not violate constitutional guarantees.
Washington: State v. Wicke, 91 Wash.2d 638, 591 P.2d 452 (1979).
A recent annotation shows only five states in the United States denying defendants the right to a jury trial on DUI charges. See Annot., 16 A.L.R.3d 1373 (1967 & 1980 Supp.)
[6] See Baldwin, supra, 399 U.S. at 74 n. 22, 90 S.Ct. at 1891 n. 22 (plurality opinion
480 F.3d 1072 (2007)
Steven M. BIRCOLL, Plaintiff-Appellant,
v.
MIAMI-DADE COUNTY, a political subdivision of the State of Florida, Defendant-Appellee.
No. 06-11098.
United States Court of Appeals, Eleventh Circuit.
March 7, 2007.
1073*1073 1074*1074 1075*1075 Jay M. Levy, Jay M. Levy, P.A., Miami, FL, for Plaintiff-Appellant.
Eric Alexander Hernandez, Miami, FL, for Defendant-Appellee.
Before TJOFLAT, HULL and BOWMAN,[*] Circuit Judges.
HULL, Circuit Judge:
This case arises out of Plaintiff-Appellant Steven M. Bircoll's DUI arrest. Bircoll, who is deaf, sued Defendant-Appellee Miami-Dade County, Florida ("Miami-Dade"), alleging that its law enforcement officers violated Title II of the Americans with Disabilities Act ("ADA") and the Rehabilitation Act by discriminating against him because of his disability. Specifically, Bircoll claims that the officers failed to reasonably modify their procedures in order to ensure effective communication with Bircoll. This case presents an issue of first impression in this circuit as to the applicability of the ADA and the Rehabilitation Act to police conduct during arrests.
I. FACTUAL BACKGROUND
We first discuss Bircoll's disability and the events during his arrest.[1]
A. Bircoll's Disability
Bircoll is a profoundly deaf individual with no hearing in his left ear and ten percent hearing in his right ear. When wearing his hearing aid, Bircoll has a twenty percent hearing capacity.
Bircoll, who has been deaf for most of his life, was raised in the hearing world. Bircoll graduated from a mainstream high school and attended two years of community college. Bircoll reads, writes, and speaks English. Although Bircoll sometimes relies on other people to speak for him and uses his friends and relatives for help, Bircoll's primary form of communication is lipreading. Bircoll has been lipreading for over thirty years. Bircoll does not know or use sign language.
Bircoll is more effective in reading lips if he is facing the speaker with good light and little background noise. Bircoll has greater success in communicating with speakers who do not have facial hair, make few facial expressions, and keep their hands away from their faces. When reading lips, Bircoll usually understands about fifty percent of what is said. Bircoll speaks with a speech impediment.
As for telephone communication, Bircoll usually communicates with an amplified telephone (one that is louder than a normal phone) and a teletypewriter, a telecommunication 1076*1076 device for the deaf ("TDD phone"). Bircoll also has a cell phone that he uses primarily for emergencies, such as calling someone to say he will be late. Bircoll cannot hear on the cell phone, but he will make the phone call, do the talking, and hang up.[2]
B. Traffic Stop
On April 6, 2001, Bircoll went to dinner around 9:00 p.m. with his then-girlfriend. He was wearing his hearing aid that evening. Bircoll testified that he had less than one drink, a 7-Up with whiskey. Bircoll did not finish his drink because his stomach was bothering him. Around midnight or 1:00 a.m. on April 7th, Bircoll argued with his girlfriend and drove her back to their shared home. Bircoll went into their house, argued with his girlfriend, and then left in his car.
After about an hour of driving south on I-75, Bircoll exited the interstate. He stopped at a gas station to ask for directions back to I-75. As he was leaving the gas station, Bircoll stopped and made a right turn out of a parking lot and arrived at an intersection with a flashing red light where he stopped again. Because trees and bushes were obstructing his view, Bircoll pulled into the intersection to see if there were any oncoming cars. When Bircoll saw that it was clear, he turned left. As Bircoll was trying to determine which ramp to take for I-75, he saw lights flashing in his mirror. Bircoll realized a police officer was pulling him over and stopped.
Sergeant Charles Trask, a police officer with the Miami-Dade County Police Department, was in his patrol car and observed Bircoll's car pull forward into the intersection, reverse because of an oncoming car, and then turn left. Trask pulled Bircoll over at approximately 3:00 a.m. on April 7, 2001. Trask stated that Bircoll failed to stop at both the right turn from the parking lot and at the flashing red light where Bircoll turned left. Trask noted that Bircoll delayed in pulling his vehicle over after Trask activated the overhead lights of his police car.
C. Field Sobriety Tests
As Trask approached Bircoll's car, Bircoll rolled down his window. When Trask tried to speak to him, Bircoll informed Trask that he was deaf and had a speech impediment. Either by virtue of his lipreading or hearing aid, or a combination of both, Bircoll was able to respond to Trask during the traffic stop.
Trask asked Bircoll how many drinks he had consumed that night. Bircoll responded that he had not been drinking. When Bircoll spoke, Trask realized that Bircoll had a speech impediment but also noticed that Bircoll responded to sound.
Trask told Bircoll to step out of his car, and Bircoll did. Trask asked Bircoll for his driver's license and registration, which Bircoll provided. Once Bircoll was out of the car, Trask realized that Bircoll smelled of alcohol and had red and watery eyes. Trask offered to communicate by fingerspelling in American Sign Language, but Bircoll responded that he did not understand sign language.[3]
1077*1077 Trask contends that he established face-to-face communication with Bircoll, that he spoke loudly, and that Bircoll spoke back in understandable English. Bircoll, however, states that he had difficulty understanding Trask, that there was "little lighting" and it was "almost dark,"[4] that Trask was standing five or six feet away, that Trask's heavy moustache obscured his mouth, and that Trask had to repeat himself "a lot of times."
Bircoll testified that Trask told him if Bircoll would do what Trask told him, Bircoll would be free to go. Trask began to administer field sobriety tests. According to Bircoll, when Trask began instructing him, Bircoll asked if Trask could "call somebody to help me out with this."[5] Trask did not do so, but instructed Bircoll to perform the tests. In his deposition, Bircoll admitted that he understood Trask was asking him to perform sobriety tests, but he did not understand why.
As to the first sobriety test, Trask instructed Bircoll on the Romberg balance exercise. In that test, the individual must keep his feet together, hold his arms by his side, tilt his head back, close his eyes, and count silently for thirty seconds. Trask gave Bircoll verbal instructions and a physical demonstration of the exercise. Trask testified that Bircoll passed this test.
Bircoll admits that he tried the Romberg balance test but contends that he did not complete this test. After he closed his eyes, Trask continued talking. Bircoll opened his eyes in order to read Trask's lips. When Trask ordered him to close his eyes, Bircoll stated that he needed to be able to see to read Trask's lips. Bircoll testified that he again suggested that they should get "a lawyer or somebody."[6] Bircoll also stated that Trask shined the flashlight in his eyes, that Trask had heavy facial hair, and that he had a hard time understanding Trask. Bircoll told Trask several times that he was deaf and could not hear.
As to the second test, Bircoll performed the one-leg stand exercise, standing on one leg for thirty seconds. Trask gave Bircoll verbal instructions and a physical demonstration of the exercise. Bircoll testified that he had no problems performing this test. Trask contends that Bircoll failed the test because he waved and raised his arms and shuffled his feet to maintain his balance.
As to the third test, Trask gave verbal instructions and demonstrated the walk-and-turn test. In that test, the individual must walk in a straight line, turn, and walk back in the same line. Bircoll understood the instructions and attempted to perform the test, but asked if he could remove his boots. Bircoll had trouble balancing because of his knee injury and his boots. According to Bircoll, after removing his 1078*1078 shoes, he had no trouble walking straight. Trask contends that Bircoll did not maintain his balance and failed the exercise.
As to the fourth test, Bircoll does not remember performing the finger-to-nose test, where the individual must tilt his head back, close his eyes, and touch his index finger to the tip of his nose. Bircoll denied that Trask ever asked him to do this, and testified that he did not complete any test that required him to close his eyes. Trask contends that he verbally instructed and demonstrated the test for Bircoll and that Bircoll failed the finger-to-nose test because he did not keep his eyes closed, missed the tip of his nose, and did not use the correct hand.
Around 3:30 a.m., or thirty minutes after the stop, Trask concluded that Bircoll was too impaired to drive and arrested him for driving under the influence. Trask told Bircoll he was under arrest for DUI, handcuffed Bircoll, and put him in the police car. According to Bircoll, Trask did not inform Bircoll that he was under arrest or read him his rights. After waiting for the tow truck for Bircoll's car, Trask and Bircoll arrived at the police station at 4:10 a.m.
D. Intoxilyzer Consent Form
Once Bircoll arrived at the police station, another police officer, Officer Everett Townsend, tried to communicate with him and obtain his consent to take an Intoxilyzer test. Bircoll told Townsend that he was deaf. Townsend sat down on Bircoll's left side about a foot away. Townsend had two copies of the Intoxilyzer consent form. Townsend read from one form and handed the other form to Bircoll to read. Bircoll acknowledges that Townsend handed him "a piece of paper" but denies that Townsend asked him to read it.[7]
The consent form advises a DUI arrestee that he will be offered a breath and/or urine test, and that if he refuses to take the test, his driver's license will be suspended, as follows:
You are under arrest for driving under the influence of alcohol and/or a chemical substance and/or a controlled substance. You will be offered a Breath Test for determining the alcohol content of you[r] breath and/or a Urine Test for detecting the presence of a chemical and/or controlled substance. Should you refuse to take either of the tests, the Department of Highway Safety and Motor Vehicles will suspend your privilege to operate a motor vehicle for a period of twelve (12) months. . . . Your refusal to submit to a breath and/or urine test upon request of a law enforcement official shall be admissible into evidence in any criminal proceeding. You may, at your own expense, have other Chemical or Physical Tests performed to determine the alcohol content of your blood or breath, or to detect the presence of a chemical and/or controlled substance.
Bircoll does not deny that Townsend read aloud the consent form twice. In fact, Bircoll states that he did not read the form himself because Townsend continued talking to Bircoll and Bircoll did not look away from Townsend's face and down at the 1079*1079 form he was given. However, Bircoll also states that because they were side by side and not facing each other, Bircoll had trouble understanding Townsend. Bircoll testified that Townsend "was talking towards the other way."
As Townsend read aloud the consent form for the first time, Bircoll asked if he could get his wallet, which contained a "Driver's Rights Card." This card states that any consent to a test is not voluntary, as follows:
In compliance with the requirements of Florida's Implied Consent Law I will consent to submit to tests of my breath, urine, blood or other bodily substances which you may designate, provided the test I am offered is properly done. . . . However, since I maintain that you do not have probable cause to make this request for a chemical test, my consent is given under protest and is no way voluntary.
Townsend stopped reading, photocopied the card, and wrote on the photocopy that Bircoll, upon being shown the consent language on the card, advised that his consent was not voluntary and he was "not consenting to anything." After copying the card, Townsend finished reading the consent form once and then read the form aloud a second time.
Bircoll claims that he requested an interpreter "many times" while he was at the police station. However, Townsend in his affidavit stated that "Bircoll never asked for an interpreter in my presence." Officer James Dooner was also there and stated that Bircoll never asked for an interpreter in his presence.
In addition, Townsend made notes on the two consent forms. On the first form, Townsend wrote "my copy I read from" and recorded that Bircoll said, "I hear you, but I don't understand the law. I understand what you said but I don't understand the law. I['m] not going to consent to anything." The notes on the back say that the consent form was read to Bircoll, that Bircoll was asked if he read English, and that Bircoll was given a consent form to read as well.
On the second form, Townsend wrote, "handed to defendant to read" and noted that he advised Bircoll that he would read aloud so that Bircoll could read his lips. The second form notes that Bircoll stated he would not sign anything.
Bircoll's version of the events differs materially. Bircoll denies that he ever said he understood what the police were saying but did not understand the law. Instead, Bircoll claims he told the officer that he did not understand what the officer was saying. Bircoll also denies saying that he would not consent to anything. Bircoll testified that he never refused to take the Intoxilyzer test and that the police never asked him to take it.
Townsend testified that "[a]lthough it is not usually the practice to give arrestees telephone calls at the Substation," he called Bircoll's girlfriend and informed her of Bircoll's situation. Bircoll's girlfriend stated in her deposition that she found out Bircoll had been arrested for DUI because "[t]he cops called me."
E. Jail
Around 9:15 a.m., Bircoll was transferred from the station to Turner Guilford Knight Correctional Facility ("TGK"). Pursuant to TGK's intake procedures, Bircoll's jail card, which contains information about Bircoll and his arrest, was affixed with an ADA stamp.
After he was fingerprinted and photographed, Bircoll was allowed to make phone calls. Bircoll pointed out to an officer that the phone was a pay phone and told him that he could not hear on a pay 1080*1080 phone. According to Bircoll, the officer replied that the pay phone was all that was available and that Bircoll could choose to use it or not. Bircoll then used a regular telephone by dialing his home number three or four times and screaming into it. He hoped that someone would listen to the messages on the answering machine and come get him.
Captain Greg Bennett of the Miami-Dade County Department of Corrections and Rehabilitation explained that under the standard operating procedures governing intake at TGK, a disabled arrestee who is unable to communicate will be provided with appropriate auxiliary aids, such as a TDD phone. Miami-Dade submitted evidence that three TDD phones were delivered to TGK on December 29, 2000. Bircoll testified, however, that he was never offered a TDD phone.
Bircoll was placed in a cell alone and separate from the other inmates. Bircoll was released at 2:16 p.m. the same day.[8] Bircoll's DUI charge was later nolle prossed.
II. PROCEDURAL HISTORY
On April 7, 2005, Bircoll filed this lawsuit alleging that: (1) Miami-Dade violated Title II of the ADA, 42 U.S.C. §§ 12131-12134, when it failed to provide him with an interpreter to assist him in communicating with police officers and denied him access to a TDD phone at the jail; and (2) Miami-Dade violated the Rehabilitation Act of 1973, 29 U.S.C. § 794, by discriminating against him when it denied him an interpreter, denied him a TDD phone, and placed him in solitary confinement.[9] Miami-Dade moved for summary judgment on these claims.[10]
As to the ADA claim, the district court noted that this Court has yet to address whether the ADA applies to a DUI arrest. See Bircoll v. Miami-Dade County, 410 F.Supp.2d 1280, 1283 (S.D.Fla.2006). The district court adopted the Fourth Circuit's approach in Rosen v. Montgomery County, 121 F.3d 154 (4th Cir.1997), and concluded that the ADA did not apply to police conduct during Bircoll's DUI arrest or at the station. Bircoll, 410 F.Supp.2d at 1283-84. The district court reasoned that the officers at the station "merely communicated the Breath Test consent form to Plaintiff and Plaintiff refused," and that "no `police investigative activities' ever took place." Id. at 1284-85. As to the Rehabilitation Act claim, the district court determined that a plaintiff who proceeds under a theory of inequal treatment must prove intentional discrimination or bad faith. Id. at 1286. The district court also noted that this Court has not addressed whether intentional discrimination in Rehabilitation Act claims can be proven by "deliberate indifference," but found that in any event Defendant's actions did not rise to the 1081*1081 level of intentional discrimination or deliberate indifference. Id.[11]
On appeal, Bircoll argues that the district court erred in concluding that Title II of the ADA did not apply to law enforcement activity during his DUI arrest on the roadside, at the police station, and at the jail. We first review the statutory language of Title II and relevant case law.[12]
III. TITLE II OF THE ADA
A. Statutory Language and Regulations
Congress enacted the ADA "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 42 U.S.C. § 12101(b)(1). Title II of the ADA prohibits a "public entity" from discriminating against "a qualified individual with a disability" on account of the individual's disability, as follows:
[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
42 U.S.C. § 12132. Title II defines a "qualified individual with a disability" as "an individual with a disability who, with or without reasonable modifications . . . or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 42 U.S.C. § 12131(2). The Supreme Court has instructed that a disabled prisoner can state a Title II-ADA claim if he is denied participation in an activity provided in state prison by reason of his disability. See Pa. Dep't of Corr. v. Yeskey, 524 U.S. 206, 211, 118 S.Ct. 1952, 1955, 141 L.Ed.2d 215 (1998). The words "eligibility" and "participation" in the statutory definition of a qualified individual with a disability "do not connote voluntariness" and do not require voluntariness on the part of an applicant who seeks a benefit from the state. Id.
Title II of the ADA also provides that "the Attorney General shall promulgate regulations" that implement Title II, Part A. 42 U.S.C. § 12134(a). The Department of Justice ("DOJ") has promulgated regulations implementing Title II's prohibition against discrimination. The DOJ's regulations provide that "[a] public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, 1082*1082 or activity." 28 C.F.R. § 35.130(b)(7).[13]
These same DOJ regulations also contain Subpart E, entitled "Communications," which provides that "[a] public entity shall take appropriate steps to ensure that communications with . . . members of the public with disabilities are as effective as communications with others." 28 C.F.R. § 35.160(a). These steps include furnishing "appropriate auxiliary aids and services" to afford a disabled individual equal opportunity to participate in an activity of the public entity, as follows:
A public entity shall furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity conducted by a public entity.
28 C.F.R. § 35.160(b)(1). The ADA defines "auxiliary aids and services" to include "qualified interpreters or other effective methods of making aurally delivered materials available to individuals with hearing impairments." 42 U.S.C. § 12102(1)(A). The DOJ regulations provide that "auxiliary aids and services" include, among other things, "[q]ualified interpreters" and "telecommunications devices for deaf persons (TDD's)." 28 C.F.R. § 35.104(1). Further, the Appendix to DOJ Regulation § 35.160 states that "[t]he public entity shall honor the [disabled individual's] choice [of auxiliary aid] unless it can demonstrate another effective means of communication exists or that use of the means chosen would not be required under § 35.164." 28 C.F.R. pt. 35, app. A; see also id. § 35.160(b)(2) ("In determining what type of auxiliary aid and service is necessary, a public entity shall give primary consideration to the requests of the individual with disabilities.").
The ADA's "reasonable modification" principle, however, does not require a public entity to employ any and all means to make auxiliary aids and services accessible to persons with disabilities, but only to make "reasonable modifications" that would not fundamentally alter the nature of the service or activity of the public entity or impose an undue burden. See Tennessee v. Lane, 541 U.S. 509, 531-32, 124 S.Ct. 1978, 1993-94, 158 L.Ed.2d 820 (2004) ("Title II does not require States to employ any and all means to make judicial services accessible to persons with disabilities. . . . It requires only `reasonable modifications' that would not fundamentally alter 1083*1083 the nature of the service provided. . . . [or] impose an undue financial or administrative burden.").
B. Circuit Law on Arrestees under the ADA
In order to state a Title II claim, a plaintiff generally must prove (1) that he is a qualified individual with a disability; (2) that he was either excluded from participation in or denied the benefits of a public entity's services, programs, or activities, or was otherwise discriminated against by the public entity; and (3) that the exclusion, denial of benefit, or discrimination was by reason of the plaintiff's disability. See Shotz v. Cates, 256 F.3d 1077, 1079 (11th Cir.2001) (citing 42 U.S.C. § 12132).
The parties do not contest that Bircoll is a "qualified individual with a disability" under the first prong, or that Miami-Dade is a "public entity" under the second prong.[14] Rather, the dispute in this case is over whether Bircoll was excluded from participation in, or denied the benefit of, some "services, programs, or activities" of Miami-Dade by reason of his disability, or was "subjected to discrimination" by Miami-Dade by reason of his disability. 42 U.S.C. § 12132.
Relying heavily on the Fourth Circuit's decision in Rosen, in which a deaf person was arrested for DUI, Miami-Dade argues that arrests of deaf persons are not "services, programs, or activities" that fall within the parameters of the ADA. See Rosen, 121 F.3d at 157 ("[C]alling a drunk driving arrest a `program or activity' of the County, the `essential eligibility requirements' of which (in this case) are weaving in traffic and being intoxicated, strikes us as a stretch of the statutory language and of the underlying legislative intent."). In Rosen, the Fourth Circuit concluded that even "[i]f we assume, however, that the police were required [under the ADA] to provide auxiliary aids at some point in the process, that point certainly cannot be placed before the arrival at the stationhouse. The police do not have to get an interpreter before they can stop and shackle a fleeing bank robber, and they do not have to do so to stop a suspected drunk driver, conduct a field sobriety test, and make an arrest." Id. at 158.
In reply, Bircoll emphasizes that Rosen was decided before the Supreme Court's Yeskey decision, which concluded that a state prisoner has a cognizable ADA claim if he is denied participation in a required activity in prison by reason of his disability. Additionally, Bircoll relies on three other circuits' decisions indicating that arrestees may state cognizable ADA claims under Title II. See Hainze v. Richards, 207 F.3d 795 (5th Cir.2000); Gohier v. Enright, 186 F.3d 1216 (10th Cir.1999); Gorman v. Bartch, 152 F.3d 907 (8th Cir. 1998). However, none of these cases extends the ADA as far as Bircoll claims.
For example, in Hainze, the Fifth Circuit concluded that "Title II does not apply to an officer's on-the-street responses to reported disturbances or other similar incidents . . . prior to the officer's securing the scene and ensuring that there is no threat to human life." 207 F.3d at 801 (emphasis added). The police officers responded to a request to take a mentally ill individual, Hainze, to a hospital. Id. at 797. When they arrived at the scene, Hainze, with a knife in his hand, began to walk toward one of the officers. Id. In concluding that the ADA did not govern 1084*1084 the police officers' actions, the Fifth Circuit pointed out that officers "already face the onerous task of frequently having to instantaneously identify, assess, and react to potentially life-threatening situations." Id. at 801. The Fifth Circuit reasoned that requiring police officers called to the scene of a reported disturbance "to factor in whether their actions are going to comply with the ADA, in the presence of exigent circumstances and prior to securing the safety of themselves, other officers, and any nearby civilians, would pose an unnecessary risk to innocents." Id.
Nonetheless, the Fifth Circuit indicated that "[o]nce the area was secure and there was no threat to human safety . . . deputies would have been under a duty to reasonably accommodate Hainze's disability in handling and transporting him to a mental health facility." Id. at 802 (emphasis added).[15]
Likewise, the Eighth Circuit concluded that the ADA applies to police transportation of the arrestee from the scene to the police station. See Gorman, 152 F.3d at 912-13. In that case, the Eighth Circuit reasoned that "[t]ransportation of an arrestee to the station house is . . . a service of the police within the meaning of the ADA." Id. at 912. The Eighth Circuit decided that "the `benefit' [arrestee] Gorman sought . . . was to be handled and transported in a safe and appropriate manner consistent with his disability." Id. at 913 (citing 28 C.F.R. § 35.130(b)(1)). The Eighth Circuit ruled that "Gorman's allegations pass[ed] the threshold required to bring a case under the ADA and the Rehabilitation Act" and reversed the judgment for the defendants.[16] Id.
The Tenth Circuit also recognized the possibility that arrestees may be able to state an ADA claim based on police conduct during an arrest. Gohier, 186 F.3d at 1220-21. However, the Tenth Circuit ultimately left the theory of such a claim "an open question" in the circuit because the facts did not show a wrongful arrest based on a disability and the plaintiff made no claim that the police had failed to accommodate his disability during the arrest. Id. at 1221.[17]
We need not enter the circuits' debate about whether police conduct during an arrest is a program, service, or activity covered by the ADA. This is because Bircoll, in any event, could still attempt to show an ADA claim under the final clause in the Title II statute: that he was "subjected to discrimination" by a public entity, the police, by reason of his disability. See 42 U.S.C. § 12132. Indeed, this Court 1085*1085 already has explained that the final clause of § 12132 "protects qualified individuals with a disability from being `subjected to discrimination by any such entity,' and is not tied directly to the `services, programs, or activities' of the public entity." Bledsoe v. Palm Beach County Soil & Water Conservation Dist., 133 F.3d 816, 821-22 (11th Cir.1998) (quoting 42 U.S.C. § 12132). We said in Bledsoe that this final clause in Title II "`is a catch-all phrase that prohibits all discrimination by a public entity, regardless of the context.'" Id. at 822 (quoting Innovative Health Sys., Inc. v. City of White Plains, 117 F.3d 37, 44-45 (2d Cir.1997), overruled on other grounds by Zervos v. Verizon N.Y., Inc., 252 F.3d 163 (2d Cir.2001)); see also Gohier, 186 F.3d at 1220 (noting that the magistrate judge "ignored the second basis for a Title II claim" and emphasizing the disjunctive language "or be subjected to discrimination" in the final clause of § 12132).
In this case, Bircoll identifies three separate points at which he contends Miami-Dade subjected him to discrimination by reason of his hearing disability: (1) the field sobriety tests on the roadside; (2) the consent warning and Intoxilyzer test at the police station; and (3) his incarceration at TGK. Specifically, Bircoll argues that he was entitled to effective communication with the police throughout his arrest; that he needed auxiliary aids, such as an oral interpreter, for effective communication during these tests; and that the police failed to make reasonable modifications to their procedures to ensure effective communication, thereby subjecting him to discrimination in violation of the ADA.
Bircoll claims that if he had been provided with auxiliary aids, he would have understood what the police were asking him to do, would have consented to and passed the Intoxilyzer test, and would not have lost his license or gone to jail. Even if he would have failed the Intoxilyzer test, Bircoll argues that he still was injured because with effective communication he would have consented to the Intoxilyzer test and would not have had his license automatically suspended. We examine each point at which Bircoll claims that he was denied effective communication and discriminated against because of his disability.
IV. FIELD SOBRIETY TESTS
We turn first to the field sobriety tests. As noted earlier, the Fifth Circuit in Hainze concluded that "Title II does not apply to an officer's on-the-street responses to reported disturbances or other similar incidents . . . prior to the officer's securing the scene and ensuring that there is no threat to human life." Hainze, 207 F.3d at 801 (emphasis added). In our view, the question is not so much one of the applicability of the ADA because Title II prohibits discrimination by a public entity by reason of Bircoll's disability. The exigent circumstances presented by criminal activity and the already onerous tasks of police on the scene go more to the reasonableness of the requested ADA modification than whether the ADA applies in the first instance.
In other words, the question is whether, given criminal activity and safety concerns, any modification of police procedures is reasonable before the police physically arrest a criminal suspect, secure the scene, and ensure that there is no threat to the public or officer's safety. The reasonable-modification inquiry in Title II-ADA cases is "a highly fact-specific inquiry." See Holbrook v. City of Alpharetta, 112 F.3d 1522, 1527 (11th Cir.1997) (stating, in a Title I-ADA reasonable accommodation case, that "what is reasonable for each individual employer is a highly fact-specific inquiry that will vary depending on the 1086*1086 circumstances and necessities of each employment situation"). We emphasize that terms like reasonable are relative to the particular circumstances of the case and the circumstances of a DUI arrest on the roadside are different from those of an office or school or even a police station. What is reasonable must be decided case-by-case based on numerous factors.
