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State v. Palmer, 902 SW 2d 391 - Tenn: Supreme Court 1995ReadHow citedSearch
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State v. Palmer, 902 SW 2d 391 - Tenn: Supreme Court 1995
902 S.W.2d 391 (1995)

STATE of Tennessee, Appellant,
v.
Charles R. PALMER, Appellee.

Supreme Court of Tennessee, at Knoxville.

June 5, 1995.

392*392 Charles W. Burson, Atty. Gen. & Reporter and Kathy Morante, Deputy Atty. Gen., Nashville, for appellant.

Deborah Black Huskins, Asst. Public Defender, Johnson City, for appellee.

OPINION

WHITE, Justice.

The State of Tennessee appeals from the Court of Criminal Appeals' modification of the appellee Charles Palmer's sentence for the offense of driving under the influence of an intoxicant (DUI). This case requires us to address for the first time whether the Criminal Sentencing Reform Act of 1989 precludes a trial court from ordering that a DUI defendant serve more than seventy-five percent of the sentence. We find that it does not, and therefore, reverse the judgment of the Court of Criminal Appeals and reinstate the judgment of the trial court.

Charles Palmer was convicted of fourth offense driving under the influence of an intoxicant. The trial court sentenced Palmer to eleven months and twenty-nine days in the Washington County jail — the maximum sentence allowed under Tennessee Code Annotated Section 55-10-403. The court ordered Palmer to serve the entire sentence in confinement. Palmer appealed to the Court of Criminal Appeals alleging that the Criminal Sentencing Reform Act prohibits a trial court from ordering a DUI defendant to serve one hundred percent of the sentence. A majority of the Court of Criminal Appeals agreed and modified the sentence. We granted the state's application for permission to appeal in order to address the sentencing issue of first impression.

In 1989, our legislature enacted comprehensive penal and sentencing reform legislation as proposed by the Tennessee Sentencing Commission. Prior modifications had focused on either the substantive criminal law or sentencing provisions, but this revision was aimed at accomplishing a "unified approach" in order to assure that "a clear relationship between the definition of an offense and the sentence for that offense" existed. Sent. Comm'n Comments, Tenn. Code Ann. § 40-35-101 (1990 Repl.).

That impetus, and the goals the Act were intended to accomplish, Tenn. Code Ann. § 40-35-102 (1994 Supp.), clearly establish a legislative intent to subsume the entire field of criminal law and sentencing in Tennessee. Illustrative of this intent is the legislative directive found in Tennessee Code Annotated Section 40-35-104. That statute, which sets out the sentencing alternatives available, provides that a "defendant convicted of a felony or a misdemeanor in this state shall be sentenced in accordance with this chapter." Tenn. Code Ann. § 40-35-104(a) (1994 Supp.) (emphasis added). Likewise, in section 117, the legislature declares that "[a]ll persons who commit crimes on or after November 1, 1989, shall be ... sentenced under the provisions of this chapter." Tenn. Code Ann. § 40-35-117(a) (1990 Repl.) (emphasis added).

As part of the Criminal Sentencing Reform Act, the legislature addressed the topic of misdemeanor sentencing. Section 302 sets forth the procedure for misdemeanor sentencing and also addresses the available alternatives. Tenn. Code Ann. § 40-35-302 (1994 Supp.). It reiterates that the misdemeanor defendant's sentence "shall [be] consistent with the purposes and principles" of the Act. Id. at -302(b).

In sentencing a misdemeanor defendant, the trial judge is required to "fix a percentage of the sentence which the defendant shall serve." Tenn. Code Ann. § 40-35-302(d) (1994 Supp.). That percentage must range from zero to seventy-five percent. After service, the defendant "shall be eligible for consideration" for rehabilitation programs. Id. Thus, a misdemeanor defendant may be sentenced to the maximum term for the appropriate class,[1] but by statute, must be deemed eligible for consideration for work release, furlough, trusty status, and related rehabilitative programs after service of no more than seventy-five percent of that sentence. While the cap of seventy-five percent may seem odd initially, it implements the purposes of the Criminal Sentencing Reform 393*393 Act, Tenn. Code Ann. §§ 40-35-102 & -103 (1990 Repl. & 1994 Supp.), and is consistent with the felony sentencing scheme.[2] More importantly, the percentage set by the court for eligibility consideration, like that set for the sentenced felon, establishes only eligibility for release. It does not establish entitlement to release.

Thus, the Criminal Sentencing Reform Act of 1989 requires three things of trial judges sentencing misdemeanor offenders. First, all misdemeanor offenders must be sentenced in accordance with the principles, purposes, and goals of the Act. Tenn. Code Ann. §§ 40-35-104, -117 & -302 (1990 Supp. & 1994 Repl.). It naturally follows, then, that the sentence must be within the penalty provided for the offense. Tenn Code Ann. §§ 40-35-111(e)(1)(2) & (3) (1990 Repl.). Second, the court must either conduct a sentencing hearing or provide an opportunity for the parties to be heard on the length and manner of service of the sentence. Tenn. Code Ann. § 40-35-302(a) (1994 Supp.). Third, in addition to setting the sentence based on the principles, purposes, and goals of the Act, the court must set a release eligibility percentage which cannot exceed seventy-five percent of the imposed sentence. Id. at (d). Alternatively, the court can grant probation immediately or after a period of split or continuous confinement. Id. at (e).

Prior to the enactment of the 1989 Criminal Sentencing Reform Act, sentencing provisions were scattered throughout the Code. One such provision, enacted as part of the Tennessee Comprehensive Correction Improvement Act of 1985, is found in Tennessee Code Annotated Section 41-21-236. That section, entitled "Sentence reduction credits," is obviously not a part of chapter 35, the chapter which contains the Tennessee Criminal Sentencing Reform Act of 1989. It requires that a percentage of thirty to one hundred percent be specified for confinement in misdemeanor cases. Tenn. Code Ann. § 41-21-236(f)(4) (1990 Repl.). The state suggests that the statute remains a viable sentencing alternative for trial judges sentencing misdemeanor offenders, thus providing the trial judge with a choice between that statute and the provisions of the Criminal Sentencing Reform Act. We disagree.

The statement of the legislative purposes and intent in the Criminal Sentencing Reform Act of 1989, which provides that all convicted defendants "shall be sentenced in accordance" with the Act, impliedly repeals subsection 236(f)(4). A statute is implicitly repealed by a subsequent statute if the two statutes are in irreconcilable conflict. Jenkins v. Loudon County, 736 S.W.2d 603, 608 (Tenn. 1987). Subsection 236(f)(4) directly and irreconcilably conflicts with Tennessee Code Annotated Sections 40-35-104, -117, and -302. Consequently, we reject the state's argument that a misdemeanor offender must be sentenced either under the Criminal Sentencing Reform Act of 1989 or under prior provision included in the Sentence reduction credits statute. Our legislature has made it very clear that persons who commit criminal offenses in Tennessee must be sentenced pursuant to the provisions of the Criminal Sentencing Reform Act of 1989. Section 236(f)(4) has no further application to misdemeanor offender sentencing.

Having concluded that a misdemeanor offender's sentence must be in accord with the Criminal Sentencing Reform Act of 1989 and may not be pursuant to a prior statute impliedly repealed by the Act, we turn to the relevant statutes and the facts of this case. Palmer was convicted of fourth offense driving under the influence of an intoxicant. The statute pertaining to that offense, Tennessee Code Annotated Section 55-10-403(a)(1), provides for a maximum punishment of eleven months and twenty-nine days for the offense of driving under the influence of an intoxicant. Mandatory minimum periods for confinement are set for each offense. Specifically, "[f]or the third or subsequent offense ... the person ... shall be confined for not less than one hundred twenty (120) days nor more than eleven (11) months and twenty-nine (29) days." Tenn. Code Ann. § 55-10-403(a)(1) (1994 Supp.) (emphasis added). Additionally, the section 394*394 provides that "[n]othing in ... the Sentencing Reform Act of 1989, shall be construed as altering, amending or decreasing the penalties established in this section for the offense of driving under the influence of an intoxicant." Tenn. Code Ann. § 55-10-403(m) (1994 Supp.). Thus, the Criminal Sentencing Reform Act specifically does not apply to DUI sentences in those particulars in which the application of the Act would serve to alter, amend, or decrease the penalties specifically provided for DUI.

The trial judge in this case sentenced Palmer to serve eleven months and twenty-nine days for fourth offense driving under the influence of an intoxicant. He did not set a percentage from zero to seventy-five percent as mandated in Tennessee Code Annotated Section 40-35-302 at which Palmer would be eligible for consideration for rehabilitative program release. However, to require a trial judge in a DUI case to set such a percentage has the potential to alter or decrease the mandatory minimum and maximum penalty provisions for DUI. For example, if a judge sentenced a fourth DUI offender to eleven months and twenty-nine days but set a percentage for service at thirty percent or less, the defendant could be released at the discretion of the "administrative authority governing the rehabilitative program" in less than the mandatory minimum time of one hundred twenty days. Tenn. Code Ann. § 40-35-302(d) (1994 Supp.). Further, any of the percentages authorized by statute (zero to seventy-five percent) would potentially decrease the maximum penalty allowed for DUI in violation of Tennessee Code Annotated Section 55-10-403(m). As a result, we conclude that the trial judge was legally authorized to impose the sentence he did in this case.

In summary, misdemeanor offenders in Tennessee must be sentenced in accordance with the Criminal Sentencing Reform Act of 1989. Specifically, a misdemeanor offender must be sentenced to an authorized determinant sentence. Further, a percentage of that sentence, which the offender must serve before becoming eligible for consideration for rehabilitative programs, must be designated. While DUI offenders must also be sentenced in accordance with the Act, the legislature has specifically excluded DUI offenders from the provisions of the Act when the application of the Act would serve to either alter, amend, or decrease the specific penalties provided for DUI offenders. A trial judge may designate a service percentage in a DUI case under Tennessee Code Annotated Section 40-35-302(d) but that percentage may not operate to reduce the mandatory minimum sentencing provisions of the DUI statute. Consequently, a DUI offender can be sentenced to serve the entire eleven month and twenty-nine day sentence imposed as the maximum punishment for DUI so long as the imposition of that sentence is in accordance with the principles and purposes of the Criminal Sentencing Reform Act of 1989.

We, therefore, reverse the judgment of the Tennessee Court of Criminal Appeals in this matter and reinstate the judgment of the trial court.

ANDERSON, DROWOTA, REID and BIRCH, JJ., concur.

[1] Under Tennessee Code Annotated Section 40-35-111(e) misdemeanors are classified as class A, B, or C offenses with punishment ranging from eleven months and twenty-nine days to thirty days, respectively. Tenn. Code Ann. § 40-35-1111(e)(1), (2), (3) (1990 Repl.).

[2] Defendants sentenced under the Criminal Sentencing Reform Act for felony offenses are designated as especially mitigated, standard, multiple, persistent, or career offenders in either range one or two. Tenn. Code Ann. §§ 40-35-105, -109 & -112 (1990 Repl. & 1994 Supp.). Release eligibility is based upon those designations. Tenn. Code Ann. § 40-35-501 (1994 Supp.).

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State v. Homan, 89 Ohio St. 3d 421 - Ohio: Supreme Court 2000ReadHow citedSearch
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State v. Homan, 89 Ohio St. 3d 421 - Ohio: Supreme Court 2000
89 Ohio St.3d 421 (2000)

THE STATE OF OHIO, APPELLANT,
v.
HOMAN, APPELLEE.

