BLANTON v. NORTH LAS VEGAS

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ORAL ARGUMENT OF JOHN J. GRAVES, JR. ON BEHALF OF THE PETITIONERS

Chief Justice William H. Rehnquist: We'll hear argument now in No. 87-1437, Melvin Blanton v. The City of North Las Vegas.

Mr. Graves, you may proceed whenever you're ready.

Mr. Graves: Thank you, Your Honor.

Mr. Chief Justice and may it please the Court:

Blanton and Fraley were arrested and charged with driving under the influence in the City of North Las Vegas, Nevada, in July and June, respectively, of 1986.

Blanton made a written demand for a jury trial in the municipal court, and that demand was denied.

We took a petition for a writ of mandamus to the district court, our court of general jurisdiction, and that request was denied.

And we took an appeal to the Nevada Supreme Court.

Mr. Fraley, in the North Las Vegas municipal court made a written demand for a jury trial that was denied.

He entered a plea of guilty to the charge.

He took an appeal of trial de novo to the district court and the demand for a jury trial was granted.

From that granting of the demand for a jury trial, the City of North Las Vegas took an original writ of certiorari to the Nevada Supreme Court.

Unidentified Justice: The Nevada Supreme Court made no point about Fraley having pleaded guilty.

Mr. Graves: No, sir, they did not.

The Nevada Supreme Court construed the Baldwin case rather strictly, wouldn't we... woodenly we think, and stated that the Baldwin standard of six months and $500 was the only standard that it would stand on.

And as a result of that, the request for a jury trial in driving under the influence cases was denied.

In its decision it also indicated certain policy reasons.

Part of this was expense of the jury trials, general inconvenience in rural areas, non-lawyer/judge problems.

And it finally concluded by suggesting that it was up to the legislature to resolve this problem.

Unidentified Justice: Well, it didn't stand that strictly on it because wasn't the fine... wasn't the possible fine here more than $500?

Mr. Graves: Yes, sir.

It was $1,000, but it--

Unidentified Justice: So, it wasn't really all that wooden.

Mr. Graves: --Sir?

Unidentified Justice: It wasn't all that wooden.

Mr. Graves: No, sir.

The $1,000 fine has been in the law in the State of Nevada for several years now, but I think that in most of the lower court cases I believe that the fine of $500 has been abandoned by most of the courts.

I think even in this Court.

I think in Muniz v. Hoffman you indicate that it's not talismanic.

So--

Unidentified Justice: Selectively wooden.

Mr. Graves: --It was partially wooden, yes, Your Honor.

All right.

As this Court knows, this country is at war with drunk drivers.

In the State of Nevada that offensive has taken this shape.

Upon conviction of a first offense, there is a mandatory fine of $200 and a maximum of $1,000.

There is a mandatory incarceration of two days or 48 hours of community service while dressed in distinctive garb identifying the person as a DUI violator.

And with the permission of the Chief Justice and the Court I would ask to be able to show you this distinctive garb here today.

It has been described in our brief at pages 14 and 15.

Unidentified Justice: Go ahead.

Mr. Graves: Thank you.

This is the front of it.

It looks much like a prisoner's uniform.

Property of North Las Vegas Court.

We received the permission of the city, by the way to leave this with the Court.

Property of North Las Vegas Court.

On the back is a rather large circle, DUI offender, with a skull and crossbones and a bottle of liquor with it looks like a hatch mark thing... you, you can't... you can't drink.

Not exactly a designer, but--

Unidentified Justice: And how long do you wear it?

Mr. Graves: --For 48 hours, sir.

It's not as if it were just two days, but it says--

Unidentified Justice: You could stay at home, couldn't you?

Mr. Graves: --No, sir.

You'd want to stay at home with this.

Unidentified Justice: Well, I know, but where do you wear it?

Mr. Graves: You wear it in the community where you're working the 48 hours of community service.

Unidentified Justice: Oh, I see.

I see.

I see.

Mr. Graves: It's actually like six eight-hour days or eight six-hour days.

It's actually 48 hours.

It's not like two eight-hour days.

Unidentified Justice: But--

Mr. Graves: So, while you're working typing or whether you're sweeping the road or whether you're sweeping a hall in a public building--

Unidentified Justice: --But, Mr. Graves, do you... do you... if you get a jail sentence, do you also have to do this?

Mr. Graves: --No, sir.

Unidentified Justice: So, this... but your position is... is this even worse than six months in jail?

Mr. Graves: Most of my clients want to go the jail time.

They don't want to be caught--

Unidentified Justice: They'd rather go to jail for six months than wear this for 48 hours?

Mr. Graves: --Not for six months, but for the two days.

First offenders normally don't go to jail for six months.

They'll... normally just the minimum--

Unidentified Justice: But... but how is this a more severe penalty than six months in jail?

Mr. Graves: --I'm not sure that this is a more severe penalty than six months in jail.

I think that--

Unidentified Justice: Well, if they got six months in jail, that would be the maximum under the statute, wouldn't it?

Mr. Graves: --Yes, sir.

Unidentified Justice: Then why... why isn't this case squarely controlled by Baldwin?

Mr. Graves: Well, it's our position that... I'm not sure that we can make that analogy exactly, Your Honor, because most of the time in most of the offenses that I have anything to do with, it's two days in jail or the 48 hours wearing this particular uniform.

xxx.

Unidentified Justice: But that's... that's the choice of the defendant, isn't it?

Mr. Graves: Yes, sir.

It is the choice of the defendant generally.

The courts would prefer... most courts... it's a mixed bag.

Some of the courts have said that they are going to make the choice and the defendant will do the community service because they would rather have the defendant out in the community working as opposed to sitting in jail.

And that's the decision that most of the courts make, although sometimes the defendant can make a choice of going to jail for two days.

Unidentified Justice: But supposing the statute made the maximum penalty two days in jail or, alternatively, wearing this for two days, would that violate... would you then be entitled to a jury trial?

