Philip Landry v. Judge J. Robert Hoepfner and William Guste, Jr., Attorney General, State of Louisiana

therefore, Mann, cannot be said to appeal. action in on the district court’s

have relied to move for an excuse his failure order to 4(a)(5).6 We are under Rule extension ap to entertain Mann’s jurisdiction grant the State’s motion to and must peal, dismiss. regret having to dismiss

Much we grounds, appeal jurisdictional Mann’s no permits in this area other result. the law (5th Treen, 671 F.2d 892 See Williams denied, Cir.1982), cert. 762, Our however, so, doing tempered aversion claims that Mann’s substantive by the fact thorough judi received extensive courts Neither the Texas cial attention. court have found nor the district below position. Regardless of merit in Mann’s Mann’s as to the ultimate merit of our view claims, however, jur we are constrained on entertaining grounds isdictional from appeal.

III. Accordingly, the appeal. we DISMISS LANDRY, Petitioner-Appellant, Philip Judge J. Robert and William HOEPFNER General, Guste, Jr., Attorney State

Louisiana, Respondents-Appellees.

No. 85-3784. Appeals, United States Fifth Circuit. March appeal was filed. That state- opposing ed that notice of 6. While counsel in both Harris decep- any way not in true and was Thompson oppose original ment was failed to act duty in an extension of under no affirmative The State was petitioner that resulted tive. pursue the most efficacious appeal, that Mann filing to ensure the time for notice of upon relevant, litigation. incumbent It was course Court neither cited fact as nor timely filed Here, argues make sure that notice dispositive. Mann to found it Mann and, not, request an fact and failing to discover that if the State him to call misled showing good by way of a motion untimely filing extension of notice of attention to his appeal. neglect. merely or excusable Opposition, not- cause In its the State Salomon, Rene I. Gen., Asst. Atty. Baton Rouge, La., for amicus curiae —DA’s. Adams, E. Pete Executive Director, La. Attys. Dist. Assoc., Inc., Rouge, Baton La., for amicus curiae —Exec. Dir. La. DA’s Assoc. CLARK,

Before Judge, Chief GEE, RUBIN, GARZA, REAVLEY, POLITZ, KING,* JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, JONES, Circuit Judges.**

GARWOOD, Judge: Circuit question presented in this habeas

corpus case whether pros- Louisiana ecution for a first offense operating vehicle while (DWI), intoxicated the Sixth Amendment, as applicable made states the Fourteenth Amendment, en- titles the accused ato trial notwith- standing that the five hundred dollars fine and six months’ imprisonment maximum penalty prescribed for the infraction does not exceed that appropriate for of- fenses under York, Baldwin v. New (1970). Disagreeing panel’s with the con- trary determination, Landry v. Hoepfner, (5th F.2d Cir.1987), this Court en McTeman, Mark McTeman, Parr & banc now holds that the United States Con- Rummage, Orleans, La., New petition- stitution does not require the pro- states to er-appellant. right vide of trial jury for such an Wayne Blanchard, J. La., Shreveport, offense. accordingly affirm the dis- amicus curiae—La. Assoc. Crim. Def. Law- trict court’s dismissal of appellant’s peti- yers. tion under 28 U.S.C. 2254 attacking his Louisiana Jones, DWI City

Okla conviction. Atty., Orleans, New La., for amicus City of New Orleans. curiae—