No. 99-1107.

Supreme Court of Ohio.Submitted April 26, 2000.
Decided August 16, 2000.

424*424 Kevin J. Baxter, Erie County Prosecuting Attorney, and Mary Ann Barylski, Assistant Prosecuting Attorney, for appellant.

Gardner & Kucharski, Mark Gardner and Timothy J. Kucharski, for appellee.

Donald W. White, Clermont County Prosecuting Attorney, and David H. Hoffmann, Assistant Prosecuting Attorney, urging reversal for amicus curiae, Ohio Prosecuting Attorneys Association.

FRANCIS E. SWEENEY, SR., J.

This case presents two issues for our consideration. First, we are asked to consider whether, in administering field sobriety tests, the police must strictly comply with established, standardized procedures. The second issue concerns R.C. 2945.72(E), which provides that pretrial motions instituted by criminal defendants extend the time within which they must be brought to trial. Appellant contends that this extension can apply to additional, related charges brought against the defendant after the motion is filed.

For the reasons that follow, we conclude that in order for the results of a field sobriety test to serve as evidence of probable cause to arrest, the police must have administered the test in strict compliance with standardized testing procedures. We also determine that when a criminal defendant files a pretrial motion and the state later files against the defendant additional, related criminal charges, R.C. 2945.72(E) does not extend the time within which the defendant must be brought to trial on those additional charges.

I

When field sobriety testing is conducted in a manner that departs from established methods and procedures, the results are inherently unreliable. In an extensive study, the National Highway Traffic Safety Administration[4] ("NHTSA") evaluated field sobriety tests in terms of their utility in determining whether a subject's blood-alcohol concentration is below or above the legal limit. The NHTSA concluded that field sobriety tests are an effective means of detecting legal intoxication "only when: the tests are administered in the prescribed, standardized manner[,] * * * the standardized clues are used to 425*425 assess the suspect's performance[, and] * * * the standardized criteria are employed to interpret that performance." National Highway Traffic Safety Adm., U.S. Dept. of Transp., HS 178 R2/00, DWI Detection and Standardized Field Sobriety Testing, Student Manual (2000), at VIII-3. According to the NHTSA, "[i]f any one of the standardized field sobriety test elements is changed, the validity is compromised." Id. Experts in the areas of drunk driving apprehension, prosecution, and defense all appear to agree that the reliability of field sobriety test results does indeed turn upon the degree to which police comply with standardized testing procedures. See, e.g., 1 Erwin, Defense of Drunk Driving Cases (3 Ed.1997), Section 10.06[4]; Cohen & Green, Apprehending and Prosecuting the Drunk Driver: A Manual for Police and Prosecution (1997), Section 4.01.

We too have recognized that while field sobriety tests are a potentially effective means of identifying intoxicated drivers, these tests' reliability depends largely upon the care with which they are administered. In State v. Bresson (1990), 51 Ohio St.3d 123, 554 N.E.2d 1330, we considered whether a police officer may testify at trial regarding a driver's performance on the HGN test as it pertains to the issue of probable cause. In holding that such testimony is admissible, we stressed the importance of the testing process. We noted that the arresting officer's knowledge of the test, his training, and his ability to interpret his observations are key considerations in determining admissibility. Id., 51 Ohio St.3d at 129, 554 N.E.2d at 1336. Although the only test at issue in Bresson was the HGN, we suggested that these strict prerequisites to admissibility would also apply to the other field sobriety tests, including the walk-and-turn and one-legstand tests. Id.

The small margins of error that characterize field sobriety tests make strict compliance critical. Here, for example, Trooper Worcester's failure to use the full four seconds when checking for the onset of nystagmus, while seemingly trivial, rendered the results of this test unreliable. When a police officer moves the stimulus too quickly, he or she runs the risk of going past the point of onset or missing it altogether. NHTSA Student Manual, at VIII-8.

The HGN test is not the only field sobriety test that requires special care in its administration. With respect to the walk-and-turn test, for example, it is important that the investigating officer have the suspect balance heel-to-toe while listening to his or her instructions on how to perform the test, a step that was omitted by Trooper Worcester. The ability or inability of the suspect to keep his or her balance while simultaneously listening to instructions is an important test clue. NHTSA Student Manual, at VIII-11. Even the seemingly straightforward one-leg-stand test requires precise administration. For instance, a police officer must make sure that the suspect keeps his or her foot elevated for the full thirtysecond 426*426 duration. Some intoxicated persons can competently perform the test for up to twenty or twenty-five seconds. Erwin, at Section 10.04[1].

Although in a number of our DUI cases we adopt a rule of substantial compliance, we find these cases to be inapposite. Two representative cases, State v. Plummer (1986), 22 Ohio St.3d 292, 22 OBR 461, 490 N.E.2d 902, and State v. Steele (1977), 52 Ohio St.2d 187, 6 O.O.3d 418, 370 N.E.2d 740, illustrate the important differences between our substantial-compliance cases and the case now before us.

In Plummer, we held that the police need only substantially comply with an administrative regulation that required urine specimens to be refrigerated when not in transit or under examination. Accordingly, a three- to four-hour interval of non-refrigeration did not render the results of a subsequent urinalysis test inadmissible at a DUI trial. In reaching our holding, we noted that the refrigeration requirement contemplated situations involving longer periods of non-refrigeration than that at issue in Plummer. Plummer, 22 Ohio St.3d at 295, 22 OBR at 464, 490 N.E.2d at 905. We further noted that strict compliance with this regulation would not always be realistic or humanly possible. Id., 22 Ohio St.3d at 294, 22 OBR at 463, 490 N.E.2d at 905.

Similarly, in Steele, we held that strict compliance with Department of Health regulations in regard to breathalyzer testing was not necessary in order for the test results to be admissible at trial. At issue in Steele was a Department of Health regulation that required arresting officers to visually observe the suspect for twenty-minutes prior to testing so as to prevent the suspect from orally ingesting any substance. We found that this requirement had been fulfilled even though the arresting officer had averted his gaze from the suspect for a few seconds while he exited and walked around his patrol car. We noted that because there was no evidence to suggest that the suspect had in any way corrupted the test results during the few seconds that the officer had departed, the purpose of the rule had not been undermined. Steele, 52 Ohio St.2d at 190, 6 O.O.3d at 419-420, 370 N.E.2d at 742.

Cases such as Plummer and Steele are distinguishable from the case at bar. In the substantial-compliance cases, the minor procedural deviations that were at issue in no way affected the ultimate results. In contrast, it is well established that in field sobriety testing even minor deviations from the standardized procedures can severely bias the results. Moreover, our holdings in the substantial-compliance cases were grounded, at least in part, on the practical impossibility of strictly complying with the applicable administrative regulations. In contrast, we find that strict compliance with standardized field sobriety testing procedures is neither unrealistic nor humanly impossible in the great majority of vehicle stops in which the police choose to administer the tests.

427*427 In determining whether the police had probable cause to arrest an individual for DUI, we consider whether, at the moment of arrest, the police had sufficient information, derived from a reasonably trustworthy source of facts and circumstances, sufficient to cause a prudent person to believe that the suspect was driving under the influence. Beck v. Ohio (1964), 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142, 145; State v. Timson (1974), 38 Ohio St.2d 122, 127, 67 O.O.2d 140, 143, 311 N.E.2d 16, 20. In making this determination, we will examine the "totality" of facts and circumstances surrounding the arrest. See State v. Miller (1997), 117 Ohio App.3d 750, 761, 691 N.E.2d 703, 710; State v. Brandenburg (1987), 41 Ohio App.3d 109, 111, 534 N.E.2d 906, 908.

In the case sub judice, Trooper Worcester, the arresting officer, admitted to having not strictly complied with established police procedure when administering to appellee the HGN and walk-and-turn tests. We nevertheless agree with the court of appeals that the totality of facts and circumstances surrounding appellee's arrest supports a finding of probable cause.

While field sobriety tests must be administered in strict compliance with standardized procedures, probable cause to arrest does not necessarily have to be based, in whole or in part, upon a suspect's poor performance on one or more of these tests. The totality of the facts and circumstances can support a finding of probable cause to arrest even where no field sobriety tests were administered or where, as here, the test results must be excluded for lack of strict compliance.

Prior to stopping appellee's vehicle, Trooper Worcester observed erratic driving on the part of appellee. Upon stopping appellee's vehicle, he observed that appellee's eyes were "red and glassy" and that her breath smelled of alcohol. Appellee admitted to the arresting officer that she had been consuming alcoholic beverages. The totality of these facts and circumstances amply supports Trooper Worcester's decision to place appellee under arrest. See Mason v. Murphy (1997), 123 Ohio App.3d 592, 598, 704 N.E.2d 1260, 1263; State v. Beall (Mar. 8, 1999), Belmont App. No. 94-B-43, unreported, 1999 WL 148371.

II

Appellant contends that appellee's motion to suppress tolled the time in which appellee had to be brought to trial on the child endangering charge, which was filed subsequent to the filing of the motion to suppress. We disagree.

Under R.C. 2919.22, driving a motor vehicle while intoxicated with one or more children in the car constitutes child endangering. A violation of this law is a first-degree misdemeanor. R.C. 2919.22(E)(5)(a). A defendant charged with a misdemeanor of the first degree must be brought to trial within ninety days after arrest. R.C. 2945.71(B)(2). This period of time may be extended by "[a]ny period of delay necessitated by reason of * * * motion * * * instituted by the 428*428 accused." R.C. 2945.72(E). This extension is strictly construed in favor of the defendant. State v. Singer (1977), 50 Ohio St.2d 103, 109, 4 O.O.3d 237, 240, 362 N.E.2d 1216, 1220.

The question presented is whether R.C. 2945.72(E) applies where the filing of the motion precedes the filing of the criminal charge. Because an answer to this question does not appear on the face of the statute, we invoke rules of statutory construction in order to arrive at the legislature's intent. Symmes Twp. Bd. of Trustees v. Smyth (2000), 87 Ohio St.3d 549, 553, 721 N.E.2d 1057, 1061. R.C. 1.49 sets forth specific rules of statutory construction, which serve as guideposts for courts to follow in interpreting ambiguous statutes. Included among them are the object sought to be attained by the legislature and the consequences of a particular construction. Applying these guideposts, we conclude that tolling was not intended to occur for charges filed subsequent to the defendant's motion filing.

The facts of the instant case are analogous to those in State v. Adams (1989), 43 Ohio St.3d 67, 538 N.E.2d 1025. In Adams, we held that when a defendant waives his right to a speedy trial as to an initial charge, this waiver is not applicable to additional charges arising from the same set of facts that are brought subsequent to the waiver. We attributed our holding in Adams to the objective underlying Ohio's speedy trial statutes—that the ability of a defendant to maintain his or her defense not be impaired. Id., 43 Ohio St.3d at 70, 538 N.E.2d at 1028. We noted in Adams that knowing and intelligent tactical decisions cannot be made until all of the facts are known by the accused, and this, of course, includes knowing the exact nature of the crimes charged. Id.

Here, as in Adams, the state's interpretation of Ohio's speedy trial law conflicts with the objective sought to be achieved by the General Assembly. Appellant's proposed construction of R.C. 2945.72(E) provides the state with an incentive to file charges piecemeal, as opposed to bringing all related charges at the same time. The potential prejudice to defendants is manifest. When a defendant is unaware of the precise nature of the crimes charged, he or she cannot make informed and intelligent tactical decisions about motion filings and other matters.