Mr. Graves: That would be a little bit closer case.

I think that this is a badge of dishonor.

Unidentified Justice: Well, I understand that, but you... what, what's your answer to my question?

Do you think you would be entitled to a jury trial?

Say that was the only penalty.

You have to wear this thing for two days.

Mr. Graves: If this was the only penalty and you had to wear that for two days?

Unidentified Justice: Yes.

Mr. Graves: I don't think so.

Unidentified Justice: Well, isn't that what the only penalty is for most people?

Mr. Graves: No, sir.

You've got a mandatory minimum fine of $200 up to $1,000.

Unidentified Justice: Well, say there was... this... wear this for two days plus a $1,000 fine.

That's the maximum penalty.

Would that entitle you to a jury?

Mr. Graves: That would be a closer case.

That might entitle to us to a jury trial.

Unidentified Justice: You think so?

Mr. Graves: Because it's just... it's, it's just something that most of my clients don't want to be seen in, and it's a badge of dishonor.

Unidentified Justice: Well, I... I sympathize with that, but I... you're telling me something new now.

I thought that under these statutes you couldn't force anybody... a judge could not force anybody to wear that, that it's... it, it has to be at the defendant's option.

Mr. Graves: Not always, sir.

The courts are split on that.

Sometimes a judge will require the defendant to do community service.

Sometimes--

Unidentified Justice: Well, what does the statute say?

Doesn't it... I thought the--

Mr. Graves: --It just has an option, Your Honor.

I don't think it specifically says who has the power to require--

Unidentified Justice: --It just says it's an option.

It doesn't say who has the option?

Mr. Graves: --I don't believe so.

The courts have construed it in different ways.

Unidentified Justice: When you say the courts, you mean the various courts in Nevada--

Mr. Graves: Yes, sir.

Unidentified Justice: --the district courts?

Mr. Graves: I say the lower courts that are dealing with this problem on a daily basis.

There is--

Unidentified Justice: xxx.

Mr. Graves: --There is normally a choice.

I have had clients... I don't want to try to mystify you on this, but I have had clients that have wanted to serve the two days in jail as opposed to wearing the uniform, and the courts have allowed them to do that.

It's not a hard and fast rule, but they must do one or the other.

Unidentified Justice: Where is the statute?

How does it read?

I'm sorry... this point is important to me.

I'm... where--

I think we have a different case if, if somebody can be forced to wear this thing for however long.

At least I think it's different.

0....

Well, if it's going to take a lot of time, you, you can do it on rebuttal if you like.

I, I didn't mean to... I thought you'd have it right at hard.

Mr. Graves: Thank you, Your Honor, if we can do that, please.

I just can't lay my hand on it right away.

In any event, with the mandatory fine, the mandatory incarceration, or dress for 48 hours in this distinctive garb, there is as well a mandatory education course on alcohol abuse.

There's also a, a mandatory license revocation for 90 days, the second 45 days of which a driver may request a hardship or restricted license.

Of course, additionally this particular crime is hedged around with the additional conditions of being non-negotiable by the prosecutor and, of course, the court has no jurisdiction to reduce the jail time of the incarceration.

Unidentified Justice: You, of course, don't recognize the rule that any charge that is less than six months does not need a jury trial.

You, you just don't recognize that rule?

Mr. Graves: No, sir.

We, we recognize--

Unidentified Justice: xxx?

Mr. Graves: --We recognize that rule and we in our briefs have indicated to the Court that we don't think you need to abandon that rule because it has served well for 20 years and we don't want to--

Unidentified Justice: Now, explain to me again why this is different.

Mr. Graves: --Because what the State of Nevada is doing is that they're pecking underneath the line.

Your rules have said and the State of Nevada has said it's six months.

You puncture that particular incarceration, and then you go into a serious crime.

The State of Nevada is staying underneath the line, but it's increasing the punishment so that all they have to say is, well, ladies and gentlemen of the Supreme Court, all... we don't have more than six months.

All we have is six months.

What we're saying is that they're pecking under the line and making other kinds of penalties that will... ultimately, especially in this kind of case, that will require a jury trial.

We, we don't ask you to abandon your--

Unidentified Justice: Well, would six months and two days of house arrest be bad?

Mr. Graves: --I'm sorry, sir.

I did not understand you.

Unidentified Justice: Two... six months and two days of house arrest.

Mr. Graves: Would that require a jury trial?

Unidentified Justice: Yes.

Mr. Graves: That probably would require a jury trial.

Unidentified Justice: It's... what's the difference between that and this one, because he can stay at home with that.

He doesn't have to wear that.

Mr. Graves: Well, he can't.

In the State of Nevada, he can't go... he can't go home.

He must go to a jail for two days.

Besides, there are additional penalties here.

Unidentified Justice: But didn't you say he could wear that for two days?

Mr. Graves: Yes, sir, but he has to do community service.

Unidentified Justice: But he doesn't... he has to be out on the street.

Mr. Graves: Yes, sir.

You can't be at home doing this.

You can't be dusting your furniture.

Unidentified Justice: And so, that's enough for a jury trial?

Mr. Graves: Yes, sir.

I think so.

Unidentified Justice: That is the only difference.

Mr. Graves: Not the only difference, no, sir.

There are other penalties here.

One of the other penalties is a--

Unidentified Justice: Let me have them.

Mr. Graves: --Sir?

Unidentified Justice: Let me have the other penalties.

Mr. Graves: The additional penalties are loss of your license for 90 days, 45 days of which are non-suspendable and you cannot drive for 45 days.

The other 45 days, at the tender mercies of the Department of Motor Vehicles in Nevada, you can have a restricted license.

Unidentified Justice: May I ask on that suspension?

If you go to jail for six months, can you have the 90-day suspension concurrent with the time in jail?

Mr. Graves: There is no provision for that that I'm aware of.

Unidentified Justice: You mean--

Mr. Graves: The penal and the administrative are different.