Louis Fischer, M. Div., Criminal I. Dept, of Justice, Washington, D.C., for amicus curi- Petitioner-appellant Philip (Lan- Landry ae—U.S. dry), who waived his to counsel and Dorothy Pendergast, A. Research represented himself, with, was charged Appeals, Gretna, La., for respondents-ap- following a January 1984 bench trial was pellees. convicted by the First Parish Court of Jef- * Formerly Carolyn Dineen Judge Randall. Jerry E. Smith was not a member of the Court when this case was submitted to the 19, 1987, **Due to his death on October Judge Court en participate banc did not in this Hill did participate in this decision. decision. of, Parish, first offense tional Center.3 The confinement sentence Louisiana ferson suspended years, during 14:9s.1 Pur was for two DWI, contrary to LSA-R.S. § B, period Landry placed probation authorizes a under 14:98 which suant to section requiring him perform days five hundred dol four of com maximum sentence munity work, days service attend four and six months’ lars fine courses, offence,2 improvement Landry undergo sentenced to a driver of and a term evaluation at the Jefferson Parish three hundred dollars Sub fine of stance Parish Correc Abuse Clinic.4 in the Jefferson six months offense, 13, September Additionally, Landry fifty Landry’s was assessed dollars the time of 1. At 1983, part: 887(D), provided pertinent in section 14:98 as costs under LSA-C.Cr.P. art. which operating a vehicle while intox provides person "A. The crime of that "a convicted of a violation vehicle, any operating motor is of icated of R.S. 14:98 ... shall be assessed an additional aircraft, conveyance means of vessel or other fifty special defray dollars as costs to be used to beverag alcoholic under influence of while expenses administering proba- of conditions of es, system drugs, stim central nervous narcotic 887(C), tion or of Article LSA- incarceration.” ulants, hallucinogenic drugs barbiturates.” or C.Cr.P., fifty provides also for dollars as costs (La.App. Landry, 463 So.2d See State v. blood, breath, any presence for or urine test for denied, (La. 1985). Cir.), 464 So.2d 1373 writ 5th Landry’s narcotics, Landry, under- of alcohol or but who “operating" a "motor ve offense was test, went no such was not assessed costs under of alcoholic under the influence hicle” "while 887(C) 887(C). pursuant Costs to articles article beverages.” (D) punishment and are not deemed a fine January effective Pursuant enactment Henderson, under Louisiana law. See State v. 1), (Acts A No. section 14:98 § (La.1986). 491 So.2d read: was amended to law, pay a fine Under Louisiana no failure operating while of a vehicle "A. The crime convic- or costs in relation to a misdemeanor any operating ve- of motor intoxicated is hicle, aircraft, tion, which the maximum sentence to con- watercraft, vessel, or other less, can result in finement is six months or conveyance when: means which, any when added to im- confinement "(1) operator is under the influence The part posed directly for that of the sentence beverages; alcoholic offense, six months in total. LSA-C. exceeds "(2) operator’s concen- The blood alcohol Thigpen, 275 So.2d art. 884. See State v. Cr.P. by weight percent 0.10 or more tration is (La.1973). per grams one hundred based on of alcohol blood; or cubic centimeters of charged proceed- Landry also in the same "(3) operator influence of The is under the 14:99, violating ing which con- § LSA-R.S. with system drugs, central nervous stimu- narcotic lants, operating "in a criminal- a motor