For the foregoing reasons, we conclude that R.C. 2945.72(E) does not apply to charges filed by the state after the defendant's motion is filed. Accordingly, we affirm the judgment of the court of appeals.

Judgment affirmed.

MOYER, C.J., ROCCO and PFEIFER, JJ., concur.

ROCCO, J., concurs separately.

COOK and LUNDBERG STRATTON, JJ., concur in judgment and dissent in part.

429*429 DOUGLAS, J., dissents.

KENNETH A. ROCCO, J., of the Eighth Appellate District, sitting for RESNICK, J.

ROCCO, J., concurring. I agree with the majority that field sobriety tests results can provide probable cause to arrest only if the administering officer strictly complies with the standardized testing procedures. I write separately to emphasize an additional point.

I would extend the court's holding here to explicitly state that field sobriety test results are admissible at trial only if the officer strictly complied with standardized testing procedures. The majority has demonstrated that the care with which a field sobriety test is administered has a decisive effect on the test's reliability, and hence its evidentiary value. It seems self-evident to me that if strict compliance with testing procedures is necessary to demonstrate probable cause to arrest, it becomes even more necessary if the tests are to be used to prove guilt.

LUNDBERG STRATTON, J., concurring in part and dissenting in part.

I concur with the majority in that the filing of a motion before an additional charge is brought does not toll the speedy-trial provisions for that charge under R.C. 2945.72(E). Prosecutors should refile applicable motions or require defendant's counsel to refile their motions if the motions also apply to the new charge in order to extend speedy-trial provisions to those later charges.

However, I disagree with the majority's conclusion that field sobriety tests require strict compliance. Field sobriety tests are used by arresting officers to assist in determining whether probable cause exists to arrest the driver for driving under the influence of drugs or alcohol. Field sobriety tests are not constitutionally required, nor are they mandated by statute. They are not even required by the Department of Health or any traffic regulation. They are merely procedures established by the National Highway Traffic Safety Administration ("NHTSA"). As such, they are only evidentiary tools.

In 1986, this court examined the level of compliance required in administering regulations concerning storage temperature of urine samples taken from suspected impaired drivers. This court held that "absent a showing of prejudice to a defendant, the results of a urine-alcohol test administered in substantial compliance with Ohio Adm.Code 3701-53-05 are admissible in a prosecution under R.C. 4511.19." State v. Plummer (1986), 22 Ohio St.3d 292, 22 OBR 461, 490 N.E.2d 902, syllabus. Because the court required only substantial compliance, rather 430*430 than strict compliance, for those regulations, the evidentiary value of the item decreased as substantial compliance decreased. But even at a substantial-compliance level, rather than a strict-compliance level, the test retained strong evidentiary value.

Similarly here, substantial compliance affects the evidentiary value of the field sobriety tests. But substantial compliance should not result in the tests' exclusion. If Plummer only requires substantial compliance with the Ohio Administrative Code for the admissibility of chemical test readings for a strict-liability statute, I would find that only substantial compliance should be required for administering the field sobriety tests in question.

The majority notes that according to the NHTSA, "[i]f any one of the standardized field sobriety test elements is changed, the validity is compromised." National Highway Traffic Safety Adm., U.S. Dept. of Transp., HS 178 R2/00, DWI Detection and Standardized Field Sobriety Testing, Student Manual (2000), at VIII-3. Again, this potential compromise in validity can be challenged by the defense on the basis of reliability. A trial court can conduct a pretrial hearing on whether the tests are sufficiently reliable to be admissible, just as a trial judge conducts similar hearings on other evidentiary issues. Even if the trial judge finds that there was substantial compliance with the field sobriety tests so as to make these tests admissible, defense counsel can still attack the tests' reliability as evidence at trial, depending on the degree of compliance. The NHTSA testing only confirms that the better the compliance, the better the reliability.

The majority highlights Plummer's observation that strict compliance is "not always realistically or humanly possible" regarding urine test regulations. Id., 22 Ohio St.3d at 294, 22 OBR at 463, 490 N.E.2d at 905. However, field sobriety tests are often administered in the dark, on icy roads, on gravel, during wind and rain. Law enforcement officers do not have the ability to select the ideal environment. Thus, so too with field sobriety tests, I believe that strict compliance is not always realistically or humanly possible.

I fear that this ruling will substantially hamper the effectiveness of law enforcement officers in their ability to ascertain probable cause for OMVI arrests. Defense counsel can now attack any minor deviation from the field sobriety tests and seek exclusion of the tests. At a time when more tools are needed in the effort to combat drunk driving, we have greatly reduced the effectiveness of one of those tools, field sobriety tests.

I believe that strict compliance is neither constitutionally nor statutorily mandated, and certainly not mandated by any evidentiary rules. Therefore, I respectfully concur in the judgment, but dissent in part and would find that 431*431 substantial compliance, not strict compliance, is the appropriate standard for the admissibility of field sobriety tests.

COOK, J., concurs in the foregoing opinion.

[4] The NHTSA has been a leader in the study and development of field sobriety testing policy and procedure. The NHTSA's standardized test manuals form the basis for manuals used by state law enforcement agencies across the country. Taylor, Drunk Driving Defense (5 Ed.2000), Section 4.3.2.

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State v. Woodruff, 676 So. 2d 975 - Fla: Supreme Court 1996ReadHow citedSearch
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State v. Woodruff, 676 So. 2d 975 - Fla: Supreme Court 1996
676 So.2d 975 (1996)

STATE of Florida, Petitioner,
v.
William R. WOODRUFF, Respondent.

No. 86019.

Supreme Court of Florida.May 16, 1996.
Rehearing Denied July 10, 1996.

976*976 Robert A. Butterworth, Attorney General; and Paul M. Gayle-Smith and Michael J. Neimand, Assistant Attorneys General, Miami, for Petitioner.

Bennett H. Brummer, Public Defender and Amy D. Ronner, Special Assistant Public Defender, Eleventh Judicial Circuit, Miami, for Respondent.

GRIMES, Chief Justice.

We have for review State v. Woodruff, 654 So.2d 585 (Fla. 3d DCA 1995), which expressly and directly conflicts with the decision in Spurlock v. Cycmanick, 584 So.2d 1015 (Fla. 5th DCA 1991). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const.

On July 4, 1993, Woodruff was arrested and issued the following misdemeanor tickets: two for driving under the influence of alcohol (DUI) and causing serious bodily injury, two for DUI with property damage, and one for driving with a suspended license. Woodruff pled not guilty, and the matter was set for trial in county court. On August 4, 1993, the State filed an information in circuit court charging Woodruff with two counts of DUI with property damage and one count 977*977 each of DUI with damage to the person, DUI impairment, DUI with excessive blood alcohol level, driving with a suspended license, and DUI after three previous DUI convictions.[1] These charges arose from the incident for which the misdemeanor tickets were issued. Apparently because different state attorneys were handling the cases, no effort was made to consolidate the cases.

The ninety-day speedy trial period on the misdemeanor tickets ran on October 4, 1993. Woodruff filed a notice of expiration of speedy trial in county court on November 15, 1993. Because Woodruff had still not been brought to trial by December 2, 1993, he filed a motion to discharge. Woodruff also filed a motion in circuit court to dismiss the information on double jeopardy grounds. On December 3, 1993, the State nol-prossed the misdemeanor tickets. Woodruff's motion to dismiss the information was granted on December 17, 1993.[2]

The State appealed the order dismissing the information. The district court of appeal affirmed. The court reasoned that principles of double jeopardy barred the State from prosecuting Woodruff for the offenses charged in the information because they were the same as those originally filed in county court, with the sole distinguishing factor being the severity of punishment. The court went on to explain that even if the technical requirements of double jeopardy did not exist, the discharge of the county court case would constitute an estoppel against the prosecution of the same offenses in circuit court.

The State maintains that neither double jeopardy nor estoppel attached in the instant case. At the outset, we note that the technical prerequisites necessary for double jeopardy to attach were not met in the instant case.[3] However, while we have held that a speedy trial discharge will not operate to support a plea of double jeopardy because the defendant has not actually been put in jeopardy, we have also stated that because a discharge under the speedy trial rule "is for failure of state action to timely prosecute, such discharge by the clear language of the rule would rate as an estoppel against prosecution of defendant for the same offenses from which [the defendant] has been previously discharged." Rawlins v. Kelley, 322 So.2d 10, 13 (Fla.1975).

The principle of estoppel properly attached to the misdemeanor offenses contained in the information since these offenses are the same as those discharged in county court. However, estoppel did not attach to the felony DUI offense charged in the information because felony DUI is not the same offense as any of the misdemeanor ticket offenses. We reject the district court of appeal's determination that the only difference between the two offenses is the severity of punishment. Felony DUI requires proof of an additional element that misdemeanor DUI does not: the existence of three or more prior misdemeanor DUI convictions. § 316.192(2)(b), Fla.Stat. (1991); see also State v. Rodriguez, 575 So.2d 1262, 1264-65 (Fla.1991) (concluding that upon conviction of a fourth or subsequent DUI, the existence of three or more previous DUI convictions is an additional element which must be proved beyond a reasonable doubt to convict the offender for felony DUI). Felony DUI is therefore a completely separate offense from misdemeanor DUI, not simply a penalty enhancement. Consequently, the principle of estoppel did not work to bar prosecution of the felony DUI offense.

978*978 Furthermore, Woodruff's reliance upon Reed v. State, 649 So.2d 227 (Fla.1995), is misplaced. In Reed, the defendant had been arrested for armed robbery and several traffic offenses which occurred when he was fleeing from the scene of the robbery. The State filed an information charging two counts of leaving the scene of an accident involving personal injury but later nol-prossed these charges. Subsequently, 245 days after his arrest, the State filed an information charging him with numerous felonies arising out of the robbery. We held that while the State may have a legitimate reason for not immediately filing charges against a defendant who has been arrested previously, the State is not authorized to simply let the speedy trial period run prior to filing additional charges. Reed is easily distinguished from the instant case because in Reed the information charging the defendant with felonies was not filed until after the speedy trial period had run. In the present case, the State filed the information before the felony speedy trial period ran. See Crain v. State, 302 So.2d 433, 434 (Fla. 2d DCA 1974) (explaining that the speedy trial rule does not bar prosecution of greater degree crimes because defendants charged with misdemeanors "ought be in no better position ... than [they] would have been had [the misdemeanors] not been filed insofar as the time within which [the defendants] must be brought to trial on the felony charge[s] is concerned").

Notwithstanding, a conviction of the felony DUI charge in the instant case would be impossible to obtain. Under section 316.193(2)(b), Florida Statutes (1991), a felony DUI conviction is obtained by proving a misdemeanor DUI conviction on the present charge and proof of three or more prior misdemeanor DUI convictions. Here, each present misdemeanor DUI charge was discharged, thereby rendering it impossible to prove the current misdemeanor DUI conviction. Without the current misdemeanor DUI conviction, the charge of felony DUI could not be proven.

In contrast, if Woodruff had been charged with the felony of DUI with serious bodily injury, a different result could have ensued. See Nesworthy v. State, 648 So.2d 259, 259-60 (Fla. 5th DCA 1994) (upholding a conviction of DUI with serious bodily injury that was tried within the felony speedy trial time even though an earlier charge of misdemeanor DUI had been nol-prossed and the misdemeanor speedy trial time had run). Florida Rule of Criminal Procedure 3.191(n) explains the result of a discharge under the speedy trial rule:

Discharge from a crime under this rule shall operate to bar prosecution of the crime charged and of all other crimes on which trial has not commenced nor conviction obtained nor adjudication withheld and that were or might have been charged as a result of the same conduct or criminal episode as a lesser degree or lesser included offense.