Here, Bircoll claims that he requested an interpreter, which Trask denies. Even assuming Bircoll asked for an oral interpreter,[18] we conclude that waiting for an oral interpreter before taking field sobriety tests is not a reasonable modification of police procedures given the exigent circumstances of a DUI stop on the side of a highway, the on-the-spot judgment required of police, and the serious public safety concerns in DUI criminal activity. In DUI stops, as opposed to minor traffic offenses, the danger to human life is high. To protect public safety, Trask had to determine quickly, on the roadside at 3:00 a.m., whether Bircoll was sober enough to drive his car further or whether to impound his car and arrest him. DUI stops involve a situation where time is of the essence. Forestalling all police activity at a roadside DUI stop until an oral interpreter arrives is not only impractical but also would jeopardize the police's ability to act in time to obtain an accurate measure of the driver's inebriation. Moreover, field sobriety exercises are short tests that can be physically and visually demonstrated. DUI stops do not involve lengthy communications and the suspect is not asked to give a written statement. In sum, field sobriety tests in DUI arrests involve exigencies that necessitate prompt action for the protection of the public and make the provision of an oral interpreter to a driver who speaks English and can read lips per se not reasonable.
We also reject Bircoll's alternative argument that once he told Trask of his deafness, Trask was required to accommodate his deafness by not asking him to perform any field sobriety tests and by immediately arresting him and taking him to the police station for the Intoxilyzer breath test. Bircoll's proposal, if anything, would force police to arrest deaf DUI suspects before even ascertaining if the suspect could communicate in some other way and understand the field sobriety tests. This would penalize deaf DUI suspects and not afford them the opportunity to perform the field tests and show their sobriety.
In any event, the actual communication between Trask and Bircoll was not so ineffective that an oral interpreter was necessary to guarantee that Bircoll was on equal footing with hearing individuals. See Kornblau v. Dade County, 86 F.3d 193, 194 (11th Cir.1996) ("The purpose of the [ADA] is to place those with disabilities on an equal footing, not to give them an unfair advantage."). Bircoll admits that he reads lips and usually understands fifty percent of what is said. In addition to verbal instructions, Trask gave physical demonstrations. During the traffic stop, Bircoll was able to respond to Trask's directions about getting out of the car and providing his driver's license and insurance. While the communication may not have been perfect, Bircoll, by his own admission, understood that he was being asked to perform field sobriety tests. Bircoll also admits he actually tried to perform at least three of those tests. For all of the foregoing reasons, we conclude that 1087*1087 Bircoll has failed to state an ADA claim regarding the field sobriety tests during his DUI arrest.
V. POLICE STATION
Once Bircoll was arrested and arrived at the police station at 4:10 a.m., the exigencies of the situation were greatly reduced. Nonetheless, time remained a factor in obtaining an Intoxilyzer test that accurately measured Bircoll's impairment, or lack thereof, while driving at 3:00 a.m. Townsend read the consent warning to Bircoll. Hearing individuals, even if impaired by alcohol, at least hear the consent warning, and Bircoll is entitled to be placed on equal footing with other arrestees at the police station. Thus, we conclude that at the police station, Townsend was required to take appropriate steps to ensure that his communication with Bircoll was as effective as with other individuals arrested for DUI.
What steps are reasonably necessary to establish effective communication with a hearing-impaired person after a DUI arrest and at a police station will depend on all the factual circumstances of the case, including, but not limited to:
(1) the abilities of, and the usual and preferred method of communication used by, the hearing-impaired arrestee;
(2) the nature of the criminal activity involved and the importance, complexity, context, and duration of the police communication at issue;
(3) the location of the communication and whether it is a one-on-one communication; and
(4) whether the arrestee's requested method of communication imposes an undue burden or fundamental change and whether another effective, but nonburdensome, method of communication exists.
In many circumstances, oral communication plus gestures and visual aids or note writing will achieve effective communication. In other circumstances, an interpreter will be needed. There is no bright-line rule, and the inquiry is highly fact-specific. Thus, we examine all factual circumstances to ascertain whether Townsend achieved effective communication with Bircoll.
As to his abilities and usual communication mode, Bircoll has a twenty percent hearing capacity when using his hearing aid and relies on lipreading to communicate. Bircoll can understand about half of what is said when he is lipreading. He can also read, write, and speak in English.
The police communication at issue — the consent warning — although important, is short and not complex. Moreover, even before that night, Bircoll already had some knowledge of what Townsend sought to communicate to him. In a deposition, when questioned about the Intoxilyzer test, Bircoll testified that "I know that if you fail the sobriety test, you have to do the breathalyzer test, yes." Bircoll also already knew that if he refused the Intoxilyzer, he would lose his license for a year.[19]
1088*1088 The communication at issue was one-on-one, with Townsend sitting next to Bircoll on a bench. Townsend read the consent form aloud to Bircoll twice. Townsend spoke to Bircoll in lighted conditions. Moreover, an effective, non-burdensome method of communication existed as to this short implied consent warning. Bircoll can read English, and Townsend gave him a copy of the form to read. Townsend thus accommodated Bircoll by giving him written material. Bircoll's own failure to read what Townsend provided him does not constitute discrimination.
We recognize that there are factual issues about whether Bircoll requested an interpreter "many times" at the station and whether Townsend was facing, or turning away from, Bircoll. Nonetheless, Bircoll admits that Townsend read the form aloud twice and gave him a copy. Even assuming the facts most favorable to Bircoll, we conclude that, under all the circumstances here and especially given Bircoll's admitted prior knowledge, Townsend established effective communication with Bircoll regarding the consent warning and Intoxilyzer test. Accordingly, Miami-Dade did not violate the ADA at the police station.
VI. TGK DETENTION
The corrections officers at TGK recognized Bircoll's hearing disability and affixed an ADA stamp to Bircoll's jail card. Miami-Dade does not deny that TGK has TDD phones available for disabled arrestees to use and that, under the ADA, it should accommodate Bircoll's hearing loss by making a TDD phone accessible at the jail. Instead, Miami-Dade asserts that even if Bircoll was denied access to a TDD phone, he cannot show he suffered any injury as a result.[20]
At the police station, Townsend agreed to place a phone call on Bircoll's behalf to his girlfriend. Townsend essentially acted as a relay operator for Bircoll and conveyed to Bircoll's girlfriend that Bircoll had been arrested and needed to be picked up.
Once at TGK, Bircoll used the regular phones to place several calls to his own home — where his girlfriend lived — and leave messages on his answering machine. Bircoll used the regular phones at TGK in the same way he regularly uses his cell phone: by making a phone call and doing the talking in hopes that his message will be received. When Bircoll was discharged, he was picked up by his girlfriend and another friend. His girlfriend successfully received the message that Bircoll had been arrested and picked him up when he was released.
Moreover, Bircoll does not identify whom he would have called from a TDD phone. Bircoll cites no adverse effects associated with his having to rely on the police at the station to make a phone call for him, or his own use of a regular phone at the jail. Because Bircoll has shown no injury, we affirm the grant of summary judgment for Miami-Dade on Bircoll's TDD claim.[21]
1089*1089 VII. CONCLUSION
For all of the foregoing reasons, we affirm the district court's order of January 17, 2006.
AFFIRMED.
[*] Honorable Pasco M. Bowman II, United States Circuit Judge for the Eighth Circuit, sitting by designation.
[1] We recite the facts in the light most favorable to Bircoll. See Vinyard v. Wilson, 311 F.3d 1340, 1343 n. 1 (11th Cir.2002).
[2] Bircoll as a teenager had a snowmobile accident that injured his legs. Because of that accident, one leg is shorter than the other. Bircoll has trouble balancing and standing for prolonged periods of time, cannot run, and sometimes limps when he walks. Bircoll's hearing impairment also affects his balance and causes dizziness.
[3] According to his depositions and affidavit, Trask knows the American Sign Language alphabet because he learned to use it fingerspelling with his developmentally delayed son. Bircoll's brief alleges that Trask spoke a made-up sign language, but Bircoll submitted no evidence to support this claim.
[4] Trask claims that he left his headlights on, and utility poles with lights were in the area.
[5] In his deposition, Bircoll was asked:
Q: Did you ask for an interpreter at that time?
A: As a matter of fact, I asked him to call somebody to help me out with this.
[6] In his deposition, Bircoll described this sobriety test as follows:
He told me close my eyes, put my head back, and then he was saying something, and I opened my eyes trying to listen to him. He said no, no, close your eyes, put your head back. I said, sir, I need to look at your face. I can't hear you when you are talking to me.
We did that a couple of times. He got animated and frustrated, and I knew there was a problem here. And then I told him maybe we should get a lawyer or somebody or at least call somebody because he was getting frustrated.
[7] Miami-Dade filed the deposition of Bircoll taken in a malpractice case that Bircoll filed against the attorney who represented him in his DUI case (the "malpractice deposition"). When questioned about the consent form (identified as Exhibit B) in the malpractice deposition, Bircoll admitted that the officer "handed me the piece of paper and I was trying to read it and he was trying to talk to me." When asked when the piece of paper was given to him, Bircoll said it was "[a]fter I was arrested" and "[a]t the police station."
In his deposition in this case, Bircoll stated that "I remember him handing me a piece of paper," but Bircoll denied that he was asked to read it.
[8] In Florida, a person arrested for DUI may not be released from custody:
(a) Until the person is no longer under the influence of alcoholic beverages . . . and affected to the extent that his or her normal faculties are impaired;
(b) Until the person's blood-alcohol level or breath-alcohol level is less than 0.05; or
(c) Until 8 hours have elapsed from the time the person was arrested.
Fla. Stat. § 316.193(9).
[9] Bircoll's complaint also contained a 42 U.S.C. § 1983 claim, but the district court granted Miami-Dade judgment on this count, and it is not involved in this appeal.
[10] Bircoll's complaint initially included the Miami-Dade County Police Department and the Miami-Dade County Department of Corrections and Rehabilitation as defendants. The complaint against the departments was dismissed because they are not legal entities subject to suit. The case proceeded against only Miami-Dade County.
[11] The district court also concluded that the police had probable cause to arrest Bircoll for DUI based on his erratic driving, red and watery eyes, and smell of alcohol; that the arrest was not based on Bircoll's disability; and that there was no causal connection between Bircoll's disability and the arrest made during the traffic stop. Bircoll, 410 F.Supp.2d at 1286.
In his brief on appeal, Bircoll does not advance a wrongful-arrest claim under the ADA but argues only a failure to accommodate his disability. At oral argument, Bircoll's lawyer acknowledged that Trask had probable cause to arrest Bircoll. Thus, we have no occasion to address whether a wrongful-arrest claim would be cognizable under the ADA.
[12] This Court reviews de novo the district court's grant of summary judgment, drawing all facts and inferences in the light most favorable to Bircoll. See Giddens v. Equitable Life Assurance Soc'y of the U.S., 445 F.3d 1286, 1292 n. 4 (11th Cir.2006). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Id.
[13] Title I, in its statutory text, notes that discrimination includes "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability." 42 U.S.C. § 12112(b)(5)(A). Title III, in its statutory text, notes that discrimination includes "a failure to make reasonable modifications in policies, practices, or procedures." 42 U.S.C. § 12182(b)(2)(A)(ii). There is no similar statutory language in Title II.
However, the DOJ regulations for Title II impose the requirement of "reasonable modifications" to procedures to avoid the discrimination prohibited by Title II. Compare 42 U.S.C. §§ 12111, 12112, and 42 U.S.C. § 12182, with 28 C.F.R. pt. 35. There is no claim in this case that the DOJ's Title II regulations go beyond the statutory authority of the ADA. In Olmstead v. L.C. ex rel. Zimring, the Supreme Court cited these same DOJ-Title II regulations, stating that "[w]e recite these regulations with the caveat that we do not here determine their validity." 527 U.S. 581, 592 119 S.Ct. 2176, 2183, 144 L.Ed.2d 540 (1999). The Supreme Court added, "we do not understand petitioners to challenge the regulatory formulations themselves as outside the congressional authorization." Id. Because Miami-Dade has not challenged the validity of the DOJ's regulations for Title II, we likewise interpret and apply the regulations but with the caveat that we do not here determine their validity.
[14] See Yeskey, 524 U.S. at 209-10, 118 S.Ct. at 1954-55 (quoting § 12131(1)(B) and concluding that state prisons "fall squarely within the statutory definition of `public entity,' which includes `any department, agency, special purpose district, or other instrumentality of a State or States or local government'").
[15] Hainze was shot in the chest at the scene and transported by EMS, not the police. The Fifth Circuit's ultimate holding was that Hainze did not state a Title II claim against the police. See Hainze, 207 F.3d at 801.
[16] The Eighth Circuit remanded the case for development of the factual record, stating:
It remains to be determined whether Gorman can prove he was discriminated against or denied a benefit or service because of his disability or whether the defendants can show they made reasonable accommodations of his disability or if further accommodation would have been an undue burden. 29 U.S.C. § 794a(a)(1); 42 U.S.C. § 12133.
Gorman, 152 F.3d at 913.
[17] The Tenth Circuit described two potential theories of ADA-Title II liability: (1) "wrongful-arrest," where the police "wrongly arrested someone with a disability because they misperceived the effects of that disability as criminal activity"; and (2) "reasonable-accommodation-during-arrest," where the police properly investigate and arrest a person with a disability for a crime unrelated to that disability, but fail "to reasonably accommodate the person's disability in the course of investigation or arrest." Gohier, 186 F.3d at 1220-21; see supra note 11.
[18] Because Bircoll does not know sign language, we assume Bircoll wanted an oral interpreter trained to mouth words so that Bircoll could lip read accurately and to verbalize accurately Bircoll's messages based on his speech and mouth movements.
[19] In the malpractice deposition, Bircoll testified:
Q: You knew when you got a Florida driver's license, if you're stopped and suspected of drinking alcohol, that the officers will give you a breathalyzer test, and if you refuse it, you'll lose your license for a year?
A: I know that but, I don't take the test. I'll lose it.
Q: You were aware of that before you were stopped?
A: Yes.
[20] Bircoll's complaint also alleged a violation of the Rehabilitation Act for being placed in a cell alone and being held for "an inordinate and excessive amount of time." Miami-Dade responded that it provided preliminary protection to Bircoll by placing him in a cell separate from other inmates until it could be determined whether he could be held in an appropriate classification of the inmate general population. Because Bircoll did not argue these claims on appeal, we do not address them. See Sepulveda v. U.S. Att'y Gen., 401 F.3d 1226, 1228 n. 2 (11th Cir.2005); Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n. 6 (11th Cir.1989).
[21] This Court may affirm on any ground supported by the record. See United States v. Mejia, 82 F.3d 1032, 1035 (11th Cir.1996). For the same reasons we affirm the district court's grant of summary judgment to Miami-Dade on Bircoll's ADA claims, we also affirm the summary judgment granted to Miami-Dade on Bircoll's Rehabilitation Act claims. See Cash v. Smith, 231 F.3d 1301, 1305 & n. 2 (11th Cir.2000) (stating that "[d]iscrimination claims under the Rehabilitation Act are governed by the same standards used in ADA cases," and "[c]ases decided under the Rehabilitation Act are precedent for cases under the ADA, and vice-versa").
UNITED STATES
v.
NACHTIGAL
No. 92-609.
United States Supreme Court.Decided February 22, 1993.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
2*2 Per Curiam.
Respondent Jerry Nachtigal was charged with operating a motor vehicle in Yosemite National Park while under the influence of alcohol, in violation of 36 CFR §§ 4.23(a)(1) and (a)(2) (1992). Driving under the influence (DUI) is a class B misdemeanor and carries a maximum penalty of six months' imprisonment, § 1.3(a); 18 U. S. C. § 3581(b)(7), and a $5,000 fine, §§ 3571(b)(6) and (e). As an alternative to a term of imprisonment, the sentencing court may impose a term of probation not to exceed five years. §§ 3561(a)(3), (b)(2). The sentencing court has discretion to attach a host of discretionary conditions to the probationary term. § 3563(b).
Respondent moved for a jury trial. Applying our decision in Blanton v. North Las Vegas, 489 U. S. 538 (1989), the Magistrate Judge denied the motion. He reasoned that because DUI carries a maximum term of imprisonment of six months, it is presumptively a "petty" offense which is not embraced by the jury trial guaranty of the Sixth Amendment. He rejected respondent's contention that the additional penalties transformed DUI into a "serious" offense for Sixth Amendment purposes. Respondent was then tried by the Magistrate Judge and convicted of operating a motor vehicle under the influence of alcohol in violation of 36 CFR § 4.23(a)(1) (1992). He was fined $750 and placed on unsupervised probation for one year.
The District Court reversed the Magistrate Judge on the issue of entitlement to a jury trial, commenting that the language in our opinion in Blanton was "at variance with the Ninth Circuit precedent of United States v. Craner, [652 F. 2d 23 (1981)]," and electing to follow Craner because our opinion in Blanton did not "expressly overrule" Craner. App. to Pet. for Cert. 17a, 20a.
The Court of Appeals for the Ninth Circuit agreed with the District Court, holding that Blanton is "[in]apposite," that Craner controls, and that respondent is entitled to a jury trial. App. to Pet. for Cert. 3a-4a, judgt. order reported 3*3 at 953 F. 2d 1389 (1992). The Court of Appeals reasoned that since the Secretary of the Interior, and not Congress, set the maximum prison term at six months, "[t]here is no controlling legislative determination" regarding the seriousness of the offense. App. to Pet. for Cert. 4a; see also United States v. Craner, 652 F. 2d 23, 25 (CA9 1981). The court also found it significant that the Secretary of the Interior, in whom Congress vested general regulatory authority to fix six months as the maximum sentence for any regulatory offense dealing with the use and management of the national parks, monuments, or reservations, see 16 U. S. C. § 3, chose the harshest penalty available for DUI offenses. App. to Pet. for Cert. 3a-4a; see also Craner, supra, at 25. Finally, the court noted that seven of the nine States within the Ninth Circuit guarantee a jury trial for a DUI offense. App. to Pet. for Cert. 3a-4a; see also Craner, supra, at 27.
Unlike the Court of Appeals and the District Court, we think that this case is quite obviously controlled by our decision in Blanton. We therefore grant the United States' petition for certiorari and reverse the judgment of the Court of Appeals. The motion of respondent for leave to proceed in forma pauperis is granted.
In Blanton, we held that in order to determine whether the Sixth Amendment right to a jury trial attaches to a particular offense, the court must examine "objective indications of the seriousness with which society regards the offense." Blanton, 489 U. S., at 541 (internal quotation marks omitted). The best indicator of society's views is the maximum penalty set by the legislature. Ibid. While the word "penalty" refers both to the term of imprisonment and other statutory penalties, we stated that "[p]rimary emphasis . . . must be placed on the maximum authorized period of incarceration." Id., at 542. We therefore held that offenses for which the maximum period of incarceration is six months or less are presumptively "`petty.' " A defendant can overcome this presumption, and become entitled to a jury trial, 4*4 only by showing that the additional penalties, viewed together with the maximum prison term, are so severe that the legislature clearly determined that the offense is a "`serious' " one. Id., at 543. Finally, we expressly stated that the statutory penalties in other States are irrelevant to the question whether a particular legislature deemed a particular offense "`serious.' " Id., at 545, n. 11.
Applying the above rule, we held that DUI was a petty offense under Nevada law. Since the maximum prison term was six months, the presumption described above applied. We did not find it constitutionally significant that the defendant would automatically lose his license for up to 90 days, and would be required to attend, at his own expense, an alcohol abuse education course. Id., at 544, and n. 9. Nor did we believe that a $1,000 fine or an alternative sentence of 48 hours' community service while wearing clothing identifying him as a DUI offender was more onerous than six months in jail. Id., at 544-545.
The present case, we think, requires only a relatively routine application of the rule announced in Blanton. Because the maximum term of imprisonment is six months, DUI under 36 CFR § 4.23(a)(1) (1992) is presumptively a petty offense to which no jury trial right attaches. The Court of Appeals refused to apply the Blanton presumption, reasoning that the Secretary of the Interior, and not Congress, ultimately determined the maximum prison term. But there is a controlling legislative determination present within the regulatory scheme. In 16 U. S. C. § 3, Congress set six months as the maximum penalty the Secretary could impose for a violation of any of his regulations. The Court of Appeals offered no persuasive reason why this congressional determination is stripped of its "legislative" character merely because the Secretary has final authority to decide, within the limits given by Congress, what the maximum prison sentence will be for a violation of a given regulation.
5*5 The additional penalties imposed under the regulations are not sufficiently severe to overcome this presumption. As we noted in Blanton, it is a rare case where "a legislature packs an offense it deems `serious' with onerous penalties that nonetheless do not puncture the 6-month incarceration line." Blanton, 489 U. S., at 543 (internal quotation marks omitted). Here, the federal DUI offense carries a maximum fine of $5,000, and respondent faced, as an alternative to incarceration, a maximum 5-year term of probation. While the maximum fine in this case is $4,000 greater than the one in Blanton, this monetary penalty "cannot approximate in severity the loss of liberty that a prison term entails." Id., at 542.
Nor do we believe that the probation alternative renders the DUI offense "serious."[*] Like a monetary penalty, the liberty infringement caused by a term of probation is far less intrusive than incarceration. Ibid. The discretionary probation conditions do not alter this conclusion; while they obviously entail a greater infringement on liberty than probation without attendant conditions, they do not approximate the severe loss of liberty caused by imprisonment for more than six months.
We hold that the Court of Appeals was wrong in refusing to recognize that this case was controlled by our opinion in Blanton rather than by its previous opinion in Craner. An individual convicted of driving under the influence in violation 6*6 of 36 CFR § 4.23(a)(1) (1992) is not constitutionally entitled to a jury trial. The petition of the United States for certiorari is accordingly granted, and the judgment of the Court of Appeals is reversed.
It is so ordered.
[*] There are 21 discretionary conditions which the sentencing court may impose upon a defendant. Under 18 U. S. C. § 3563(b),a court may require, among other things, that the defendant (1) pay restitution; (2) take part in a drug and alcohol dependency program offered by an institution, and if necessary, reside at the institution; (3) remain in the custody of the Bureau of Prisons during nights and weekends for a period not exceeding the term of imprisonment; (4) reside at or participate in a program of a community correctional facility for all or part of the probationary term; or (5) remain at his place of residence during nonworking hours, and, if necessary, this condition may be monitored by telephonic or electronic devices. §§ 3563(b)(3), (b)(10), (b)(11), (b)(12), (b)(20).
511 U.S. 738 (1994)
NICHOLS
v.
UNITED STATES
No. 92-8556.
United States Supreme Court.Argued January 10, 1994.
Decided June 6, 1994.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
739*739 Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Souter, J., filed an opinion concurring in the judgment, post, p. 749. Blackmun, J., filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined, post, p. 754. Ginsburg, J., filed a dissenting opinion, post, p. 765.
William B. Mitchell Carter, by appointment of the Court, 510 U. S. 942, argued the cause for petitioner. With him on the briefs was Mary Julia Foreman.
Deputy Solicitor General Bryson argued the cause for the United States. With him on the brief were Solicitor General Days, Assistant Attorney General Harris, Michael R. Dreeben, and Thomas E. Booth.[*]
740*740 Chief Justice Rehnquist delivered the opinion of the Court.
In this case, we return to the issue that splintered the Court in Baldasar v. Illinois, 446 U. S. 222 (1980): Whether the Constitution prohibits a sentencing court from considering a defendant's previous uncounseled misdemeanor conviction in sentencing him for a subsequent offense.
In 1990, petitioner Nichols pleaded guilty to conspiracy to possess cocaine with intent to distribute, in violation of 21 U. S. C. § 846. Pursuant to the United States Sentencing Commission's Guidelines (Sentencing Guidelines), petitioner was assessed three criminal history points for a 1983 federal felony drug conviction. An additional criminal history point was assessed for petitioner's 1983 state misdemeanor conviction for driving under the influence (DUI), for which petitioner was fined $250 but was not incarcerated.[1] This additional criminal history point increased petitioner's Criminal History Category from Category II to Category III.[2] As a result, petitioner's sentencing range under the Sentencing Guidelines increased from 168-210 months (under Criminal History Category II) to 188-235 months (under Category III).[3]
741*741 Petitioner objected to the inclusion of his DUI misdemeanor conviction in his criminal history score because he was not represented by counsel at that proceeding. He maintained that consideration of that uncounseled misdemeanor conviction in establishing his sentence would violate the Sixth Amendment as construed in Baldasar, supra. The United States District Court for the Eastern District of Tennessee found that petitioner's misdemeanor conviction was uncounseled and that, based on the record before it, petitioner had not waived his right to counsel.[4] 763 F. Supp. 277 (1991). But the District Court rejected petitioner's Baldasar argument, explaining that in the absence of a majority opinion, Baldasar "stands only for the proposition that a prior uncounseled misdemeanor conviction may not be used to create a felony with a prison term." 763 F. Supp., at 279. Because petitioner's offense was already defined as a felony, the District Court ruled that Baldasar was inapplicable to the facts of this case; thus, petitioner's constitutional rights were not violated by using his 1983 DUI conviction to enhance his sentence.[5] It sentenced petitioner to the maximum term allowed by the Sentencing Guidelines under its interpretation of Baldasar, a term 25 months longer than if the misdemeanor conviction had not been considered in calculating petitioner's criminal history score.
742*742 A divided panel of the Court of Appeals for the Sixth Circuit affirmed. 979 F. 2d 402 (1992). After reviewing the fractured decision in Baldasar and the opinions from other Courts of Appeals that had considered the issue, the court held that Baldasar limits the collateral use at sentencing of a prior uncounseled misdemeanor conviction only when the effect of such consideration is to convert a misdemeanor into a felony.[6] The dissent, while recognizing that "numerous courts have questioned whether [Baldasar] expresses any single holding, and, accordingly, have largely limited Baldasar to its facts," nevertheless concluded that Baldasar proscribed the use of petitioner's prior uncounseled DUI conviction to enhance his sentence under the Sentencing Guidelines. 979 F. 2d, at 407-408 (citations omitted).
We granted certiorari, 509 U. S. 953 (1993), to address this important question of Sixth Amendment law, and to thereby resolve a conflict among state courts[7] as well as Federal Courts of Appeals.[8] We now affirm.
743*743 In Scott v. Illinois, 440 U. S. 367 (1979), we held that where no sentence of imprisonment was imposed, a defendant charged with a misdemeanor had no constitutional right to counsel.[9] Our decision in Scott was dictated by Argersinger v. Hamlin, 407 U. S. 25 (1972), but we stated that "[e]ven were the matter res nova, we believe that the central premise of Argersinger —that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment—is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel." Scott, supra, at 373.