No, sir.

Unidentified Justice: --But... but say you're convicted on January 1 and the judge enters an order, sends you to jail for six months.

When will your license be suspended?

Mr. Graves: It will be... it'll be probably suspended even before you go to trial or even before you enter a plea of guilty.

They are very, very rapid--

Unidentified Justice: So, you... the suspension... what I'm trying to find out, the suspension would have been completed before you finished your six months in jail.

Mr. Graves: --Yes, sir, under one way or the other.

Yes, sir, it would.

Upon his second conviction of driving under the influence in the State of Nevada within seven years, it's a 10-day mandatory jail time and a $500 mandatory minimum fine and a one-year loss of license.

And there's no restricted license there.

The third conviction within seven years is one year to... to six years in the Nevada State prison.

It's a felony.

It carries a mandatory minimum $2,000 fine and three years' loss of license.

Unidentified Justice: But we're speaking only of the first conviction in this case.

Mr. Graves: Yes, we are.

But what we're suggesting is that the second and third convictions are conditions and provisions that this Court can take into consideration to gauge the seriousness of this crime in the minds of the people of the State of Nevada through their legislators.

Unidentified Justice: Well, It is pretty serious, of course.

Mr. Graves: Yes.

Unidentified Justice: Incidentally, your statute is in the petition for cert, if you need it.

Mr. Graves: Thank you.

Just a moment.

This Court has historically used two types of tests for gauging the seriousness of a crime.

One of those is nature of the offense, and the other is the penalty of the offense, and then there is sort of a subtest which is the actual numbers of states which--

Unidentified Justice: Mr. Graves, didn't the Baldwin case really move to a... a more bright line test?

Mr. Graves: --Yes, ma'am, it did.

Unidentified Justice: And why should we get away from that?

Mr. Graves: You don't have to get away from the bright line test except that this case doesn't have a bright line holding.

You have gotten away from bright line tests in the past in your Franks case... in the Frank case.

Unidentified Justice: Well, this meets Baldwin in a sense.

Mr. Graves: It does.

It meets baldwin, and if... if the Court sends a message to the states that you can have other penalties besides the six and five, which is what we used to call it when I was in municipal court, six months in jail and a $500 fine, then we're going to have all sorts of things that are going to be happening underneath the line because as long as the state doesn't puncture the line and move into the serious area, then we can have all sorts of penalties underneath.

Unidentified Justice: Well, don't you think we have to adjust the $500 for inflation?

When did... when did we... what's the inflation rate since we picked $500?

I mean, I know the Constitution says how many dollars for a... for a civil... civil jury, but I really don't think our Court opinions are as written in stone as the Constitution is.

Mr. Graves: I don't think so.

Unidentified Justice: So, $500... maybe $1,000 is the equivalent nowadays of $500 before now.

Mr. Graves: I... I do not stand on the fact that the... the $500 is written in stone.

It could be $1,000 or it could be even $2,000.

I just... again, I agree with the Court.

I don't think it's talismanic and we... we really don't hold to that.

Unidentified Justice: Baldwin didn't say anything about a fine, did it?

Mr. Graves: No sir.

I think it was pretty much the incarceration factor.

Unidentified Justice: Six months.

Mr. Graves: And I think you pretty much stood on that.

But the nature of the offense.

The bright line test lived in Baldwin and in... and in the Duncan cases.

But you've got a residuum test that lives beyond that, which is the nature of the offense of the test, and the lower courts have found... many lower courts have found... there are some that have not... have found that this is, in fact, a serious crime, that the nature of the offense is serious.

In Baldwin, for example, in footnote 6, any incarceration in excess of six months carried the right to jury trial.

And in that footnote, per Justice Whiter there was no overruling of Clawans or Colts.

And in Duncan, which preceded it by two years, sentences up to six months if the offense otherwise qualifies as a petty offense.

And even as late as 1976, in Ludwig v. Massachusetts, it's a petty offense usually defined by reference to the maximum punishment.

And as far as the nature of the offense, of course, although it's sui generis, this Court still uses the nature of the offense in contempt cases.

So it's certainly a test that is viable and is usable.

And we have cited cases that the lower courts have found driving under the influence to be a malum in se crime.

It was not apparently indictable at common law, although there was one case, United States v. Hart--

Unidentified Justice: I, I assume you'd be satisfied if the penalty was a minimum of 25 years and you were given a jury trial.

Mr. Graves: --I would not be satisfied with that, sir.

I wouldn't want this to get out of hand.

Unidentified Justice: Well, I was just wondering the way you were going with your argument.

Mr. Graves: Well, sir, I don't... I can't make a general statement.

I just know that under the... the statute that we have here, sir, that we feel that this particular crime is serious not only because of the nature of the offense, but also because of the penalty and because 30... or 43 or 44--

Unidentified Justice: xxx.

Mr. Graves: --Sir?

Unidentified Justice: If it's serious, then the penalty should be more.

Mr. Graves: Yes, sir.

And in--

Unidentified Justice: Is that your argument?

Mr. Graves: --No, sir, I'm not--

Unidentified Justice: Well, we can't raise the penalty.

Mr. Graves: --I'm not suggesting, sir, that the penalty ought to be more and then grant us the right to a jury trial.

I'm suggesting that the crime per se carries the right to a jury trial because it is malum in se and has been so held by the lower courts.

What I'm suggesting to the Court is that 20 to 22 states, in fact, do punish first offense driving under the influence by one year: New York, Alabama.

There are places that punish driving under the influence first offense by one year, and they give you a right to a jury trial.

And if the Court reviews its cases in this regard... and you take Callan, for example, 1888.

Is... it is an offense of a grave nature affecting the public at large.

That's DUI.

Schick, 1904 it is a crime true of moral delinquency.

That's DUI.

Colts, 1930, it is a grave offense.

That is DUI.