Fla.R.Crim.P. 3.191(n) (emphasis added). As the court stated in Spurlock, "[n]either expressly nor impliedly does this rule bar prosecution for greater degree crimes which might have been charged as a result of the same conduct or criminal episode." 584 So.2d at 1016. The only reason Woodruff prevails in this case is because of the unique requirement of section 316.193(2)(b) that there be a conviction of the current DUI misdemeanor in order to establish the crime of DUI after three previous DUI convictions.[4]

We approve Spurlock, but the case is distinguishable. We approve the result of the decision of the court below, but disapprove of its reasoning to the extent set forth in this opinion.

It is so ordered.

SHAW and HARDING, JJ., concur.

KOGAN and ANSTEAD, JJ., concur in result only.

979*979 WELLS, J., concurs in part and dissents in part with an opinion, in which OVERTON, J., concurs.

WELLS, Justice, concurring in part and dissenting in part.

I concur with the majority that neither double jeopardy nor estoppel has attached in this case to preclude the State from prosecuting the felony driving-under-the-influence (DUI) offense charged in the information. Majority op. at 977. I also concur with the majority that because the felony DUI charge requires proof of an additional element that misdemeanor DUI does not, felony DUI is a completely separate offense and not simply a penalty enhancement. Id. at 977; see also State v. Rodriguez, 575 So.2d 1262 (Fla.1991). However, I do not agree with the majority's ultimate holding that section 316.193(2)(b), Florida Statutes (1991), requires that there be "a conviction for the current DUI misdemeanor in order to establish the crime of DUI after three previous DUI convictions." Majority op. at 978. In so holding, the majority is in conflict with its earlier statements and ignores the plain language of the statute.

The relevant portions of section 316.193, Florida Statutes (1991), provide:

(1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if such person is driving or in actual physical control of a vehicle within this state and:

(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that his normal faculties are impaired; or

(b) The person has a blood or breath alcohol level of 0.10 percent or higher.

(2)(a) Except as provided in paragraph (b), subsection (3), or subsection (4), any person who is convicted of a violation of subsection (1) shall be punished:

1. By a fine of:

a. Not less than $250 or more than $500 for a first conviction.

b. Not less than $500 or more than $1,000 for a second conviction.

c. Not less than $1,000 or more than $2,500 for a third conviction; and

2. By imprisonment for:

a. Not more than 6 months for a first conviction.

b. Not more than 9 months for a second conviction.

c. Not more than 12 months for a third conviction.

(b) Any person who is convicted of a fourth or subsequent violation of subsection (1) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084; however, the fine imposed for such fourth or subsequent violation shall not be less than $1,000.

As is clear from the statute, a felony DUI conviction under section 316.193(2)(b) only requires two elements: a current conviction for a violation of subsection (1); and three or more prior convictions of subsection (1). See also Rodriguez, 575 So.2d at 1265. In Rodriguez we precisely stated:

Section 316.193(2)(b) of the Florida Statutes (Supp.1988) requires that "[a]ny person who is convicted of a fourth or subsequent [DUI violation] is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084." As in [State v.] Harris, [356 So.2d 315 (Fla. 1978),] we conclude that the existence of three or more prior DUI convictions is an essential fact constituting the substantive offense of felony DUI.

Moreover, the logic supporting our jurisdictional holding above also supports the conclusion that three prior DUI convictions combine as an essential element of felony DUI. The circuit court has jurisdiction only because the offense is a felony. It is a felony only by virtue of the fact that the defendant has been convicted of three or more prior DUI violations. It follows that because this fact is essential to the definition of the crime of felony DUI, it is 980*980 an essential element that must be noticed and proved beyond a reasonable doubt. Art. I, §§ 9, 16, Fla. Const.

Rodriguez, 575 So.2d at 1265 (footnote omitted).

Contrary to the majority opinion, section 316.193(2)(b), Florida Statutes (1991), does not require a conviction for the present DUI misdemeanor in order to establish the crime of DUI after three previous DUI convictions. Convictions for each of the first three DUI offenses, punishable as provided under subdivision (2)(a), would be misdemeanors.[5] However, when the State seeks a felony DUI conviction for a fourth or subsequent DUI offense under subdivision (2)(b), subdivision (2)(a) expressly states that it does not apply. See § 316.193(2)(a) ("Except as provided in paragraph (b) ..., any person who is convicted of a violation of subsection (1) shall be punished...."). The felony DUI conviction is therefore not reliant on a present misdemeanor conviction but rather a present conviction based upon proof of driving under the influence in violation of subsection (1). Once the facts supporting this charge are proven, the State must then prove the charge of three or more prior violations of subsection (1) in order to satisfy the essential elements of felony DUI. Rodriguez.

As the foregoing discussion shows, the majority opinion is internally inconsistent. Affording the statute its plain meaning and applying our holding in Rodriguez resolves this inconsistency. However, it requires that we quash the decision below and not approve it.

OVERTON, J., concurs.

[1] The only felony charged by information was DUI after three previous DUI convictions as proscribed by section 316.193(2)(b), Florida Statutes (1991). The ticket which charged Woodruff with DUI with serious injury which might have resulted in a felony charge of DUI with serious bodily injury under section 316.193(3)(c)2, Florida Statutes (1991), was apparently reduced to a misdemeanor charge of DUI with damage to the person.

[2] Had the cases been consolidated by a timely motion of the State or Woodruff, the county court's jurisdiction over the original charges would have been lost and the circuit court's dismissal of the information would have been void. Fla.R.Crim.P. 3.151(a), (b).

[3] For double jeopardy to attach, a jury must have been impaneled and sworn in by the court, or, in a nonjury proceeding, the court must have begun hearing evidence. Rawlins v. Kelley, 322 So.2d 10, 12-13 (Fla.1975).

[4] It is the need to prove a current conviction which controls the outcome of this case. This rationale would not be applicable in a case in which the crime discharged by reason of the speedy trial rule was merely an element of the greater crime. Thus, the dismissal of a charge of petit theft under the speedy trial rule would not serve to bar prosecution of a defendant charged with robbery even though petit theft is a necessarily lesser included offense of robbery.

[5] In Florida, a "misdemeanor" is defined by statute as any criminal offense punishable by imprisonment in a county correctional facility not in excess of one year. See § 775.08, Fla.Stat. (1991).

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State v. Deskins, 673 P. 2d 1174 - Kan: Supreme Court 1983ReadHow citedSearch
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State v. Deskins, 673 P. 2d 1174 - Kan: Supreme Court 1983
234 Kan. 529 (1983)
673 P.2d 1174

STATE OF KANSAS, Appellant,
v.
RICK L. DESKINS, Appellee.

No. 55,845

Supreme Court of Kansas.

Opinion filed December 2, 1983.

Frank A. Caro, Jr., assistant district attorney, argued the cause, and Robert T. Stephan, attorney general, Gene M. Olander, district attorney, and Arthur R. Weiss, assistant district attorney, were with him on the brief for appellant.

Hal E. Des Jardins, of Topeka, argued the cause for appellee.

The opinion of the court was delivered by

HOLMES, J.:

This is an interlocutory appeal, pursuant to K.S.A. 22-3603, by the State of Kansas from an order of the district court suppressing certain evidence in a prosecution for driving while under the influence of alcohol (DUI) and possession of marijuana.

Defendant, Rick L. Deskins, was arrested after his automobile was stopped by police officers at a roadblock ostensibly set up for the purpose of checking drivers' licenses. Prior to trial defendant filed a motion to suppress all evidence of DUI and the small bag of marijuana found in the automobile glove-box after defendant's arrest. The court found the roadblock to be an unconstitutional violation of the Kansas Constitution Bill of Rights § 15, the Kansas equivalent to the Fourth Amendment to the United States Constitution. The trial court found as a matter of fact, and counsel for the State candidly conceded in argument before this court, that the roadblock was set up to catch drunk drivers and that the checking of drivers' licenses was a facade for such purposes. Therefore, the narrow question before this court is whether the use of a DUI roadblock under the factual situation 531*531 existing in this case is an unconstitutional infringement upon a person's right to be free from unreasonable searches and seizures under the Kansas Bill of Rights and the Fourth Amendment. In considering the application of § 15 of the Kansas Bill of Rights to any particular factual situation, its scope is identical to that of the Fourth Amendment. State v. Wood, 190 Kan. 778, 788, 378 P.2d 536 (1963).

At 10:00 p.m. on November 20, 1982, thirty-five to forty police officers from the Kansas State Highway Patrol, the Shawnee County Sheriff's Office, and the Topeka Police Department, set up a roadblock at the intersection of 45th Street and Topeka Avenue in Topeka, ostensibly to check drivers' licenses. All vehicles proceeding both north and south on Topeka Avenue were stopped and their drivers checked to determine if they were carrying valid licenses. Mr. Deskins was driving south on Topeka Avenue around 1:20 a.m. the next morning, and was stopped in the check lane. A state trooper approached the car and requested Deskins' license which was found to be in order and at that point he had satisfied all the requirements for the license check.

The officer had not observed the defendant operate the automobile, as it was standing still in a line of stopped vehicles when the officer approached, and the officer, prior to the vehicle being stopped, had no facts or knowledge which would constitute probable cause or even a reasonable suspicion that defendant had committed, was committing, or was about to commit a violation of Kansas criminal statutes. However, from his position outside Deskins' car, the trooper "could smell a strong odor of alcohol, some type of alcoholic beverage on [defendant's] breath and his eyes were kind of bloodshot and watery." The officer asked Deskins to step out of the car to take a sobriety and coordination test. His performance was less than satisfactory to the officer and, as the officer was of the opinion defendant was under the influence of alcohol, he arrested defendant and read him the Miranda rights. The trooper moved defendant to a squad car and another officer, with defendant's permission, moved his car out of the check lane. While defendant remained in the police car, one of the officers searched the defendant's automobile and found in the glove-box a plastic bag containing marijuana.

532*532 Defense counsel filed a motion to suppress all evidence gathered after defendant's vehicle was stopped, on grounds the roadblock was designed not to check drivers' licenses but solely to "stop all vehicles for the purpose of arresting individuals that the police suspected of driving while intoxicated." Defendant claimed the roadblock stop violated his constitutional rights under the Fourth Amendment. At the hearing on the motion, the arresting officer testified that during a briefing before establishing the roadblock it was made clear to the officers that if, after stopping someone in the lane, they smelled alcohol or had any "suspicion" of drinking, they could question the driver further. The State, as previously indicated, has conceded the primary purpose of the roadblock was to catch drunk drivers, and this appeal will be considered in that light, although incidental to that purpose arrests were also made for a number of other reasons, including some involving license violations.

There can be no doubt that the stopping of a motorist for the sole purpose of checking for a valid driver's license, let alone to seek evidence of the commission of a crime such as DUI, constitutes a "seizure" under the Fourth Amendment. In Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 35 L.Ed. 734, 11 S.Ct. 1000 (1891), the court stated:

"No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law." 141 U.S. at 251.