One year later, in Baldasar v. Illinois, 446 U. S. 222 (1980), a majority of the Court held that a prior uncounseled misdemeanor conviction, constitutional under Scott, could nevertheless not be collaterally used to convert a second misdemeanor conviction into a felony under the applicable Illinois sentencing enhancement statute. The per curiam opinion in Baldasar provided no rationale for the result; instead, it referred to the "reasons stated in the concurring opinions." 744*744 446 U. S., at 224. There were three different opinions supporting the result. Justice Stewart, who was joined by Justices Brennan and Stevens, stated simply that the defendant "was sentenced to an increased term of imprisonment only because he had been convicted in a previous prosecution in which he had not had the assistance of appointed counsel in his defense," and that "this prison sentence violated the constitutional rule of Scott . . .." Ibid. Justice Marshall, who was also joined by Justices Brennan and Stevens, rested his opinion on the proposition that an uncounseled misdemeanor conviction is "not sufficiently reliable" to support imprisonment under Argersinger, and that it "does not become more reliable merely because the accused has been validly convicted of a subsequent offense." 446 U. S., at 227-228. Justice Blackmun, who provided the fifth vote, advanced the same rationale expressed in his dissent in Scott —that the Constitution requires appointment of counsel for an indigent defendant whenever he is charged with a "nonpetty" offense (an offense punishable by more than six months' imprisonment) or when the defendant is actually sentenced to imprisonment. 446 U. S., at 229-230. Under this rationale, Baldasar's prior misdemeanor conviction was invalid and could not be used for enhancement purposes because the initial misdemeanor was punishable by a prison term of more than six months.
Justice Powell authored the dissent, in which the remaining three Members of the Court joined. The dissent criticized the majority's holding as one that "undermines the rationale of Scott and Argersinger and leaves no coherent rationale in its place." Id., at 231. The dissent opined that the majority's result misapprehended the nature of enhancement statutes that "do not alter or enlarge a prior sentence," ignored the significance of the constitutional validity of the first conviction under Scott, and created a "hybrid" conviction, good for the punishment actually imposed but not available for sentence enhancement in a later prosecution. 745*745 446 U. S., at 232-233. Finally—and quite presciently—the dissent predicted that the Court's decision would create confusion in the lower courts. Id., at 234.
In Marks v. United States, 430 U. S. 188 (1977), we stated that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, `the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .' " Id., at 193, quoting Gregg v. Georgia, 428 U. S. 153, 169, n. 15 (1976). This test is more easily stated than applied to the various opinions supporting the result in Baldasar. A number of Courts of Appeals have decided that there is no lowest common denominator or "narrowest grounds" that represents the Court's holding. See, e. g., United States v. Castro-Vega, 945 F. 2d 496, 499-500 (CA2 1991); United States v. Eckford, 910 F. 2d 216, 219, n. 8 (CA5 1990); Schindler v. Clerk of Circuit Court, 715 F. 2d 341, 345 (CA7 1983), cert. denied, 465 U. S. 1068 (1984). Another Court of Appeals has concluded that the holding in Baldasar is Justice Blackmun's rationale, Santillanes v. United States Parole Comm'n, 754 F. 2d 887, 889 (CA10 1985); yet another has concluded that the "consensus" of the Baldasar concurrences is roughly that expressed by Justice Marshall's concurring opinion. United States v. Williams, 891 F. 2d 212, 214 (CA9 1989). State courts have similarly divided.[10] The Sentencing Guidelines have also reflected uncertainty over Baldasar.[11] We think it not useful 746*746 to pursue the Marks inquiry to the utmost logical possibility when it has so obviously baffled and divided the lower courts that have considered it. This degree of confusion following a splintered decision such as Baldasar is itself a reason for reexamining that decision. Payne v. Tennessee, 501 U. S. 808, 829-830 (1991); Miller v. California, 413 U. S. 15, 24-25 (1973).
Five Members of the Court in Baldasar —the four dissenters and Justice Stewart—expressed continued adherence to Scott v. Illinois, 440 U. S. 367 (1979). There the defendant was convicted of shoplifting under a criminal statute which provided that the penalty for the offense should be a fine of not more than $500, a term of not more than one year in jail, or both. The defendant was in fact fined $50, but he contended that since imprisonment for the offense was authorized by statute, the Sixth and Fourteenth Amendments to the United States Constitution required Illinois to provide trial counsel. We rejected that contention, holding that so long as no imprisonment was actually imposed, the Sixth Amendment right to counsel did not obtain. Id., at 373-374. We reasoned that the Court, in a number of decisions, had already expanded the language of the Sixth Amendment well beyond its obvious meaning, and that the line should be drawn between criminal proceedings that resulted in imprisonment, and those that did not. Id., at 372.
We adhere to that holding today, but agree with the dissent in Baldasar that a logical consequence of the holding is that an uncounseled conviction valid under Scott may be relied 747*747 upon to enhance the sentence for a subsequent offense, even though that sentence entails imprisonment. Enhancement statutes, whether in the nature of criminal history provisions such as those contained in the Sentencing Guidelines, or recidivist statutes that are commonplace in state criminal laws, do not change the penalty imposed for the earlier conviction. As pointed out in the dissenting opinion in Baldasar, "[t]his Court consistently has sustained repeat-offender laws as penalizing only the last offense committed by the defendant. E. g., Moore v. Missouri, 159 U. S. 673, 677 (1895); Oyler v. Boles, 368 U. S. 448, 451 (1962)." 446 U. S., at 232.
Reliance on such a conviction is also consistent with the traditional understanding of the sentencing process, which we have often recognized as less exacting than the process of establishing guilt. As a general proposition, a sentencing judge "may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come." United States v. Tucker, 404 U. S. 443, 446 (1972). "Traditionally, sentencing judges have considered a wide variety of factors in addition to evidence bearing on guilt in determining what sentence to impose on a convicted defendant." Wisconsin v. Mitchell, 508 U. S. 476, 485 (1993). One such important factor, as recognized by state recidivism statutes and the criminal history component of the Sentencing Guidelines, is a defendant's prior convictions. Sentencing courts have not only taken into consideration a defendant's prior convictions, but have also considered a defendant's past criminal behavior, even if no conviction resulted from that behavior. We have upheld the constitutionality of considering such previous conduct in Williams v. New York, 337 U. S. 241 (1949). We have also upheld the consideration of such conduct, in connection with the offense presently charged, in McMillan v. Pennsylvania, 477 U. S. 79 (1986). There we held that 748*748 the state could consider, as a sentence enhancement factor, visible possession of a firearm during the felonies of which defendant was found guilty.
Thus, consistently with due process, petitioner in the present case could have been sentenced more severely based simply on evidence of the underlying conduct that gave rise to the previous DUI offense. And the state need prove such conduct only by a preponderance of the evidence. Id., at 91. Surely, then, it must be constitutionally permissible to consider a prior uncounseled misdemeanor conviction based on the same conduct where that conduct must be proved beyond a reasonable doubt.
Petitioner contends that, at a minimum, due process requires a misdemeanor defendant to be warned that his conviction might be used for enhancement purposes should the defendant later be convicted of another crime. No such requirement was suggested in Scott, and we believe with good reason. In the first place, a large number of misdemeanor convictions take place in police or justice courts which are not courts of record. Without a drastic change in the procedures of these courts, there would be no way to memorialize any such warning. Nor is it at all clear exactly how expansive the warning would have to be; would a Georgia court have to warn the defendant about permutations and commutations of recidivist statutes in 49 other States, as well as the criminal history provision of the Sentencing Guidelines applicable in federal courts? And a warning at the completely general level—that if he is brought back into court on another criminal charge, a defendant such as Nichols will be treated more harshly—would merely tell him what he must surely already know.
Today we adhere to Scott v. Illinois, supra, and overrule Baldasar.[12] Accordingly we hold, consistent with the Sixth 749*749 and Fourteenth Amendments of the Constitution, that an uncounseled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction.
The judgment of the Court of Appeals is therefore Affirmed.
Justice Souter, concurring in the judgment.
I write separately because I do not share the Court's view that Baldasar v. Illinois, 446 U. S. 222 (1980), has a holding that can be "overrule[d]," ante, at 748, and because I wish to be clear about the narrow ground on which I think this case is properly decided. Baldasar is an unusual case, not because no single opinion enlisted a majority, but because no common ground united any five Justices. As I read the various opinions, eight Members of the Baldasar Court divided, four to four, over whether an uncounseled misdemeanor conviction that is valid because no prison sentence was imposed, see Scott v. Illinois, 440 U. S. 367 (1979), may be used for automatic enhancement of the prison sentence attached to a subsequent conviction. See Baldasar, 446 U. S., at 224 (Stewart, J., joined by Brennan and Stevens, JJ., concurring); id., at 224-229 (Marshall, J., joined by Brennan and Stevens, JJ., concurring); id., at 230-235 (Powell, J., joined by Burger, C. J., and White and Rehnquist, JJ., dissenting). 750*750 Instead of breaking the tie, the ninth Justice, Justice Blackmun, declined to accept the premise on which the others proceeded (that the prior uncounseled conviction was valid under Scott ), adhering to his earlier position that an uncounseled conviction of the sort involved in Baldasar was not valid for any purpose. See 446 U. S., at 229-230 (Blackmun, J., concurring) (discussing Scott, supra, at 389-390 (Blackmun, J., dissenting)). Significantly for present purposes, Justice Blackmun gave no indication of his view on whether an uncounseled conviction, if valid under Scott, could subsequently be used for automatic sentence enhancement. On the question addressed by the other eight Justices, then, the Baldasar Court was in equipoise, leaving a decision in the same posture as an affirmance by an equally divided Court, entitled to no precedential value, see United States v. Pink, 315 U. S. 203, 216 (1942). Cf. Waters v. Churchill, ante, p. 661; ante, at 685 (Souter, J., concurring); Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Mass., 383 U. S. 413 (1966) (discussed in Marks v. United States, 430 U. S. 188, 193-194 (1977)).
Setting Baldasar aside as controlling precedent (but retaining the case's even split as evidence), it seems safe to say that the question debated there is a difficult one. The Court in Scott, relying on Argersinger v. Hamlin, 407 U. S. 25 (1972), drew a bright line between imprisonment and lesser criminal penalties, on the theory, as I understand it, that the concern over reliability raised by the absence of counsel is tolerable when a defendant does not face the deprivation of his liberty. See Scott, supra, at 372-373; see also Argersinger, supra, at 34-37 (discussing studies showing that "the volume of misdemeanor cases . . . may create an obsession for speedy dispositions, regardless of the fairness of the result") (footnote omitted). There is an obvious and serious argument that the line drawn in Scott is crossed when, as Justice 751*751 Stewart put it in Baldasar, a defendant is "sentenced to an increased term of imprisonment only because he had been convicted in a previous prosecution in which he had not had the assistance of appointed counsel in his defense." 446 U. S., at 224 (concurring opinion) (emphasis in original); see also id., at 227 (Marshall, J., concurring) (petitioner's prison sentence "was imposed as a direct consequence of [the previous] uncounseled conviction and is therefore forbidden under Scott and Argersinger ").
Fortunately, the difficult constitutional question that argument raises need not be answered in deciding this case, cf. Ashwander v. TVA, 297 U. S. 288, 346-347 (1936) (Brandeis, J., concurring), for unlike the sentence-enhancement scheme involved in Baldasar, the United States Sentencing Commission's Guidelines (Guidelines) do not provide for automatic enhancement based on prior uncounseled convictions. Prior convictions, as the Court explains, serve under the Guidelines to place the defendant in one of six "criminal history" categories; the greater the number of prior convictions, the higher the category. See ante, at 740, and n. 2. But the Guidelines seek to punish those who exhibit a pattern of "criminal conduct," not a pattern of prior convictions as such, see United States Sentencing Commission, Guidelines Manual (USSG) ch. 4, pt. A (Nov. 1993) (intro. comment.), and accordingly do not bind a district court to the category into which simple addition places the defendant. Thus, while the Guidelines require that "uncounseled misdemeanor sentences where imprisonment was not imposed" are "to be counted in the criminal history score," USSG App. C, amdt. 353 (Nov. 1993), they also expressly empower the district court to depart from the range of sentences prescribed for a criminalhistory category that inaccurately captures the defendant's actual history of criminal conduct. See id., § 4A1.3. In particular, the Guidelines authorize downward departure "where the court concludes that a defendant's criminal history 752*752 category significantly over-represents the seriousness of a defendant's criminal history or the likelihood that the defendant will commit further crimes." Ibid.[*]
Under the Guidelines, then, the role prior convictions play in sentencing is presumptive, not conclusive, and a defendant has the chance to convince the sentencing court of the unreliability of any prior valid but uncounseled convictions in reflecting the seriousness of his past criminal conduct or predicting the likelihood of recidivism. A defendant may show, for example, that his prior conviction resulted from railroading an unsophisticated indigent, from a frugal preference for a low fine with no counsel fee, or from a desire to put the matter behind him instead of investing the time to fight the charges.
Because the Guidelines allow a defendant to rebut the negative implication to which a prior uncounseled conviction gives rise, they do not ignore the risk of unreliability associated with such a conviction. Moreover, as the Court observes, permitting a court to consider (in contrast to giving conclusive weight to) a prior uncounseled conviction is "consistent with the traditional understanding of the sentencing process," under which a "judge `may appropriately conduct an inquiry broad in scope, largely unlimited either as to the 753*753 kind of information he may consider, or the source from which it may come,' " at least as long as the defendant is given a reasonable opportunity to disprove the accuracy of information on which the judge may rely, and to contest the relevancy of that information to sentencing. Ante, at 747 (quoting United States v. Tucker, 404 U. S. 443, 446 (1972)). Where concern for reliability is accommodated, as it is under the Guidelines, nothing in the Sixth Amendment or our cases requires a sentencing court to ignore the fact of a valid uncounseled conviction, even if that conviction is a less confident indicator of guilt than a counseled one would be. Cf. United States Sentencing Commission, Sentencing Guidelines for United States Courts, 55 Fed. Reg. 5741 (1990) (explaining that valid, uncounseled convictions should be counted in determining a defendant's criminal history category because the alternative would "deprive the [sentencing] court of significant information relevant to the purposes of sentencing").
I therefore agree with the Court that it is "constitutionally permissible" for a federal court to "consider a prior uncounseled misdemeanor conviction" in sentencing a defendant under the Guidelines. Ante, at 748. That is enough to answer the constitutional question this case presents, whether "[t]he District Court should . . . have considered [petitioner's] previous uncounseled misdemeanor in computing [his] criminal history score" under the Guidelines. Pet. for Cert. i; see also Brief for United States I (stating question presented as "[w]hether it violated the Constitution for the sentencing court to consider petitioner's prior uncounseled misdemeanor conviction in determining his criminal history score under the Sentencing Guidelines"). And because petitioner did not below, and does not here, contend that counting his 1983 uncounseled conviction for driving under the influence placed him in a criminal-history category that "significantly overrepresents the seriousness of [his] criminal history or the likelihood that [he] will commit further crimes," USSG 754*754 § 4A1.3, the Court properly rejects petitioner's challenge to his sentence.
I am shy, however, of endorsing language in the Court's opinion that may be taken as addressing the constitutional validity of a sentencing scheme that automatically requires enhancement for prior uncounseled convictions, a scheme not now before us. Because I prefer not to risk offending the principle that "[t]he Court will not `anticipate a question of constitutional law in advance of the necessity of deciding it,' " Ashwander, 297 U. S., at 346 (citation omitted), I concur only in the judgment.
Justice Blackmun, with whom Justice Stevens and Justice Ginsburg join, dissenting.
In 1983, petitioner Kenneth O. Nichols pleaded nolo contendere to driving under the influence of alcohol (DUI) and paid a $250 fine. He was not represented by counsel. Under Scott v. Illinois, 440 U. S. 367 (1979), this uncounseled misdemeanor could not have been used as the basis for any incarceration, not even a 1-day jail sentence. Seven years later, when Nichols pleaded guilty to a federal drug charge, this uncounseled misdemeanor, used to enhance his sentence, led directly to his imprisonment for over two years. The majority's holding that this enhancement does not violate the Sixth Amendment is neither compelled by Scott nor faithful to the concern for reliability that lies at the heart of our Sixth Amendment cases since Gideon v. Wainwright, 372 U. S. 335 (1963). Accordingly, I dissent.
I
The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." In Gideon v. Wainwright, this Court recognized the "Sixth Amendment's guarantee of counsel" as "`fundamental and essential to a fair trial,' " id., at 342, because "`[e]ven the intelligent and educated layman 755*755. . .requires the guiding hand of counsel at every step in the proceedings against him,' " id., at 345, quoting Powell v. Alabama, 287 U. S. 45, 69 (1932).
Both the plain wording of the Amendment and the reasoning in Gideon would support the guarantee of counsel in "all" criminal prosecutions, petty or serious, whatever their consequences. See Scott v. Illinois, 440 U. S., at 376, 379 (Brennan, J., dissenting). Although the Court never has read the guarantee of counsel that broadly, one principle has been clear, at least until today: No imprisonment may be imposed on the basis of an uncounseled conviction. Thus, in Argersinger v. Hamlin, 407 U. S. 25 (1972), the Court rejected a formalistic distinction between petty and non-petty offenses and applied Gideon to "any criminal trial, where an accused is deprived of his liberty." Id., at 32; id., at 41, 42 (Burger, C. J., concurring in result) (because "any deprivation of liberty is a serious matter," no individual "can be imprisoned unless he is represented by counsel").
A year later, Scott confirmed that any deprivation of liberty, no matter how brief, triggers the Sixth Amendment's right to counsel:
"Even were the matter res nova, we believe that the central premise of Argersinger —that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment—is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel. . . . We therefore hold that the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense." 440 U. S., at 373-374.
Finally, although the Court, in Baldasar v. Illinois, 446 U. S. 222 (1980), in one sense, was "splintered," ante, at 740, a 756*756 majority of the Court concluded that an uncounseled conviction could not be used to support a prison term, either initially, to punish the misdemeanor, or later, to lengthen the jail time for a subsequent conviction. See Baldasar, 446 U. S., at 224 (Stewart, J., concurring) (sentencing an indigent "to an increased term of imprisonment only because he had been convicted in a previous prosecution in which he had not had the assistance of appointed counsel in his defense" violated Scott ); 446 U. S., at 226 (Marshall, J., concurring) (even on Scott `s terms, a "prior uncounseled misdemeanor conviction could not be used collaterally to impose an increased term of imprisonment upon a subsequent conviction"); 446 U. S., at 230 (Blackmun, J., concurring) (adhering to dissenting position in Scott that an uncounseled conviction is invalid not only where the defendant is sentenced to any actual incarceration but also where the defendant is convicted of an offense punishable by more than six months in prison).[1]
757*757 Thus, the animating concern in the Court's Sixth Amendment jurisprudence has been to ensure that no indigent is deprived of his liberty as a result of a proceeding in which he lacked the guiding hand of counsel. While the Court has grappled with, and sometimes divided over, extending this constitutional guarantee beyond convictions that lead to actual incarceration, it has never permitted, before now, an uncounseled conviction to serve as the basis for any jail time.
II
Although the Court now expressly overrules Baldasar v. Illinois, ante, at 748, it purports to adhere to Scott, describing its holding as a "logical consequence" of Scott, ante, at 746. This logic is not unassailable. To the contrary, as Justice Marshall stated in Baldasar, "a rule that held a conviction invalid for imposing a prison term directly, but valid for imposing a prison term collaterally, would be an illogical and unworkable deviation from our previous cases." 446 U. S., at 228-229 (concurring opinion). It is more logical, and more consistent with the reasoning in Scott, to hold that a conviction that is invalid for imposing a sentence for the offense itself remains invalid for increasing the term of imprisonment imposed for a subsequent conviction.
The Court skirts Scott `s actual imprisonment standard by asserting that enhancement statutes "do not change the penalty imposed for the earlier conviction," ante, at 747, because they punish only the later offense. Although it is undeniable that recidivist statutes do not impose a second punishment for the first offense in violation of the Double Jeopardy Clause, Moore v. Missouri, 159 U. S. 673, 677 (1895), it also is undeniable that Nichols' DUI conviction directly resulted in more than two years' imprisonment. In any event, our concern here is not with multiple punishments, but with reliability. Specifically, is a prior uncounseled misdemeanor 758*758 conviction sufficiently reliable to justify additional jail time imposed under an enhancement statute? Because imprisonment is a punishment "different in kind" from fines or the threat of imprisonment, Scott, 440 U. S., at 373, we consistently have read the Sixth Amendment to require that courts decrease the risk of unreliability, through the provision of counsel, where a conviction results in imprisonment. That the sentence in Scott was imposed in the first instance and the sentence here was the result of an enhancement statute is a distinction without a constitutional difference.
The Court also defends its position by arguing that the process of sentencing traditionally is "less exacting" than the process of establishing guilt. Ante, at 747. This may be true as a general proposition,[2] but it does not establish that 759*759 an uncounseled conviction is reliable enough for Sixth Amendment purposes to justify the imposition of imprisonment, even in the sentencing context. Nor does it follow that, because the state may attempt to prove at sentencing conduct justifying greater punishment, it also may rely on a prior uncounseled conviction. In McMillan v. Pennsylvania, 477 U. S. 79 (1986), for example, the State was permitted to prove at sentencing that the defendant visibly possessed a firearm during the commission of the felonies of which he was convicted.[3] Where, as in McMillan, the state sets out 760*760 to prove actual conduct rather than the fact of conviction in a sentencing proceeding at which the defendant is represented by counsel, counsel can put the state to its proof, examining its witnesses, rebutting its evidence, and testing the reliability of its allegations. See Argersinger, 407 U. S., at 31 (the accused "`requires the guiding hand of counsel at every step in the proceedings against him,' " quoting Powell v. Alabama, 287 U. S., at 69) (emphasis added). In contrast, where the state simply submits a record of a conviction obtained in a proceeding in which the defendant lacked the assistance of counsel, we lack similar confidence that the conviction reliably reflects the defendant's conduct.
Moreover, as a practical matter, introduction of a record of conviction generally carries greater weight than other evidence of prior conduct. Indeed, the United States Sentencing Commission's Guidelines (Guidelines) require a district court to assess criminal history points for prior convictions, and to impose a sentence within the range authorized by the defendant's criminal history, unless it concludes that a defendant's "criminal history category significantly overrepresents 761*761 the seriousness of a defendant's criminal history or the likelihood that a defendant will commit further crimes." United States Sentencing Commission, Guidelines Manual § 4A1.3 (Nov. 1993). Realistically, then, the conclusion that a state may prove prior conduct in a sentencing proceeding at which the defendant is aided by counsel does not support, much less compel, a conclusion that the state may, in lieu of proving directly the prior conduct, rely on a conviction obtained against an uncounseled defendant.[4]
762*762 III
Contrary to the rule set forth by the Court, a rule that an uncounseled misdemeanor conviction never can form the basis for a term of imprisonment is faithful to the principle born of Gideon and announced in Argersinger that an uncounseled misdemeanor, like an uncounseled felony, is not reliable enough to form the basis for the severe sanction of incarceration. This Court in Gideon stated that "reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." 372 U. S., at 344. Gideon involved a felony, but we recognized in Argersinger, 407 U. S., at 31, that counsel was "often a requisite to the very existence of a fair trial" in misdemeanor cases, as well. In the absence of this "assurance" of or "requisite" to a fair trial, we cannot have confidence in the reliability of the conviction and, therefore, cannot impose a prison term based on it.
These reliability concerns have prompted this Court to hold that an uncounseled felony conviction cannot later be used to increase a prison term under a state recidivist statute, Burgett v. Texas, 389 U. S. 109 (1967), nor even be considered by a court in sentencing for a subsequent conviction, United States v. Tucker, 404 U. S. 443 (1972). The Court offers no reason and I can think of none why the same rules 763*763 should not apply with regard to uncounseled misdemeanor convictions. Counsel can have a profound effect in misdemeanor cases, where both the volume of cases and the pressure to plead are great. See Argersinger, 407 U. S., at 36 ("`[m]isdemeanants represented by attorneys are five times as likely to emerge from police court with all charges dismissed as are defendants who face similar charges without counsel,' " quoting American Civil Liberties Union, Legal Counsel for Misdemeanants, Preliminary Report 1 (1970)); Baldasar, 446 U. S., at 228, n. 2 (Marshall, J., concurring) (recognizing that misdemeanor convictions may be less reliable than felony convictions because they are obtained through "assembly-line justice" and because jurors may be less scrupulous in applying the reasonable-doubt standard to a minor offense). Given the utility of counsel in these cases, the inherent risk of unreliability in the absence of counsel, and the severe sanction of incarceration that can result directly or indirectly from an uncounseled misdemeanor, there is no reason in law or policy to construe the Sixth Amendment to exclude the guarantee of counsel where the conviction subsequently results in an increased term of incarceration.
Moreover, the rule that an uncounseled misdemeanor conviction can never be used to increase a prison term is eminently logical, as Justice Marshall made clear in Baldasar:
"An uncounseled conviction does not become more reliable merely because the accused has been validly convicted of a subsequent offense. For this reason, a conviction which is invalid for purposes of imposing a sentence of imprisonment for the offense itself remains invalid for purposes of increasing a term of imprisonment for a subsequent conviction under a repeatoffender statute." Id., at 227-228 (concurring opinion).[5]
764*764 Finally, this rule is workable. As the Court has engaged in "constitutional line drawing" to determine the "precise limits and . . . ramifications" of Gideon `s principles, Scott, 440 U. S., at 372, it has sought to draw a clear line, one that adequately informs judges, prosecutors, and defendants of the consequences of their actions and decisions. Under the clear rule that an uncounseled misdemeanor conviction can never justify any term of imprisonment, the judge and the parties will know, at the beginning of a misdemeanor trial, that no imprisonment may be imposed, directly or collaterally, based on that proceeding, unless counsel is appointed to represent the indigent accused. See Argersinger, 407 U. S., at 42 (Burger, C. J., concurring in result). Admittedly, this rule might cause the state to seek and judges to grant appointed counsel for more indigent defendants, in order to preserve the right to use the conviction later for enhancement purposes. The Sixth Amendment guarantee of counsel should not be subordinated to these costs. See id., at 43, 44 (Burger, C. J., concurring in result) (accepting that the Court's holding would require the appointment of more defense counsel). In any event, the majority's rule, which exposes indigent defendants to substantial sentence enhancements on the basis of minor offenses, may well have the same result by encouraging more indigent defendants to seek counsel and to litigate offenses to which they otherwise 765*765 might have pleaded. This case is illustrative. When charged with driving under the influence, petitioner sought out an attorney, who told him that he did not need a lawyer if he was pleading nolo contendere. This advice made sense if a $250 fine was the only consequence of the plea. Its soundness is less apparent where the consequences can include a 2-year increase in a prison sentence down the road.
IV
With scant discussion of Sixth Amendment case law or principles, the Court today approves the imposition of two years of incarceration as the consequence of an uncounseled misdemeanor conviction. Because uncounseled misdemeanor convictions lack the reliability this Court has always considered a prerequisite for the imposition of any term of incarceration, I dissent.
Justice Ginsburg, dissenting.
In Custis v. United States, ante, p. 485, the Court held that, with the sole exception of convictions obtained in violation of the right to counsel, a defendant in a federal sentencing proceeding has no right to attack collaterally a prior state conviction used to enhance his sentence under the Armed Career Criminal Act of 1984. This case is dispositively different.