And then when you take a look at the mala prohibita crimes, the Colts in 1930... for the Court to characterize reckless driving, or in this case DUI, as a petty crime, would be to shock the general moral sense.

And this... this Court may write a decision that says that driving under the--

Unidentified Justice: In fact, this is a malum prohibitum, isn't it?

What's the alcohol level here?

Is it the case that everyone who has this... this amount of alcohol in his blood is necessarily impaired?

I thought the level was set at such a point where someone could be, and so even if you have a greater immunity, the effect of alcohol on some other people, if you get picked up, it's your tough luck.

And I would consider that a malum prohibitum.

I mean, to be fall... falling down drunk when you're driving is malum in se, but to have your alcohol level above a certain point where someone else might be affected but you aren't, do you consider that malum in se?

Mr. Graves: --Well, yes, sir.

But I'm not sure that you can make the distinction between an alcohol level and whether somebody else is going to react differently to alcohol than anybody else.

In the State of Nevada--

Unidentified Justice: Well, you're saying it's malum in se to have point whatever the... the thing in your blood is?

Mr. Graves: --Well, what I'm saying is that that is the, the considered judgment of the legislature of the State of Nevada that there are two ways to convict in the State of Nevada for driving under the influence.

One is.10 or greater, and that's per se.

It's presumptive that you're driving under the influence.

The second one are the factual, that if you refuse a test, for example, then if you're weaving down the road and if your... your breath is wreaking of alcohol and there are other physical attributes, then... I think that in any event, that it's malum in se.

Unidentified Justice: Is it--

Mr. Graves: The same penalties.

Unidentified Justice: --You're saying if the legislature makes it unlawful, it's malum in se.

Mr. Graves: No, sir.

No, sir.

Unidentified Justice: Well, then, then, then you have to convince me that having.10 in your blood necessarily... that, that no reasonable person, no... no honorable person would consider driving with.10.

I don't know that that's true.

I think that's... that's a number picked with a good deal of, of, of safety margin to... to embrace some people who may, indeed, not be affected at that level.

Mr. Graves: Well, as a practical matter, they are tried together.

The.10 and also the physical characteristics, of course, are all tried together.

But in any event, the.10 and the driving under the influence both carry the same penalties.

So, no matter how you prove the case, you're still subjected to the same sentence and the same conviction of driving under the influence, and I don't think that the.10 or whether it was a.15 would make that much difference in, in the analogy.

Perhaps I... I'm missing the question, but I don't--

Unidentified Justice: xxx I'm trying to figure out I guess how heinous this, this crime is viewed by, by the citizenry and if to be convicted means you were falling down drunk when you were driving, yes, I'd say that's pretty... a pretty heinous thing.

But suppose the state passes a law that says we don't want people on the roads who have had anything to drink and they set the level, you know, real minimum.

You shouldn't drink any alcohol within three hours before you drive.

Now, would you consider that malum in se to violate that law?

Mr. Graves: --I'm not... just for the fact of driving three hours before... or drinking three hours before you--

Unidentified Justice: That's right.

The state says we're taking no chances.

Nobody should have any alcohol in the blood.

No drinks within three hours of driving.

Mr. Graves: --So, any amount of alcohol in the blood then is going to be a malum in se?

Unidentified Justice: Yes.

Would that be malum in se?

Mr. Graves: I don't think that that would be malum in se.

Unidentified Justice: Well, then you've got to tell me why.10 is... you, you have to convince me that.10 really means that, that the average... at least the average person is, is seriously impaired--

Mr. Graves: Are we talking about driving and drinking at this time, the three hours before?

All I can tell you, Your Honor, is that the... the State of Nevada has picked.10.

Thirty-nine states have picked that level as presumptively under the influence, and that's the standard that we have to work with.

And I'm sorry that I can't answer your question any more specifically, but if we're moving back from the area of driving under the influence to drinking three hours before you get onto the road and that is going to be a crime, just drinking three hours, that is a petty crime.

That's malum prohibitum.

But once you get behind the wheel, then you trigger this offense.

There is no driving impaired in the State of Nevada.

It's just driving under the influence.

Unidentified Justice: --[inaudible] call it driving under the influence would be any alcohol in your blood.

Mr. Graves: That... that probably would be a malum prohibitum crime because it is just too low.

After three hours it would be in any event.

The penalty provision... the... of this crime is not just the fine and incarceration as in Baldwin.

As the Court has seen, the State of Nevada has moved away from just the fine and imprisonment and has moved on to other areas.

Basically, what the state wants is to have their cake and eat it too.

One of the, the penalties that I think is the most important of this particular crime is losing your license because you're losing the right to use the public highways.

And the State of Nevada... and we're only talking about the State of Nevada.

Unidentified Justice: Is your license revoked in the criminal proceeding, or is it a separate administrative proceeding?

Mr. Graves: It is a separate administrative proceeding.

Unidentified Justice: Well, that really isn't a criminal penalty then in many senses of the word.

Mr. Graves: Yes, sir, it is because as soon as you are convicted of driving under the influence, then the court sends notice to the Department of Motor Vehicles and they will automatically revoke your license.

Unidentified Justice: Well, I, I thought you said a moment ago that your license could have been revoked before trial.

Mr. Graves: Yes, sir, it can.

There are two provisions in the State of Nevada.

One of the provisions administratively is that as soon as you are arrested, if you have.10 or greater blood in your... of, of alcohol in your blood, then your license is revoked because of that.

Then later on--

Unidentified Justice: That doesn't make... that doesn't make it a criminal proceeding.

Mr. Graves: --No, sir.

Unidentified Justice: Not so far.

Mr. Graves: No.

No, sir.

And then we move on to when there is a conviction.

And then when you are convicted, they revoke your license on the basis of the conviction.

Now, they do give you credit for the time that you served over here.

So, if your blood was.10 or greater and you got a 90-day suspension, you're convicted, and then over here you have a revocation because of the conviction.

You are given the credit for the 90 days you have here over here.