vehicle demns drugs, hallucinogenic or barbiturates." provides negligent and ly or reckless manner” present section remains the form of This of a two hundred (3) sentence A, for a maximum paragraph except that in 1985 14:98 ninety days’ imprisonment. "(3) fine and provide: operator dollars The is under rewritten to charge at any dangerous section 14:99was dismissed sub- under the influence of controlled The II, III, IV, I, LSA-C.Cr.P. art. in or V as set of trial. Under stance listed Schedule the conclusion 493.1, 1.) (Acts provides 40:964." No. two or more forth R.S. that where jointly maxi- “the misdemeanors provides: B 2. Section 14:98 imposed aggregate penalty mum conviction, the offender shall “B. On a first imprison- shall not exceed the misdemeanors twenty- one hundred be fined not less than or a fine of than six months for more ment hundred dol- five dollars nor more than five both,” dollars, or hundred more than five days imprisoned ten lars and for not less than charge section 14:99 did presence under Imposition or nor more than six months. sentence to which the maximum not increase suspended execution of sentence shall not be exposed sec- Landry had the have been would unless: "(1) charged. State v. not been 14:99 offense tion placed probation The on with offender Cir.), (La.App. 5th Landry, 463 So.2d days that he serve two minimum condition denied, (La.1985); State So.2d 1373 writ jail participate court-approved in a Cir.), Vieto, (La.App. writ 5th So.2d 259 participate program in a substance abuse (La.1984). denied, See also State So.2d 1183 improvement program; court-approved driver And, (La.1984). Johnson, 458 So.2d 1301 v. Landry or "(2) violating section convicted was not placed probation The offender 14:99, charging is hence of that perform four a minimum condition that he present 2254 suit. section immaterial community eight-hour days court-approved signifi- correctly opinion no attached activities, court-ap- participate service proved in a Landry charge, and section 14:99 cance to the program partic- substance abuse that it has before this Court not asserted ipate court-approved improvement has driver program.” relevance. law, Under Louisiana there is no entitle Louisiana statutes and Constitution pur ment to trial respect to misde portedly denying to a jury trial meanors which the maximum sentence were invalid contrary to the Sixth and does not exceed a five hundred dollars fine Fourteenth Amendments the United for not more than six States Constitution. The Louisiana Court months. LSA-C. Cr. P. art. 779.5 A Appeals affirmed his conviction and sen first offense violation of section 14:98— tence. State v. Landry, 463 So.2d 761 DWI —is a misdemeanor.6 Accordingly, (La.App. Cir.1985). 5th It held that “de since the penalty provided for first offense fendant entitled to a trial” DWI in section 14:98 B does not exceed a id. under law, Louisiana and that five hundred dollars fine and six months’ Landry’s complaints as to invalidity imprisonment, recognized it is in Louisiana under the United States Constitution law that there is no entitlement statutory Louisiana pro constitutional e.g., jury for such offense. See respect visions were waived his Thigpen, 275 State v. (La.1973); 760 So.2d failure to raise them at trial. Id. at 763.7 Hayden, 437 So.2d 294 (La.App. 1st Cir. The Louisiana Court denied Lan Henderson, 1983); State v. 491 So.2d dry’s 647 application for writ of certiorari (La.1986). and/or review opinion. State v. without Landry, 464 So.2d (La.1985). 1373