Custis presented a forum question. The issue was where, not whether, the defendant could attack a prior conviction for constitutional infirmity. See ante, at 497 (Custis "may attack his state sentence in Maryland or through federal habeas review").
Here, we face an uncounseled prior conviction tolerable under the Sixth Amendment "assistance of counsel" guarantee only because it did not expose defendant Nichols to the prospect of incarceration. See Scott v. Illinois, 440 U. S. 367 (1979). Today's decision enlarges the impact of that uncounseled conviction. It turns what was a disposition allowing 766*766 no jail time—a disposition made for one day and case alone— into a judgment of far heavier weight. Nichols does not attack his prior uncounseled conviction for what it was. He is seeking only to confine that conviction to the term (no incarceration) that rendered it constitutional.
Recognizing that the issue in this case is not like the one presented in Custis, I join Justice Blackmun's dissenting opinion.
[*] Susan N. Herman and Steven R. Shapiro filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.
Kent S. Scheidegger and Charles L. Hobson filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance.
[1] At the time of his conviction, petitioner faced a maximum punishment of one year imprisonment and a $1,000 fine. Georgia law provided that a person convicted of driving under the influence of alcohol "shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment for not less than ten days nor more than one year, or by a fine of not less than $100.00 nor more than $1,000.00, or by both such fine and imprisonment." Ga. Code Ann. § 40.6-391(c) (1982).
[2] There are six criminal history categories under the Sentencing Guidelines. United States Sentencing Commission, Guidelines Manual (USSG) ch. 5, pt. A (Nov. 1993) (Sentencing Table). A defendant's criminal history category is determined by the number of his criminal history points, which in turn is based on his prior criminal record. Id., ch. 4, p. A.
[3] The Sentencing Table provides a matrix of sentencing ranges. On the vertical axis of the matrix is the defendant's offense level representing the seriousness of the crime; on the horizontal axis is the defendant's criminal history category. The sentencing range is determined by identifying the intersection of the defendant's offense level and his criminal history category. Id., ch. 5, pt. A (Sentencing Table).
[4] The Government contends that, even if Baldasar v. Illinois, 446 U. S. 222 (1980), prohibits using the prior uncounseled misdemeanor conviction to enhance petitioner's sentence, the District Court applied the wrong legal standard in finding no valid waiver of the right to counsel. Based on Johnson v. Zerbst, 304 U. S. 458, 467-469 (1938), and Parke v. Raley, 506 U. S. 20, 28-29 (1992), the Government argues that petitioner failed to carry his burden to establish the absence of a valid waiver of counsel. We need not address this contention due to our resolution of the Baldasar issue.
[5] Petitioner's instant felony conviction was punishable under statute by not less than 10 years' imprisonment and not more than life imprisonment. See 21 U. S. C. § 841(b)(1)(B); 979 F. 2d 402, 413-414, 417-418 (CA6 1992).
[6] The court also stated that its decision was "logically compelled" by Charles v. Foltz, 741 F. 2d 834, 837 (CA6 1984), cert. denied, 469 U. S. 1193 (1985), 979 F. 2d, at 415-416, 418 ("`[E]vidence of prior uncounselled misdemeanor convictions for which imprisonment was not imposed . . . may be used for impeachment purposes' ").
[7] Cf. Lovell v. State, 283 Ark. 425, 428, 678 S. W. 2d 318, 320 (1984) (Baldasar bars any prior uncounseled misdemeanor conviction from enhancing a term of imprisonment following a second conviction); State v. Vares, 71 Haw. 617, 620, 801 P. 2d 555, 557 (1990) (same); State v. Laurick, 120 N. J. 1, 16, 575 A. 2d 1340, 1347 (Baldasar bars an enhanced penalty only when it is greater than that authorized in the absence of the prior offense or converts a misdemeanor into a felony), cert. denied, 498 U. S. 967 (1990); Hlad v. State, 565 So. 2d 762, 764-766 (Fla. App. 1990) (following the approach of Justice Blackmun, thereby limiting enhancement to situations where the prior uncounseled misdemeanor was punishable by six months' imprisonment or less), aff'd, 585 So. 2d 928, 930 (Fla. 1991); Sheffield v. Pass Christian, 556 So. 2d 1052, 1053 (Miss. 1990) (Baldasar establishes no barrier to the collateral use of valid, uncounseled misdemeanor convictions).
[8] The Sixth Circuit expressly joined the Fifth and Second Circuits in essentially limiting Baldasar to its facts. See Wilson v. Estelle, 625 F. 2d 1158, 1159, and n. 1 (CA5 1980) (a prior uncounseled misdemeanor conviction cannot be used under a sentence enhancement statute to convert a subsequent misdemeanor into a felony with a prison term), cert. denied, 451 U. S. 912 (1981); United States v. Castro-Vega, 945 F. 2d 496, 500 (CA2 1991) (Baldasar does not apply where "the court used an uncounseled misdemeanor conviction to determine the appropriate criminal history category for a crime that was already a felony"), cert. denied sub nom. Cintron-Rodriguez v. United States, 507 U. S. 908 (1992). But see, e. g., United States v. Brady, 928 F. 2d 844, 854 (CA9 1991) (Baldasar and the Sixth Amendment bar any imprisonment in a subsequent case imposed because of an uncounseled conviction in which the right to counsel was not waived).
[9] In felony cases, in contrast to misdemeanor charges, the Constitution requires that an indigent defendant be offered appointed counsel unless that right is intelligently and competently waived. Gideon v. Wainwright, 372 U. S. 335 (1963). We have held that convictions gained in violation of Gideon cannot be used "either to support guilt or enhance punishment for another offense," Burgett v. Texas, 389 U. S. 109, 115 (1967), and that a subsequent sentence that was based in part on a prior invalid conviction must be set aside, United States v. Tucker, 404 U. S. 443, 447-449 (1972).
[10] See n. 7, supra.
[11] The 1989 version of the Sentencing Guidelines stated that, in determining a defendant's criminal history score, an uncounseled misdemeanor conviction should be excluded only if it "would result in the imposition of a sentence of imprisonment under circumstances that would violate the United States Constitution." USSG § 4A1.2, Application Note 6 (Nov. 1989). Effective November 1, 1990, the Sentencing Commission amended § 4A1.2 by deleting the above quoted phrase and adding the following statement as background commentary: "Prior sentences, not otherwise excluded, are to be counted in the criminal history score, including uncounseled misdemeanor sentences where imprisonment was not imposed." USSG App. C, amdt. 353 (Nov. 1993). When the Sentencing Commission initially published the amendment for notice and comment, it included the following explanation: "The Commission does not believe the inclusion of sentences resulting from constitutionally valid, uncounseled misdemeanor convictions in the criminal history score is foreclosed by Baldasar v. Illinois, 446 U. S. 222 (1980)." 55 Fed. Reg. 5741 (1990).
[12] Of course States may decide, based on their own constitutions or public policy, that counsel should be available for all indigent defendants charged with misdemeanors. Indeed, many, if not a majority, of States guarantee the right to counsel whenever imprisonment is authorized by statute, rather than actually imposed. See, e. g., Alaska Stat. Ann. § 18.85.100 (1991) ("serious" crime means any crime where imprisonment authorized); Ariz. Rule Crim. Proc. 6.1(b) (indigent defendant shall be entitled to have attorney appointed in any criminal proceeding that may result in punishment by loss of liberty, or where court concludes that appointment satisfies the ends of justice); Cal. Penal Code Ann. § 15 (West 1988), Cal. Penal Code Ann. § 858 (West 1985); Brunson v. State, 182 Ind. App. 146, 394 N. E. 2d 229 (1979) (right to counsel in misdemeanor proceedings guaranteed by Ind. Const., Art. I, § 13); N. H. Rev. Stat. Ann. § 604-A:2 (1986 and Supp. 1992).
[*] "Congress gave the Sentencing Commission authority to `maintai[n] sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices.' 28 U. S. C. § 991(b)(1)(B). The Commission used this authority in adopting § 4A1.3, which it said was designed to `recognize[] that the criminal history score is unlikely to take into account all the variations in the seriousness of criminal history that may occur.' USSG § 4A1.3 (commentary)." United States v. Beckham, 968 F. 2d 47, 54 (CADC 1992); see also United States v. Shoupe, 988 F. 2d 440, 445 (CA3 1993) ("[I]n Guidelines § 4A1.3, the Commission specifically provided district courts with flexibility to adjust the criminal history category calculated through . . . rigid formulae"). Cf. Miller & Freed, Honoring Judicial Discretion Under the Sentencing Reform Act, 3 Fed. Sent. R. 235, 238 (1991) (discussing "Congress' desire to leave substantial sentencing discretion in the hands of the sentencing judge").
[1] I dissented in Scott v. Illinois, 440 U. S. 367 (1979), in which five Members of the Court held that the Sixth Amendment required counsel only for convictions that were punished by actual imprisonment, and not for offenses that were punishable by imprisonment, but where imprisonment was not imposed. Believing that the line the Court drew did not protect indigent defendants adequately or keep faith with our Sixth Amendment principles, I argued for a right to counsel not only where the defendant was convicted and sentenced to jail time, but also where the defendant was convicted of any offense punishable by more than six months' imprisonment, regardless of the punishment actually imposed. Id., at 389-390.
A year later, when the Court decided Baldasar v. Illinois, 446 U. S. 222 (1980), I adhered to this position, concurring in the Court's per curiam opinion and its judgment that the uncounseled conviction could not be used to justify increasing Baldasar's jail time. Although I based my decision on my belief that the uncounseled conviction was invalid in the first instance because Baldasar was charged with an offense punishable by more than six months in prison, I expressed no disagreement, and indeed had none, with the premise that an uncounseled conviction that was valid under Scott was invalid for purposes of imposing increased incarceration for a subsequent offense. 446 U. S., at 229-230. Obviously, logic dictates that, where the threat of imprisonment is enough to trigger the Sixth Amendment's guarantee of counsel, the actual imposition of imprisonment through an enhancement statute also requires the appointment of counsel.
[2] In support of its position, the majority cites several cases that refer to a sentencing judge's traditional discretion. The cases provide scant, if any, support for the majority's rule sanctioning the use of prior uncounseled convictions as the basis for increased terms of imprisonment. None even addresses the Sixth Amendment guarantee of counsel.
In McMillan v. Pennsylvania, 477 U. S. 79 (1986), the Court held 5 to 4 that a state statute defining visible possession of a firearm as a sentencing consideration that could be proved by a preponderance of the evidence, rather than as an element of the crime that must be proved beyond a reasonable doubt, did not violate due process. McMillan did not involve the use of a prior conviction in a subsequent proceeding. Additionally, McMillan involved only felony convictions, in which the defendants were entitled to counsel at every step of the proceedings to assist in proving or disproving the facts to be relied on in sentencing. The Court also noted that the "risk of error" in the challenged proceeding was "comparatively slight" because visible possession was "a simple, straightforward issue susceptible of objective proof." Id., at 84. The same cannot be said for the reliability of prior uncounseled misdemeanors. See Argersinger v. Hamlin, 407 U. S. 25, 34 (1972) (observing that the volume of misdemeanor cases "may create an obsession for speedy dispositions, regardless of the fairness of the result"); id., at 35 (noting that "`[t]he misdemeanor trial is characterized by insufficient and frequently irresponsible preparation,' " quoting Hellerstein, The Importance of the Misdemeanor Case on Trial and Appeal, 28 The Legal Aid Brief Case 151, 152 (1970)). Moreover, a finding of visible possession did not expose a defendant to a greater or additional punishment than otherwise authorized, McMillan, 477 U. S., at 88, while the prior conviction at issue here exposed petitioner to two additional years in prison.
Wisconsin v. Mitchell, 508 U. S. 476 (1993), in which the Court rejected a First Amendment challenge to a state statute that enhanced a penalty based on the defendant's motive, is no more helpful to the majority's position. The Court simply observed that the defendant's motive was a factor traditionally considered by sentencing judges; it said nothing about the validity of prior convictions or even about the standard required to prove the motive. Similarly, although United States v. Tucker, 404 U. S. 443, 446 (1972), made passing reference to a sentencing judge's broad inquiry, it held only that Gideon v. Wainwright, 372 U. S. 335 (1963), required resentencing where the sentencing court had considered prior felony convictions that later were found to have been uncounseled.
Finally, Williams v. New York, 337 U. S. 241 (1949), was a Confrontation Clause challenge to a sentencing judge's consideration of evidence obtained through a presentence investigation. The court did not rely on any prior convictions; the defendant, who was represented by counsel, did not challenge the accuracy of the information the judge considered, ask the judge to disregard it, or seek to refute or discredit it; and the consideration of this information did not expose the defendant to a greater or additional punishment.
[3] McMillan, of course, was a due process case. Curiously, the Court appears to rest its holding as much on the Due Process Clause as on the Sixth Amendment. See ante, at 748. But even if the use of a prior uncounseled conviction does not violate due process, that does not conclusively resolve the Sixth Amendment question. Compare Betts v. Brady, 316 U. S. 455, 462 (1942) (holding that the right to counsel was not required under the Due Process Clause of the Fourteenth Amendment and recognizing due process as a "concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights"), with Gideon v. Wainwright, 372 U. S., at 339 (holding that the Sixth Amendment requires counsel in all state felony prosecutions).
Nor do I read the majority's reliance on due process to reflect an understanding that due process requires only partial incorporation of the Sixth Amendment right to counsel in state courts. This Court long has recognized the "Sixth Amendment's guarantee of counsel" as "`fundamental and essential to a fair trial' " and therefore "made obligatory upon the States by the Fourteenth Amendment." Id., at 342; see also Johnson v. Zerbst, 304 U. S. 458, 462 (1938) (the assistance of counsel "is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty"); Grosjean v. American Press Co., 297 U. S. 233, 243-244 (1936) ("the fundamental right of the accused to the aid of counsel in a criminal prosecution" is "safeguarded against state action by the due process of law clause of the Fourteenth Amendment"). No decision of this Court even has intimated that the Sixth Amendment right to counsel somehow is diluted or truncated in state proceedings.
[4] Justice Souter concludes that this provision passes Sixth Amendment muster by providing the defendant a "reasonable opportunity" to disprove the accuracy of the prior conviction. Ante, at 753. Even assuming that the Guidelines would permit a sentencing court to depart downward in response to a defendant's claim that his conviction resulted from his lack of sophistication or his calculation that it was cheaper to plead and pay a low fine than to retain counsel and litigate the charge, such a safety valve still does not accommodate reliability concerns sufficiently. As Chief Justice Burger recognized in Argersinger, "[a]ppeal from a conviction after an uncounseled trial is not likely to be of much help to a defendant since the die is usually cast when judgment is entered on an uncounseled trial record." 407 U. S., at 41 (concurring opinion). A collateral proceeding holds forth no greater promise of relief. The uncounseled misdemeanor convictions that are considered inherently unreliable under Argersinger and Scott are presumptively valid under most sentence enhancement schemes, see, e. g., Custis v. United States, ante, p. 485 (limiting a defendant's right to attack as unconstitutional a prior conviction used to enhance a sentence under the Armed Career Criminal Act of 1984, 18 U. S. C. § 924(e)); Parke v. Raley, 506 U. S. 20 (1992) (presumption of validity that attaches to final judgments properly extended to prior convictions used for sentence enhancement under a state recidivism statute), and are presumptively reflected in a defendant's criminal history score—and sentence—under the Guidelines, see United States Sentencing Commission, Guidelines Manual App. C, amdt. 353 (Nov. 1993) ("Prior sentences, not otherwise excluded, are to be counted in the criminal history score, including uncounseled misdemeanor sentences where imprisonment was not imposed").
Moreover, although it might be salutary for courts to consider under the Guidelines a defendant's reasons other than culpability for pleading nolo contendere to a prior misdemeanor conviction, I do not share Justice Souter's confidence that such a benevolent review of a defendant's circumstances is occurring now. Even if it were, a district court, after the most probing review, generally may depart downward only in "atypical" cases, outside the "heartland" carved by each guideline,United States Sentencing Commission, Guidelines Manual, ch. 1, pt. A, comment., 4(b) (Nov. 1991). This does not alleviate our concern in Argersinger that the "typical" misdemeanor case presents pressures to plead guilty or nolo contendere, regardless of the fairness or accuracy of that plea. 407 U. S., at 34-36. Accordingly, I find the district court's authority to depart downward too tenuous a check on the use of unreliable misdemeanor convictions to salvage a sentencing scheme that is,in my view, a violation of Scott.
[5] From another perspective, the prior uncounseled conviction can be viewed as a "hybrid" conviction: valid for the purpose of imposing a sentence, but invalid for the purpose of depriving the accused of his liberty. See Baldasar, 446 U. S., at 232 (Powell, J., dissenting). There is nothing intuitively offensive about a "hybrid." See id., at 226 (Marshall, J., concurring) (noting and accepting that Baldasar's conviction was not valid for all purposes); see also 15 U. S. C. § 16(a) (certain consent decrees or consent judgments in favor of the Government in a civil or criminal antitrust action shall not be prima facie evidence in a subsequent proceeding brought by another party); § 16(h) (district court proceedings leading to a consent judgment proposed by the Government are inadmissible as evidence in subsequent proceedings); 10 J. von Kalinowski, Antitrust Laws and Trade Regulation § 105.02[10], p. 110 (1993) ("[A]llegations based on pleas of nolo contendere in government suits, and the judgments entered thereon, should not be included in the complaint" in a subsequent action).
BLANTON ET AL.
v.
CITY OF NORTH LAS VEGAS, NEVADA
No. 87-1437.
Supreme Court of United States.Argued January 9, 1989
Decided March 6, 1989
CERTIORARI TO THE SUPREME COURT OF NEVADA
539*539 John J. Graves, Jr., argued the cause for petitioners. With him on the briefs was John G. Watkins.
Mark L. Zalaoras argued the cause for respondent. With him on the brief was Roy A. Woofter.[*]
Briefs of amici curiae urging affirmance were filed for the United States by Solicitor General Fried, Acting Assistant Attorney General Dennis, Deputy Solicitor General Bryson, Michael R. Lazerwitz, and Louis M. Fischer; for the State of Nevada by Brian McKay, Attorney General, and Brian Randall Hutchins, Chief Deputy Attorney General; for the State of New Jersey by W. Cary Edwards, Attorney General, and Boris Moczula, Larry R. Etzweiler, and Cherrie Madden Black, Deputy Attorneys General; for the city of Las Vegas, Nevada, by George F. Ogilvie; and for the Louisiana District Attorneys Association by Dorothy A. Pendergast.
JUSTICE MARSHALL delivered the opinion of the Court.
The issue in this case is whether there is a constitutional right to a trial by jury for persons charged under Nevada law with driving under the influence of alcohol (DUI). Nev. Rev. Stat. § 484.379(1) (1987). We hold that there is not.
DUI is punishable by a minimum term of two days' imprisonment and a maximum term of six months' imprisonment. § 484.3792(1)(a)(2). Alternatively, a trial court may order the defendant "to perform 48 hours of work for the community while dressed in distinctive garb which identifies him as [a DUI offender]." Ibid. The defendant also must pay a fine ranging from $200 to $1,000. § 484.3792(1)(a)(3). In addition, the defendant automatically loses his driver's license for 90 days, § 483.460(1)(c),[1] and he must attend, at his own 540*540 expense, an alcohol abuse education course. § 484.3792(1) (a)(1). Repeat DUI offenders are subject to increased penalties.[2]
Petitioners Melvin R. Blanton and Mark D. Fraley were charged with DUI in separate incidents. Neither petitioner had a prior DUI conviction. The North Las Vegas, Nevada, Municipal Court denied their respective pretrial demands for a jury trial. On appeal, the Eighth Judicial District Court denied Blanton's request for a jury trial but, a month later, granted Fraley's. Blanton then appealed to the Supreme Court of Nevada, as did respondent city of North Las Vegas with respect to Fraley. After consolidating the two cases along with several others raising the same issue, the Supreme Court concluded, inter alia, that the Federal Constitution does not guarantee a right to a jury trial for a DUI offense because the maximum term of incarceration is only six months and the maximum possible fine is $1,000. 103 Nev. 623, 748 P. 2d 494 (1987).[3] We granted certiorari to consider whether petitioners were entitled to a jury trial, 487 U. S. 1203 (1988), and now affirm.
541*541 It has long been settled that "there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision." Duncan v. Louisiana, 391 U. S. 145, 159 (1968); see also District of Columbia v. Clawans, 300 U. S. 617, 624 (1937); Callan v. Wilson, 127 U. S. 540, 557 (1888).[4] In determining whether a particular offense should be categorized as "petty," our early decisions focused on the nature of the offense and on whether it was triable by a jury at common law. See, e. g., District of Columbia v. Colts, 282 U. S. 63, 73 (1930); Callan, supra, at 555-557. In recent years, however, we have sought more "objective indications of the seriousness with which society regards the offense." Frank v. United States, 395 U. S. 147, 148 (1969).[5] "[W]e have found the most relevant such criteria in the severity of the maximum authorized penalty." Baldwin v. New York, 399 U. S. 66, 68 (1970) (plurality opinion); see also Duncan, supra, at 159. In fixing the maximum penalty for a crime, a legislature "include[s] within the definition of the crime itself a judgment about the seriousness of the offense." Frank, supra, at 149. The judiciary should not substitute its judgment as to seriousness for that of a legislature, which is "far better equipped to perform the task, and [is] likewise more responsive to changes in attitude and more amenable to the 542*542 recognition and correction of their misperceptions in this respect." Landry v. Hoepfner, 840 F. 2d 1201, 1209 (CA5 1988) (en banc), cert. pending, No. 88-5043.
In using the word "penalty," we do not refer solely to the maximum prison term authorized for a particular offense. A legislature's view of the seriousness of an offense also is reflected in the other penalties that it attaches to the offense. See United States v. Jenkins, 780 F. 2d 472, 474, and n. 3 (CA4), cert. denied, 476 U. S. 1161 (1986). We thus examine "whether the length of the authorized prison term or the seriousness of other punishment is enough in itself to require a jury trial." Duncan, supra, at 161 (emphasis added); see also Frank, 395 U. S., at 152 (three years' probation is not "onerous enough to make an otherwise petty offense `serious' ").[6] Primary emphasis, however, must be placed on the maximum authorized period of incarceration. Penalties such as probation or a fine may engender "a significant infringement of personal freedom," id., at 151, but they cannot approximate in severity the loss of liberty that a prison term entails. Indeed, because incarceration is an "intrinsically different" form of punishment, Muniz v. Hoffman, 422 U. S. 454, 477 (1975), it is the most powerful indication of whether an offense is "serious."
Following this approach, our decision in Baldwin established that a defendant is entitled to a jury trial whenever the offense for which he is charged carries a maximum authorized prison term of greater than six months. 399 U. S., at 69; see id., at 74-76 (Black, J., concurring in judgment). The possibility of a sentence exceeding six months, we determined, is "sufficiently severe by itself" to require the opportunity for a jury trial. Id., at 69, n. 6. As for a prison term of six months or less, we recognized that it will seldom be viewed by the defendant as "trivial or `petty.' " Id., at 73. But we 543*543 found that the disadvantages of such a sentence, "onerous though they may be, may be outweighed by the benefits that result from speedy and inexpensive nonjury adjudications." Ibid.; see also Duncan, supra, at 160.
Although we did not hold in Baldwin that an offense carrying a maximum prison term of six months or less automatically qualifies as a "petty" offense,[7] and decline to do so today, we do find it appropriate to presume for purposes of the Sixth Amendment that society views such an offense as "petty." A defendant is entitled to a jury trial in such circumstances only if he can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a "serious" one. This standard, albeit somewhat imprecise, should ensure the availability of a jury trial in the rare situation where a legislature packs an offense it deems "serious" with onerous penalties that nonetheless "do not puncture the 6-month incarceration line." Brief for Petitioners 16.[8]
Applying these principles here, it is apparent that petitioners are not entitled to a jury trial. The maximum authorized prison sentence for first-time DUI offenders does not exceed six months. A presumption therefore exists that the Nevada Legislature views DUI as a "petty" offense for purposes 544*544 of the Sixth Amendment. Considering the additional statutory penalties as well, we do not believe that the Nevada Legislature has clearly indicated that DUI is a "serious" offense.
In the first place, it is immaterial that a first-time DUI offender may face a minimum term of imprisonment. In settling on six months' imprisonment as the constitutional demarcation point, we have assumed that a defendant convicted of the offense in question would receive the maximum authorized prison sentence. It is not constitutionally determinative, therefore, that a particular defendant may be required to serve some amount of jail time less than six months. Likewise, it is of little moment that a defendant may receive the maximum prison term because of the prohibitions on plea bargaining and probation. As for the 90-day license suspension, it, too, will be irrelevant if it runs concurrently with the prison sentence, which we assume for present purposes to be the maximum of six months.[9]
We are also unpersuaded by the fact that, instead of a prison sentence, a DUI offender may be ordered to perform 48 hours of community service dressed in clothing identifying him as a DUI offender. Even assuming the outfit is the source of some embarrassment during the 48-hour period,[10] such a penalty will be less embarrassing and less onerous than six months in jail. As for the possible $1,000 fine, it is well below the $5,000 level set by Congress in its most recent definition of a "petty" offense, 18 U. S. C. § 1 (1982 ed., 545*545 Supp. IV), and petitioners do not suggest that this congressional figure is out of step with state practice for offenses carrying prison sentences of six months or less.[11] Finally, we ascribe little significance to the fact that a DUI offender faces increased penalties for repeat offenses. Recidivist penalties of the magnitude imposed for DUI are commonplace and, in any event, petitioners do not face such penalties here.[12]
Viewed together, the statutory penalties are not so severe that DUI must be deemed a "serious" offense for purposes of the Sixth Amendment. It was not error, therefore, to deny petitioners jury trials. Accordingly, the judgment of the Supreme Court of Nevada is
Affirmed.
[*] Dan C. Bowen and John A. Powell filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.
[1] A restricted license may be issued after 45 days which permits the defendant to travel to and from work, to obtain food and medicine, and to receive regularly scheduled medical care. § 483.490(2).
[2] A second DUI offense is punishable by 10 days to six months in prison. § 484.3792(1)(b). The second-time offender also must pay a fine ranging from $500 to $1,000, ibid., and he loses his driver's license for one year. § 483.460(1)(b)(5). A third DUI offense is punishable by a minimum term of one year's imprisonment and a maximum term of six years' imprisonment. § 484.3792(1)(c). The third-time offender also must pay from $2,000 to $5,000, ibid., and he loses his driving privileges for three years. § 483.460(1)(a)(2).
A prosecutor may not dismiss a DUI charge "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 there is insufficient evidence to prove the offense. § 484.3792(3). Trial courts may not suspend sentences or impose probation for DUI convictions. Ibid.
[3] Accordingly, the Supreme Court of Nevada remanded Blanton's case with instructions to proceed without a jury trial. Because Fraley pleaded guilty to DUI before he took an appeal to the District Court, the Supreme Court remanded his case with instructions to reinstate his conviction.
[4] The Sixth Amendment right to a jury trial applies to the States through the Fourteenth Amendment. Duncan v. Louisiana, 391 U. S. 145 (1968).
