Opinion by:
Two county court judges, John F. Stavely and Thomas Reed (collectively county courts), appeal the district court’s order granting the C.R.C.P. 106 motions of defendants, Alicia Byrd and Robert Claudell, to have their criminal cases tried by a jury without being required to follow statutory procedures that apply to petty offenses. We affirm.
The principal issue in this appeal is whether a defendant charged with driving while ability impaired (DWAI), a misdemeanor, must comply with the requirements of § 16-10-109(2), C.R.S.2004, to have his or her case tried by a jury. This inquiry requires a determination of whether a first-time DWAI charge is classified as a petty offense or a serious offense for purposes of a defendant’s Sixth Amendment right to a jury trial. To make this determination, we interpret § 42-4-1301, C.R.S.2004, which defines various offenses for driving under the influence of drugs or alcohol.
The district court determined that DWAI is a serious offense for Sixth Amendment purposes. We conclude that DWAI is a petty offense under the Sixth Amendment, but, nevertheless, under the statutory scheme, *1275 first-time DWAI defendants need not comply with the requirements of § 16-10-109(2).
I. Background
In separate incidents in 2002, Byrd and Claudell were charged with DWAI. Both defendants appеared at their arraignments pro se and pleaded not guilty.
Subsequently, the county court held a case management conference and set Byrd’s case for a jury trial. Approximately ten days later, she retained counsel. A motions hearing was held, and the county court reset her jury trial date.
Claudell retained counsel before his case management conference, and the county court set his case for a jury trial.
The People moved to vacate both jury trials based on Byrd’s and Claudell’s failure to comply with § 16-10-109(2), which requires a defendant charged with a petty offense who wants a jury trial to make a written request and pay a twenty-five dollar fee within ten days of arraignment.
The county courts in both cases granted thе People’s motions based upon their determination that the offense charged was a “petty offense” under § 16-10-109(1), C.R.S. 2004, and therefore, Byrd and Claudell were not entitled to jury trials because they failed to comply with the requirements of § 16 — 10— 109(2).
Byrd and Claudell petitioned the district court for review pursuant to C.R.C.P. 106(a)(4), which provides relief, inter alia, when a county court has excеeded its jurisdiction or abused its discretion. After filing his C.R.C.P. 106 motion, Claudell moved to join his case with Byrd’s, and the district court granted the motion.
The district court determined that the Sixth Amendment guaranteed Byrd and Claudell jury trials because the offense they were charged with was a “serious offense,” not a “petty offense,” under § 16-10-109(1). The district court concluded that the county courts’ rulings were erroneous and remanded the cases for jury trials unless defendants formally waived their right to a jury trial.
Although Claudell is still a party to this appeal, Byrd was the only party to file an answer brief. Accordingly, we will refer only to her arguments.
II. C.R.C.P. 106
The county courts contend that the district court erred in ruling that C.R.C.P. 106 motions were the appropriate form of relief for Byrd and Claudell. We disagree.
C.R.C.P. 106(a)(4)(I) directs the reviewing court to determine whether a lower tribunal has exceeded its jurisdiction or abused its discretion. The reviewing court must uphold the decision of the lower tribunal unless there is no competent evidence in the record to support it. However, because the district court performs no factfinding and we engage in the same type of record review, we review the district court’s decision de novo.
Carney v. Civil Serv. Comm’n,
Relief in the nature of prohibition issued by a district court under C.R.C.P. 106 is a civil appeal even though it involves an underlying issue of criminal law.
Thomas v. County Court,
In
Zaharia v. County Court,
Initially, we note that Byrd contends that because the county court failed to object to the C.R.C.P. 106 motion in district court, it waived that objection on appeal.
See Crum v. April Corp.,
Here, Byrd and Claudell were denied the right to a jury trial for not complying with the procedural requirements of § 16 — 10— 109(2) that apply to a petty offense.
The county courts’ procedural rulings were based on a matter of law, not fact. Specifically, the county courts determined that the DWAI charges agаinst Byrd and Claudell were a petty offense under § 16-10-109(1). Accordingly, relief pursuant to C.R.C.P. 106 was appropriate.