Following his conviction sentence, Landry retained and sought appel counsel Landry brought thereafter the instant late conviction, review of his asserting that corpus habeas proceedings under 28 U.S.C. he denied by his jury 2254, trial challenging his § DWI conviction.8 because he was by not informed of it the The district court ruled that because the trial court and provisions the that of the this first offense provides: 5.Article 779 considered to be 6, hard labor. See note A charged "A. defendant awith misde- infra. in punishment, meanor which the as set forth offense, defining the statute 6. may the law "felony” Louisiana be defines as "an of fine in excess of five hundred fense punished dollars or by im- that be by death prisonment for more than six imprisonment labor,” months shall be at hard and a "misde by jury jurors, tried of six all of whom must "any meanor" as felony." offense other than a concur to render a verdict. 933(3) (4). arts. LSA-C.Cr.P. & See also LSA-R. "B. The defendant with other 14:2(4) (6) (same). S. §§ & purpose, For this if misdemeanor be shall tried the court with- statutory the penalty language specify does not jury.” out a imprisonment that the is to be at hard labor— 1979, The statute has been in this since form penalty language and the of section B 14:98 does except that in 1986 the "as set forth in the (see 2, specify not so supra) note —then defining wording statute (Acts 1986, the offense” was added is considered to be without hard 852, 1). No. The five hundred labor accordingly and the offense is a misde dollars, six part months' cutoff has been Cobb, meanor. State v. (La.App. 450 So.2d 59 1968; statute formerly, since no misdemeanors 1984); Griffin, 681, 3d Cir. State v. 455 So.2d 683 were jury. Louisiana, triable See Duncan v. Cir.), denied, n. 2 (La.App. 2d writ 458 So.2d 128 145, 1444, 391 U.S. 88 S.Ct. 20 L.Ed.2d 491 (La.1984). (1968). long Article A has 779 been author- itatively construed as if it “or included both" Landry also claimed that the evidence was respect with imprisonment. to fine or support insufficient his conviction. The Lou- Seals, 1005, 255 (1970). La. 233 So.2d 914 Appeals isiana Court of held that the evidence costs, including Court art. those under LSA-C.Cr.P. Landry pursue sufficient. did 887, not that are not determining included in appeal claim in his from district court’s Henderson, amount of the fine. State v. denial of petition. his section 2254 So.2d (La.1986). 2, 17, Article section of the Louisiana Consti- provides Although Landry's probation tution for a capital trial all has now cases, expired, in all cases doubtless “in which the punishment still in effect when his necessarily labor,” petition Thus, confinement at hard section 2254 and in was filed. he re all cases "in punishment may procedurally eligible which the mains be for section 2254 re confinement at out labor Court, hard Hensley confinement lief. See Municipal with- 411 U.S. hard labor for more than six months.” If 93 S.Ct. Cara statutory penalty language specify Vallee, does v. La 88 S.Ct. fas that labor, is to confinement be at hard it is L.Ed.2d 554 crimes or offenses category confinement six months’ DWI was subject to the Amend- fine, which is not Sixth the Sixth Amend dollars hundred five provision ment and should not be trial to the states ment, applicable as made Amendment, subject to the Fourteenth Amendment did not entitle Fourteenth requirement applied here Accordingly, trial it dis trial. to a Landry (footnote Id. at A this States.” Landry’s petition. missed omitted). recognizing that for this While reversed, holding the Sixth inevitably become “neces- purpose it would Landry to a trial entitled Amendment spectrum sary to a line draw of nature of the of the serious because crime, petty from serious infrac- separating collateral the adverse DWI and fense of tions,” id. Duncan Court was thereof. Lan conviction consequences case the required to “settle agree with supra. Hoepfner, dry of the line” for it determined exact location disagree district court sentence maximum authorized affirm the dismis and we therefore panel, clearly placed the years’ imprisonment two petition. Landry’s habeas sal of in the “serious” cat- offense there involved Subsequently, egory. at 1454. II. York, Baldwin v. New III, of the Constitution Article Section re- the Court L.Ed.2d clause, in its third provides, “[t]he the line on the basis fused to draw jury,” crimes ... shall of all felony or misde- offense was whether the in all requires Amendment Sixth “[t]hat meanor, of rather fixed it on the basis but en shall the accused prosecutions, criminal permissible confine- maximum whether the trial, by impartial an right a ... joy to the months, referring to the six ment exceeded however, recognized, It was jury....” “petty of- of congressional definition applied though they provisions, that these at Never- fenses.” Id. 90 S.Ct. 1888-90. felonies, did as well to misdemeanors expressly hold Baldwin theless, does not jury to right by of trial the not extend that all offenses for which the Wilson, 127 v. Callan offenses.” “petty six does exceed confinement not authorized 1306-07, 1301, 32 L.Ed. 540, 8 S.Ct. U.S. necessarily to considered be months States, 195 v. United (1888); Schick Accordingly, al- purpose. “petty” for this (1904); 49 L.Ed. U.S. in Bald- though applied the criteria under Colts, 282 U.S. District Columbia of “petty,” the offense is win the present Dis 52, 53, L.Ed. 177 51 S.Ct. Fourteenth the Sixth and question whether Clawans, trict Columbia of that mandate nevertheless