The Supreme Court in Terry v. Ohio, 392 U.S. 1,20 L.Ed.2d 889, 88 S.Ct. 1868 (1968), was faced with a Fourth Amendment challenge to the admission of evidence recovered in a "stop and frisk" encounter between police and defendant Terry. The defendant, while walking on the street, had been stopped by a veteran police officer merely on the officer's suspicion that Terry and his companions might be considering a robbery. For his own protection the officer patted down the outer clothing of the men and found Terry to be carrying a pistol. Terry was later convicted of carrying a concealed weapon and the case eventually made its way to the Supreme Court on the question of whether his rights under the Fourth Amendment had been violated and whether the evidence recovered in the "stop and frisk" should have been suppressed. In its opinion the Court stated:

533*533 "It is quite plain that the Fourth Amendment governs `seizures' of the person which do not eventuate in a trip to the station house and prosecution for crime — `arrests' in traditional terminology. It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has `seized' that person." 392 U.S. at 16.

In Delaware v. Prouse, 440 U.S. 648, 59 L.Ed.2d 660, 99 S.Ct. 1391 (1979), the Court stated:

"The Fourth and Fourteenth Amendments are implicated in this case because stopping an automobile and detaining its occupants constitute a `seizure' within the meaning of those Amendments, even though the purpose of the stop is limited and the resulting detention quite brief." 440 U.S. at 653.

In Prouse, upon which the State relies heavily, the court stated the facts in the following manner:

"At 7:20 p.m. on November 30, 1976, a New Castle County, Del., patrolman in a police cruiser stopped the automobile occupied by respondent. The patrolman smelled marihuana smoke as he was walking toward the stopped vehicle, and he seized marihuana in plain view on the car floor. Respondent was subsequently indicted for illegal possession of a controlled substance. At a hearing on respondent's motion to suppress the marihuana seized as a result of the stop, the patrolman testified that prior to stopping the vehicle he had observed neither traffic or equipment violations nor any suspicious activity, and that he made the stop only in order to check the driver's license and registration. The patrolman was not acting pursuant to any standards, guidelines, or procedures pertaining to document spot checks, promulgated by either his department or the State Attorney General. Characterizing the stop as `routine,' the patrolman explained, `I saw the car in the area and wasn't answering any complaints, so I decided to pull them off.' ... The trial court granted the motion to suppress, finding the stop and detention to have been wholly capricious and therefore violative of the Fourth Amendment." pp. 650-651.

The Delaware Supreme Court affirmed the trial court and the United States Supreme Court affirmed with only Justice Rehnquist dissenting. The majority opinion, in its conclusion, stated:

"Accordingly, we hold that except in those situations in which there is at least articulable and reasonable suspicion that a motorist is unlicensed or that an automobile is not registered, or that either the vehicle or an occupant is otherwise subject to seizure for violation of law, stopping an automobile and detaining the driver in order to check his driver's license and the registration of the automobile are unreasonable under the Fourth Amendment. This holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. We hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers." p. 663. (Emphasis added.)

534*534 In reaching its ultimate conclusion that the random stopping of a motorist without at least some reasonable suspicion that a violation may be occurring violates the Fourth Amendment, the court relied heavily on its earlier opinions in what are referred to as the border patrol cases. The Court stated:

"The essential purpose of the proscriptions in the Fourth Amendment is to impose a standard of `reasonableness' upon the exercise of discretion by government officials, including law enforcement agents, in order `"to safeguard the privacy and security of individuals against arbitrary invasions....'" (Citations omitted.) Thus, the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interest. Implemented in this manner, the reasonableness standard usually requires, at a minimum, that the facts upon which an intrusion is based be capable of measurement against `an objective standard,' whether this be probable cause or a less stringent test. In those situations in which the balance of interests precludes insistence upon `some quantum of individualized suspicion,' other safeguards are generally relied upon to assure that the individual's reasonable expectation of privacy is not `subject to the discretion of the official in the field." pp. 653-55.

"We have only recently considered the legality of investigative stops of automobiles where the officers making the stop have neither probable cause to believe nor reasonable suspicion that either the automobile or its occupants are subject to seizure under the applicable criminal laws. In United States v. Brignoni-Ponce, [422 U.S. 873 (1975),] Border Patrol agents conducting roying patrols in areas near the international border asserted statutory authority to stop at random any vehicle in order to determine whether it contained illegal aliens or was involved in smuggling operations. The practice was held to violate the Fourth Amendment, but the Court did not invalidate all warrantless automobile stops upon less than probable cause. Given `the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border,' 422 U.S., at 881, the Court analogized the roving-patrol stop to the on-the-street encounter addressed in Terry v. Ohio, [392 U.S. 1 (1968),] and held:

`Except at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.' 422 U.S., at 884 (footnote omitted).

Because `the nature of illegal alien traffic and the characteristics of smuggling operations tend to generate articulable grounds for identifying violators,' id., at 883, `a requirement of reasonable suspicion for stops allows the Government adequate means of guarding the public interest and also protects residents of the border areas from indiscriminate official interference.' Ibid.

"The constitutionality of stops by Border Patrol agents was again before the Court in United States v. Martinez-Fuerte, [428 U.S. 543 (1976),] in which we 535*535 addressed the permissibility of checkpoint operations. This practice involved slowing all oncoming traffic `to a virtual, if not a complete, halt,' 428 U.S., at 546, at a highway roadblock, and referring vehicles chosen at the discretion of Border Patrol agents to an area for secondary inspection. See id., at 546, 558. Recognizing that the governmental interest involved was the same as that furthered by roving-patrol stops, the Court nonetheless sustained the constitutionality of the Border Patrol's checkpoint operations. The crucial distinction was the lesser intrusion upon the motorist's Fourth Amendment interests:

`[The] objective intrusion — the stop itself, the questioning, and the visual inspection — also existed in roving-patrol stops. But we view checkpoint stops in a different light because the subjective intrusion — the generating of concern or even fright on the part of lawful travelers — is appreciably less in the case of checkpoint stop.' [428 U.S.] at 558.

Although not dispositive, these decisions undoubtedly provide guidance in balancing the public interest against the individual's Fourth Amendment interests implicated by the practice of spot checks such as occurred in this case. We cannot agree that stopping or detaining a vehicle on an ordinary city street is less intrusive than a roving-patrol stop on a major highway and that it bears greater resemblance to a permissible stop and secondary detention at a checkpoint near the border. In this regard, we note that Brignoni-Ponce was not limited to roving-patrol stops on limited-access roads, but applied to any roving-patrol stop by Border Patrol agents on any type of roadway on less than reasonable suspicion. See 422 U.S., at 882-883; United States v. Ortiz, 422 U.S. 891, 894 (1975). We cannot assume that the physical and psychological intrusion visited upon the occupants of a vehicle by a random stop to check documents is of any less moment that that occasioned by a stop by border agents on roving patrol. Both of these stops generally entail law enforcement officers signaling a moving automobile to pull over to the side of the roadway, by means of a possibly unsettling show of authority. Both interfere with freedom of movement, are inconvenient, and consume time. Both may create substantial anxiety. For Fourth Amendment purposes, we also see insufficient resemblance between sporadic and random stops of individual vehicles making their way through city traffic and those stops occasioned by roadblocks where all vehicles are brought to a halt or to a near halt, and all are subjected to a show of the police power of the community. `At traffic checkpoints the motorist can see visible signs of the officers' authority, and he is much less likely to be frightened or annoyed by the intrusion.' [422 U.S.] at 894-895, quoted in United States v. Martinez-Fuerte, 428 U.S. at 558." pp. 655-657.

"When there is not probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations — or other articulable basis amounting to reasonable suspicion that the driver is unlicensed or his vehicle unregistered — we cannot conceive of any legitimate basis upon which a patrolman could decide that stopping a particular driver for a spot check would be more productive than stopping any other driver. This kind of standard less and unconstrained discretion is the evil the Court has discerned when in previous cases it has insisted that the discretion of the official in the field be circumscribed, at least to some extent. Almeida-Sanchez v. United States, 413 U.S. 266, 270 (1973); Camara v. Municipal Court, 387 U.S., at 532-533." p. 661

536*536 Thus it is clear that the random stop to check a motorist's driver's license without probable cause or at the very least some reasonable suspicion, which a majority of this court approved in City of Overland Park v. Sandy, 225 Kan. 102, 587 P.2d 883 (1978), is a violation of the Fourth Amendment rights of the driver and that holding in Sandy to the contrary has clearly been overruled by Prouse. Since its decision in Prouse, the Supreme Court has not had an opportunity to explore the issue further in the context of vehicle roadblocks.

However, in Brown v. Texas, 443 U.S. 47, 61 L.Ed.2d 357, 99 S.Ct. 2637 (1979), the court relied upon part of its Fourth Amendment analysis and approach taken in Prouse. Brown held a Texas statute unconstitutional under the Fourth Amendment where it allowed police to detain a person, and require that person to identify himself, even where the officers lacked probable cause or any reasonable suspicion to believe that defendant was engaged or had engaged in criminal conduct. 443 U.S. at 53. In the course of its opinion, the Court said:

"A central concern in balancing [the competing considerations of public need and individual liberty] has been to assure than an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. (Citations omitted.) To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society's legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers." Brown, 443 U.S. at 51.

Several states have considered the issue in connection with driver's license check roadblocks or in some cases more candidly described as DUI roadblocks. It is obvious, without resort to the record or otherwise, that the problem of the drunk driver is one of enormous magnitude affecting every citizen who ventures forth upon the streets and highways. There can be no doubt that there is an overwhelming public and governmental interest in pursuing methods to curtail the drunk driver. Most states, however, which have considered the validity of roadblocks to "check drivers' licenses and auto registration" or to check for drunk drivers have found the methods used to be violative of Fourth Amendment rights and as failing to meet the implied tests set forth in the extensive dicta in Prouse. The use of a DUI roadblock has principally two purposes: (1) to apprehend and remove 537*537 the drunk driver from the streets before injury or property damage results, and (2) in serving as a deterrent to convince the potential drunk driver to refrain from driving in the first place. As a fringe benefit the DUI roadblock also serves to disclose other violations pertaining to licenses, vehicle defects, open containers, etc.

In State v. Olgaard, 248 N.W.2d 392 (S.D. 1976), the South Dakota Supreme Court held "that unless authorized by prior judicial warrant, the establishment of a roadblock for the purpose of investigating all motorists for possible liquor law violations constitutes an unconstitutional seizure within the meaning of the Fourth Amendment." 248 N.W.2d at 395. In contrast to United States v. Martinez-Fuerte, 428 U.S. 543, 49 L.Ed.2d 1116, 96 S.Ct. 3074 (1976), the court found that the roadblock in Olgaard was not at a permanent location; there was no notice of the roadblock, "for by its very nature the roadblock was set up to stop without prior warning, and perforce by surprise, all motorists ..."; and, absent evidence that the decision to establish the roadblock was made by anyone other than officers in the field, "the roadblock in question had certain characteristics of a roving patrol, a type of intrusion into a motorist's privacy interest that was held unconstitutional in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 ...." 248 N.W.2d at 394-95. Although Olgaard was decided before Prouse, the South Dakota court relied heavily on the border patrol cases and recognized some of the same factors later considered in Prouse. The court was concerned with the lack of any permanent location for the roadblock resulting in what it termed "certain characteristics of a roving patrol," lack of notice and possible abuse of discretion by officers in the field.