[5] Our decision to move away from inquiries into such matters as the nature of the offense when determining a defendant's right to a jury trial was presaged in District of Columbia v. Clawans, 300 U. S. 617, 628 (1937), where we stated: "Doubts must be resolved, not subjectively by recourse of the judge to his own sympathy and emotions, but by objective standards such as may be observed in the laws and practices of the community taken as a gauge of its social and ethical judgments." Our adherence to a common-law approach has been undermined by the substantial number of statutory offenses lacking common-law antecedents. See Landry v. Hoepfner, 840 F. 2d 1201, 1209-1210 (CA5 1988) (en banc), cert. pending, No. 88-5043; United States v. Woods, 450 F. Supp. 1335, 1345 (Md. 1978); Brief for United States as Amicus Curiae 18.
[6] In criminal contempt prosecutions, "where no maximum penalty is authorized, the severity of the penalty actually imposed is the best indication of the seriousness of the particular offense." Frank, 395 U. S. at, 149.
[7] We held "only that a potential sentence in excess of six months' imprisonment is sufficiently severe by itself to take the offense out of the category of `petty.' " Baldwin v. New York, 399 U. S., at 69, n. 6 (plurality opinion) (emphasis added); see also Codispoti v. Pennsylvania, 418 U. S. 506, 512, n. 4 (1974).
[8] In performing this analysis, only penalties resulting from state action, e. g., those mandated by statute or regulation, should be considered. See Note, The Federal Constitutional Right to Trial by Jury for the Offense of Driving While Intoxicated, 73 Minn. L. Rev. 122, 149-150 (1988) (nonstatutory consequences of a conviction "are speculative in nature, because courts cannot determine with any consistency when and if they will occur, especially in the context of society's continually shifting moral values").
[9] It is unclear whether the license suspension and prison sentence in fact run concurrently. See Nev. Rev. Stat. § 483.460(1) (1987). But even if they do not, we cannot say that a 90-day license suspension is that significant as a Sixth Amendment matter, particularly when a restricted license may be obtained after only 45 days. Cf. Frank v. United States, supra. Furthermore, the requirement that an offender attend an alcohol abuse education course can only be described as de minimis.
[10] We are hampered in our review of the clothing requirement because the record from the state courts contains neither a description of the clothing nor any details as to where and when it must be worn.
[11] We have frequently looked to the federal classification scheme in determining when a jury trial must be provided. See, e. g., Muniz v. Hoffman, 422 U. S. 454, 476-477 (1975); Baldwin, supra, at 71; Duncan, 391 U. S., at 161. Although Congress no longer characterizes offenses as "petty," 98 Stat. 2027, 2031, 99 Stat. 1728 (repealing 18 U. S. C. § 1), under the current scheme, 18 U. S. C. § 3559 (1982 ed., Supp. V), an individual facing a maximum prison sentence of six months or less remains subject to a maximum fine of no more than $5,000. 18 U. S. C. § 3571(b)(6) (1982 ed., Supp V).
We decline petitioners' invitation to survey the statutory penalties for drunken driving in other States. The question is not whether other States consider drunken driving a "serious" offense, but whether Nevada does. Cf. Martin v. Ohio, 480 U. S. 228, 236 (1987). Although we looked to state practice in our past decisions, we did so chiefly to determine whether there was a nationwide consensus on the potential term of imprisonment or amount of fine that triggered a jury trial regardless of the particular offense involved. See, e. g., Baldwin, supra, at 70-73; Duncan, supra, at 161.
[12] In light of petitioners' status as first-time offenders, we do not consider whether a repeat offender facing enhanced penalties may state a constitutional claim because of the absence of a jury trial in a prior DUI prosecution.
LEOCAL
v.
ASHCROFT, ATTORNEY GENERAL, ET AL.
No. 03-583.
Supreme Court of United States.Argued October 12, 2004.
Decided November 9, 2004.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
2*2 3*3 REHNQUIST, C. J., delivered the opinion for a unanimous Court.
J. Sedwick Sollers III argued the cause for petitioner. With him on the briefs were Patricia L. Maher and Michael J. Ciatti.
Dan Himmelfarb argued the cause for respondents. With him on the brief were Acting Solicitor General Clement, Assistant Attorney General Keisler, Deputy Solicitors General Dreeben and Kneedler, Donald E. Keener, and Greg D. Mack.[*]
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Petitioner Josue Leocal, a Haitian citizen who is a lawful permanent resident of the United States, was convicted in 2000 of driving under the influence of alcohol (DUI) and causing serious bodily injury, in violation of Florida law. See Fla. Stat. § 316.193(3)(c)(2) (2003). Classifying this conviction as a "crime of violence" under 18 U. S. C. § 16, and therefore an "aggravated felony" under the Immigration and Nationality Act (INA), an Immigration Judge and the Board of Immigration Appeals (BIA) ordered that petitioner be deported pursuant to § 237(a) of the INA. The Court of Appeals 4*4 for the Eleventh Circuit agreed, dismissing petitioner's petition for review. We disagree and hold that petitioner's DUI conviction is not a crime of violence under 18 U. S. C. § 16.
Petitioner immigrated to the United States in 1980 and became a lawful permanent resident in 1987. In January 2000, he was charged with two counts of DUI causing serious bodily injury under Fla. Stat. § 316.193(3)(c)(2), after he caused an accident resulting in injury to two people. He pleaded guilty to both counts and was sentenced to 2½ years in prison.
In November 2000, while he was serving his sentence, the Immigration and Naturalization Service (INS) initiated removal proceedings against him pursuant to § 237(a) of the INA. Under that provision, "[a]ny alien who is convicted of an aggravated felony . . . is deportable" and may be removed upon an order of the Attorney General. 66 Stat. 201, 8 U. S. C. § 1227(a)(2)(A)(iii). Section 101(a)(43) of the INA defines "aggravated felony" to include, inter alia, "a crime of violence (as defined in section 16 of title 18, but not including a purely political offense) for which the term of imprisonment [is] at least one year."[1] 8 U. S. C. § 1101(a)(43)(F) (footnote omitted). Title 18 U. S. C. § 16, in turn, defines the term "crime of violence" to mean:
5*5 "(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
"(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."
Here, the INS claimed that petitioner's DUI conviction was a "crime of violence" under § 16, and therefore an "aggravated felony" under the INA.
In October 2001, an Immigration Judge found petitioner removable, relying upon the Eleventh Circuit's decision in Le v. United States Attorney General, 196 F. 3d 1352 (1999) (per curiam), which held that a conviction under the Florida DUI statute qualified as a crime of violence. The BIA affirmed.[2] Petitioner completed his sentence and was removed to Haiti in November 2002. In June 2003, the Court of Appeals for the Eleventh Circuit dismissed petitioner's petition for review, relying on its previous ruling in Le, supra.[3] App. to 6*6 Pet. for Cert. 5a-7a. We granted certiorari, 540 U. S. 1176 (2004), to resolve a conflict among the Courts of Appeals on the question whether state DUI offenses similar to the one in Florida, which either do not have a mens rea component or require only a showing of negligence in the operation of a vehicle, qualify as a crime of violence. Compare Le, supra, at 1354; and Omar v. INS, 298 F. 3d 710, 715-718 (CA8 2002), with United States v. Trinidad-Aquino, 259 F. 3d 1140, 1145-1146 (CA9 2001); Dalton v. Ashcroft, 257 F. 3d 200, 205-206 (CA2 2001); Bazan-Reyes v. INS, 256 F. 3d 600, 609-611 (CA7 2001); and United States v. Chapa-Garza, 243 F. 3d 921, 926-927 (CA5), amended, 262 F. 3d 479 (CA5 2001) (per curiam); see also Ursu v. INS, 20 Fed. Appx. 702 (CA9 2001) (following Trinidad-Aquino, supra, and ruling that a violation of the Florida DUI statute at issue here and in Le does not count as a "crime of violence"). We now reverse the Eleventh Circuit.
* * *
Title 18 U. S. C. § 16 was enacted as part of the Comprehensive Crime Control Act of 1984, which broadly reformed the federal criminal code in such areas as sentencing, bail, and drug enforcement, and which added a variety of new violent and nonviolent offenses. § 1001(a), 98 Stat. 2136. Congress employed the term "crime of violence" in numerous places in the Act, such as for defining the elements of particular offenses, see, e. g., 18 U. S. C. § 1959 (prohibiting threats to commit crimes of violence in aid of racketeering activity), or for directing when a hearing is required before a charged individual can be released on bail, see § 3142(f) (requiring a pretrial detention hearing for those alleged to have committed a crime of violence). Congress therefore provided in § 16 a general definition of the term "crime of violence" to be used throughout the Act. See § 1001(a), 7*7 98 Stat. 2136. Section 16 has since been incorporated into a variety of statutory provisions, both criminal and noncriminal.[4]
Here, pursuant to § 237(a) of the INA, the Court of Appeals applied § 16 to find that petitioner's DUI conviction rendered him deportable. In determining whether petitioner's conviction falls within the ambit of § 16, the statute directs our focus to the "offense" of conviction. See § 16(a) (defining a crime of violence as "an offense that has as an element the use . . . of physical force against the person or property of another" (emphasis added)); § 16(b) (defining the term as "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense" (emphasis added)). This language requires us to look to the elements and the nature of the offense of conviction, rather than to the particular facts relating to petitioner's crime.
Florida Stat. § 316.193(3)(c)(2) makes it a third-degree felony for a person to operate a vehicle while under the influence and, "by reason of such operation, caus[e] . . . [s]erious bodily injury to another." The Florida statute, while it requires proof of causation of injury, does not require proof of any particular mental state. See State v. Hubbard, 751 So. 2d 552, 562-564 (Fla. 1999) (holding, in the context of a DUI manslaughter conviction under § 316.193, that the statute 8*8 does not contain a mens rea requirement). Many States have enacted similar statutes, criminalizing DUI causing serious bodily injury or death without requiring proof of any mental state,[5] or, in some States, appearing to require only proof that the person acted negligently in operating the vehicle.[6] The question here is whether § 16 can be interpreted to include such offenses.
Our analysis begins with the language of the statute. See Bailey v. United States, 516 U. S. 137, 144 (1995). The plain text of § 16(a) states that an offense, to qualify as a crime of violence, must have "as an element the use, attempted use, or threatened use of physical force against the person or property of another." We do not deal here with an attempted 9*9 or threatened use of force. Petitioner contends that his conviction did not require the "use" of force against another person because the most common employment of the word "use" connotes the intentional availment of force, which is not required under the Florida DUI statute. The Government counters that the "use" of force does not incorporate any mens rea component, and that petitioner's DUI conviction necessarily includes the use of force. To support its position, the Government dissects the meaning of the word "use," employing dictionaries, legislation, and our own case law in contending that a use of force may be negligent or even inadvertent.
Whether or not the word "use" alone supplies a mens rea element, the parties' primary focus on that word is too narrow. Particularly when interpreting a statute that features as elastic a word as "use," we construe language in its context and in light of the terms surrounding it. See Smith v. United States, 508 U. S. 223, 229 (1993); Bailey, supra, at 143. The critical aspect of § 16(a) is that a crime of violence is one involving the "use . . . of physical force against the person or property of another." (Emphasis added.) As we said in a similar context in Bailey, "use" requires active employment. 516 U. S., at 145. While one may, in theory, actively employ something in an accidental manner, it is much less natural to say that a person actively employs physical force against another person by accident. Thus, a person would "use . . . physical force against" another when pushing him; however, we would not ordinarily say a person "use[s] . . . physical force against" another by stumbling and falling into him. When interpreting a statute, we must give words their "ordinary or natural" meaning. Smith, supra, at 228. The key phrase in § 16(a) — the "use . . . of physical force against the person or property of another" — most naturally suggests a higher degree of intent than negligent or merely accidental conduct. See United States v. Trinidad-Aquino, 259 F. 3d, at 1145; Bazan-Reyes v. INS, 256 F. 3d, at 609. 10*10 Petitioner's DUI offense therefore is not a crime of violence under § 16(a).
Neither is petitioner's DUI conviction a crime of violence under § 16(b). Section 16(b) sweeps more broadly than § 16(a), defining a crime of violence as including "any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." But § 16(b) does not thereby encompass all negligent misconduct, such as the negligent operation of a vehicle. It simply covers offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing an offense. The reckless disregard in § 16 relates not to the general conduct or to the possibility that harm will result from a person's conduct, but to the risk that the use of physical force against another might be required in committing a crime.[7] The classic example is burglary. A burglary would be covered under § 16(b) not because the offense can be committed in a generally reckless way or because someone may be injured, but because burglary, by its nature, involves a substantial risk that the burglar will use force against a victim in completing the crime.
11*11 Thus, while § 16(b) is broader than § 16(a) in the sense that physical force need not actually be applied, it contains the same formulation we found to be determinative in § 16(a): the use of physical force against the person or property of another. Accordingly, we must give the language in § 16(b) an identical construction, requiring a higher mens rea than the merely accidental or negligent conduct involved in a DUI offense. This is particularly true in light of § 16(b)'s requirement that the "substantial risk" be a risk of using physical force against another person "in the course of committing the offense." In no "ordinary or natural" sense can it be said that a person risks having to "use" physical force against another person in the course of operating a vehicle while intoxicated and causing injury.
In construing both parts of § 16, we cannot forget that we ultimately are determining the meaning of the term "crime of violence." The ordinary meaning of this term, combined with § 16's emphasis on the use of physical force against another person (or the risk of having to use such force in committing a crime), suggests a category of violent, active crimes that cannot be said naturally to include DUI offenses. Cf. United States v. Doe, 960 F. 2d 221, 225 (CA1 1992) (Breyer, C. J.) (observing that the term "violent felony" in 18 U. S. C. § 924(e) (2000 ed. and Supp. II) "calls to mind a tradition of crimes that involve the possibility of more closely related, active violence"). Interpreting § 16 to encompass accidental or negligent conduct would blur the distinction between the "violent" crimes Congress sought to distinguish for heightened punishment and other crimes. See United States v. Lucio-Lucio, 347 F. 3d 1202, 1205-1206 (CA10 2003).
Section 16 therefore cannot be read to include petitioner's conviction for DUI causing serious bodily injury under Florida law.[8] This construction is reinforced by Congress' use 12*12 of the term "crime of violence" in § 101(h) of the INA, which was enacted in 1990. See Foreign Relations Authorization Act, Fiscal Years 1990 and 1991, § 131, 104 Stat. 31 (hereinafter FRAA). Section 212(a)(2)(E) of the INA renders inadmissible any alien who has previously exercised diplomatic immunity from criminal jurisdiction in the United States after committing a "serious criminal offense." 8 U. S. C. § 1182(a)(2)(E). Section 101(h) defines the term "serious criminal offense" to mean:
"(1) any felony;
"(2) any crime of violence, as defined in section 16 of title 18; or
"(3) any crime of reckless driving or of driving while intoxicated or under the influence of alcohol or of prohibited substances if such crime involves personal injury to another." 8 U. S. C. § 1101(h) (emphasis added).
Congress' separate listing of the DUI-causing-injury offense from the definition of "crime of violence" in § 16 is revealing. Interpreting § 16 to include DUI offenses, as the Government urges, would leave § 101(h)(3) practically devoid of significance. As we must give effect to every word of a statute wherever possible, see Duncan v. Walker, 533 U. S. 167, 174 (2001), the distinct provision for these offenses under § 101(h) bolsters our conclusion that § 16 does not itself encompass DUI offenses.[9]
13*13 This case does not present us with the question whether a state or federal offense that requires proof of the reckless use of force against the person or property of another qualifies as a crime of violence under 18 U. S. C. § 16. DUI statutes such as Florida's do not require any mental state with respect to the use of force against another person, thus reaching individuals who were negligent or less. Drunk driving is a nationwide problem, as evidenced by the efforts of legislatures to prohibit such conduct and impose appropriate penalties. But this fact does not warrant our shoe-horning it into statutory sections where it does not fit. The judgment of the United States Court of Appeals for the Eleventh Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
[*] Briefs of amici curiae urging reversal were filed for Citizens and Immigrants for Equal Justice et al. by Carmine D. Boccuzzi, Jr.; for the Midwest Immigrant & Human Rights Center by Shashank S. Upadhye; and for the National Association of Criminal Defense Lawyers et al. by Paul A. Engelmayer, Douglas F. Curtis, Joshua L. Dratel, Lucas Guttentag, Steven R. Shapiro, Robin L. Goldfaden, Lory Diana Rosenberg, Jeanne A. Butterfield, Marianne Yang, and Manuel D. Vargas.
[1] Congress first made commission of an aggravated felony grounds for an alien's removal in 1988, and it defined the term to include offenses such as murder, drug trafficking crimes, and firearm trafficking offenses. See Anti-Drug Abuse Act of 1988, §§ 7342, 7344, 102 Stat. 4469, 4470. Since then, Congress has frequently amended the definition of aggravated felony, broadening the scope of offenses which render an alien deportable. See, e. g., Antiterrorism and Effective Death Penalty Act of 1996, § 440(e), 110 Stat. 1277 (adding a number of offenses to § 101(a)(43) of the INA); Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), § 321, 110 Stat. 3009-627 (same). The inclusion of any "crime of violence" as an aggravated felony came in 1990. See Immigration Act of 1990, § 501, 104 Stat. 5048.
[2] When petitioner first appealed, the BIA's position was that a violation of DUI statutes similar to Florida's counted as a crime of violence under 18 U. S. C. § 16. See, e. g., Matter of Puente-Salazar, 22 I. & N. Dec. 1006, 1012-1013 (BIA 1999) (en banc). Before petitioner received a decision from his appeal (due to a clerical error not relevant here), the BIA in another case reversed its position from Puente-Salazar and held that DUI offenses that do not have a mens rea of at least recklessness are not crimes of violence within the meaning of § 16. See Matter of Ramos, 23 I. & N. Dec. 336, 346 (BIA 2002) (en banc). However, because the BIA held in Ramos that it would "follow the law of the circuit in those circuits that have addressed the question whether driving under the influence is a crime of violence," id., at 346-347, and because it found the Eleventh Circuit's ruling in Le controlling, it affirmed the Immigration Judge's removal order. See App. to Pet. for Cert. 1a-4a.
[3] Pursuant to the IIRIRA, the Eleventh Circuit was without jurisdiction to review the BIA's removal order in this case if petitioner was "removable by reason of having committed" certain criminal offenses, including those covered as an "aggravated felony." See 8 U. S. C. § 1252(a)(2)(C). Because the Eleventh Circuit held that petitioner's conviction was such an offense, it concluded that it had no jurisdiction to consider the removal order.
[4] For instance, a number of statutes criminalize conduct that has as an element the commission of a crime of violence under § 16. See, e. g., 18 U. S. C. § 842(p) (prohibiting the distribution of information relating to explosives, destructive devices, and weapons of mass destruction in relation to a crime of violence). Other statutory provisions make classification of an offense as a crime of violence consequential for purposes of, inter alia, extradition and restitution. See §§ 3181(b), 3663A(c). And the term "crime of violence" under § 16 has been incorporated into a number of noncriminal enactments. See, e. g., 8 U. S. C. § 1227(a)(2)(A)(iii) (rendering an alien deportable for committing a crime of violence, as petitioner is charged here).
[5] See, e. g., Ala. Code § 13A-6-20(a)(5) (West 1994); Colo. Rev. Stat. § 18-3-205(1)(b)(1) (Lexis 2003); Conn. Gen. Stat. § 53a-60d(a) (2003); Ga. Code Ann. § 40-6-394 (Lexis 2004); Idaho Code § 18-8006(1) (Lexis 2004); Ill. Comp. Stat. Ann., ch. 625, § 5/11-501(d)(1)(C) (West 2002); Ind. Code § 9-30-5-4 (1993); Iowa Code § 707.6A(4) (2003); Ky. Rev. Stat. Ann. §§ 189A.010(1) and (11)(c) (Lexis Supp. 2004); Me. Rev. Stat. Ann., Tit. 29-A, § 2411(1-A)(D)(1) (West Supp. 2003); Mich. Comp. Laws Ann. § 257.625(5) (West Supp. 2004); Neb. Rev. Stat. § 60-6,198(1) (2002 Cum. Supp.); N. H. Rev. Stat. Ann. §§ 265:82-a(I)(b) and (II)(b) (West 2004); N. J. Stat. Ann. § 2C:12-1(c) (West Supp. 2003); N. M. Stat. Ann. §§ 66-8-101(B) and (C) (2004); N. D. Cent. Code § 39-09-01.1 (Lexis 1997); Ohio Rev. Code Ann. § 2903.08(A)(1)(a) (Lexis 2003); Okla. Stat. Ann., Tit. 47, § 11-904(B)(1) (West 2001); 75 Pa. Cons. Stat. § 3804(b) (Supp. 2003); R. I. Gen. Laws § 31-27-2.6(a) (Lexis 2002); Tex. Penal Code Ann. § 49.07(a)(1) (West 2003); Vt. Stat. Ann., Tit. 23, § 1210(f) (Lexis Supp. 2004); Wash. Rev. Code § 46.61.522(1)(b) (1994); Wis. Stat. § 940.25(1) (1999-2000); Wyo. Stat. § 31-5-233(h) (Lexis 2003).
[6] See, e.g., Cal. Veh. Code Ann. § 23153 (West 2000); Del. Code Ann., Tit. 11, §§ 628(2), 629 (Lexis 1995); La. Stat. Ann. §§ 14:39.1(A), 14:39.2(A) (West 1997 and Supp. 2004); Md. Crim. Law Code Ann. §§ 3-211(c) and (d) (Lexis 2004); Miss. Code Ann. § 63-11-30(5) (Lexis 2004); Mo. Ann. Stat. § 565.060.1(4) (West 2000); Mont. Code Ann. § 45-5-205(1) (2003); Nev. Rev. Stat. § 484.3795(1) (2003); S. C. Code Ann. § 56-5-2945(A)(1) (2003); S. D. Codified Laws § 22-16-42 (West Supp. 2003); Utah Code Ann. §§ 41-6-44(3)(a)(ii)(A) and (3)(b) (Lexis Supp. 2004); W. Va. Code § 17C-5-2(c) (Lexis 2004).
[7] Thus, § 16(b) plainly does not encompass all offenses which create a "substantial risk" that injury will result from a person's conduct. The "substantial risk" in § 16(b) relates to the use of force, not to the possible effect of a person's conduct. Compare § 16(b) (requiring a "substantial risk that physical force against the person or property of another may be used") with United States Sentencing Commission, Guidelines Manual § 4B1.2(a)(2) (Nov. 2003) (in the context of a career-offender sentencing enhancement, defining "crime of violence" as meaning, inter alia, "conduct that presents a serious potential risk of physical injury to another"). The risk that an accident may occur when an individual drives while intoxicated is simply not the same thing as the risk that the individual may "use" physical force against another in committing the DUI offense. See, e. g., United States v. Lucio-Lucio, 347 F. 3d 1202, 1205-1207 (CA10 2003); Bazan-Reyes v. INS, 256 F. 3d 600, 609-610 (CA7 2001).
[8] Even if § 16 lacked clarity on this point, we would be constrained to interpret any ambiguity in the statute in petitioner's favor. Although here we deal with § 16 in the deportation context, § 16 is a criminal statute, and it has both criminal and noncriminal applications. Because we must interpret the statute consistently, whether we encounter its application in a criminal or noncriminal context, the rule of lenity applies. Cf. United States v. Thompson/Center Arms Co., 504 U. S. 505, 517-518 (1992) (plurality opinion) (applying the rule of lenity to a tax statute, in a civil setting, because the statute had criminal applications and thus had to be interpreted consistently with its criminal applications).
[9] This point carries significant weight in the particular context of this case. Congress incorporated § 16 as an aggravated felony under § 101(a)(43)(F) of the INA in 1990. See Immigration Act of 1990, § 501, 104 Stat. 5048 (Nov. 29, 1990). Congress enacted § 101(h), with its incorporation of § 16 and a separate provision covering DUI-causing-injury offenses, just nine months earlier. See FRAA, § 131, 104 Stat. 31 (Feb. 16, 1990). That Congress distinguished between a crime of violence and DUI-causing-injury offenses (and included both) in § 101(h), but did not do so shortly thereafter in making only a crime of violence an aggravated felony under § 101(a)(43)(F), strongly supports our construction of § 16.
Larry BEGAY, Petitioner,
v.
UNITED STATES.
No. 06-11543.
Supreme Court of United States.Argued January 15, 2008.
Decided April 16, 2008.
1583*1583 Margaret A. Katze, Albuquerque, NM, for petitioner.
Leondra R. Kruger, for respondent.
Stephen P. McCue, Federal Public Defender, Margaret A. Katze, Counsel of Record, Assistant Federal Public Defender, Charles McCormack, Research and Writing Specialist, Office of the Federal Public Defender, Albuquerque, NM, for petitioner.
Paul D. Clement, Solicitor General, Counsel of Record, Alice S. Fisher, Assistant Attorney General, Michael R. Dreeben, Deputy Solicitor General, Leondra R. Kruger, Assistant to the Solicitor General, Richard A. Friedman, Attorney, Department of Justice, Washington, D.C., for respondent.
Justice BREYER delivered the opinion of the Court.
The Armed Career Criminal Act imposes a special mandatory 15-year prison term upon felons who unlawfully possess a firearm and who also have three or more previous convictions for committing certain drug crimes or "violent felon[ies]." 18 U.S.C. § 924(e)(1) (2000 ed., Supp. V). The question in this case is whether driving under the influence of alcohol is a "violent felony" as the Act defines it. We conclude that it is not.
I
A
Federal law prohibits a previously convicted felon from possessing a firearm. § 922(g)(1) (2000 ed.). A related provision provides for a prison term of up to 10 years for an ordinary offender. § 924(a)(2). The Armed Career Criminal Act imposes a more stringent 15-year mandatory minimum sentence on an offender who has three prior convictions "for a violent felony or a serious drug offense." § 924(e)(1) (2000 ed., Supp. V).
The Act defines a "violent felony" as "any crime punishable by imprisonment for a term exceeding one year" that
"(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
"(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." § 924(e)(2)(B) (2000 ed.).
We here consider whether driving under the influence of alcohol (DUI), as set forth in New Mexico's criminal statutes, falls within the scope of the second clause.
B
The relevant background circumstances include the following: In September 2004, New Mexico police officers received a report that Larry Begay, the petitioner here, had threatened his sister and aunt with a rifle. The police arrested him. Begay subsequently conceded he was a felon and 1584*1584 pleaded guilty to a federal charge of unlawful possession of a firearm in violation of § 922(g)(1). Begay's presentence report said that he had been convicted a dozen times for DUI, which under New Mexico's law, becomes a felony (punishable by a prison term of more than one year) the fourth (or subsequent) time an individual commits it. See N.M. Stat. Ann. §§ 66-8-102(G) to (J) (Supp.2007). The sentencing judge consequently found that Begay had at least three prior convictions for a crime "punishable by imprisonment for a term exceeding one year." 377 F.Supp.2d 1141, 1143 (NM 2005). The judge also concluded that Begay's "three felony DUI convictions involve conduct that presents a serious potential risk of physical injury to another." Id., at 1145. The judge consequently concluded that Begay had three or more prior convictions for a "violent felony" and should receive a sentence that reflected a mandatory minimum prison term of 15 years. Ibid.