Amendments (1937).10 L.Ed. 843 57 S.Ct. right a this afford for infraction Louisiana decisions, Supreme the Long after those closer exami- necessitates a by jury of trial Court, contrary dicta rejecting several doctrine “petty offense” nation the held that the first time opinions, earlier after Dun- before and development both its applicable was made the Amendment Sixth can and Baldwin. Fourteenth Amend states the analy undertaking an such Before like ment, states were hence and that the three some keep mind sis, to it is right well the trial obliged to afford wise respect general observations v. what obvious Duncan prosecutions. in criminal jury is doctrine which offense” ing “petty the Louisiana, To case. our concern Nevertheless, core in Dun L.Ed.2d with, is one the doctrine begin is can, acknowledged “that there the Court federal dis- is no that there indicate Landry, 10. The decisions he was held that likewise provisions of jury rights, trial pro of his did tinction between se and not advised failing III, right jury Amendment a trial and the Sixth waive his Section Article F.2d at request jury trial court. 818 grade or character respect to the Landry See, had no constitu- that jury. 1178. As we hold gives to entitlement rise trial, jury pretermit right we to a tional Callan, e.g., at 1303-04. issue. waiver constitutional law. prevent It does not offenses, petty rejected premise “the states —or the government federal prosecutions that since —from punisha- crimes granting right trial in petty of by imprisonment ble for less than six fenses; it speaks only to when the United may months be tried jury, without a they States Constitution right. mandates such a may also be tried lawyer.” without a As noted below, in more detail in many 92 S.Ct. at 2009. See also id. at 2008 the petty states offense doctrine is simply (indicating that other Sixth Amendment recognized, so that for all criminal protections, such public as those for trial, prosecutions, whether or not the offense confrontation, compulsory process, and no- “petty,” is is right there tice, likewise apply to “petty” offenses). trial, by virtue of state constitutional or turn review, now statutory In law.11 somewhat place, the second under more detail and in “petty our doctrine, offense” question context, historical how is not whether infraction is a Court has “crime” defined “petty” of- penalty or the criminal, it civil or fenses years. nor over the whether may include sub Callan, In the Court noted that Con confinement, stantial as is determinative stitution’s jury provisions trial are “to be right trial in a number of states. interpreted in light of the principles Rather, it clear may infraction be which, at law, common determined whether a “petty offense,” for which the United accused, in given cases, class of States Constitution require does not entitled to be tried a jury.” 8 S.Ct. at there be a trial jury, notwith 1303. Callan concerned a conspiracy pros standing clearly a “crime” which ecution, Court, and the recognizing that at punished by as much as six months’ common law “petty” offenses were not tri imprisonment. See, e.g., Duncan, 88 S.Ct. by jury, able proceeded to review in detail (“Crimes at 1453 carrying possible penal reflecting authorities that conspiracy up ties to six months do not require was an indictable offense law; if common they qualify otherwise of hence it held that a fenses.”). required even Finally, the fact that an offense though the case is “petty” was tried in municipal for these purposes does not court. Id. at mean that 1306-07.12 prosecution Schick, in a In it the ac Court, holding in cused is entitled that a petty not to the other did constitu protections, require tional trial including by jury, those of relied on Callan Amendment, Sixth and especially emphasized afforded the criminal that the consti Thus, defendant. provisions tutional Argersinger v. Ham relevant in respect this lin, “must be L.Ed.2d read in light of the common the Court held that the law.” 24 Sixth S.Ct. at 827.13 The issue was Amendment to counsel extended to next considered in Colts, where the ac- 11.Indeed, Douglas Justices Black and quoted were early Callan Massachusetts deci- " the view that the Sixth Amendment and Article that, sion to the effect general under ‘[t]he rule III, " Section made no "pet- distinction between law,’" of the conspiracy common ‘is a criminal ty" and Baldwin, "serious” crimes. 90 S.Ct. at offense,'" and, and indictable reviewing after (concurring opinion). Burg- Chief Justice other decisions and indicating texts also that, er was of the view purposes at least for with seriousness conspiracy, which the common law viewed application of the Sixth Amendment observed, "These authorities are suf- through states Amendment, the Fourteenth ficient to show the nature of the crime of con- jury guarantee trial only extended to "serious" spiracy at common law." 8 S.Ct. at crimes, which could include punishable those proceeded Callan then to hold accordingly year’s by imprisonment. (dissent- Id. at 1892 conspiracy regarded could not be "petty” as a ing opinion). Harlan, Justice who had dissent- offense, and hence a required. Duncan, thought ed appropriate "it to draw the line cases, at six months in although” federal concluded, he 13. And "would Schick encumber ”[I]t the States obvious that re- quirement." Baldwin, the intent (dis- [of S.Ct. at was to framers] 1916-17 exclude from senting opinion). requirement Justice Stewart constitutional likewise dis- aof the trial sented, stating that "substantially