But there's still a penalty involved because you've got... the actual revocation is on your record at the Department of Motor Vehicles.

So, they've got two chances to revoke your, your license, but we don't particularly speak about the first one since that really doesn't have anything to do with the criminal case unless you're actually convicted.

In summation, I would... I would advise the Court that we think that you should apply all three tests and not to abandon the Baldwin standard.

Now, it may be presumptively petty if the Baldwin standard is not breached, but we feel that in this particular case that all three should be utilized by the Court for this particular offense.

My own opinion is that driving under the influence is really sui generis.

There is no other crime of which I am aware that is really vying for serious status... none.

And I've been in this area for probably six or seven years, and although, of course, defense attorneys always try to get jury trials as a... as, as a practical matter, they don't get them.

This case... the lower courts... this type of offense... the lower courts are riddled... riddled... with instances where the, the courts have given jury trials in these types of cases.

And, of course, this Court has said that there is, indeed, a commitment to jury trials.

I mean, when you consider the types of offenses that this Court has denied jury trials in... the Clawans case; selling the unused portions of railway excursion tickets; and the Schick case, failure to stamp the oleomargarine; Natal, a private market six squares from a public market... those are trifling offenses.

This is not a trifling offense.

The cost of this--

Unidentified Justice: Now, when you say the courts are riddled with these cases, you're speaking of Nevada courts?

Mr. Graves: --No, sir.

I'm talking about... no, sir.

Unidentified Justice: Let's talk about Nevada, shall we?

Mr. Graves: All right.

The State of Nevada... there is no right to trial by jury in a driving under the influence case.

Now, in the lower courts, state and federal, many courts have allowed the right to jury trial in DUI cases.

That's what I'm saying.

If this Court were to rule for us, for the Petitioners, and allow a jury trial in the State of Nevada, this is probably what's going to happen.

The state legislature is going to move this offense into the district court.

Just like Ludwig v. Massachusetts, you're going to move it right... it's going to be moved right up there.

There's a great waiver factor.

I mean, we've shown that in our opening brief that there's a great waiver factor, not only in misdemeanor cases generally, but in DUI cases in particular.

And it is also true in the Baldwin case.

I mean, even in the State of Nevada, they're giving DUI jury trials in Washoe County, but we don't have them in Clark and the rest of the surrounding areas.

So, even in the State of Nevada itself, we're granting jury trials.

And lastly, I think that since the Court has ruled on punishment other than incarceration--

Unidentified Justice: Washoe County granting jury trials after the opinion of the Supreme Court of Nevada in this case?

Mr. Graves: --Yes, sir.

It's my understanding from the ACLL's amicus curiae brief that... that in fact they are... I'd have to defer, but I think they're still granting jury trials.

They just feel that it's coming, and they're going ahead and preparing of it... for it.

And I think in 1987 they only had 12 at a cost of $4,000.

Unidentified Justice: We can't take judicial notice of facts in an amicus brief, can we?

Mr. Graves: No, sir.

Unidentified Justice: Well, what are you telling us that for?

Mr. Graves: Well, I'm just... I'm just indicating to the Court that I feel that... that may be true.

I cannot persuade the Court otherwise, but that's just what I'm led to believe.

But in any event, I would sincerely urge the Court to grant us jury trials in driving under the influence cases in the State of Nevada.

And I would reserve the rest of my time if I could.

Unidentified Justice: Thank you, Mr. Graves.

Mr. Zalaoras, we'll hear now from you.

ORAL ARGUMENT OF MARK L. ZALAORAS ON BEHALF OF THE RESPONDENT

Mr. Zalaoras: Mr. Chief Justice, and may it please the Court:

At the outset, I wish to point out that the issue raised earlier with regard to the DUI punishment provisions in Nevada is set out... the statute, the punishment statute in full, is set out in the Nevada attorney general amicus brief, Appendix A, pages la and 2a.

And essentially what that provides is it is the court's discretion whether to allow the defendant, the convicted defendant, to perform 48 hours of community service wearing the distinctive garb or whether to serve the minimum two-day jail sentence.

That is literally what the statute provides.

In, in--

Unidentified Justice: Why, why, why do you think they have that... wear that distinctive garb with that thing on the back of it?

I... isn't that great indication that this is a shameful thing?

Mr. Zalaoras: --I think it's a--

Unidentified Justice: I mean, you... it wouldn't mean anything to have somebody wear that kind of a thing and it says I sold the unused portion of a railroad... railway ticket.

That wouldn't--

[Laughter]

That wouldn't get, get anybody to think less of you particularly, would it?

Mr. Zalaoras: --No.

It... clearly it serves a couple a functions, one of which is--

Unidentified Justice: It's shameful, isn't it?

Mr. Zalaoras: --deterrence to the others.

I would submit it would be to the person wearing it, yes.

Unidentified Justice: It's shameful.

Now, what if a state decides we're not getting enough conviction... convictions in child molestation cases because the, the young witnesses get intimidated by the courtroom and the jury and all of that, and we think that the real punishment in a child molestation case is just being convicted because that will ruin you.

So, we're going to reduce the sentence from five years to six months and we're going to provide for trial of all child molestation cases without a jury.

We're sure we'll get a lot more convictions, and that will be worth it.

What do you think?

Could a state do that?

Mr. Zalaoras: Is Your Honor's question would that offense still a serious offense in the--

Unidentified Justice: That's right.

Mr. Zalaoras: --constitutional context?

Unidentified Justice: Yes.

Mr. Zalaoras: Not under the rulings from this Court, no, it would not.

Unidentified Justice: You think... do you think that's what we'd hope... we'd hold?

Mr. Zalaoras: I believe that's what the Court would hold under the present--

Unidentified Justice: You would like that result that, that people could be convicted of child molestation without a jury trial.

And you think--

Mr. Zalaoras: --Not particularly.

Unidentified Justice: --that's what the Framers really thought they were doing.