Begay, claiming that DUI is not a "violent felony" within the terms of the statute, appealed. The Court of Appeals panel by a vote of 2 to 1 rejected that claim. 470 F.3d 964 (C.A.10 2006). Begay sought certiorari, and we agreed to decide the question.
II
A
New Mexico's DUI statute makes it a crime (and a felony after three earlier convictions) to "drive a vehicle within [the] state" if the driver "is under the influence of intoxicating liquor" (or has an alcohol concentration of .08 or more in his blood or breath within three hours of having driven the vehicle resulting from "alcohol consumed before or while driving the vehicle"). §§ 66-8-102(A), (C). In determining whether this crime is a violent felony, we consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion. See Taylor v. United States, 495 U.S. 575, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) (adopting this "categorical approach"); see also James v. United States, 550 U.S. ___, ___, 127 S.Ct. 1586, 1597, 167 L.Ed.2d 532 (2007) (attempted burglary is a violent felony even if, on some occasions, it can be committed in a way that poses no serious risk of physical harm).
We also take as a given that DUI does not fall within the scope of the Act's clause (i) "violent felony" definition. DUI, as New Mexico defines it, nowhere "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i).
Finally, we assume that the lower courts were right in concluding that DUI involves conduct that "presents a serious potential risk of physical injury to another." § 924(e)(2)(B)(ii). Drunk driving is an extremely dangerous crime. In the United States in 2006, alcohol-related motor vehicle crashes claimed the lives of more than 17,000 individuals and harmed untold amounts of property. National Highway Traffic Safety Admin., Traffic Safety Facts, 2006 Traffic Safety Annual Assessment—Alcohol-Related Fatalities 1 (No. 810821, Aug. 2007), http://www-nrd.nhtsa. dot.gov/Pubs/810821.PDF (as visited Apr. 11, 2008, and available in Clerk of Court's case file). Even so, we find that DUI falls outside the scope of clause (ii). It is simply too unlike the provision's listed examples for us to believe that Congress intended the provision to cover it.
B
1
In our view, the provision's listed examples—burglary, arson, extortion, or 1585*1585 crimes involving the use of explosives— illustrate the kinds of crimes that fall within the statute's scope. Their presence indicates that the statute covers only similar crimes, rather than every crime that "presents a serious potential risk of physical injury to another." § 924(e)(2)(B)(ii). If Congress meant the latter, i.e., if it meant the statute to be all-encompassing, it is hard to see why it would have needed to include the examples at all. Without them, clause (ii) would cover all crimes that present a "serious potential risk of physical injury." Ibid. Additionally, if Congress meant clause (ii) to include all risky crimes, why would it have included clause (i)? A crime which has as an element the "use, attempted use, or threatened use of physical force" against the person (as clause (i) specifies) is likely to create "a serious potential risk of physical injury" and would seem to fall within the scope of clause (ii).
Of course, Congress might have included the examples solely for quantitative purposes. Congress might have intended them to demonstrate no more than the degree of risk sufficient to bring a crime within the statute's scope. But were that the case, Congress would have likely chosen examples that better illustrated the "degree of risk" it had in mind. Our recent case, James v. United States—where we considered only matters of degree, i.e., whether the amount of risk posed by attempted burglary was comparable to the amount of risk posed by the example crime of burglary—illustrates the difficulty of interpreting the examples in this respect. Compare 550 U.S., at ___ _ ___, 127 S.Ct., at 1594-1597, with id., at ___, ___ _ ___, ___, 127 S.Ct., at 1601, 1603-1604, 1609 (SCALIA, J., dissenting). Indeed, the examples are so far from clear in respect to the degree of risk each poses that it is difficult to accept clarification in respect to degree of risk as Congress' only reason for including them. See id., at 1598-99 ("Congress provided examples [that] ... have little in common, most especially with respect to the level of risk of physical injury that they pose").
These considerations taken together convince us that, "`to give effect ... to every clause and word'" of this statute, we should read the examples as limiting the crimes that clause (ii) covers to crimes that are roughly similar, in kind as well as in degree of risk posed, to the examples themselves. Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (quoting United States v. Menasche, 348 U.S. 528, 538-539, 75 S.Ct. 513, 99 L.Ed. 615 (1955); some internal quotation marks omitted); see also Leocal v. Ashcroft, 543 U.S. 1, 12, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004) (describing the need to interpret a statute in a way that gives meaning to each word).
The concurrence complains that our interpretive approach is insufficiently specific. See post, at 1589-1590 (SCALIA, J., concurring in judgment). But the concurrence's own approach demands a crime-by-crime analysis, uses a standard of measurement (comparative degree of risk) that even the concurrence admits is often "unclear," post, at 1590, requires the concurrence to turn here to the still less clear "rule of lenity," post, at 1591, and, as we explain, is less likely to reflect Congress' intent. See, e.g., post, at 1590-1591 (recognizing inability to measure quantitative seriousness of risks associated with DUI).
The statute's history offers further support for our conclusion that the examples in clause (ii) limit the scope of the clause to crimes that are similar to the examples themselves. Prior to the enactment of the current language, the Act applied its enhanced sentence to offenders with "three 1586*1586 previous convictions for robbery or burglary." Taylor, 495 U.S., at 581, 110 S.Ct. 2143 (internal quotation marks omitted). Congress sought to expand that definition to include both crimes against the person (clause (i)) and certain physically risky crimes against property (clause (ii)). See H.R.Rep. No. 99-849, p. 3 (1986) (hereinafter H.R.Rep.). When doing so, Congress rejected a broad proposal that would have covered every offense that involved a substantial risk of the use of "`physical force against the person or property of another.'" Taylor, supra, at 583, 110 S.Ct. 2143 (quoting S. 2312, 99th Cong., 2d Sess. (1986); H.R. 4639, 99th Cong., 2d Sess. (1986)). Instead, it added the present examples. And in the relevant House Report, it described clause (ii) as including "State and Federal felonies against property such as burglary, arson, extortion, use of explosives and similar crimes as predicate offenses where the conduct involved presents a serious risk of injury to a person." H.R. Rep., at 5 (emphasis added).
Of course, the statute places the word "otherwise," just after the examples, so that the provision covers a felony that is one of the example crimes "or otherwise involves conduct that presents a serious potential risk of physical injury." § 924(e)(2)(B)(ii) (emphasis added). But we cannot agree with the Government that the word "otherwise" is sufficient to demonstrate that the examples do not limit the scope of the clause. That is because the word "otherwise" can (we do not say must, cf. post, at 1589-1590 (SCALIA, J., concurring in judgment)) refer to a crime that is similar to the listed examples in some respects but different in others—similar say in respect to the degree of risk it produces, but different in respect to the "way or manner" in which it produces that risk. Webster's Third New International Dictionary 1598 (1961) (defining "otherwise" to mean "in a different way or manner").
2
In our view, DUI differs from the example crimes—burglary, arson, extortion, and crimes involving the use of explosives—in at least one pertinent, and important, respect. The listed crimes all typically involve purposeful, "violent," and "aggressive" conduct. 470 F.3d, at 980 (McConnell, J., dissenting in part); see, e.g., Taylor, supra, at 598, 110 S.Ct. 2143 ("burglary" is an unlawful or unprivileged entry into a building or other structure with "intent to commit a crime"); ALI Model Penal Code § 220.1(1) (1985) ("arson" is causing a fire or explosion with the purpose of," e.g., "destroying a building... of another" or "damaging any property ... to collect insurance"); id., § 223.4 (extortion is "purposely" obtaining property of another through threat of, e.g., inflicting "bodily injury"); Leocal, supra, at 9, 125 S.Ct. 377 (the word "`use' ... most naturally suggests a higher degree of intent than negligent or merely accidental conduct" which fact helps bring it outside the scope of the statutory term "crime of violence"). That conduct is such that it makes more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim. Crimes committed in such a purposeful, violent, and aggressive manner are "potentially more dangerous when firearms are involved." 470 F.3d, at 980 (McConnell, J., dissenting in part). And such crimes are "characteristic of the armed career criminal, the eponym of the statute." Ibid.
By way of contrast, statutes that forbid driving under the influence, such as the statute before us, typically do not insist on purposeful, violent, and aggressive conduct; rather, they are, or are most nearly comparable to, crimes that impose strict liability, criminalizing conduct in respect to which the offender need not have had any 1587*1587 criminal intent at all. The Government argues that "the knowing nature of the conduct that produces intoxication combined with the inherent recklessness of the ensuing conduct more than suffices" to create an element of intent. Brief for United States 35. And we agree with the Government that a drunk driver may very well drink on purpose. But this Court has said that, unlike the example crimes, the conduct for which the drunk driver is convicted (driving under the influence) need not be purposeful or deliberate. See Leocal, 543 U.S., at 11, 125 S.Ct. 377 (a DUI offense involves "accidental or negligent conduct"); see also 470 F.3d, at 980 (McConnell, J., dissenting in part) ("[D]runk driving is a crime of negligence or recklessness, rather than violence or aggression").
When viewed in terms of the Act's basic purposes, this distinction matters considerably. As suggested by its title, the Armed Career Criminal Act focuses upon the special danger created when a particular type of offender—a violent criminal or drug trafficker—possesses a gun. See Taylor, supra, at 587-588, 110 S.Ct. 2143; 470 F.3d, at 981, n. 3 (McConnell, J., dissenting in part) ("[T]he title [of the Act] was not merely decorative"). In order to determine which offenders fall into this category, the Act looks to past crimes. This is because an offender's criminal history is relevant to the question whether he is a career criminal, or, more precisely, to the kind or degree of danger the offender would pose were he to possess a gun.
In this respect—namely, a prior crime's relevance to the possibility of future danger with a gun—crimes involving intentional or purposeful conduct (as in burglary and arson) are different than DUI, a strict liability crime. In both instances, the offender's prior crimes reveal a degree of callousness toward risk, but in the former instance they also show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger. We have no reason to believe that Congress intended a 15-year mandatory prison term where that increased likelihood does not exist.
Were we to read the statute without this distinction, its 15-year mandatory minimum sentence would apply to a host of crimes which, though dangerous, are not typically committed by those whom one normally labels "armed career criminals." See, e.g., Ark.Code Ann. § 8-4-103(a)(2)(A)(ii) (2007) (reckless polluters); 33 U.S.C. § 1319(c)(1) (individuals who negligently introduce pollutants into the sewer system); 18 U.S.C. § 1365(a) (individuals who recklessly tamper with consumer products); § 1115 (seamen whose inattention to duty causes serious accidents). We have no reason to believe that Congress intended to bring within the statute's scope these kinds of crimes, far removed as they are from the deliberate kind of behavior associated with violent criminal use of firearms. The statute's use of examples (and the other considerations we have mentioned) indicate the contrary.
The dissent's approach, on the other hand, would likely include these crimes within the statutory definition of "violent felony," along with any other crime that can be said to present "a serious potential risk of physical injury." Post, at 1592 (opinion of ALITO, J.). And it would do so because it believes such a result is compelled by the statute's text. See ibid. But the dissent's explanation does not account for a key feature of that text— namely, the four example crimes intended to illustrate what kind of "violent felony" the statute covers. The dissent at most believes that these examples are relevant only to define the "requisite" serious risk associated with a "crime of violence." 1588*1588 Post, at 1595. But the dissent does not explain what it means by "requisite," nor does it describe how these various examples might help define that term in the context of this statute. If they were in fact helpful on that score, we might expect more predictable results from a purely risk-based approach. Compare post, at 1588, 1591-1592 (SCALIA, J., concurring in judgment), with post, at 1592-1594 (dissenting opinion). Thus, the dissent's reliance on these examples for a function they appear incapable of performing reads them out of the statute and, in so doing, fails to effectuate Congress' purpose to punish only a particular subset of offender, namely career criminals.
The distinction we make does not minimize the seriousness of the risks attached to driving under the influence. Nor does our argument deny that an individual with a criminal history of DUI might later pull the trigger of a gun. (Indeed, we may have such an instance before us. 470 F.3d, at 965.) Rather, we hold only that, for purposes of the particular statutory provision before us, a prior record of DUI, a strict liability crime, differs from a prior record of violent and aggressive crimes committed intentionally such as arson, burglary, extortion, or crimes involving the use of explosives. The latter are associated with a likelihood of future violent, aggressive, and purposeful "armed career criminal" behavior in a way that the former are not.
We consequently conclude that New Mexico's crime of "driving under the influence" falls outside the scope of the Armed Career Criminal Act's clause (ii) "violent felony" definition. And we reverse the judgment of the Court of Appeals in relevant part and remand the case for proceedings consistent with this opinion.
It is so ordered.
Justice SCALIA, concurring in the judgment.
The statute in this case defines "violent felony" in part as "any crime punishable by imprisonment for a term exceeding one year ... that ... is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). Contrary to the Court, I conclude that the residual clause unambiguously encompasses all crimes that present a serious risk of injury to another. But because I cannot say that drunk driving clearly poses such a risk (within the meaning of the statute), the rule of lenity brings me to concur in the judgment of the Court.
I
Last Term, in James v. United States, 550 U.S. ___, 127 S.Ct. 1586 (2007), the Court held that attempted burglary qualifies as a violent felony under § 924(e). It concluded that to determine whether a predicate crime falls under the residual clause, a court should first identify the enumerated crime to which the predicate crime is most closely analogous and then decide whether the risk posed by the predicate crime is roughly equivalent to the risk posed by the enumerated crime. Because burglary was the enumerated crime most closely analogous to attempted burglary, and attempted burglary in the Court's judgment posed roughly the same risk of physical injury as burglary, attempted burglary qualified as a "violent felony" under § 924(e). See id., at ___, 127 S.Ct., at 1597.
Unfortunately, the Court's approach in deciding that case provided no guidance for deciding future cases that involve predicate crimes other than attempted burglary, particularly those for which there are no clear analogs among the enumerated 1589*1589 crimes. Pointing out that problem in dissent, I anticipated this very case: "Is, for example, driving under the influence of alcohol more analogous to burglary, arson, extortion, or a crime involving use of explosives?" Id., at ___, 127 S.Ct., at 1601.
My dissent set out a different approach to the statute. In my view, the best way to interpret § 924(e) is first to determine which of the enumerated offenses poses the least serious risk of physical injury, and then to set that level of risk as the "serious potential risk" required by the statute. Crimes that pose at least that serious a risk of injury are encompassed by the residual clause; crimes that do not are excluded. In my judgment, burglary was the least risky crime among the enumerated offenses, and I therefore concluded that attempted burglary, which is less risky than burglary, is not covered by the residual clause.
The Court held otherwise in James, and since this is a statutory case that holding has a strong claim to stare decisis. But the concomitant of the sad fact that the theory of James has very limited application is the happy fact that its stare decisis effect is very limited as well. It must be followed, I presume, for unenumerated crimes that are analogous to enumerated crimes (e.g., attempted arson). It provides no answer, and suggests no approach to an answer, where, as here, the predicate crime has no analog among the enumerated crimes. For such cases I would therefore adhere to the principles I set forth in my James dissent.
II
Today the Court devises a different way to give concrete meaning to the residual clause. Confronted with a predicate crime that has no obvious analog among the enumerated offenses, the Court engrafts a requirement onto the residual clause that a predicate crime involve "purposeful, `violent,' and `aggressive' conduct." Ante, at 1586. By doing so, it excludes a slew of crimes from the scope of the residual clause, including (not by happenstance) the crime at issue here, drunk driving. Like James, this latest made-for-the-case improvisation does not (as my resolution does) provide a complete framework that will embrace all future cases. There are still many crimes that are not analogous to the enumerated crimes (so that their status cannot be resolved by James) but do involve "purposeful, `violent,' and `aggressive' conduct" (so that their status cannot be resolved by today's deus ex machina). Presumably some third (and perhaps fourth and fifth) gimmick will be devised to resolve those cases as they arise, leaving our brethren on the district courts and courts of appeals much room for enjoyable speculation.
But quite apart from its regrettable continuation of a piecemeal, suspenseful, Scrabble-like approach to the interpretation of this statute, the problem with the Court's holding today is that it is not remotely faithful to the statute that Congress wrote. There is simply no basis (other than the necessity of resolving the present case) for holding that the enumerated and unenumerated crimes must be similar in respects other than the degree of risk that they pose.
The Court is correct that the clause "otherwise involves conduct that presents a serious potential risk of physical injury to another" signifies a similarity between the enumerated and unenumerated crimes. It is not, however, any old similarity, such as (to take a random example) "purposeful, `violent,' and `aggressive' conduct." Rather, it is the particular similarity specified after the "otherwise"—i.e., that they all pose a serious potential risk of physical injury to another. They need not be similar 1590*1590 in any other way. As the Court correctly notes, the word "otherwise" in this context means "`in a different way or manner.' " Ante, at 1587; see also James, 550 U.S., at ___, 127 S.Ct., at 1602 (SCALIA, J., dissenting); Webster's New International Dictionary 1729 (2d ed.1957) ("in another way or in other ways"). Therefore, by using the word "otherwise" the writer draws a substantive connection between two sets only on one specific dimension—i.e., whatever follows "otherwise." What that means here is that "committing one of the enumerated crimes ... is one way to commit a crime `involv[ing] a serious potential risk of physical injury to another'; and that other ways of committing a crime of that character similarly constitute `violent felon[ies].'" James, supra, at ___, 127 S.Ct., at 1603 (SCALIA, J., dissenting).
The Court rejects this seemingly straightforward statutory analysis, reading the residual clause to mean that the unenumerated offenses must be similar to the enumerated offenses not only in the degree of risk they pose, but also "in kind," despite the fact that "otherwise" means that the common element of risk must be presented "`in a different way or manner.'" Ante, at 1585-1586 (emphasis added). The Court's explanation for this interpretation seems to be that the enumerated crimes are "so far from clear in respect to the degree of risk each poses that it is difficult to accept clarification in respect to degree of risk as Congress's only reason for including them." Ante, at 1585. While I certainly agree that the degree of risk associated with the enumerated crimes is unclear, I find it unthinkable that the solution to that problem is to write a different statute. The phrase "otherwise involves conduct that presents a serious potential risk of physical injury to another" limits inclusion in the statute only by a crime's degree of risk. See James, supra, at ___, 127 S.Ct., at 1603 (SCALIA, J., dissenting). The use of the adjective "serious" seems to me to signify a purely quantitative measure of risk. If both an intentional and a negligent crime pose a 50% risk of death, could one be characterized as involving a "serious risk" and the other not? Surely not.
The Court supports its argument with that ever-ready refuge from the hardships of statutory text, the (judicially) perceived statutory purpose. According to the Court, because the Armed Career Criminal Act is concerned with "the special danger created when a particular type of offender—a violent criminal or drug trafficker—possesses a gun," the statutory purpose favors applying § 924(e)'s enhanced penalty only to those criminals "who might deliberately point the gun and pull the trigger." Ante, at 1587. I cannot possibly infer that purpose from the statute. For all I know, the statute was meant to punish those who are indifferent to human life, or who are undeterred by the criminal penalties attached to the commission of other crimes (after all, the statute enhances penalties for drug traffickers, see § 924(e)(2)(A)). While the Court's asserted purpose would surely be a reasonable one, it has no more grounding in the statutory text than do these other possibilities. And what is more, the Court's posited purpose is positively contradicted by the fact that one of the enumerated crimes—the unlawful use of explosives—may involve merely negligent or reckless conduct. See ALI, Model Penal Code § 220.2(2) (1985) ("A person is guilty of a misdemeanor if he recklessly creates a risk of catastrophe in the employment of fire, explosives or other dangerous means"); id., § 220.3 ("A person is guilty of criminal mischief if he ... damages tangible property of another purposely, recklessly, or by negligence in the 1591*1591 employment of fire, explosives, or other dangerous means").
The Court says that an interpretation of the residual clause that includes all crimes posing a serious risk of injury would render superfluous § 924(e)(2)(B)(i), which provides that a "violent felony" is any crime that "has as an element the use, attempted use, or threatened use of physical force against the person" of another. Ante, at 1584 (internal quotation marks omitted). But the canon against surplusage has substantially less force when it comes to interpreting a broad residual clause like the one at issue here. Though the second clause renders the first superfluous, it would raise no eyebrows to refer to "crimes that entail the use of force and crimes that, while not entailing the use of force, nonetheless present a serious risk of injury to another person." In any event, the canon against surplusage merely helps decide between competing permissible interpretations of an ambiguous statute; it does not sanction writing in a requirement that Congress neglected to think of. And finally, come to think of it, the Court's solution does nothing whatever to solve the supposed surplusage problem. Crimes that include as an element "the use ... of physical force against the person of another" are all embraced (and the reference to them thus rendered superfluous) by the requirement of "purposeful, `violent,' and `aggressive' conduct" that the Court invents.
III
Under my interpretation of § 924(e), I must answer one question: Does drunk driving pose at least as serious a risk of physical injury to another as burglary? From the evidence presented by the Government, I cannot conclude so. Because of that, the rule of lenity requires that I resolve this case in favor of the defendant.
The Government cites the fact that in 2006, 17,062 persons died from alcohol-related car crashes, and that 15,121 of those deaths involved drivers with blood-alcohol concentrations of 0.08 or higher. See Brief for United States 17. Drunk driving is surely a national problem of great concern. But the fact that it kills many people each year tells us very little about whether a single act of drunk driving "involves conduct that presents a serious potential risk of physical injury to another." It may well be that an even greater number of deaths occurs annually to pedestrians crossing the street; but that hardly means that crossing the street presents a serious potential risk of injury. Where the issue is "risk," the annual number of injuries from an activity must be compared with the annual incidents of the activity. Otherwise drunk driving could be said to pose a more serious risk of physical harm than murder. In addition, drunk driving is a combination of two activities: (1) drinking and (2) driving. If driving alone results in injury in a certain percentage of cases, it could hardly be said that the entirety of the risk posed by drunk driving can be attributed to the combination. And finally, injuries to the drunk drivers themselves must be excluded from the calculus, because the statute counts only injuries to other persons.
Needless to say, we do not have these relevant statistics. And even if we did, we would still need to know similar statistics for burglary, which are probably even harder to come by. This does not mean that I will never be able to identify a crime that falls under the residual clause. For some crimes, the severity of the risk will be obvious. Crimes like negligent homicide, see ALI, Model Penal Code § 210.4 (1980), conspiracy to commit a violent crime, id., § 5.03 (1985), inciting to riot, 18 U.S.C. §2101, and the production of 1592*1592 chemical weapons, § 229, certainly pose a more serious risk of physical injury to others than burglary. (By contrast, the Court's approach eliminates from the residual clause all negligent crimes, even those that entail a 100% risk of physical injury such as negligent homicide.) But I can do no more than guess as to whether drunk driving poses a more serious risk than burglary, and I will not condemn a man to a minimum of 15 years in prison on the basis of such speculation. See Ladner v. United States, 358 U.S. 169, 178, 79 S.Ct. 209, 3 L.Ed.2d 199 (1958). Applying the rule of lenity to a statute that demands it, I would reverse the decision of the Court of Appeals.
Justice ALITO, with whom Justice SOUTER and Justice THOMAS join, dissenting.
The statutory provision at issue in this case—the so-called "residual clause" of 18 U.S.C. § 924(e)(2)(B)(ii)—calls out for legislative clarification, and I am sympathetic to the result produced by the Court's attempt to craft a narrowing construction of this provision. Unfortunately, the Court's interpretation simply cannot be reconciled with the statutory text, and I therefore respectfully dissent.
In September 2004, after a night of heavy drinking, petitioner pointed a rifle at his aunt and threatened to shoot if she did not give him money. When she replied that she did not have any money, petitioner repeatedly pulled the trigger, but the rifle was unloaded and did not fire. Petitioner then threatened his sister in a similar fashion.
At the time of this incident, petitioner was a convicted felon. He had 12 prior convictions in New Mexico for driving under the influence of alcohol (DUI). While DUI is generally a misdemeanor under New Mexico law, the offense of DUI after at least three prior DUI convictions is a felony requiring a sentence of 18 months' imprisonment. N.M. Stat. Ann. § 66-8-102(G) (Supp.2007).
Petitioner pleaded guilty to possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). A violation of that provision generally carries a maximum term of imprisonment of 10 years, see § 924(a)(2), but the District Court and the Court of Appeals held that petitioner was subject to a mandatory minimum sentence of 15 years because he had at least three prior convictions for the New Mexico felony of DUI after being convicted of DUI on at least three prior occasions. 377 F.Supp.2d 1141, 1143-45 (NM 2005); 470 F.3d 964, 966-975, 977 (C.A.10 2006). The lower courts concluded that these offenses were crimes "punishable by imprisonment for a term exceeding one year" and "involve[d] conduct that present[ed] a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B).
The Court does not hold that the maximum term of imprisonment that petitioner faced on his felony DUI convictions was less than one year.[1] Nor does the Court dispute that petitioner's offenses involved "a serious potential risk of physical injury to another." Ibid. The only remaining question, therefore, is whether the risk presented by petitioner's qualifying DUI felony convictions was "serious," i.e., "significant" or "important." See, e.g., Webster's 1593*1593 Third New International Dictionary 2073 (hereinafter Webster's); (2002) 15 Oxford English Dictionary 15 (def. 6(a)) (2d ed.1989) (hereinafter OED). In my view, it was.
Statistics dramatically show that driving under the influence of alcohol is very dangerous. Each year, approximately 15,000 fatal alcohol-related crashes occur, accounting for roughly 40% of all fatal crashes.[2] Approximately a quarter million people are injured annually in alcohol-related crashes.[3] The number of people who are killed each year by drunk drivers is far greater than the number of murders committed during any of the crimes specifically set out in the statutory provision at issue here, § 924(e)(2)(B)(ii)—burglary, arson, extortion, and offenses involving the use of explosives.[4]
Petitioner's qualifying offenses, moreover, fell within the statute only because he had been convicted of DUI on at least three prior occasions. As noted, petitioner had a dozen prior DUI convictions. Persons who repeatedly drive drunk present a greatly enhanced danger that they and others will be injured as a result.[5] In 1594*1594 addition, it has been estimated that the ratio of DUI incidents to DUI arrests is between 250 to 1 and 2,000 to 1.[6] Accordingly, the risk presented by a 10th, 11th, and 12th DUI conviction may be viewed as the risk created by literally thousands of drunk-driving events. That risk was surely "serious," and therefore petitioner's offenses fell squarely within the language of the statute.
Moreover, taking the statutory language to mean what it says would not sweep in all DUI convictions. Most DUI convictions are not punishable by a term of imprisonment of more than one year and thus fall outside the scope of the statute.[7] Petitioner's convictions qualified only because of his extraordinary—and, I would say, extraordinarily dangerous—record of drunk driving.