Arizona reached the same result in State ex rel. Ekstrom v. Justice Ct. of State, 136 Ariz. 1, 663 P.2d 992 (1983). The Arizona Supreme Court said:

"[W]e cannot agree that the intrusion generated by the Kingman roadblocks was minimal. The record establishes that the Kingman checkpoints involved a not insubstantial amount of discretionary law enforcement activity and that the manner in which the roadblocks were operated was somewhat irregular. The roadblocks were set up at the discretion of a local highway patrolman and were operated without specific direction or guidelines. Officers were uncertain whether they should simply question the occupants of motor vehicles or whether they should seize the opportunity to cursorily search the vehicles for evidence of 538*538 a violation. Motorists were taken by surprise, not having had prior notice of the location and purpose of the checkpoints. We find present in the Kingman operation the grave danger that such discretion might be abused by the officer in the field, a factor which caused the Court in [Delaware] v. Prouse, supra, much concern." p. 5.

A scholarly and well-reasoned concurring opinion in Ekstrom explored the conditions under which a roadblock checkpoint might pass constitutional scrutiny, and noted that advance warning of a roadblock by notice on the highway and publicity in the media would not only increase the efficacy of a deterrent roadblock but would also limit the resulting intrusion on individual interests, because those being stopped would anticipate and understand what was occurring.

In Commonwealth v. McGeoghegan, 389 Mass. 137, 449 N.E.2d 349 (1983), the facts were quite similar to those in the instant case:

"McGeoghegan was in a motor vehicle that had been stopped at a roadblock, that the police asked him for his `papers,' that he showed signs of having been drinking and was taken from his vehicle to a nearby van, where he took and failed a breathalyzer test, and that he was arrested and his vehicle was towed away. It was also agreed that the police had no cause initially to stop McGeoghegan `except that he was one... of two hundred or more motorists that were stopped as they passed the roadblock stoppoint.'

"There are additional undisputed facts. The roadblock was conducted by the Revere police department on North Shore Road and Mills Avenue in that city on the evening of January 15, 1982. This was the result of a plan formulated earlier that day by the police chief and four subordinates. The area of the roadblock was a heavily travelled highway. The main purpose of the roadblock was to detect drunk drivers." pp. 138-39.

The court, in reaching its conclusion, relied upon findings of the trial court that "the roadblock area was poorly illuminated and unsafe for motorists, that the mechanics of the roadblock were left to the discretion of the officers carrying it out, that the officers used their own discretion in deciding which cars to stop, and that motorists were backed up on the highway for at least two-thirds of a mile." 389 Mass. at 144.

The Court of Appeals of Texas in Koonce v. State, 651 S.W.2d 46 (Tex. Crim. App. 1983), found evidence recovered in the search of a car at a driver's license roadblock inadmissible as the State failed to show the initial stop was reasonable under the guidelines of Prouse. The court stated:

"Without evidence that an objective, non-discretionary procedure was being used, we find that the initial stop of appellant's automobile was unreasonable, 539*539 and thus, the fruit of that stop and subsequent search was tainted." 651 S.W.2d at 48.

New Jersey, on the other hand, has taken an opposite position from that of a majority of the states that have confronted the issue. In State v. Coccomo, 177 N.J. Super. 575, 427 A.2d 131 (1980), the court was again faced with a motion to suppress evidence recovered at a driver's license check roadblock. The roadblock was evidently conducted by township police under a written policy of the Roxbury township police department. The facts were similar to those in the other cases we have discussed except that the procedure was to stop every fifth vehicle while the roadblock was in operation. In distinguishing Prouse the court stated:

"In prohibiting random, discretionary vehicular stops the Supreme Court did not `preclude the [states] from developing methods for spot checks that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock type stops is one possible alternative.' 440 U.S. at 663, 99 S.Ct. at 1041." 177 N.J. Super. at 581.

The court went on to state:

"No one can deny the State's vital interest in promoting public safety upon our roads by detecting and prosecuting drunk drivers. These drivers are a threat to other motorists, to pedestrians and to themselves. Unfit drivers should be identified and removed from the highways. However, there is obviously a competing interest to be considered. Whether the practice adopted in Roxbury Township is reasonable depends upon a balancing of the State's interest in promoting highway safety against the individual motorist's interest in his expectation of privacy." 177 N.J. Super. at 582.

The court found that the roadblocks were operated during early morning hours when traffic was light, that the manner of stopping vehicles was done safely and was designed to reduce anxiety on the part of the motorists, that the Roxbury police were following specific, defined standards and that the system was completely objective in its operation. The court held:

"After balancing the State's strong interest in protecting the public from the substantial risk posed by drunk drivers with the minor inconvenience which may be caused to every fifth motorist and the fleeting, minimal intrusion upon his privacy, the State's action must be considered as a reasonable infringement upon the motorist's expectation of privacy. Nor did the stop become overly intrusive when defendant was asked to produce his license and registration. When the initial detention is lawful as it was here, the police may require the driver to produce his driving credentials." 177 N.J. Super. at 583-84.

540*540 In United States v. Prichard, 645 F.2d 854 (1981), the Tenth Circuit Court considered a roadblock operated by two New Mexico state police officers for the avowed purpose of checking drivers' licenses and vehicle registration. The roadblock was set up with the permission of the officers' supervisor. All westbound vehicles, except semi-trucks, were to be stopped although when the vehicles began to pile up, the officers waved them on through and did not resume their checking until traffic had cleared. This was evidently a discretionary decision made by the two officers in the field for the purpose of preventing the development of a potentially dangerous and time-consuming accumulation of traffic. The court stated:

"In our view, the roadblock stop of the Ford Bronco does not run afoul of the rule of Prouse. While this may not have been a `100% roadblock' of the type referred to in Prouse, it is nonetheless a long way from the selective, single car stop denounced in Prouse. In the instant case, the New Mexico state police were attempting to stop all westbound traffic on an interstate highway, insofar as was humanly possible. The decision not to stop trucks was reasonable under the circumstances, because, presumably, they had all been stopped at a port of entry. The purpose of the roadblock, i.e., to check drivers' licenses and car registrations, was a legitimate one. If, in the process of so doing, the officers saw evidence of other crimes, they had the right to take reasonable investigative steps and were not required to close their eyes. See United States v. Merryman, 630 F.2d 780, 782-85 (10th Cir.1980). Furthermore, allowing all the stopped cars through when traffic became congested was also reasonable and, in our view, nonviolative of the rule of Prouse. In sum, the roadblock stop of the Ford Bronco was, under the described circumstances, constitutional." pp. 856-57.

The border patrol cases, Prouse and decisions from other state and federal appellate courts make it clear that not every driver's license check or DUI roadblock is constitutionally impermissible. Certain principles, standards and guidelines may be gleaned from the various decisions. Stopping an automobile and detaining its occupants constitutes a seizure within the meaning of the Fourth and Fourteenth Amendments, which prohibit searches and seizures of an unreasonable nature. Delaware v. Prouse, 440 U.S. 648, 653, 59 L.Ed.2d 660, 99 S.Ct. 1391 (1979). The essence of the Fourth Amendment prohibition is to "safeguard the privacy and security of individuals against arbitrary invasions by governmental officials" by imposing a standard of reasonableness upon the exercise of those officials' discretion. Camara v. Municipal Court, 387 U.S. 523, 528, 18 L.Ed.2d 930, 87 S.Ct. 1727 (1967); Prouse, 440 U.S. at 653-54. The governing principle 541*541 of the amendment is that except in certain carefully defined classes of cases, a search of private property without proper consent is unreasonable unless it has been authorized by a valid search warrant. Camara, 387 U.S. at 528-29. Whether a warrantless search and seizure falls within these limited exceptions is determined by balancing the degree of legitimate governmental interests against the resulting intrusion of the particular law enforcement practice on individuals' Fourth Amendment rights. Prouse, 440 U.S. at 654. However, as exceptions to the overriding mandate requiring warrants based on probable cause, these "carefully defined classes of cases" permitting warrantless searches and seizures should be construed narrowly to preserve the integrity of the Fourth Amendment.

In applying the balancing test of the degree of governmental or public interest against the degree of intrusion upon the individual's constitutionally protected rights, the courts have developed a three-factor test or analysis which was stated in Brown as:

"a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty." Brown v. Texas, 443 U.S. at 50-51.

Numerous conditions and factors must be considered in determining whether a DUI roadblock meets the balancing test in favor of the state. Among the factors which should be considered are: (1) The degree of discretion, if any, left to the officer in the field; (2) the location designated for the roadblock; (3) the time and duration of the roadblock; (4) standards set by superior officers; (5) advance notice to the public at large; (6) advance warning to the individual approaching motorist; (7) maintenance of safety conditions; (8) degree of fear or anxiety generated by the mode of operation; (9) average length of time each motorist is detained; (10) physical factors surrounding the location, type and method of operation; (11) the availability of less intrusive methods for combating the problem; (12) the degree of effectiveness of the procedure; and (13) any other relevant circumstances which might bear upon the test. Not all of the factors need to be favorable to the State but all which are applicable to a given roadblock should be considered. Some, of course, such as unbridled discretion of the officer in the field, would run afoul of Prouse regardless of other favorable factors.

When the test enunciated in the cases and the foregoing factors 542*542 are taken into consideration and applied to the DUI roadblock in question does it pass constitutional muster? We think it does. The roadblock in question was a joint effort of the highway patrol, Shawnee County sheriff's office and Topeka police department. Thirty-five to forty officers were briefed ahead of time by supervisory personnel of the Topeka police department. The officers were specifically advised to check for driver's license violations and signs of drunk driving. The roadblock was established in a well-lighted area of a four-lane highway. Several police cars were utilized, with a car with its red lights flashing located at each of the four corners of the roadblock. The time of detention was minimal, unless violations were noted, and sufficient officers were present to assure minimum intrusion, timewise. All vehicles going in either direction were stopped and subjected to the license check. The officers in the field had no discretion to pick and choose who would or would not be stopped. The officers were in uniform and readily recognizable as being police officers. The location was selected by supervisory personnel and not the officers in the field.

The Topeka DUI roadblock did not involve the unbridled discretion of the officer in the field which was held oppressive and subject to abuse in Prouse. When we consider the enormity of the injury and damage caused by the drinking driver and the vital interest of every citizen in being protected so far as possible upon the streets and roadways, we find that the public interest in a properly conducted DUI roadblock containing appropriate safeguards outweighs the individual's right to be free from unfettered intrusion upon his Fourth Amendment rights. The initial stop of the defendant in this case was under conditions which at least met the minimum requirements for a constitutional momentary seizure and, based upon obvious evidence of DUI, the resultant search and seizure in this case was not unreasonable under the Fourth Amendment or the Kansas Bill of Rights.

Due to the seriousness of any warrantless intrusion into an individual's right to privacy under the Fourth Amendment, we wish to make it clear that the decision herein applies solely to the facts surrounding this particular roadblock. We do not condone blanket, arbitrary exercises of power by governmental authorities which violate Fourth Amendment rights, and any roadblock lacking sufficient standards, guidelines and protections 543*543 of the individual's right to privacy would run afoul of constitutional protections guaranteed by the Fourth Amendment and the Kansas Bill of Rights. It might well be advisable that minimum uniform standards for the operation of vehicular roadblocks be adopted and established by the legislature or attorney general, rather than leave the determination thereof to local officials.

Having determined that the initial stop or seizure was not constitutionally invalid, the officer had sufficient reason and probable cause to place defendant under arrest when it appeared he was under the influence of alcohol. The arrest of the defendant being lawful, the search of the passenger compartment of his automobile was also lawful. State v. White, 230 Kan. 679, 640 P.2d 1231 (1982).

The trial court erred in its suppression of the evidence and the case is reversed and remanded for further proceedings.