See People v. Dist. Court,
Furthermore, Byrd and Claudell were without a plain, speedy, or adequate remedy. Although the county courts contend that Byrd and Claudell should hаve obtained review pursuant to Crim. P. 37, that rule provides for appellate review only after a county court renders final judgment. The district court found, and we agree, that it would have been inefficient and prejudicial to force Byrd and Claudell to obtain a final ruling after a bench trial in county court and then to file a direct appeal before the district сourt to determine whether they had a constitutional right to a jury trial. Byrd and Claudell would have been forced to bear the expense of going to trial and filing an appeal. They also would have exposed their trial strategies and witness testimony to the prosecution, even though a successful appeal would have resulted in an order for a new trial by jury.
See Shore v. Dist. Court,
Although C.R.C.P. 106 has not been utilized in Colorado to review a county court’s denial of a defendant’s constitutional right to a jury trial, we conclude that it is the proper remedy. Our conclusion is consistent with the decisions of courts in other states addressing this issue.
See Turner v. Bayly,
Accordingly, the district court correctly considered the relief sought by Byrd and Claudell pursuant to C.R.C.P. 106.
III. Right to Trial by Jury
The county courts next contend that the district court erred in determining that DWAI was not a petty offense under § 16-10-109(1), and thеrefore, Byrd and Claudell were guaranteed the right to a jury trial by the Sixth Amendment. We disagree. Al *1277 though DWAI, by itself, is a petty offense, under the existing statutory scheme, first-time DWAI defendants are treated as though the offense were serious under the Sixth Amendment.
A. Petty Offense Under Sixth Amendment
The Sixth Amendment affords defendants in criminal cases the right to a jury trial except where they are charged with a petty offense. U.S. Const. amend. VI;
Blanton v. City of North Las Vegas,
To determine whether an offense is serious or petty for Sixth Amendment purposes, we look to legislative intent. The severity of the penalties imposed reflects the level of seriоusness with which the General Assembly regards the offense. See Blanton, supra.
Section 16-10-109(1) defines a petty offense as “any crime or offense classified as a petty offense or, if not so classified, which is punishable by imprisonment other than in a correctional facility for not more than six months, or by a fine of not more than five hundred dollars, or by both such imprisonment and fine.” However, the Suprеme Court has determined that the length of incarceration is the most significant factor in determining whether, an offense is petty or serious for purposes of the Sixth Amendment.
See United States v. Nachtigal, 507
U.S. 1,
In determining whether an offense is serious or petty for purposes of the Sixth Amendment right to a jury trial, the court must examine “objective indicаtions of the seriousness with which society regards the offense.”
Blanton, supra,
In
State v. Hamm,
Here, Byrd and Claudell were charged with DWAI under § 42-4-1301(l)(b), C.R.S. 2004, which provides, “It is a misdemeanor for any person who is impaired by alcohol or by one or more drugs, or by a combination of alcohol and one or more drugs, to drive any vehicle in this state.” A first-time offender’s penalty for a DWAI is set forth in § 42^4-1301(7)(b)(I), C.R.S.2004, which specifies:
(A) Imprisonment in the county jail for not less than two days nor more than one hundred eighty days ...; and
(B) In the court’s discretion, a fine of not less than one hundred dollars nor more than five hundred dollars; and.
(C) Not less than twenty-four hours nor more than forty-eight hours of useful public service, the performance of thе minimum period of which shall be mandatory, and the court shall have no discretion to suspend the mandatory minimum period of performance of such service.
*1278
The district court determined that the penalty for a first-time DWAI qualified the offense as serious because the defendants faced a maximum length of imprisonment of 180 days plus 48 hours of public service, and therefore, the penalty was longer than 6 months. However, we conclude that the additional 48 hours of community service is not a sufficiently severe penalty to overcome the presumption that a first-time DWAI in Colorado is a petty offense.
See People v. Antkoviak,
Nevertheless, Byrd contends that because the penalties for DWAI vary depending upon the circumstances surrounding the offense, she was exposed to possible penalties that far exceeded the 180-day incarceration period for a petty offense. Specifiсally, Byrd asserts that a defendant charged with DWAI who has a prior conviction for DWAI, DUI, DUI per se, habitual user, or vehicular homicide or who had a blood alcohol content of .20 or more, faces a maximum sentence of one year in jail. Section 42-4-1301(7)(a)(III)(B), (b)(II)(A) & (b)(III)(A), C.R.S.2004.
However, the
Blanton
Court rejected a similar contention, stating, “[W]e 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.”
Blanton, supra,
Accordingly, we conclude that a first-time DWAI offense, taken by itself, is a petty offense for constitutional purposes.