The Court holds that an offense does not fall within the residual clause unless it is "roughly similar, in kind as well as in degree of risked posed," ante, at 1585, to the crimes specifically listed in 18 U.S.C. § 924(e)(2)(B), i.e., burglary, extortion, arson, and crimes involving the use of explosives. These crimes, according to the Court, "all typically involve purposeful, `violent,' and `aggressive' conduct." Ante, at 1586 (quoting 470 F.3d, at 980 (McConnell, J., dissenting)).
This interpretation cannot be squared with the text of the statute, which simply does not provide that an offense must be "purposeful," "violent," or "aggressive" in order to fall within the residual clause. Rather, after listing burglary, arson, extortion, and explosives offenses, the statute provides (in the residual clause) that an offense qualifies if it "otherwise involves conduct that presents a serious potential risk of physical injury to another." Therefore, offenses falling within the residual clause must be similar to the named offenses in one respect only: They must, "otherwise"—which is to say, "in a different manner," 10 OED 984 (def. B(1)); see also Webster's 1598—"involve[] conduct that presents a serious potential risk of physical injury to another." Requiring that an offense must also be "purposeful," "violent," or "aggressive" amounts to adding new elements to the statute, but we "ordinarily resist reading words or elements into a statute that do not appear on its face." Bates v. United States, 522 U.S. 23, 29, 118 S.Ct. 285, 139 L.Ed.2d 215 (1997).
Each part of this additional, judicially added requirement presents other problems as well.
Purposeful. At least one State's DUI law requires proof of purposeful conduct. See Tam v. State, 232 Ga.App. 15, 16, 501 S.E.2d 51, 52 (1998) (requiring proof of the intent to drive). In addition, many States recognize involuntary intoxication as a defense. See 4 R. Essen & R. Erwin, Defense of Drunk Driving Cases: Criminal— Civil § 44.04 (2007). And even in States that do not require purposefulness, I have no doubt that the overwhelming majority of DUI defendants purposefully drank before getting behind the wheel and were purposefully operating their vehicles at the time of apprehension. I suspect that many DUI statutes do not require proof of 1595*1595 purposefulness because the element is almost always present, requiring proof of the element would introduce an unnecessary complication, and it would make no sense to preclude conviction of those defendants who were so drunk that they did not even realize that they were behind the wheel.
Violent. It is clear that 18 U.S.C. § 924(e)(2)(B) is not limited to "violent" crimes, for if it were, it would be redundant. The prior subparagraph, § 924(e)(2)(A), includes offenses that have as an element the use or threatened use of violence.
Aggressive. The concept of "aggressive" crimes is vague, and in any event, it is hardly apparent why DUI—not to mention the species of felony DUI recidivism that resulted in petitioner's predicament—is not "aggressive." Driving can certainly involve "aggressive" conduct. Indeed, some States have created the offense of "aggressive driving." See M. Savage, M. Sundeen, & A. Teigen, Traffic Safety and Public Health: State Legislative Action 2007, Transportation Series (National Conference of State Legislatures, Dec. 2007, No. 32), p. 17, and App. J, online at http:// www.ncsl.org/print/transportation/07traffic safety.pdf. Most States have a toll-free telephone number to call to report "aggressive" driving. See Campaign Safe & Sober, Phone Numbers for Reporting Impaired, Aggressive, or Unsafe Driving, online at http://www.nhtsa.dot.gov/people/ outreach/safesobr/16qp/phone.html.
The Court defends its new statutory element on the ground that a defendant who merely engages in felony drunk driving is not likely to be "the kind of person who might deliberately point the gun and pull the trigger." Ante, at 1587. The Court cites no empirical support for this conclusion, and its accuracy is not self-evident. Petitioner's pattern of behavior may or may not be typical of those defendants who have enough DUI convictions to qualify under N.M. Stat. Ann. § 66-8-102(G) and 18 U.S.C. § 924(e)(2)(B), but the example of his behavior in this case—pointing a gun at his aunt's head and repeatedly pulling the trigger—should surely be enough to counsel against uncritical reliance on stereotypes about "the type" of people who commit felony DUI violations.
Defendants who qualify for an enhanced sentence under § 924(e) (2000 ed. and Supp. V) based (in whole or in part) on felony DUI convictions share at least three characteristics that are relevant for present purposes. First, they are persons who, in the judgment of Congress, cannot be trusted to use a firearm responsibly. In order to qualify for an enhanced sentence under § 924(e), a defendant must of course be convicted of violating the felon-in-possession statute, § 922(g) (2000 ed.). The felon-in-possession statute necessarily rests on the judgment that a person with a prior felony conviction cannot be trusted with a firearm. See Caron v. United States, 524 U.S. 308, 315, 118 S.Ct. 2007, 141 L.Ed.2d 303 (1998) ("Congress meant to keep guns away from all offenders who, the Federal Government feared, might cause harm ..."). And there is no dispute that a prior felony DUI conviction qualifies as a felony under the felon-in-possession law. If Congress thought that a person with a prior felony DUI conviction is not "the kind of person" who is likely to use a gun unlawfully, why would Congress have made it a crime for such a person to possess a gun?
Second, defendants with DUI convictions that are counted under 18 U.S.C. § 924(e)(2)(B) are likely to have serious alcohol abuse problems. As previously mentioned, ordinary DUI convictions are generally not counted under § 924(e) because they are not punishable by imprisonment 1596*1596 for more than a year. Such penalties are generally reserved for persons, like petitioner, with a record of repeated DUI violations. See National Conference of State Legislatures, supra. Such individuals are very likely to have serious alcohol abuse problems and a propensity to engage in irresponsible conduct while under the influence. Alcohol use often precedes violent crimes, see, e.g., Roizen, Epidemiological Issues in Alcohol-Related Violence, in 13 Recent Developments in Alcoholism 7, 8-9 (M. Galanter ed.1997), and thus there is reason to worry about the misuse of firearms by defendants whose alcohol abuse problems are serious enough to result in felony DUI convictions.
Third, defendants with DUI convictions that are counted under § 924(e)(2)(B) have either (a) such serious alcohol abuse problems that they have at least three prior felony DUI convictions or (b) both one or two felony DUI convictions and one or two offenses that fall under § 924(e)(2)(B)(i) (offenses that have "as an element the use, attempted use, or threatened use of physical force") or that are specifically set out in § 924(e)(2)(B)(ii) (burglary, arson, extortion, or an explosives offense). Defendants with three felony DUI convictions are likely to be super-DUI-recidivists like petitioner. Defendants with a combination of felony DUI and other qualifying convictions—for example, convictions for assault or burglary—are persons who, even by the Court's lights, could be classified as "the kind of person who might deliberately point [a] gun and pull the trigger."
Unlike the Court, I cannot say that persons with these characteristics are less likely to use a gun illegally than are persons convicted of other qualifying felonies.
Justice SCALIA's concurrence takes a different approach, but his analysis is likewise flawed. Justice SCALIA would hold (a) that an offense does not fall within the residual clause unless it presents a risk that is at least as great as that presented by the least dangerous of the enumerated offenses; (b) that burglary is the least dangerous of the enumerated offenses; (c) that the relevant measure of risk is the risk that the typical burglary, DUI, etc. would result in injury; and (d) that the risk presented by an incident of DUI is less than the risk presented by a burglary.
Justice SCALIA, like the Court, does not follow the statutory language. The statute says that offenses falling within the residual clause must present "a serious potential risk of physical injury to another." The statute does not say that these offenses must present at least as much risk as the enumerated offenses.
The statute also does not say, as Justice SCALIA would hold, that the relevant risk is the risk that each incident of DUI will result in injury. I see no basis for concluding that Congress was not also concerned with the risk faced by potential victims, particularly since the statute explicitly refers to "potential risk." Drunk driving is regarded as a severe societal problem in large measure because of the very large number of victims it produces each year.
Finally, Justice SCALIA's conclusion that burglary is the least risky of the enumerated offenses is based on a procrustean reading of § 924(e)(2)(B)(ii). This provision refers, without qualification, to "extortion." In his dissent in James v. United States, 550 U.S. ___, 127 S.Ct. 1586 (2007), Justice SCALIA concluded that many forms of extortion are "inherently unlikely to cause physical harm." Id., at ___, 127 S.Ct., at 1594-95 (emphasis in original). Only by finding that the 1597*1597 term "extortion" in § 924(e)(2)(B)(ii) really means only certain forms of extortion was Justice SCALIA able to come to the conclusion that burglary is the least risky of the enumerated offenses.
For all these reasons, I would affirm the decision of the Tenth Circuit.
[1] United States v. Gonzaga Rodriquez, now pending before the Court, presents the question "[w]hether a state drug-trafficking offense, for which state law authorized a ten-year sentence because the defendant was a recidivist, qualifies as a predicate offense under the Armed Career Criminal Act, 18 U.S.C. § 924(e)." Pet. for Cert., O.T.2007, No. 06-1646, p. I.
[2] See the National Highway Traffic Safety Administration (NHTSA) Traffic Safety Facts Ann. Rep., p. 56, Table 34 (2006) (15,945 alcohol-related fatal crashes; 41%), (2005) (15,238; 39%), (2004) (14,968; 39%), (2003) (15,251; 40%), (2002) (15,626; 41%), (2001) (15,585; 41%), (2000) (14,847; 40%), (1999) (14,109; 38%), (1998) (14,278; 39%), (1997) (14,363; 38.5%), (1996) (15,249; 40.8%) online at http://www-nrd.nhtsa.dot.gov/ CMSWeb/listpublications.aspx?Id=E&Show By=DocType (all Internet materials as visited Apr. 11, 2008, and available in Clerk of Court's case file); see also Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990) ("No one can seriously dispute the magnitude of the drunken driving problem .... `Drunk drivers cause an annual death toll of over 25,000 and in the same time span cause nearly one million personal injuries ...'") (footnote omitted); South Dakota v. Neville, 459 U.S. 553, 558, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) ("The carnage caused by drunk drivers is well documented .... This Court ... has repeatedly lamented the tragedy").
[3] See NHTSA, supra, at 111, Table 76 (2006) (278,000), (2005) (254,000), (2004) (248,000), (2003) (275,000), (2002) (258,000), (2001) (275,000), (2000) (310,000), (1999) (308,000), (1998) (305,000), (1997) (327,000), (1996) (321,000).
[4] According to statistics compiled by the Federal Bureau of Investigation, between 1996 and 2006 total annual murders never exceeded 15,000 after 1997. During that same 11-year period, the highest number of murders committed in the course of burglary was 123, the number of murders committed in the course of arson peaked at 105, and the number of murders involving explosives topped out at 14—all in 1996. See Dept. of Justice, Federal Bureau of Investigation, Uniform Crime Reports/Crime in the United States (Ann.Reps. 1996-2006), online at http://www. fbi.gov./ucr/ucr.htm#cius. While murders committed in the course of extortion were not separately reported, common sense and the fact that the total number of murders was similar to the number of fatal alcohol-related crashes at least after 1997 indicates that murders involving extortion would not rival deaths in alcohol-related auto accidents. Even if one were to expand beyond murders to all fatalities and even injuries, it is estimated that arson causes the relatively small number of 475 deaths and over 2,000 injuries annually. Dept. of Homeland Security, U.S. Fire Administration, Arson in the United States, Vol. 1 Topical Fire Research Series, No. 8 (Jan.2001, rev.Dec.2001), online at http://www.usfa.dhs.gov/downloads/pdf/tfrs/vli 8-508.pdf.
[5] See United States v. McCall, 439 F.3d 967, 972 (C.A.8 2006) (en banc) (citing Brewer et al., The Risk of Dying in Alcohol-Related Automobile Crashes Among Habitual Drunk Drivers, 331 New Eng. J. Med. 513 (1994)); Dept. of Justice, Office of Community Oriented Policing Services, Drunk Driving, Problem-Oriented Guides for Police, Problem-Specific Guides Series No. 36, p. 4 (Feb.2006) ("By most estimates, although repeat drunk drivers comprise a relatively small proportion of the total population of drivers, they are disproportionately responsible for alcohol-related crashes and other problems associated with drunk driving").
[6] Brewer, supra, text accompanying nn. 23-24; L. Taylor & S. Oberman, Drunk Driving Defense § 1.01 (2007).
[7] See National Conference of State Legislatures, Criminal Status of State Drunk Driving Laws, online at http://www.ncls.org/ programs/lis/dui/felonn.htm (current as of July 2003) (surveying 50 States, the District of Columbia, and U.S. Territories, most of whom treat the first DUI offense as a misdemeanor
46 Cal.4th 1183 (2009)
THE PEOPLE, Plaintiff and Respondent,
v.
TIMMIE LANCE McNEAL, Defendant and Appellant.
No. S157565.
Supreme Court of California.
July 9, 2009.
1187*1187 Jamie L. Popper, under appointment by the Supreme Court, and Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.
Darryl W. Genis for California DUI Lawyers Association, David Stanford, Marta Gajewski, Lyle Clayton Turner and Ronald Audia as Amici Curiae on behalf of Defendant and Appellant.
Michael A. Ramos, District Attorney, Mark A. Vos, Lead Deputy District Attorney, and Astrid G. Alfonso, Deputy District Attorney, for Plaintiff and Respondent.
Bonnie M. Dumanis, District Attorney (San Diego); Albert C. Locher, Assistant District Attorney (Sacramento); Margaret O'Malley, Deputy District Attorney (Santa Barbara); and W. Scott Thorpe for California District Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent.
OPINION
CORRIGAN, J.—
A defendant accused of driving under the influence of alcohol can be charged under two separate code sections. The "generic DUI" provision prohibits driving "under the influence" of alcohol. (Veh. Code, § 23152, subd. (a) (hereafter section 23152(a).)[1] The "per se DUI" provision prohibits driving with a blood-alcohol level of 0.08 percent or more. (§ 23152, subd. (b) (hereafter section 23152(b).) This case concerns how a generic DUI charge can be proven, or defended, at trial.
1188*1188 The Vehicle Code requires all drivers who are lawfully arrested for DUI to submit to chemical testing of the blood or breath to determine the alcohol content of their blood. (§ 23612, subd. (a)(1)(A).)[2] Whereas a blood test directly measures the subject's blood-alcohol level, a breath sample must be converted to derive a blood-alcohol percentage. The conversion factor, known as a "partition ratio," reflects the relationship between alcohol measured in a person's breath and alcohol in the blood. Breath-testing machines in California incorporate a partition ratio of 2,100 to 1, which means the amount of alcohol in 2,100 milliliters of breath is considered equivalent to the amount of alcohol in 1 milliliter of blood. It is undisputed, however, that partition ratios can vary widely, both in the general population and within an individual.
Defendant was charged with generic and per se DUI after he produced a breath sample indicating a blood-alcohol concentration of 0.10 percent. By statute, if a chemical test within three hours of driving measures a driver's blood alcohol at 0.08 percent or more, the driver is presumed to have been driving "under the influence" of alcohol. (§ 23610, subd. (a)(3) (hereafter § 23610(a)(3)).) Defendant claims he was wrongly prevented from introducing evidence about partition ratio variability to rebut this presumption. In People v. Bransford (1994) 8 Cal.4th 885, 887-888 [35 Cal.Rptr.2d 613, 884 P.2d 70] (Bransford), we confronted a similar claim in the context of the per se DUI offense. We concluded evidence about partition ratio variability is irrelevant in those cases because the Legislature incorporated a 2,100-to-1 partition ratio within its definition of the offense. (Id. at pp. 892-893.)
However, a generic DUI charge is defined differently, and the presumption is not part of that definition. A generic DUI charge requires proof that the defendant's ability to drive safely was impaired because he had consumed alcohol. We conclude this difference is significant and hold that competent evidence about partition ratio variability may be admitted to defend against a generic DUI charge. Reversal is not required, though, because any error in this case was harmless under People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].
BACKGROUND
Defendant was stopped after an officer saw him drive through two red lights. Defendant's eyes were watery and bloodshot, his speech was slurred, he smelled of alcohol, and he admitted he had consumed a beer. Defendant was arrested and given a breath test about an hour after the initial stop. 1189*1189 Defendant blew into the machine five times but produced only two samples sufficient for testing.[3] Both valid samples registered a blood-alcohol level of 0.10 percent.
Defendant was charged with both generic and per se DUI.[4] At trial, a prosecution expert testified that a person is too impaired to operate a motor vehicle safely if he displays slurred speech and bloodshot, watery eyes, commits traffic infractions, performs poorly on field sobriety tests, and records a blood-alcohol level of 0.10 percent in a breath test. A defense expert agreed that scientific authorities consider a person with a blood-alcohol level over 0.08 percent to be under the influence of alcohol. However, he considered defendant's test results unreliable because the machine's repeated failure to register sufficient samples suggested it was not functioning properly. The defense expert also testified that breath-testing machines have a margin of error of 0.02 percent.
After both sides had rested but before closing arguments, defense counsel moved to reopen to present expert testimony about partition ratio variability in connection with the generic DUI charge. The record does not disclose whether defendant intended to introduce evidence of his own partition ratio or evidence about the variability of partition ratios in the general population. The court denied the motion and instructed the jury regarding the statutory presumption of intoxication. (CALJIC No. 12.61.) Specifically, with regard to the generic DUI count, the jury was instructed: "If the evidence establishes beyond a reasonable doubt that at the time of the chemical analysis of the defendant's blood, breath or urine there was .08 percent or more, by weight, of alcohol in the defendant's blood, you may, but are not required [to,] infer that the defendant was under the influence of an alcoholic beverage at the time of the alleged offense."
The jury convicted on the generic DUI charge but hung on the per se count. Defendant moved for a new trial, arguing he should have been permitted to introduce partition ratio evidence to rebut the presumption that 1190*1190 he was under the influence of alcohol. (§ 23610(a)(3).) Defense counsel said his expert would testify that 30 percent of the population has a partition ratio other than 2,100 to 1. When the new trial motion was denied, defendant sought relief in the superior court's appellate division, claiming the exclusion of his partition ratio evidence was reversible error. The appellate division concluded partition ratio evidence is relevant and admissible but found the error harmless given the strength of the evidence supporting the jury's verdict.
The Court of Appeal transferred the case to itself on its own motion. That court distinguished between evidence about the variability of partition ratios in the general population and evidence showing defendant had a nonstandard ratio. It concluded evidence challenging the validity of the statutory 2,100-to-1 ratio was irrelevant, but evidence that this particular defendant had a different partition ratio should have been admitted. The court reasoned that if defendant's own ratio differed significantly from the standard ratio, this fact could support an inference that defendant was not actually impaired at the time of the offense. The court therefore held such personal partition ratio evidence is relevant and admissible in generic DUI cases. Although it found defendant's offer of proof insufficient to determine the precise nature of the partition ratio evidence he sought to introduce, the Court of Appeal concluded that even assuming defendant intended to present evidence about his own ratio, and assuming the issue was preserved for review, any error was harmless under People v. Watson, supra, 46 Cal.2d at page 836.
The People and defendant separately petitioned for review. We granted both petitions to address the admissibility of partition ratio evidence in section 23152(a) cases.
DISCUSSION
I. The Science of Alcohol Testing
Alcohol affects the central nervous system. When ingested, it is absorbed into the blood and carried through the carotid arteries to the brain. (State v. Downie (1990) 117 N.J. 450 [569 A.2d 242, 245] (Downie); State v. Brayman (1988) 110 Wn.2d 183 [751 P.2d 294, 297] (Brayman).) After passing through the brain, alcohol travels through venous blood to the liver and heart, and from there, to the lungs, where it diffuses into alveolar air space and is 1191*1191 exhaled in the breath. (Downie, 569 A.2d at pp. 245-246.) As a practical matter, it is impossible to measure the amount of alcohol in a person's carotid arteries or brain. (Id. at p. 246; Taylor & Tayac, supra, Forensic Chemist: Blood-Alcohol, § 12.2, p. 712.) However, most experts agree that measurements of alcohol in venous blood or breath give a good indication of the amount of alcohol in the brain during the postabsorptive phase.[5] (Downie, at p. 246.)
When a subject blows into a breath-testing machine, the device measures the amount of alcohol vapor expelled into alveolar spaces deep in the lungs. From this measurement of breath alcohol, a blood-alcohol percentage can be computed using a mathematical constant. The conversion from breath alcohol to blood alcohol is based on the chemistry principle of "Henry's law," which holds that there is "a constant ratio between the concentration of alcohol in the blood and the concentration of alcohol in the alveolar air of the lungs." (Taylor & Tayac, supra, Forensic Chemist: Blood-Alcohol, § 12.19, p. 770.) Breath-testing machines in California use a conversion factor of 2,100 to 1, meaning "the amount of alcohol in 2,100 milliliters of alveolar breath is equivalent to the amount of alcohol in 1 milliliter of blood." (Cal. Code Regs., tit. 17, § 1220.4, subd. (f); see People v. McDonald (1988) 206 Cal.App.3d 877, 880 [254 Cal.Rptr. 384].) This ratio is used, apparently without exception, in breath-testing devices throughout the United States. (See Brayman, supra, 751 P.2d at p. 297; State v. McManus (1989) 152 Wis.2d 113 [447 N.W.2d 654, 656].)
Nevertheless, courts here and across the country have long recognized that actual partition ratios vary, both among members of the population and within a single individual. In Bransford, supra, 8 Cal.4th at page 889, we noted that an individual's ratio of breath-alcohol to blood-alcohol concentration can be influenced by many variables, including "body temperature, atmospheric pressure, medical conditions, sex, and the precision of the measuring device. [Citations.]" (See also Brayman, supra, 751 P.2d at p. 297 [mentioning, in addition to these factors, hematocrit level and elapsed time between drinking and breath-alcohol measurement].) Experts have also described a wide range of variability in partition ratios throughout the general population. In People v. McDonald, supra, 206 Cal.App.3d at page 880, for example, the people's expert testified a person's ratio could be as high as 2,700 to 1 or as low as 1192*1192 1,550 to 1, and in Downie, supra, 569 A.2d at page 247, the court noted that partition ratios measured in a group of experimental subjects ranged from a low of 1,706 to 1 to a high of 3,063 to 1.
Despite this recognized variability, most scientists agree that the 2,100-to-1 ratio roughly approximates or even underestimates the ratio of most people. In the late 1980's, the New Jersey Supreme Court considered evidence presented by ten experts at a hearing addressing partition ratios and the reliability of breath test results. (Downie, supra, 569 A.2d at pp. 243-244.) These experts "generally agreed" that breath-testing machines using the 2,100-to-1 partition ratio "will usually underestimate the amount of alcohol in the blood" for several reasons. (Id. at p. 247.) "First, most people's partition ratios may be closer to 2300:1 than to 2100:1. Second, the breathalyzer results are truncated, or the third decimal position is dropped when read. If a person reads 0.099 on the breathalyzer, the results will be shortened to read 0.09, thereby underestimating the breath alcohol. Third, a suspect may not provide enough deep breath to register all of the alcohol present in the alveolar air. Fourth, the breathalyzer's scale is set 0.003 below the start line and this gives suspects an added benefit." (Ibid.) Several experts opined that the standard partition ratio is set artificially low, and the true mean ratio in the population is closer to 2,300 to 1. (Id. at p. 247.) Dr. Robert Borkenstein, inventor of the breathalyzer machine, stated that "breathalyzer researchers and members of the National Safety Council adopted the 2100:1 partition ratio instead of the more accurate 2300:1 ratio because they wanted to err on the low side and have almost no errors on the high side." (Id. at p. 247.)[6]
II. Development of California Law Regarding Partition Ratio Evidence
California's first drunk driving statute, enacted in 1913, prohibited any "intoxicated person" from driving a motor vehicle on a public highway. (Stats. 1913, ch. 326, § 17, p. 646; see Burg v. Municipal Court (1983) 35 Cal.3d 257, 262 [198 Cal.Rptr. 145, 673 P.2d 732].) The prohibition was later redefined as driving "under the influence" of alcohol. "To be `under the influence' within the meaning of the Vehicle Code, the liquor or liquor and 1193*1193 drug(s) must have so far affected the nervous system, the brain, or muscles as to impair to an appreciable degree the ability to operate a vehicle in a manner like that of an ordinarily prudent and cautious person in full possession of his faculties. [Citations.]" (Byrd v. Municipal Court (1981) 125 Cal.App.3d 1054, 1058 [178 Cal.Rptr. 480], italics omitted.) In 1969 the Legislature enacted a statutory presumption that a driver was under the influence if the driver's blood contained 0.10 percent or more, by weight, of alcohol. (Stats. 1969, ch. 231, § 1, p. 565; Burg v. Municipal Court, at p. 263.) However, "[e]ven these laws, which considerably assisted the prosecution of `driving under the influence' cases, proved inadequate in many respects. Under them, the ultimate question was defined in terms of the defendant's subjective behavior and condition: `Was the defendant under the influence at the time he drove?' Celerity and certainty of punishment were frustrated by the ambiguity of the legal criteria; no matter what his bloodalcohol level, a defendant could escape conviction merely by raising a doubt as to his intoxication. [Citations.]" (Burg v. Municipal Court, at p. 263.) These difficulties led the Legislature to create a new crime. Section 23152(b), added in 1981, made it unlawful for a person to drive with a blood-alcohol level of 0.10 percent or more, by weight, and specified that, "percent, by weight, of alcohol shall be based upon grams of alcohol per 100 milliliters of blood." (Stats. 1981, ch. 940, § 33, p. 3578.) To secure a conviction for this new "per se DUI" offense, the prosecution no longer had to prove the accused driver was actually impaired at the time of the offense, but only that he drove with a blood-alcohol level at or exceeding 0.10 percent. (Burg v. Municipal Court, at p. 265.) In 1989, the Legislature further strengthened our state's DUI laws by lowering the punishable blood-alcohol threshold from 0.10 percent to 0.08 percent. (Stats. 1989, ch. 1114, § 27, p. 4080; see People v. Ireland (1995) 33 Cal.App.4th 680, 689 [39 Cal.Rptr.2d 870].)
Thus, after 1981 there were two parallel statutes making it a crime to drive while intoxicated. The generic DUI provision (§ 23152(a)) retained the historical approach, requiring proof that the defendant was actually impaired by his drinking. The per se DUI statute (§ 23152(b)) simply required proof that the defendant had been driving with a blood-alcohol level over the legal limit. If the limit was exceeded, the statute was violated, and no additional proof of the defendant's impairment was required.
Throughout this time, both the per se DUI offense and the presumption of intoxication applicable to the generic DUI offense were defined based on measurements of blood alcohol. As a result, whenever a defendant elected to have a breath test instead of a blood draw, it was necessary to convert the breath results into an equivalent blood-alcohol percentage. (Bransford, supra, 8 Cal.4th at pp. 888-889; People v. Ireland, supra, 33 Cal.App.4th at p. 689.) 1194*1194 A Department of Health Services regulation required that this conversion be made using a partition ratio of 2,100 to 1. (Cal. Code Regs., tit. 17, § 1220.4, subd. (f).)[7]
The mandated use of a standard partition ratio, in the face of scientific knowledge that such ratios vary greatly, provided fertile ground for defense arguments challenging the reliability of breath test results. Initially, courts permitted defendants to show only that their personal partition ratio differed from the norm. (Bransford, supra, 8 Cal.4th at p. 889.) Applying the judicially created "rule of convenience," these courts placed the burden on the defendant to produce evidence of a nonstandard personal ratio because this fact was considered to be peculiarly within the defendant's knowledge. (People v. Pritchard, supra, 162 Cal.App.3d at p. Supp. 16; see People v. Gineris (1984) 162 Cal.App.3d Supp. 18, 23 [209 Cal.Rptr. 317]; People v. Herst (1987) 197 Cal.App.3d Supp. 1, 3-4 [243 Cal.Rptr. 83].)
