MEMORANDUM AND ORDER
This matter is before the court on defendant’s motions to dismiss. The questions presented are: (1) whether the language of 20 V.I.C. § 493(a)(1), “... under the influence of an intoxicating liquor ...”, is unconstitutionally vague and/or ambiguous; and (2) whether defendant’s right to a speedy trial was violated, pursuant to this
Facts
On February 27, 1987, defendant Zachry admitted to police that he was the driver of a vehicle that hit a boulder on Crown Mountain Road. Officer H. Acosta observed the defendant’s swagger, breath, and physical appearance, and concluded that a misdemeanor occurred pursuant to 20 V.I.C. § 493(a)(1). Upon lawful arrest, defendant was offered chemical testing of his blood, and was subsequently charged with violating 20 V.I.C. § 493(a)(1), (2), and 20 V.I.C. § 503. Arraignment occurred on April 2, 1987, followed by defendant’s request for a jury trial on April 9, 1987. Neither party was ready to proceed with a Suppression Hearing scheduled for November 19, 1987 which ultimately occurred on May 13, 1988. Both the defendant and the Government have since flooded this court with motions for dismissal and responses upon this court’s inquiry on the constitutionality of permitting the Government to continue with its prosecution.
Constitutionality of 20 V.I.C. § 198(a)(1)
The judicial branch exists in part to construe statutory creations of the legislature, and to apply such statutes to the facts of any given case. When the intent of such law is not clear on its face, the legislative intent may be deduced through investigation. Traditionally, however, there has been strong debate whenever a court interprets the intent of the legislature when the law is unclear. Thus, it may be more prudent for a statute to be declared unconstitutional on its face than for a court to read into an ambiguous statute. This tension is one segment of the balance of powers referred to as judicial restraint (see Black’s Law Dictionary 762 special deluxe 5th ed. 1979).
In the present case, defendant challenges the meaning of “... under the influence of an intoxicating liquor ...,” articulated in 20 V.I.C. § 493(a)(1). On its face, “under the influence” is distinguished from a specific percentage of alcoholic content in this statute. When the law is read in its entirety, “a person’s ability to operate a vehicle can be presumed to be impaired by alcohol, yet that person would not be presumed intoxicated,” which is instead a degree of
Therefore, defendant’s assertion that driving under the influence and driving while intoxicated are the same offense is inaccurate. Driving under the influence, which could be as slight as driving home after taking the Host at Church on Sunday is wrong merely because the legislature says it is wrong (see State v. Budge,
Absent an explicit legislative showing, driving under the influence must be construed under a bare minimum analysis; any consumption, however minute, of alcohol violates § 493(a)(1).
Speedy Trial Requirement
Defendant’s second major premise supporting dismissal is that he was denied a speedy trial, pursuant to the Revised Organic Act of 1954, § 3 and the Sixth Amendment of the United States Constitution. Thirteen months passed between filing the complaint and the first motion to dismiss based on this, denial. An additional sixteen months has passed thusfar, leaving defendant waiting in the shadows of anxiety for twenty-nine months.
Although this jurisdiction has previously permitted delays as long as eighteen months, the circumstances must reveal that the delay resulted in presumed prejudice to the defendant (Government of the Virgin Islands v. Pemberton, No. 86-3116 (3rd Cir. 1987) quoting United States v. Loud Hawk,
In addition, the reason for delay is not entirely clear to this court, although on at least one occasion, neither party was ready to proceed. This court is somewhat accountable for the delay of late resulting from docket backlog and a high case load. However, as defendant notes, responsibility to push a case through does not rest with the court alone. Regardless, this factor is not attributed to either party’s actions.
As noted earlier, defendant did assert his speedy trial rights thirteen months into the litigation. With the exception of one continuance for a suppression hearing, defendant has demonstrated his readiness to proceed in this action.
Lastly, the stark truth of prejudice exists due to the delay. Memories fade; evidence loses its clarity of yesterday. In fact, if it were not for the extreme prejudice resulting to defendant, this court would advocate a prompt hearing on the merits. Defendant’s two alibi witnesses, however, cannot be relied on after almost three years to recount the circumstances of one night. Normally, a defendant must demonstrate how a particular witness would have helped his case, and may not allege mere impairment of memory (see Government of the Virgin Islands v. Quetel at 151-52). This court cannot expect a reasonable person to remember an incident
Conclusion
In view of the foregoing, this court concludes that 20 V.I.C. § 493(a) is not unconstitutionally vague, but that the defendant’s right to a speedy trial has been violated. Accordingly, it is hereby,
ORDERED, that defendant’s Motion to Dismiss is GRANTED; and it is further
ORDERED, that the above-captioned matter is DISMISSED with prejudice; and it is further
ORDERED, that copies of this Order shall be directed to defendant’s attorney; Department of Justice, General Litigation Services; and the Virgin Islands Police Department.
Notes
In fact, the legislative history reveals no mention of any quantitative discussion defining “under the influence” see Bill No. 15-0653, Regular Session 51 (June 12, 1984); Bill Request Folder, No. 15-0653, V.I. Legislative Archives.
see Synnott v. State of Oklahoma,