Mr. Zalaoras: Not particularly, but I seriously doubt, although I accept your hypothetical, that a state would make such a serious offense... if I may, by way of analogy to the state statutory scheme in Nevada, we have a misdemeanor annoying a minor offense, and that characteristically is prosecuted where there was no physical harm or no physical touching of the child other than perhaps exterior.

We then have more opprobrious offenses providing a higher punishment than the six-month misdemeanor line.

So, by way of example to the Nevada statutes, I believe what Your Honor is referring to is child molestations where there's some physical violation of--

Unidentified Justice: You would acknowledge that if I don't think that I would hold that way in the case of a child molestation statute that's reduced from five years to six months, then my concern in this case would be more than just the six months.

It would also be whether this is a shameful crime or not, wouldn't it?

Mr. Zalaoras: --I, I don't see that that is analogous to this situation when you make it with reference to the distinctive garb.

I would respectfully submit that it's not.

Unidentified Justice: Just arguing about how shameful it is.

Mr. Zalaoras: Well, clearly it's shameful, but there are many misdemeanors for which a penalty such as provided in Nevada in the DUI law are also shameful.

I would submit that domestic battery, for example, is a shame... shameful conduct.

So is... in Nevada we have a scheme by which possession of drugs can be given misdemeanor treatment.

That's shameful.

Petty larceny, a crime of moral turpitude, is shameful So... and there's more moral turpitude in the mens rea involving a petty larceny offense than there is in a DUI offense.

The Respondent submits that the decision below was compelled by the holding in logic of this Court's decisions in Duncan, Frank and Baldwin.

There are three major points to this presentation.

First, the bright line test of Baldwin established six months' incarceration as the threshold between petty and serious offenses.

This rule is easily identified and ready... readily applied.

It lends itself to uniform application throughout the--

Unidentified Justice: May I interrupt for just a moment because is the quest... the constitutional question I guess is whether this is a criminal prosecution within the meaning of the Sixth Amendment.

Mr. Zalaoras: --That's correct.

Unidentified Justice: That's where the... what, what we're boiled down to.

The six months was the decision in the Baldwin case.

And your position is this is not a criminal prosecution.

Mr. Zalaoras: Oh, no, Your Honor.

It's clearly a criminal prosecution under Nevada law, but it does not break the threshold established in the Baldwin case, which necessitates under the command of the Constitution, as this Court has interpreted it, for a jury trial.

Unidentified Justice: Now, it would be a criminal prosecution within the meaning of the Sixth Amendment if the right to counsel were at stake, wouldn't it?

Mr. Zalaoras: The Sixth Amendment right to counsel that Your Honor alludes to clearly applies.

Unidentified Justice: To this case.

Mr. Zalaoras: Yes, it does.

Yes, it does.

Unidentified Justice: Because it's a criminal prosecution--

Mr. Zalaoras: No.

Unidentified Justice: --because that's exactly... the Sixth Amendment begins in all criminal prosecutions these different rights obtain.

Mr. Zalaoras: That's true, but more specifically because there's jail time that in fact has to be imposed.

Unidentified Justice: But what you're really saying is that there are some criminal prosecutions that, that... some prosecutions are criminal within the meaning of the Sixth Amendment for one purpose but not for another.

So, the same words have different meanings depending on what the right you're asserting is.

Mr. Zalaoras: No.

The level of the criminal offense, as defined by the severity of the maximum authorized penalty, determines the jury trial question, not whether it is or is not a criminal prosecution.

Unidentified Justice: Well, but that's not, of course, what the text of the Sixth Amendment says.

Mr. Zalaoras: That's true.

Unidentified Justice: Perhaps you could refer justice Stevens to the reasoning of the court in the Argersinger case to explain why the word "criminal prosecution", at least in the eyes of the court, could be read differently for one purpose than for the other.

Mr. Zalaoras: The... there is a parallel... and this is a point I wish to make in my argument... between the Sixth Amendment right to counsel and the Sixth Amendment jury trial right.

That parallel... the key factor is incarceration.

There is a distinction between the two as they are... have been accepted in our interpretation of those provisions.

First, the right to counsel... it has been held that that is a key element whether the offense is a minor one, such as a misdemeanor in Nevada would be, or whether it's a more serious offense where a jury trial would come into play, that the accused is entitled at least to understand the nature of the proceedings and have the assistance of counsel.

It's more important in the incarceration area... excuse me... the... where jail time is in the offing than it is when you get to the Sixth Amendment right to jury trial.

There is great historical precedent that even predates our country for having non-jury adjudications where classified as petty offenses.

This is the teachings of this Court's case precedent.

The second point to which I refer this Court is that there is no constitutional mandate to provide jury trials for persons accused of drunk driving.

To create such a right would extend the present limit of the Sixth Amendment right to jury trial, as applied to the states via the Fourteenth Amendment Due Process Clause, beyond the scope of that imposed upon the federal courts.

Unidentified Justice: May I ask one other question along justice Scalia's lines?

Supposing the... the judge had the authority under this statute to... not to put anybody in jail for six months, but just, say, make them wear this... this jacket for six months, do you think they'd be entitled to a jury trial?

Mr. Zalaoras: No, clearly not.

And that I submit is an appropriate... although whether one personally agrees with it or not, I think it's an appropriate sanction that a state may impose.

Unidentified Justice: What if they asked him to wear it for seven months?

Mr. Zalaoras: No, because incarceration... that is, the deprivation of liberty... is the essential point to the Six... Sixth Amendment jury trial right, and that does not provide deprivation of liberty, for the same reason the fine amount is not a significant factor in the determination of the jury trial right.

Unidentified Justice: Six... six months and a million dollar fine, which would pretty much pauperize whoever is, is hit with that.

That would not entitle you to a jury trial.

Mr. Zalaoras: Would that even be the case, the court... no court demands a million dollar payment or a hundred dollar payment on the spot at the moment of conviction.