PRAGER, J., dissenting:

I respectfully dissent. Today's decision will result in the erosion of one of the basic freedoms contained in the Bill of Rights of both the United States and Kansas Constitutions — the right of every individual to be free from unfettered intrusions on his or her right of privacy by government officials, the right to be left alone. The controversy presented in this case is an extremely difficult one. It cannot be denied there there is a wide difference of opinion on this issue held by reasonable persons of good faith. I have no disagreement with the excellent review of the legal precedents on this issue as contained in the majority opinion by Justice Holmes. However, I disagree with the majority's application of the law to the factual circumstances in the case which is now before us.

The majority opinion declares, without equivocation, that when a police officer accosts an individual and restricts his freedom to depart the scene, he has seized that person. Stopping an automobile and detaining its occupants constitutes a seizure within the meaning of the Fourth Amendment to the United States Constitution, even though the purpose of the stop is limited and the resulting detention is quite brief. The essence of the Fourth Amendment prohibition against unreasonable searches and seizures is to safeguard the privacy and security of individuals against arbitrary invasion by governmental officials 544*544 by imposing a standard of reasonableness upon the exercise of those officials' discretion. The majority opinion states that whether a warrantless search and seizure is constitutional is determined by balancing the degree of legitimate governmental interests against the resulting intrusion on the individual's Fourth Amendment rights. In applying the balancing test, the courts must weigh the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty.

The majority opinion suggests 13 specific factors to be considered in applying the balancing test. The district court considered the evidence in the light of the various factors and concluded that the warrantless search and seizure presented in this case could not be upheld. I agree with the trial court. It is important to emphasize that this is not a case involving a driver's license checkpoint. The police officer who testified at the hearing in district court and counsel for the State on this appeal at oral argument conceded that the primary purpose of the roadblock was to catch drunk drivers, although incidental to that purpose arrests were also made for a number of other reasons, including some involving license violations. The trial court found that the roadblock in this case was there to catch drivers under the influence of alcohol (DUI). That same conclusion is accepted by the court on this appeal.

As I see it, the basic issue is this: Does the public interest in a DUI roadblock of the type established in this case outweigh the individual's right to be free from intrusion on his or her right of privacy? The majority opinion correctly states that the burden of proof rests upon the State to prove the validity of the roadblock.

As to the public interest involved, no one can seriously contest the grave concern over the public peril created by drunk drivers. It is safe to say that official efforts to discover and deter drunk drivers are, and should remain, a high priority. Certainly, the need to identify and apprehend drunken drivers is just as clear and pervasive as the need to discover illegal aliens, which was determined to be a sufficient public concern to justify the checkpoint stops in United States v. Martinez-Fuerte, 428 U.S. 543, 49 L.Ed.2d 1116, 96 S.Ct. 3074 (1976).

The most pressing question before us is the degree to which 545*545 this roadblock checkpoint actually promoted the public interest in deterring drunk drivers. In this regard, we must recognize the fundamental distinction between the offenses of drunk driving, transporting illegal aliens, and failure to carry a valid driver's license. This distinction turns on the way each of these violations is discovered by law enforcement officers. Violations of motor vehicle license laws and the transportation of illegal aliens are in no way physically apparent through mere observation of traffic. The same is not true for DUI violations. It is here that the distinction between the cases arise.

Generally drunk drivers, through their behavior behind the wheel, manifest their presence to even lay observers. They can easily be discerned by law enforcement officers skilled in identifying the signals indicating a driver is operating the vehicle under the influence of alcohol or drugs. In this case, the trial court specifically found that there are alternative less intrusive means available to officers to identify drunk drivers, and police officials need not go to the degree of stopping all traffic at a roadblock. The record in this case shows that the roadblock was in effect for a period of four hours from 10:00 p.m. to 2:00 a.m. The officer testified that during that period, between 2,000 and 3,000 motor vehicles were stopped at the roadblock. A total of 74 violations were discovered at the checkpoint, only 15 of which were for driving while intoxicated. During this period of time 35 police officers were on duty, which for the four-hour period involved a total of 140 man hours. Although it does not specifically appear in the record before us, it was not unreasonable for the trial court to assume that the same or greater productivity in arresting drunk drivers could have been achieved by distributing the 35 officers at various places throughout the city for the sole purpose of observing erratic driving and stopping and checking drunk drivers. In my judgment, the trial court correctly concluded that the State failed in its burden of proof in establishing that the roadblock checkpoint promoted the public interest in light of available less drastic alternative measures which could have been used by the officers to combat the problem, without setting up a roadblock and stopping between 2,000 and 3,000 motorists.

We should not consider the factors suggested in the majority opinion. Factor No. 1 is concerned with the degree of discretion, 546*546 if any, left to the officer in the field. It should be considered along with factor No. 4 pertaining to standards set by superior officers for setting up the roadblock or to structure the procedure to be followed by the officers present at the scene. Would a team of three officers, consisting of two patrolmen and a sergeant acting as supervisor, have the authority to set up a roadblock anywhere in the city at any time at their discretion? In the present case, the State has not shown the existence of standards or limitations on the discretion of police officers at the roadblock.

Factor Nos. 2 and 3 have to do with the location designated for the roadblock and the time and duration of the roadblock. These factors have in mind the permanency of the location of the checkpoint which is considered as essential in a number of the cases discussed in the majority opinion. In the case before us, the trial court noted that the checkpoint in question had no permanency whatsoever and could have been moved to other locations. Thus it clearly appears that the checkpoint under consideration would not have the essential characteristics of permanency of location required by many of the cases.

Factor No. 6 is concerned with advance warning to the individual approaching motorist. The trial court found, and the record is clear, that advance warning to a motorist approaching the roadblock was practically nonexistent. In his testimony, the police officer admitted that no advance warning, like signs indicating "Danger, roadblock ahead" was present. He testified that no such warning was given because, under the law, a driver's license checkpoint is not required to have an advance warning of any kind. At one point in his testimony, he stated that the only warning to approaching drivers at the scene was the police vehicles with their red lights operating. Four police cars with red lights were parked alongside the road near the curb. This factor of advance warning to approaching motorists is emphasized again and again in the cases. Here there was practically none.

Factor No. 12 is the degree of effectiveness of the checkpoint procedure. As noted above, during the period of four hours in which the roadblock was maintained, 2,000 to 3,000 cars were stopped and only 15 persons arrested for DUI. There was no evidence whatsoever presented by the State that the roadblock procedure had been more effective than the traditional, less intrusive method of detecting drunk drivers. The question again 547*547 arises whether or not roadblocks are worth the price of public inconvenience and interference with the individual's right of privacy.

I, likewise, believe that the majority of the court have failed to consider another important factor in this case. In substance, the majority opinion would seem to authorize any police agency in Kansas to set up a roadblock to discover DUI violations. If this is a proper procedure, why should not a police agency be able to maintain a roadblock to discover violators of other criminal statutes or city ordinances? Does the majority opinion contemplate that every individual police agency established in the state may, on its own, authorize DUI roadblocks of this type? In Kansas, we have 105 counties and 625 incorporated cities. If each of these political subdivisions decides to maintain a roadblock, we could have "Checkpoint Charley" at the boundary of every city and every county. Motorists could legally be stopped five times or even more often in driving from Wichita to Kansas City. My basic concern is that, without legislative standards and limitations, the rights of Kansas citizens to privacy and freedom from unreasonable intrusion by governmental officials would be destroyed. I cannot in good conscience accept that as a way of life in this land of freedom.

For the reasons set forth above, I would affirm the trial court, and I respectfully dissent.

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State v. Rodriguez, 575 So. 2d 1262 - Fla: Supreme Court 1991ReadHow citedSearch
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State v. Rodriguez, 575 So. 2d 1262 - Fla: Supreme Court 1991
575 So.2d 1262 (1991)

STATE of Florida, Petitioner,
v.
Narcisco RODRIGUEZ, Respondent.

No. 75302.

Supreme Court of Florida.January 3, 1991.
Rehearing Denied March 7, 1991.

1263*1263 Robert A. Butterworth, Atty. Gen., and Angelica D. Zayas, Asst. Atty. Gen., Miami, for petitioner.

Bennett H. Brummer, Public Defender, Eleventh Judicial Circuit, and L. Michael Roffino, Sp. Asst. Public Defender, Coral Gables, for respondent.

BARKETT, Judge.

We accepted jurisdiction to resolve an express and direct conflict between Rodriguez v. State, 553 So.2d 1331 (Fla. 3d DCA 1989), and Pritchard v. State, 528 So.2d 1272 (Fla. 1st DCA 1988).[1] The issue is whether a charging document must specifically allege three or more prior convictions for Driving Under the Influence (DUI) when charging a defendant with felony DUI to confer jurisdiction on the circuit court and to comply with due process of law.

The state filed an information in the circuit court charging Narcisco Rodriguez with three traffic-related offenses on October 11, 1988. One of the charges was for DUI in violation of section 316.193(1), (2)(b) of the Florida Statutes (Supp. 1988).[2] Section 316.193(2)(b) provides that "[a]ny person who is convicted of a fourth or subsequent [DUI violation] is guilty of a felony of the third degree." The information here made no mention of any specific prior DUI convictions, nor did the state before trial provide Rodriguez any details of the alleged prior convictions.

At arraignment, Rodriguez moved to dismiss or to transfer the matter to the county court, asserting that because the information did not inform him of what specific prior offenses he allegedly committed, the information did not adequately charge the felony, and therefore the circuit court had no jurisdiction. The circuit court denied the motion. Subsequently, a jury found Rodriguez guilty of DUI. After denying Rodriguez's renewed motion to dismiss, the court immediately adjudicated Rodriguez guilty of third-degree felony DUI and sentenced him to four and one-half years' imprisonment.[3]

The district court reversed on the ground that the felony prosecution in circuit court was improper because the information merely charged Rodriguez, "in effect, with three misdemeanors." Rodriguez, 553 So.2d at 1331. The district court expressed conflict with Pritchard, which held that the state need not allege the prior DUI convictions in the charging document "because of possible prejudice to the accused in the event the prior convictions were brought to the jury's attention." Pritchard, 528 So.2d at 1273.

The arguments presented by the parties require us to make two related inquiries concerning the sufficiency of the information. First, we must determine whether the information unambiguously alleged the commission of a felony, thereby properly invoking the subject matter jurisdiction of the circuit court. If the circuit court had jurisdiction, we must then determine whether the information satisfied Rodriguez's right to the protection of due process of law.

On the question of jurisdiction, the closely analogous case of State v. Phillips, 463 So.2d 1136 (Fla. 1985), controls. In Phillips, we said an information charging a felony and misdemeanors arising out of the same circumstances is within the exclusive 1264*1264 subject matter jurisdiction of the circuit court. Id. at 1137; State v. Vazquez, 450 So.2d 203 (Fla. 1984); § 26.012(2)(d), Fla. Stat. (1987); see art. V, § 5, Fla. Const. However, the information must unambiguously charge a felony to invoke the circuit court's jurisdiction.

The narrow issue in Phillips was whether the information "sufficiently alleged commission of a felony and thus properly invoked the jurisdiction of the circuit court." Phillips, 463 So.2d at 1137. In that case, an information charged Phillips with the theft of less than one hundred dollars, citing section 812.014(2)(c) of the Florida Statutes (1981). The heading of the information read "FELONY PETIT THEFT." Phillips, 463 So.2d at 1137. Section 812.014(2)(c) did not exclusively define felony petit theft. To the contrary, that section defined three substantive criminal offenses: second-degree misdemeanor petit theft, first-degree misdemeanor petit theft, and third-degree felony petit theft. Had the information merely cited to section 812.014(2)(c), without any additional clarification, the defendant would not have known which crime he was accused of committing. However, because the information also included the heading of "FELONY PETIT THEFT," the heading cured the problem since the heading and citation combined to unambiguously state that Phillips was charged with felony petit theft in violation of section 812.014(2)(c). Thus, the Court concluded that the circuit court had jurisdiction.