Later courts questioned this application of the rule of convenience when confronted with evidence showing that an individual's partition ratio can vary from time to time due to the influence of numerous external factors. (See, e.g., People v. McDonald, supra, 206 Cal.App.3d at p. 883.) This evidence directly contradicted something the Pritchard line of cases had apparently assumed: "that one's partition ratio is constant and can be measured by the defendant." (Ibid.; see also People v. Lepine, supra, 215 Cal.App.3d at pp. 97-99.) Because partition ratios may vary depending on many factors, reliable measurements may be difficult and costly to acquire. Thus, some courts reasoned that defendants did not have substantially better access to evidence of their personal partition ratios and could not be expected to carry the burden of production on the issue. (People v. McDonald, at p. 883; People v. Lepine, at pp. 99-101; People v. Thompson (1989) 215 Cal.App.3d Supp. 7, 13 [265 Cal.Rptr. 105].) Further, having freed defendants from the rule of convenience, these courts saw no reason to exclude general partition ratio evidence describing the variability of partition ratios among the general population. (People v. Lepine, at p. 100; People v. Thompson, at pp. Supp. 13-14; People v. Cortes (1989) 214 Cal.App.3d Supp. 12, 18 [263 Cal.Rptr. 113].) After citing a string of out-of-state decisions permitting such evidence, one court reasoned: "[I]t seems clear from the evidence submitted in this case and from a host of opinions in this and other states, that the partition ratio may vary from time to time and from individual to individual. This being the case it is appropriate a jury be allowed to consider that fact. We trust in the general rules of evidence, the preparation of 1195*1195 counsel and the good judgment of trial judges to insure that this question of partition ratio variability is presented to jurors in a proper, complete and understandable form." (People v. Lepine, at p. 100, fn. omitted.)
(1) The Legislature responded swiftly to these developments. In April 1989, legislators amended a pending Senate Bill on a related topic to specify for purposes of the per se DUI offense and the presumption of intoxication that the percentage of alcohol in a person's blood is to be based upon grams of alcohol per 100 milliliters of blood "or grams of alcohol per 210 liters of breath." (Sen. Amend. to Sen. Bill No. 1119 (1989-1990 Reg. Sess.) Apr. 27, 1989, p. 23; Stats. 1989, ch. 1114, §§ 24-25, pp. 4078-4079 [amending § 23152(b)]; Sen. Amend. to Sen. Bill No. 1119 (1989-1990 Reg. Sess.) Apr. 27, 1989, p. 26; Stats. 1989, ch. 1114, §§ 34-35, pp. 4085-4086 [amending former § 23155, subd. (b)].) In so doing, the Legislature codified 2,100 to 1 as the partition ratio to be used in converting breath test results into blood-alcohol levels.
As we observed in Bransford, supra, 8 Cal.4th at page 890, scant explanation for these amendments appears in the legislative history of Senate Bill No. 1119 (1989-1990 Reg. Sess.), but more illumination can be found in the history of Assembly Bill No. 4318 (1989-1990 Reg. Sess.), enacted as Statutes 1990, chapter 708, section 1, page 3289. The purpose of Assembly Bill No. 4318 was to accelerate the effective date of the partition ratio amendments to section 23152(b) that had been enacted by passage of Senate Bill No. 1119. (Assem. Com. on Public Safety, com. on Assem. Bill No. 4318 (1989-1990 Reg. Sess.) as introduced May 15, 1990; see People v. Ireland, supra, 33 Cal.App.4th at p. 691.) Committee reports concerning this bill evince the Legislature's desire to prohibit challenges to breathtest results based on the partition ratio. For example, the Assembly Committee on Public Safety observed that "[a]ttacks on the partition ratio may result in expensive and time consuming evidentiary hearings and undermine successful enforcement of driving under the influence laws." (Assem. Com. on Public Safety, com. on Assem. Bill No. 4318 (1989-1990 Reg. Sess.) as introduced May 15, 1990, p. 2.) The express purpose of Assembly Bill No. 4318 was to "[e]liminate the need for conversion of a breath quantity to a blood concentration of alcohol by statutorily defining driving under the influence in terms of the concentration of alcohol found in the breath when breath analysis is used." (Ibid.; see also Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on Assem. Bill No. 4318 (1989-1990 Reg. Sess.) Aug. 9, 1990, p. 1.)
1196*1196 The Legislature accomplished this purpose by defining the offense of per se DUI in terms of a prohibited level of blood alcohol or breath alcohol. As we explained in Bransford, supra, 8 Cal.4th at page 890, the amendment of section 23152(b) providing for an alternative measurement based upon breath changed the definition of the offense. In the per se DUI statute, the Legislature has set a legal limit on permissible blood alcohol and has defined how that limit is to be measured in a breath sample. If the limit, measured as the statute sets out, is exceeded, the statute has been violated. Because section 23152(b) now defines the offense of per se DUI as the presence of a prohibited level of alcohol in either 100 milliliters of blood or 210 liters of breath, a conversion from breath to blood-alcohol concentration is no longer required to establish guilt. Accordingly, evidence attacking the standard partition ratio is no longer relevant in a per se DUI prosecution because the Legislature has codified the 2,100-to-1 ratio as part of the offense. (Bransford, at pp. 890-892.)
Assembly Bill No. 4318 (1989-1990 Reg. Sess.) did not amend former section 23155, however.[8] The bill amended only the per se DUI offense (§ 23152(b)) and a similar offense of per se DUI causing bodily injury (§ 23153, subd. (b)). (Stats. 1990, ch. 708, §§ 1-4, pp. 2870-2872.) Thus, committee statements reflecting the Legislature's desire to end the conversion of breath results to blood alcohol were all made in regard to changing the definition of the per se DUI offense. No legislative history clarifies exactly what the Legislature intended when it amended the presumption of intoxication applicable to generic DUI cases
III. Admissibility of Partition Ratio Evidence in Generic DUI Cases
Despite our holding in Bransford that partition ratio evidence is inadmissible in per se DUI cases, defendant argues partition ratio variability evidence should be admissible in generic DUI cases to rebut the presumption that a person who produces a certain breath result is actually "under the influence" of alcohol. (§§ 23152(a), 23610(a)(3).) This issue was not presented in Bransford, and we specifically declined to consider it. (Bransford, supra, 8 Cal.4th at p. 893, fn. 10.) Defendant's claim does involve the same statutory language we interpreted in Bransford: "Percent, by weight, of alcohol in the person's blood shall be based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath." (§ 23610(b); see Bransford, at p. 890, quoting § 23152(b).) However, in Bransford this language was used in the definition of a criminal offense. Here, it is part of a rebuttable presumption. The question is whether a defendant who has a 1197*1197 blood-alcohol concentration of 0.08 percent or more measured by breath is entitled to rebut the presumption that he was "under the influence" in a section 23152(a) case by introducing evidence that use of a 2,100-to-1 partition ratio may have produced an inaccurate measure of his blood alcohol.
(2) The Legislature passed section 23152(b) to facilitate the prosecution of drunk drivers. The creation of a per se DUI offense did away with the need to prove the defendant was actually impaired. However, impairment must still be proven for a charge of generic DUI under section 23152(a). In a generic DUI case, section 23610 creates a rebuttable presumption that the defendant was under the influence of alcohol if a chemical test measures his blood-alcohol concentration at 0.08 percent or higher. As relevant here, section 23610 states:
"(a) Upon the trial of any criminal action, or preliminary proceeding in a criminal action, arising out of acts alleged to have been committed by any person while driving a vehicle while under the influence of an alcoholic beverage in violation of subdivision (a) of Section 23152 or subdivision (a) of Section 23153, the amount of alcohol in the person's blood at the time of the test as shown by chemical analysis of that person's blood, breath, or urine shall give rise to the following presumptions affecting the burden of proof: [¶] . . . [¶]
"(3) If there was at that time 0.08 percent or more, by weight, of alcohol in the person's blood, it shall be presumed that the person was under the influence of an alcoholic beverage at the time of the alleged offense.[9]
"(b) Percent, by weight, of alcohol in the person's blood shall be based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath.
"(c) This section shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether the person ingested any alcoholic beverage or was under the influence of an alcoholic beverage at the time of the alleged offense."
(3) Although section 23610 applies to chemical testing of the driver's blood, breath, or urine, the presumption of intoxication arises only if the testing shows the presence of 0.08 percent or more of alcohol in the driver's blood. (§ 23610(a)(3).) The statute is not written to invoke a presumption based on a certain blood result or breath result; it is framed in terms of blood 1198*1198 alcohol only. Thus, if the prosecution is relying on the result of a breath test, the breath result must be converted into a blood-alcohol equivalent for the section 23610 presumption to apply. Subdivision (b) sets this conversion factor at a ratio of 210 liters of breath to 100 milliliters of blood.
The logic of the presumption proceeds as follows. The Legislature has concluded that most people with a blood-alcohol concentration at or above 0.08 percent are too impaired to operate a vehicle safely. Breath tests are a convenient way to measure a suspect's alcohol consumption, and they can be converted into an equivalent blood-alcohol level by applying a mathematical ratio. A conversion ratio of 2,100 to 1 is a safe standard to use because, for most people, it will produce an accurate or slightly low measure of alcohol in the blood. (See, e.g., People v. Lepine, supra, 215 Cal.App.3d at p. 94; Downie, supra, 569 A.2d at p. 247; Brayman, supra, 751 P.2d at p. 300.) Thus, if a driver's breath test shows a converted blood-alcohol level of 0.08 percent or more, the measurement is generally accurate and may fairly be used to prove the driver was actually under the influence, as the generic DUI statute requires. Other evidence of actual impairment may include the driver's appearance, an odor of alcohol, slurred speech, impaired motor skills, slowed or erratic mental processing, and impaired memory or judgment. Conversely, absence of these manifestations may indicate that the driver was not impaired.
(4) With regard to the inference to be drawn from a breath result, the question of whether a defendant's converted blood-alcohol level is accurate depends upon the validity of the 2,100-to-1 partition ratio. If the defendant's own partition ratio is the same as or higher than this standard ratio, his converted blood-alcohol result is valid or skewed in his favor. If, however, the defendant's own partition ratio at the time of testing is lower than the standard ratio, conversion of the breath result using the statutory formula produces an artificially high measure of his blood alcohol.
Evidence that a defendant has a comparatively low partition ratio would thus tend to show that a blood-alcohol concentration calculated with the standard 2,100-to-1 ratio overstates the actual amount of alcohol in his blood. For someone with an extremely low ratio of 1,100 to 1, for example, use of the 2,100-to-1 partition ratio would overstate blood-alcohol content by almost 50 percent. (See State v. Burling (1987) 224 Neb. 725 [400 N.W.2d 872, 876-877].)[10] Evidence showing the defendant had a low partition ratio, and thus a lower concentration of blood alcohol than was reported, could also support an inference that he was not under the influence in violation of the 1199*1199 generic DUI law. In addition, evidence about the variability of partition ratios in the general population is relevant to raise a reasonable doubt about the accuracy of a defendant's converted blood-alcohol level. Because partition ratios vary among individuals and the 2,100-to-1 ratio used by breath-testing machines is based on an average, there is a possibility that the blood-alcohol level such a machine produces for a given defendant is inaccurate.
(5) The People contend the Legislature rendered partition ratio evidence irrelevant when it amended section 23610, subdivision (b) to state that blood-alcohol percentages "shall be based upon grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath." According to the People's reasoning, because the Legislature has placed a partition ratio in section 23610, no evidence can be offered to contradict or question that ratio in a particular case. Evidence that defendant may have a different ratio is irrelevant, the People assert, because the Legislature has spoken and established 2,100 to 1 as the ratio to be used in every case. Our reasoning was similar when we construed the partition ratio amendments to section 23152(b) in Bransford, supra, 8 Cal.4th at page 892, but the People's attempt to apply Bransford here overlooks an important difference in context. As noted, in Bransford, we were construing language in a statute that defines an offense. Section 23512(b) makes it a crime to drive with a blood-alcohol content of 0.08 percent or more as measured in grams of alcohol per 100 milliliters of blood or per 210 liters of breath. The crime itself is defined in terms of a prohibited blood or breath result. Here, we are considering language in a statute that describes a rebuttable presumption. Section 23610 permits, but does not require, the jury to infer that the defendant was under the influence if he had a blood-alcohol level of 0.08 percent or more. (See People v. Milham (1984) 159 Cal.App.3d 487, 505 [205 Cal.Rptr. 688]; see also CALJIC No. 12.61; CALCRIM No. 2110.) Although section 23610, subdivision (b) incorporates the same conversion factor for breath test results as appears in section 23152, subdivision (b), here this factor is not part of the definition of an offense and, like the rest of the presumption, it is rebuttable.
(6) Moreover, section 23610 specifically mandates that it "shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether the person ingested any alcoholic beverage or was under the influence of an alcoholic beverage at the time of the alleged offense." (§ 23610, subd. (c).) Thus, even in light of the presumption, a defendant charged under the generic 23152(a) provision is entitled to offer "other competent evidence" relevant to whether he was actually under the influence of alcohol.[11]
1200*1200 (7) Competent evidence that the 2,100-to-1 ratio does not accurately reflect the partition ratio for all people, or that the defendant's partition ratio may have been lower, is relevant to this question. "`Relevant evidence' means evidence ... having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) The central disputed fact in a generic DUI prosecution is whether the defendant was under the influence of alcohol while driving. The chemical test result is circumstantial evidence that supports an inference regarding that disputed fact. (8) Specifically, when a defendant's breath test result is equivalent to 0.08 percent or more of blood alcohol, section 23610 permits the jury to infer he was indeed under the influence of alcohol. The defendant is entitled to challenge this inference and can do so by, among other things, raising a reasonable doubt as to whether the test result was an accurate measure of his blood-alcohol level. Evidence casting doubt on the accuracy of the breath-to-blood conversion ratio is just as relevant as other evidence rebutting the presumption of intoxication from a breath test result, such as evidence that the defendant had a high tolerance for alcohol or performed well in field sobriety testing.
(9) Accordingly, we hold that evidence about partition ratio variability is relevant in generic DUI cases to rebut the presumption of intoxication in section 23610. Although the Court of Appeal distinguished between "general" and "personal" partition ratio evidence, concluding only the latter is potentially admissible, this distinction does not survive close scrutiny. Both types of evidence challenge the accuracy of a defendant's reported blood-alcohol level, and therefore both can be used to support an inference that, despite a high breath test result, the defendant was not under the influence. Although the inference is less direct when the evidence is not tied to the defendant, and concerns only variability of partition ratios in the population at large, indirectness alone is not a reason to exclude evidence that is logically relevant to a defense.
We do agree with the Court of Appeal, however, that partition ratio evidence may not be used to negate the basic fact triggering the section 23610 presumption, and thereby defeat operation of the presumption itself. Because section 23610 expressly incorporates a 2,100-to-1 partition ratio, defendant 1201*1201 may not argue the presumption does not apply because a different ratio should have been used. The result of the statutorily mandated test remains admissible, and the jury is still properly instructed on the presumption. Defense evidence is relevant to rebut the presumption that defendant was intoxicated, but not to remove the presumption altogether.
Our decision is in accord with those of the two other state courts that have discussed the admissibility of partition ratio evidence in generic DUI cases. In State v. Hanks (2001) 172 Vt. 93, 96 [772 A.2d 1087, 1089] (Hanks), the Vermont Supreme Court considered the effect of a statute that defined "alcohol concentration" for purposes of the state's DUI laws to mean grams of alcohol per 100 milliliters of blood or per 210 liters of breath. The defendant in Hanks conceded this statute may have made evidence about partition ratio variability inadmissible in cases alleging a violation of the state's per se DUI law, but he argued such evidence was still relevant in cases alleging the defendant drove "under the influence of intoxicating liquor" in violation of the generic DUI law. (Id., 772 A.2d at pp. 1088, 1091.) The Vermont Supreme Court agreed. (Id. at p. 1091.) The court observed that "any evidence raising a doubt as to [the] defendant's condition, which is the ultimate question in a generic DWI prosecution . . . is relevant and admissible." (Id. at p. 1092, italics added, citation omitted.) Like California, Vermont has a statutory presumption that permits the jury to infer a person with a blood-alcohol concentration of 0.08 percent or more was under the influence of alcohol at the time of the offense. (23 Vt. Stat. Ann. § 1204, subd. (a)(2); see Hanks, at p. 1088.) The Hanks court explained that evidence about partition ratio variability is relevant to rebut this inference because it could cast doubt on the accuracy of the breath test result as an indicator of the defendant's impairment. (Hanks, at p. 1092.) Finally, the court observed, where the "defendant is charged with driving while under the influence rather than driving with an alcohol concentration exceeding the statutory limit, admitting scientifically accepted evidence concerning the variability of partition ratios will not negate a statutory offense or even an element of a statutory offense; rather, it will merely allow defendant to challenge the permissive inference and the State's charge that he was impaired." (Id. at pp. 1092-1093.)
An Arizona appellate court considered the same question, in light of similar statutes, and concluded evidence about partition ratio variability "is not relevant to a prosecution for per se DUI, but may be relevant to a prosecution for traditional DUI if, in the latter instance, the State introduces evidence of the defendant's breath alcohol level to support conviction." (Guthrie v. Jones (Ct.App. 2002) 202 Ariz. 273, 274 [43 P.3d 601, 602] (Guthrie).) The court reasoned that when the prosecution relies on a breath test result to invoke Arizona's statutory presumption that the defendant was under the influence of alcohol (Ariz. Rev. Stat. § 28-1381, subd. (G)), 1202*1202 partition ratio evidence casting doubt on that presumption is relevant and admissible. (Guthrie, at p. 604.) The Guthrie court relied in part on statutory language similar to our section 23610, subdivision (c), concluding that the statute "does not limit the introduction of any other competent evidence bearing on the question of whether or not the defendant was under the influence of intoxicating liquor." (Ariz. Rev. Stat. § 28-1381, subd. (H); see Guthrie, at p. 604.)
(10) We reach the same conclusion as the Vermont and Arizona courts. If the defendant in a section 23152(a) case offers competent evidence showing that the use of a 2,100-to-1 conversion ratio may have yielded an inaccurate representation of his blood-alcohol level, introduction of this evidence is permissible. In light of this decision, we need not consider whether a contrary interpretation of section 23610 would raise constitutional concerns. (See Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230 [45 Cal.Rptr.2d 207, 902 P.2d 225] [the court will not decide constitutional questions where other grounds are available and dispositive]; see also Lyng v. Northwest Indian Cemetery Prot. Assn. (1988) 485 U.S. 439, 445 [99 L.Ed.2d 534, 108 S.Ct. 1319].)
Naturally, the proffered evidence must still satisfy standards of competence and all other applicable evidentiary requirements. We do not here consider how a party might establish partition ratio variability in general or in regard to an individual. In particular, we express no opinion as to whether evidence of an individual's personal partition ratio has gained sufficient acceptance in the scientific community to be admissible. (See People v. Kelly (1976) 17 Cal.3d 24, 30-32 [130 Cal.Rptr. 144, 549 P.2d 1240].)
In addition, like all other evidence, partition ratio evidence must be timely offered. Here, defendant attempted to introduce this evidence only after both sides had rested. His motion to reopen was one addressed to the court's sound discretion. (People v. Jones (2003) 30 Cal.4th 1084, 1110 [135 Cal.Rptr.2d 370, 70 P.3d 359]; People v. Marshall (1996) 13 Cal.4th 799, 836 [55 Cal.Rptr.2d 347, 919 P.2d 1280].) We need not discuss this procedural question further. Like the Court of Appeal, we may assume that defendant could have made an adequate offer of proof, to be presented by a competent witness, and that the trial court would have allowed him to reopen. Nevertheless, defendant is not entitled to a reversal here, because any error in excluding the partition ratio evidence was harmless.
1203*1203 (11) "As a general matter, the `[a]pplication of the ordinary rules of evidence . . . does not impermissibly infringe on a defendant's right to present a defense.' [Citations.]" (People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103 [31 Cal.Rptr.2d 321, 875 P.2d 36].) Because the trial court merely rejected some evidence concerning a defense, and did not preclude defendant from presenting a defense, any error is one of state law and is properly reviewed under People v. Watson, supra, 46 Cal.2d at page 836. (People v. Fudge, at p. 1103.) Having examined all the evidence, we conclude it is not reasonably probable defendant would have achieved a more favorable result absent the exclusion of partition ratio evidence.
The question for the jury was whether defendant was under the influence of alcohol when he drove through two red lights. Defendant was stopped at 11:00 p.m. When asked to produce his driver's license, he initially could not find it. Asked why he ran the lights, defendant replied, at first, that he was chasing someone who had threatened him with a gun. Later, he said he was looking for his wife, or that his wife was following right behind him. The arresting officer saw no one else around. Defendant's eyes were watery and bloodshot, his speech was slurred, and a strong odor of alcohol came from the interior of his car and from his person. His face was flushed and he had difficulty answering questions. When he got out of his car, he leaned on the vehicle for support as he made his way to the sidewalk. Defendant said he had consumed one beer and had taken medication that morning for diabetes; however, no evidence offered at trial showed defendant was diabetic. Defendant failed every one of the field sobriety tests he tried to perform. A preliminary alcohol screening test given at the scene showed the presence of alcohol in his breath. Based on defendant's driving, appearance, and performance on the field sobriety tests, the arresting officer formed an opinion that defendant was impaired due to the influence of alcohol.
In addition to this significant evidence of defendant's intoxication, the jury's verdict also indicates that the admission of partition ratio evidence was not reasonably likely to have produced a more favorable result. (See People v. Watson, supra, 46 Cal.2d at p. 836.) Although they found him guilty of generic DUI, the jury could not agree whether defendant was also guilty of per se DUI. They reported an unspecified split of "five to seven" on this issue. Thus, even without partition ratio evidence, nearly half the jury rejected the accuracy of defendant's breath test result and declined to find that he had exceeded the legal limit of 0.08 percent blood alcohol. Nevertheless, all jurors believed defendant was "under the influence" for purposes of section 23152(a). It is difficult to imagine that the jurors who rejected defendant's breath result in considering the per se DUI charge would have relied on this result, and the section 23610 presumption, to convict him of the generic DUI charge.
1204*1204 DISPOSITION
The judgment of the Court of Appeal is affirmed.
George, C. J., Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Moreno, J., concurred.
[1] All unspecified statutory references are to the Vehicle Code.
[2] If blood and breath tests are not available, the driver's blood-alcohol content is determined from a urine test. (§ 23612, subds. (a)(1)(A), (d)(2).)
[3] The test was administered using a Draeger Alcotest 7110 machine. To produce a valid sample for this machine, the subject must exhale at least 1.5 liters of breath over at least 4.5 seconds. (Taylor & Tayac, Cal. Drunk Driving Defense (4th ed. 2008) Forensic Chemist: Blood-Alcohol, § 12.40, p. 874 (hereafter Taylor & Tayac).) If the subject fails or refuses to exhale a sufficient volume of breath, the sample is considered invalid. (Ibid.)
[4] He was also cited for two infractions for failing to stop at a red light. (§ 21453, subd. (a).)
[5] As the body absorbs ingested alcohol, blood-alcohol levels rise until they reach a peak. The rate of absorption depends on many variables, including the amount of food in the stomach, the amount of alcohol consumed, the time over which it was consumed, and numerous individual factors. (Downie, supra, 569 A.2d at pp. 245-246; Taylor & Tayac, supra, Forensic Chemist: Blood-Alcohol, § 12.2, pp. 712-714.) During active absorption, blood-alcohol levels are highest in arterial blood. (Downie, at p. 246; Taylor & Tayac, § 12:2, p. 712.) The postabsorptive phase occurs after the blood-alcohol level has peaked and begun to decline.
[6] See also People v. Lepine (1989) 215 Cal.App.3d 91, 94 [263 Cal.Rptr. 543] (defense expert testified that the average partition ratio is 2,286 to 1); People v. Pritchard (1984) 162 Cal.App.3d Supp. 13, 16 [209 Cal.Rptr. 314] (people's expert testified that 95 percent of the population falls within the range of 2,100 to 1, plus or minus a 10 percent margin of error); People v. Gustafson (1990) 194 Ill.App.3d 910 [141 Ill.Dec. 639, 551 N.E.2d 826, 829] (state's expert testified "he believed the 2,100:1 ratio was applicable to at least 95 [percent] of the population"); State v. McManus, supra, 447 N.W.2d at pages 656-657 (noting "the 2,100:1 ratio has been shown to either correctly estimate or underestimate a person's corresponding blood alcohol concentration with 94 percent accuracy"); Brayman, supra, 751 P.2d at page 300 (citing studies indicating breath tests underestimate blood-alcohol levels 80 to 91 percent of the time and overestimate them only 5 to 6 percent of the time).
[7] "A breath alcohol concentration shall be converted to an equivalent blood alcohol concentration by a calculation based on the relationship: the amount of alcohol in 2,100 milliliters of alveolar breath is equivalent to the amount of alcohol in 1 milliliter of blood." (Cal. Code Regs., tit. 17, § 1220.4, subd. (f).)
[8] As a result, partition ratio amendments to the statutory presumption of intoxication did not go into effect until January 1, 1992, the operative date set forth in Senate Bill No. 1119 (1989-1990 Reg. Sess.).
[9] Deleted subdivisions state that a blood-alcohol level between 0.05 and 0.08 gives rise to no presumption, and a blood-alcohol level under 0.05 gives rise to a presumption that the driver was not under the influence. (§ 23610(a)(1)-(2).)
[10] Burling's holding that a breath test result must be reduced to 52.38 percent of the machine's reading (to reflect this potential margin of error) has been overruled by Nebraska's high court. (State v. Baue (2000) 258 Neb. 968 [607 N.W.2d 191, 200-201].)
[11] The People assert that by "other competent evidence" the statute is referring to evidence "other" than the partition ratio set forth in subdivision (b). This overly narrow reading does not follow from the plain language of the statute. Clearly, the import of subdivision (c) is to preserve a defendant's ability to rebut the presumption, not to limit the type of evidence that can be introduced. Moreover, the People's interpretation of subdivision (c) makes little sense given that the subdivision existed in essentially its present form before the breath provision was added to subdivision (b). (Former § 23126, subd. (c), added by Stats. 1969, ch. 231, § 1, p. 565 ["The foregoing provisions shall not be construed as limiting the introduction of ... other competent evidence bearing upon the question whether the person was under the influence of intoxicating liquor at the time of the alleged offense."].) The reference to "other competent evidence" cannot have meant "other than the partition ratio" when no partition ratio was specified.
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