I would submit that a million dollars excessive.

Whether it calls under the jury trial issue or not is another question.

And I respectfully submit that's not before the Court at this time.

However, to answer Your Honor's question, even that exorbitant fine is ameliorated by the ability of the defendant to pay it in installments or to work it off in community service.

However, in Nevada... and this is why the million dollar fine, if worked off in terms of community service, would, would not match the million dollar amount.

It's because the community service is limited to 120 hours in a misdemeanor.

Unidentified Justice: I'm not talking about the particulars of Nevada.

I'm talking about the principle you're asking us to adopt.

I mean, we, we... we've said six, six months as a general matter, but you're saying that six months in prison is the only test.

No matter what else you do to somebody, a fine of enormous amounts, making them wear jackets or anything else, no... nothing counts except six months in jail.

Mr. Zalaoras: That is the primary or the most relevant criterion--

Unidentified Justice: Why?

Because we've said that.

Mr. Zalaoras: --No, because it... the Court has focused on deprivation of liberty.

The restraint on liberty is the key that triggers the Sixth Amendment jury trial right, just as it triggers the right to counsel under the Sixth Amendment.

That is the key.

Unidentified Justice: How about the liberty to wear what kind of shirt you want?

Mr. Zalaoras: Well, I would submit that that is... it pales in significance to incarceration of the person where they're forced to wear the jail garb and their, their liberty is, is confined to the cell in which they reside at the time of their incarceration.

The Petitioners collateral consequences approach... and this is my third major point I wish to make... in reliance on the nature of the offense test are untenable.

These concepts lack definable boundaries.

They fail to provide courts with a clear-cut guideline to follow, and this is because of their vulnerability to subjective interpretation.

The bright line test established six months as the maximum term of incarceration beyond which the jury trial right is triggered.

Below that, the Court has held, a jury trial right is, is not invoked by the constitutional provisions.

In Duncan, this case extended that jury trial right to the states through the incorporation doctrine of the Due Process Clause of the Fourteenth Amendment.

However, there is a limitation on that extension.

It applies to the states only to the extent that that jury trial right is imposed in federal courts.

Should this Court rule in Petitioners' favor, in fact, there will be extended a greater constitutional right broader in scope than that that is imposed upon the federal courts.

This is in direct violation to the Duncan ruling.

It also--

Unidentified Justice: Why... why do you say it will be greater than that imposed for the federal courts?

Mr. Zalaoras: --Because the Petitioners have relied upon not the six-month incarceration rule, but these collateral consequences of the conviction.

In the federal courts, the... well, this Court has determined that in a federal case, Frank v. The United States, that a three-year probationary term, which has more onerous restraints or the defendant than does the statutory scheme of DUI in Nevada, resulted in the Court finding in Frank that it was not a serious offense in the constitutional context of that term.

Unidentified Justice: So, what, what, what you're saying in effect is that if we rule for the Petitioner here, we will, in effect, overrule the Frank case?

Mr. Zalaoras: That's correct, and, and the Duncan ruling.

The application of Duncan, that Duncan made of the Sixth Amendment to the states, is limited to the extent to which it is applied in federal courts.

I submit that that... that would be the only alternative.

You'd have to overrule... you'd have to extend it beyond that provided to the states.

Now, I think Frank illustrates the point.

Frank was a federal criminal contempt matter.

And the court in sentencing... rather, suspended sentence on Ben Frank and instead imposed a three-year term of probation with, and I wish to note, the specific probationary conditions imposed on Mr. Frank.

First, he was not allowed to travel outside the state without permission of the probation officer.

He was required to work regularly, secondly.

Thirdly, he has required to report any changes in his work schedule with his probation officer.

He was told he could only associate with law-abiding persons.

And he was to maintain reasonable work hours.

I submit that those conditions placed on the probationer in the Frank case are much more forceful restraint on liberty than are the collateral consequences to which the Petitioners rely.

I believe this puts Petitioners, in, in essence, in a checkmate position on their argument out of which they cannot come without overturning that... the basic ruling of Duncan.

Again, the critical distinction in the Sixth Amendment jury trial and Sixth Amendment right-to-counsel cases is the deprivation of liberty, the punishment.

Specifically, with regard to some of the collateral consequences to which the Petitioners allude, I think a short analysis is appropriate and especially in comparison with the probationary provisions in the Frank case.

The mandatory jail provision is ameliorated by the fact that the defendant could perform the 48 hours of community service.

It's further ameliorated by the fact that characteristically courts credit the individual for the time he served in jail at his arrest and do not require an additional two days, if in fact he served two days before he came before the magistrate for his initial appearance.

Secondly, Petitioners have referred to the enhancement aspect of the DUI statute; that is, that for second and third offenses, the penalty rises, and on the third offense it would become a felony.

That is not an unusual statutory scheme, because of the habitual criminal act we have in Nevada and that many states provide.

For example, after the third petty larceny, it becomes a felony upon prosecution and conviction of the fourth petty larceny if the, the district attorney determines to file it as a felony.

And that calls for a mandatory minimum of ten years in prison with a maximum of 20 years.

Moreover, in the petty larceny realm still, after the fifth petty larceny conviction... that is, upon the sixth petty larceny... the statute provides for life imprisonment in Nevada.

Cannot the same argument be made, unlike what I think counsel for Petitioners has suggested, that someone may come before this Court, if they're able to reach this level, and argue in a petty larceny case that, well, I'm subject to enhanced penalties, and if I commit five more petty larcenies, I'll go to prison for life, therefore, it's serious in the constitutional context?

I believe this is analogous to their argument regarding enhancement.

It also holds true for the domestic battery situation, with regard to enhancement and also with regard to the claim that the social program that accompanies the conviction for DUI is somehow significant enough to elevate what is otherwise a petty offense into the serious category.

For example, in domestic battery in Nevada, the officer must make an arrest if there was a battery committed between persons who are related by blood or marriage and there is some other evidence, such as physical evidence, to indicate that that crime has occurred.