The jurisdictional issue in this case is even more clear than in Phillips. The information charged Rodriguez with DUI in violation of section 316.193(1), (2)(b) of the Florida Statutes (Supp. 1988). Those provisions read as follows:

316.193 Driving under the influence; penalties. —

(1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if such person is driving or in actual physical control of a vehicle within this state and:

(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that his normal faculties are impaired; or

(b) The person has a blood alcohol level of 0.10 percent or higher.

(2)... .

... .

(b) Any person who is convicted of a fourth or subsequent violation of subsection (1) is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

By referring specifically to subsection (2)(b), the state made clear that it was charging Rodriguez with the third-degree felony as specifically set forth in that subsection. Thus, the information properly invoked the jurisdiction of the circuit court.

However, this does not end our inquiry. Rodriguez argues that even if the circuit court had jurisdiction, the information failed to meet the standards required by due process of law. His due process argument really involves two distinct aspects of the due process guarantee: the notice requirement and the entitlement to a presumption of innocence.

A charging document must provide adequate notice of the alleged essential facts the defendant must defend against. Art. I, §§ 9, 16, Fla. Const. In recognition of this concern, Florida Rule of Criminal Procedure 3.140(b) provides that an "indictment or information upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." (Emphasis supplied); see also Fla.R. Crim.P. 3.140(d)(1) ("Each count of an indictment or information upon which the defendant is to be tried shall allege the essential facts constituting the offense charged.") (emphasis supplied).

As the state conceded at oral argument, the combined existence of three or more prior DUI convictions is an element of the substantive offense of felony DUI as defined by section 316.193(1), (2)(b). This conclusion necessarily follows the reasoning 1265*1265 in State v. Harris, 356 So.2d 315 (Fla. 1978), where the Court construed the felony petit larceny statute, section 812.021(3) of the Florida Statutes (1975). Section 812.021(3) elevated the second-degree misdemeanor of petit larceny to the status of a third-degree felony upon the third or subsequent conviction of petit larceny. Like the felony DUI statute in this case, and virtually all other substantive criminal statutes, the felony petit larceny statute authorized punishment as provided in sections 775.082 (penalties), 775.083 (fines), or 775.084 (habitual offender penalties) of the Florida Statutes (1975). Justice Hatchett concluded for the Court that the felony petit larceny statute "creates a substantive offense and is thus distinguishable from [s]ection 775.084, the habitual criminal offender statute." Harris, 356 So.2d at 316. The felony DUI statute is indistinguishable in this regard. Section 316.193(2)(b) of the Florida Statutes (Supp. 1988) requires that "[a]ny person who is convicted of a fourth or subsequent [DUI violation] is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084." As in Harris, we conclude that the existence of three or more prior DUI convictions is an essential fact constituting the substantive offense of felony DUI.[4]

Moreover, the logic supporting our jurisdictional holding above also supports the conclusion that three prior DUI convictions combine as an essential element of felony DUI. The circuit court has jurisdiction only because the offense is a felony. It is a felony only by virtue of the fact that the defendant has been convicted of three or more prior DUI violations. It follows that because this fact is essential to the definition of the crime of felony DUI, it is an essential element that must be noticed and proved beyond a reasonable doubt. Art. I, §§ 9, 16, Fla. Const.

Having established that the existence of prior DUI convictions is an essential element of felony DUI, it necessarily follows that the requisite notice of prior DUI convictions must be given in the charging document. However, due process also requires that a defendant's presumption of innocence be preserved. To address the overlap of these two due process concerns, we must look at both the charging document itself and the manner in which the allegations are conveyed to the jury.

In Harris, the Court observed that the presumption of innocence may be compromised if jurors deliberating on a single petit larceny charge were to become aware of allegations or proof of prior similar convictions. Accord Shargaa v. State, 102 So.2d 809 (Fla.) (the presumption of innocence is destroyed when jurors learn of previous convictions for unrelated felonies), cert. denied, 358 U.S. 873, 79 S.Ct. 114, 3 L.Ed.2d 104 (1958). Informing jurors of the allegation or proof of prior convictions

"would substantially destroy the historical presumption of innocence which clothes every defendant in a criminal case[,] and in the mind of the average juror [it] would in a measure place upon the accused the burden of showing himself innocent rather than upon the State the responsibility of proving him guilty."

... . If the presumption of innocence is destroyed by proof of an unrelated offense, it is more easily destroyed by proof of a similar, related offense.

Harris, 356 So.2d at 317 (quoting Shargaa, 102 So.2d at 816). Faced with the need to satisfy due process, the Court in Harris 1266*1266 concluded that the substantive offense must be tried "without bringing to the attention of the jury the fact of prior convictions as an element of the new charge." Id. at 317.

The same due process concerns apply with equal force in felony DUI jury trials. See Pritchard v. State, 528 So.2d 1272 (Fla. 1st DCA 1988). The jury must be allowed to objectively determine whether each essential fact comprising the felony DUI charge has been proved beyond a reasonable doubt.

Harris shows that courts must give the felony DUI defendant ample notice of the essential facts of prior DUI convictions to satisfy the due process notice requirement. At the same time, courts must be extremely careful as to how the allegations and facts concerning prior DUI convictions are conveyed to the jury so as not to compromise the presumption of innocence. To protect the right to fair notice guaranteed by article I, sections 9 and 16 of the Florida Constitution, we conclude that the state must allege the specific prior DUI convictions in the charging document. But the trial court must protect the defendant's presumption of innocence by withholding from the jury any allegations or facts about the alleged prior DUI offenses. If the jury takes a copy of the information or indictment into the jury room, the trial court must ensure that all portions stating the charge is a felony and detailing the alleged prior convictions have been excised from that copy.

The Court in Harris also addressed the procedural question of how the state may present evidence to prove the existence of prior convictions without compromising the defendant's presumption of innocence. The Court said that once the elements of the single offense at issue are proved and a guilty verdict obtained, the trial court shall hold a separate proceeding without a jury to "determine the historical fact of prior convictions and questions regarding identity in accord with general principles of law, and by following the procedure now employed under Section 775.084." Harris, 356 So.2d at 317. Of course, it is only the procedure under section 775.084 that must be employed, that is, a separate proceeding after sufficient notice has been provided.[5] Moreover, the Court said, to comply with general principles of law, all evidence of the prior petit larceny convictions must be presented in the separate proceeding "`in open court with full rights of confrontation, cross-examination, and representation by counsel.'" Id. at 317 n. 2 (quoting § 775.084(3)(c), Fla. Stat. (1975)).

Our reasoning in Harris controls. We conclude that if a defendant charged with felony DUI elects to be tried by jury,[6] the court shall conduct a jury trial on the elements of the single incident of DUI at issue without allowing the jury to learn of the alleged prior DUI offenses. If the jury returns a guilty verdict as to that single incident of DUI, the trial court shall conduct a separate proceeding without a jury to determine, in accord with general principles of law, whether the defendant had been convicted of DUI on three or more prior occasions. All evidence of the prior DUI convictions must be presented in open court and with full rights of confrontation, cross-examination, and representation by counsel. The trial court must be satisfied that the existence of three or more prior DUI convictions has been proved beyond a reasonable doubt before entering a conviction for felony DUI.

Applying these rules of law to the facts before us, we are persuaded that the district court found error for the wrong reason. The information in this case did satisfy the law's jurisdictional requirements and properly invoked the jurisdiction of the circuit court. Thus, the district court erred in reversing all the convictions on jurisdictional grounds. However, the 1267*1267 state failed to give the defendant any notice of the alleged prior DUI convictions it intended to establish to prove felony DUI. The record also contains insufficient evidence of the existence of any prior DUI convictions to support a felony DUI conviction, so the felony DUI conviction cannot stand. Nonetheless, substantial competent evidence does appear in the record to support a conviction of first-offense DUI, for which Rodriguez now must be resentenced.

Accordingly, we approve the result in Rodriguez as to the felony DUI conviction, but we quash the decision in all other respects. This cause is remanded with instructions to reinstate the convictions for driving with a suspended license and attaching an unassigned registration license, to enter a conviction of first-offense DUI, and to resentence Rodriguez. We disapprove Pritchard to the extent that it is inconsistent with this opinion.

It is so ordered.

SHAW, C.J., and OVERTON, McDONALD, EHRLICH, GRIMES and KOGAN, JJ., concur.

[1] We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution.

[2] The other charges were misdemeanor offenses of attaching a registration license plate not assigned, section 320.261 of the Florida Statutes (1987); and driving while license suspended or revoked. § 322.34(1), Fla. Stat. (Supp. 1988). Although these charges are not directly in issue here, the circuit court's jurisdiction over them was contingent on whether the circuit court had jurisdiction to try the DUI charge because the circuit court had jurisdiction over the misdemeanors only if this information also charged a felony arising out of the same circumstances. See State v. Phillips, 463 So.2d 1136 (Fla. 1985); State v. Vazquez, 450 So.2d 203 (Fla. 1984); § 26.012(2)(d), Fla. Stat. (1987).

[3] The trial court also adjudicated Rodriguez guilty of the other two counts after he entered no contest pleas. Rodriguez received a consecutive sentence of 364 days for the driving-while-license-suspended charge, and a suspended sentence on the registration-license-plate charge.

[4] Our reading of the felony DUI statute is wholly consistent with all of the penalty provisions set by the legislature for DUI, including its intent to apply the penalty enhancement provisions of the habitual felony offender statute. The maximum incarceration for first-offense DUI is six months' incarceration. § 316.193(2)(a)(2)(a), Fla. Stat. (Supp. 1988). For second-offense DUI, the defendant may be sentenced to nine months' incarceration. § 316.193(2)(a)(2)(b), Fla. Stat. (Supp. 1988). Third-offense DUI is punishable by not more than twelve months' incarceration. § 316.193(2)(a)(2)(c), Fla. Stat. (Supp. 1988). A fourth or subsequent DUI violation is a third-degree felony punishable by a maximum five years' incarceration. See § 316.193(2)(b), Fla. Stat. (Supp. 1988); § 775.082(3)(d), Fla. Stat. (1987). If qualified for enhanced punishment as a habitual felony offender, a person could be sentenced to ten years' imprisonment for felony DUI. See § 775.084(4)(a)(3), Fla. Stat. (Supp. 1988).

[5] Under different facts, the substantive terms of the habitual felony offender statute may be applicable to felony DUI defendants who otherwise qualify for enhanced punishment under that statute.

[6] § 316.1934(4), Fla. Stat. (Supp. 1988); see art. I, §§ 16, 22, Fla. Const.; Fla.R.Crim.P. 3.251.

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Blanton v. North Las Vegas, 489 US 538 - Supreme Court 1989ReadHow citedSearch
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Blanton v. North Las Vegas, 489 US 538 - Supreme Court 1989
489 U.S. 538 (1989)

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.

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Leocal v. Ashcroft, 543 US 1 - Supreme Court 2004ReadHow citedSearch
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Leocal v. Ashcroft, 543 US 1 - Supreme Court 2004
543 U.S. 1 (2004)

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.

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128 S.Ct. 1581 (2008)

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