B. Statutory Scheme
Upon considering the statutory scheme for offenses involving driving under the influence of drugs or alcohol, however, we conclude that the General Assembly intended that alleged first-time DWAI offendеrs, such as Byrd and Claudell, be exempt from the requirements of § 16-10-109(2) to have their cases tried by a jury.
In construing statutes, our duty is to give effect to the intent of the General Assembly, looking first to the plain language of the statute.
Vigil v. Franklin,
Section 42-4-1301 sets forth the offenses of driving under the influence, driving while impaired, and driving with excessive alcohol content. Section 42-4-1301(7), C.R.S.2004, sets forth the penalties for these offenses. Although the penalties vary for these offenses depending upon the fact of any prior convictions for similar offenses or the level of the individual’s blood alcohol, first-time DWAI is the only offense that carries a penalty with the maximum possible incarceration of only 180 days. All other offenses in this section provide for a possible maximum incarceration period of more than 180 days. See, e.g., § 42-^4 — 1301(7)(a)(I) (“every person who is сonvicted of DUI, DUI per se, or habitual user shall be punished by ... [i]m-prisonment in the county jail for not less than five days nor more than one year”); § 42-4-1301(7)(b)(II) (“[ujpon conviction of a second or subsequent offense of DWAI, an offender shall be punished by ... [ijmprisonment in the county jail for not less than forty-five days nor more than one year”).
Because the majority of offenses described in this sеction entail a maximum possible penalty of more than 180 days, defendants charged with committing those offenses are automatically entitled to a jury trial under the Sixth Amendment. See Blanton, supra. Consequently, the only defendants charged under § 42-4-1301 who might be required to request a jury trial pursuant to § 16 — 10— 109(2) are those charged with a first-time *1279 DWAI. We conclude from the General Assembly’s placement of numerous аlcohol-and-drug-related offenses in a single statute that it intended first-time DWAI offenses also to be entitled to a jury trial.
Moreover, because the penalties in the statutory scheme for offenses involving driving under the influence of drugs- or alcohol are dependent upon circumstances that may not be known by the court at the time of the defendant’s arraignment, it would bе illogical to interpret §§ 16-10-109(2) and 42-4-1301 as requiring only first-time DWAI offenders to request and pay for a jury trial.
When a defendant is charged with a petty offense and is not represented by counsel at the arraignment, the court is required to advise the defendant of the right to a jury trial and the requirements for obtaining one. Section 16-10-109(3), C.R.S.2004, sets forth the advisement requirements for a defendant’s arraignment for any petty offense, as defined by § 16-10-109(1), C.R.S.2004. It provides in relevant part:
At the time of arraignment for any petty offense in this state, the judge shall advise any defendant not represented by counsel of the defendant’s right to trial by jury, of the requirement that the defendant, if he desires to invoke his right to trial by jury, demand such trial by jury in writing within ten days after arraignment ... and of the requirement that the defendаnt ... tender to the court within ten days after arraignment ... a jury fee of twenty-five dollars
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Section 16-10-109(3) assumes that the judge giving the advisement is aware of which offenses are petty and which are serious for the purposes of obtaining a jury trial. However, as demonstrated by our above analysis, that distinction is not always straightforward.
For example, Byrd and Claudell, who were not represented by counsel when they were arraigned, were each given the identical general advisement. The county courts’ advisement provided:
Your rights with respect to your case are as follows: You have the right to plead not guilty and have a trial to. the [cjourt or a jury trial. Some of you are charged with minor offenses and you’ll have to make a written request for a jury trial, pay a jury fee, and do both of those things within 10 days [o]f today’s date in order to have a jury trial.
However, it did not specify what offenses were “minor” or petty and thus required a written jury trial request and payment of a fee.
These practical difficulties reinforce our conclusion that the General Assembly intended that all defendants charged with an offense under § 42-4-1301 are entitled to a jury trial without having to comply with the requirements in § 16-10-109(2). We believe that this construction gives effect to all parts of the statute and eliminates uncertainty at arraignments in advising defendants who are charged with different offenses with disparate, potential penalties under § 42-4-1301.
Consequently, we conclude that none of the offenses listed in § 42-4-1301 is considered petty for the purposes of § 16-10-109, and-therefore, defendants are not required to comport with that section to obtain a trial by jury. ■ .
The judgment of the district court is affirmed.