That person cannot make bail for 12 hours.

It's a non-bailable offense, which at this point of, course, is merely an accusatory stage.

In addition, there are other collateral consequences.

Once a, a battery conviction results, the court has the ability to require the person to attend a counseling program, and if the victim is over... is 65 years of age or older, the Nevada statutes provide for, in effect, a doubling of the punishment, in which case it would arise into a serious offense and a jury trial right would have to be provided.

But what these illustrate, these examples I've explained, is the fallacy in taking the Petitioners' approach of viewing the nature of the offense.

The clear-cut guideline established by the objective approach that Baldwin indicates by looking to the maximum authorized penalty is, to paraphrase the Frank decision, the only objective criterion by which a line could ever be drawn on the basis of the possible penalty alone is how we separate petty from serious offenses.

Unidentified Justice: May I ask you one other question about the way the statute works?

The statute provides, I gather, the judge can sentence him to two days in jail, no, no... not less than two or more or to perform 48 hours of work for the community while dressed in distinctive garb.

Could, could the judge pick the distinctive garb that the judge thought appropriate, or is there a statutory description of it?

Mr. Zalaoras: There's no statutory description for it.

What is in the statute is all we have in terms of guiding the court.

Unidentified Justice: So, if the judge thought that this wasn't distinctive enough, the judge could maybe add a dunce cap and a few other foolish looking things to the uniform?

Mr. Zalaoras: Well, as I say, the statute doesn't speak to it, so in theory, yes, it could.

I would hope that some decorum would be engaged by any court in such a... such an endeavor, however, And--

Unidentified Justice: But supposing the judge really took something, the most outrageous... made people work in their underwear with a dunce cap or something crazy, that would still be... that wouldn't trouble you either I suppose.

Mr. Zalaoras: --It may trouble me as a prosecutor and an officer of the court.

It certainly would.

But it does not call into question the jury trial right.

Unidentified Justice: Was the defendant... were either of these defendants sentenced to this particular form of... of punishment?

Mr. Zalaoras: Bianton is... is still not in a convicted status.

Fraley is, and I don't recall offhand if his two-day jail sentence was a matter where he was given credit or if he chose community service.

He took an appeal, so in fact the... the conviction... the judgment following the conviction has never been enforced.

Unidentified Justice: Well, has the Supreme Court of Nevada ever approved the sentencing of someone to do their two days' community work in this kind of an outfit?

Mr. Zalaoras: No, it hasn't addressed the issue.

Unidentified Justice: And the statute says nothing about it.

Mr. Zalaoras: That's correct.

The opportunity I suppose existed in the decisions below, but it was not addressed as the type of garb that was worn.

Regarding the nature of the offense test and the... the reason I think why it's too subjective is best illustrated by language from Clawans which was reiterated in the Frank opinion, wherein it stated that 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.

One other point I wish to make with regard to the national standards test to which Petitioners refer, and that is what I call the head count of states.

I don't believe that has constitutional significance.

Although it appears as though 44 states provide jury trials for persons accused with a first-offense DUI, they do so for one of three reasons.

First off, their state constitution requires it; or secondly, their state statutory scheme requires it; and thirdly, the other reason why they provide jury trials is because the maximum authorized penalty exceeds six months.

It exceeds the Baldwin bright line anyway.

So, I don't believe that that is... it's in essence a red herring to argue that 44 states provide it and therefore Nevada should in this case.

Morever, in Martin v. Ohio, this Court held that there was no constitutional dimension to the fact that 48 states had a particular approach to a criminal procedure, in that case the self-defense argument, and which side has the burden of proof.

In that instance, Ohio and South Carolina were recognized as the only two states that placed the burden of proving self-defense on the defendant.

And the Court there found that there was no constitutional dimension to the fact that 48 states did so.

Without further questions, I thank the Court.

Unidentified Justice: Thank you, Mr. Zalaoras.

Mr. Graves, you nave two minutes remaining.

REBUTTAL ARGUMENT OF JOHN J. GRAVES, JR.

Mr. Graves: Thank you, Your Honor.

I'll be brief.

Unidentified Justice: You'll have to be.

Mr. Graves: Yes, sir.

This Court has ruled in several cases, not per se on the jury trial issue, that the offense of driving under the influence is, is quite serious.

Justices White and Rehnquist, now Chief Justice Rehnquist, of course, in that decision, Welsh v. Wisconsin, and in other cases have found--

Unidentified Justice: Could you speak up a little bit, Mr. Graves?

Mr. Graves: --I'm sorry, sir.

Have found... this Court has, has painted the offense of driving under the influence in very somber tones.

Responding quickly to the clear-cut guideline test, the only thing that I can tell the Court is that the lower courts have been applying all three tests for years.

Even in the Landry v. Hoepfner case in the Fifth Circuit, which does not rule in our direction, applied all three tests.

And I think with respect to them that it was afraid not to because you can't just say, well, it doesn't apply to Baldwin or it doesn't fit the Baldwin rule and therefore we... we're going to deny the right to jury trial.

The--

Unidentified Justice: Do you want us to change Baldwin?

Mr. Graves: --No, sir.

No, sir, not at all.

Baldwin has worked well.

Counsel spoke about the Frank case and having to overrule Frank.

I would think that losing a driver's license is more serious than living the life of a normal citizen in the community.

If you lose your license for 45 days, you may lose your job.

And if you don't get a restricted license, you're going to lose it for 90 days.

And I think that's... that's pretty serious.

Unidentified Justice: Yet, you can use... lose your driver's license by just driving with a... an expired license.

I mean, it wouldn't have to be a criminal proceeding at all.

Mr. Graves: No, sir, that's true.

But in, in this... in this particular case... and I'm out of time.

In this particular case, it is a direct result of the penalty.

Chief Justice William H. Rehnquist: Thank you, Mr. Graves.

The case is submitted.