agree[d]” petty he criminal offenses.” Id. with Justice Harlan. Id. at 1928. Then, cused, driving at 663. charged presaged the offense words that endanger property and “recklessly progeny, ‘so as to Baldwin and its Clawans contin- ” individuals,’ indictable of- which “was an ued: law,” entitled to was held fense at common “But we doubt whether summary although punishment the maximum punishment trial with of more than six days jail and a one thirty did not exceed imprisonment, months’ prescribed by at 53. hundred dollars fine. 51 S.Ct. statutes, pre-Revolutionary some is ad that in this re- Again, the Court stressed missible, concluding penal that a “provi- spect the Constitution’s ty ninety days is too much.” Id. at interpreted light of the sion is to be (footnote omitted).14 common law.” Id. framework, however, Within that signifi- presently the Court’s The last of permissible penalty pur- for this pre-Duncan decisions is cant Clawans. pose “subjectively” is not to be resolved defendant was with sell- There the standards,” “by objective rather princi- but ing property secondhand without the re- pally greatest penalties Congress license, punishable by quired an offense and at least some of the states allow to be Noting ninety days’ imprisonment. imposed without entitlement to trial at the offense “was not indictable common jury. analysis at 663-64. This Id. was not law,” considered Clawans nevertheless counting a head exercise to determine the severity penalty” whether “the practice nation, consensus around the but bring might it within the be “sufficient (from simply rather reflected statutes offenses, major class of for the trial of 1898) (from early as or decisions 1862 to jury may which a be demanded.” 57 S.Ct. 1932) both thirteen different that at the at 662. Court observed states. at 663 n. 664 n. 7. Id. time of the American Revolution there Duncan, though In the Court did not offenses, triable without a were precisely fix the standard which statutes, English pos- “under which carried distinguished, offenses to be it noted were periods imprisonment sentences of sible penalty major that the authorized was “of months,” and that of from three to twelve purpose, relevance” for this and that “[t]he the statutes in that time of the “Colonies” authorized the law of the locali- “newly-created or the states” some sixteen gauge ty may taken ‘as a of its social imprisonment authorized for three months [quoting judgments’ and ethical ... Cla- more, eight much others for as question.” crime in wans of the ] months, jury trial. six without a likewise stressed the at 1453. Duncan Obviously 662-63. with the concerned criteria,” objective need “to refer to id. at long prospect for as 1453, and went on to observe: more, year, possibly nine months or a safeguard system, petty “In federal offenses being imposed without the a by punishable as those no jury’s availability, the Court remarked that are defined prison “commonly accepted severity of the more than six months and a views punishment imprisonment may [citing fine 18 U.S.C. In 49 of by be- $500 § 1]. penalty subject come so modified that a once the 50 states crimes to trial with- thought regard- punishable by more jury to be mild come to be out a ... are no Moreover, trial, jury year jail. ed as so harsh as to call than one prescribes, century which the Constitution in some in America crimes tri- late 18th cases which were a were for the most triable without a able without adopted.” by when the more than a six- part punishable Constitution was Id. no "pre-Revolution- 14. The Court's mention here of reference was made in this connection ary authorizing summary opin- statutes” trial for of- early state or colonial statutes which the imprison- fenses with more than six months’ authorizing ion had not described as more than English ment was footnoted to refer to the stat- nonjury six months in cases. Id. at 662-63 nn. 3 utes, penalties long some of which had & 4. year. Id. 57 S.Ct. at n. 663 n. 5. No term_” prison month Id at 1453-54 and inexpensive nonjury adjudications. (footnotes omitted). cannot, however, conclude that these States, conveniences, Frank administrative light United 395 U.S. 1503, 1505, practices S.Ct. (1969), L.Ed.2d 162 now every exist in one reiterated that of the determining whether States as “[i]n well as in the federal particular courts, offense can be classified ‘pet similarly justify can denying an ty,’ this sought objective Court has indica important accused the right by to trial tions of the seriousness with which society possible where the penalty exceeds offense_ regards the The most rele six imprisonment.” months’ 1890- vant indication of the seriousness of an (footnote omitted). severity offense is the penalty of the autho It is to be noted that Duncan Bald rized for its commission.”15 win both congressional reference the defi Baldwin, In again the Court stated that nition of petty offenses, with its six deciding whether an offense ‘petty,’ “[i]n months’ possible confinement.16 sought we objective have reflecting criteria Baldwin, Since the Court spoken has the seriousness with which society regards in terms length of the of possible confine the offense ... and we found the ment as establishing dividing line be most relevant such criteria in severity tween “petty” and serious offenses. Two penalty.” maximum authorized years Baldwin, after the Court in Arger- S.Ct. at 1888. It by observing: continues singer observed: “In the system, federal as we noted in “The right to trial jury, guar- also Duncan, petty offenses have been de- anteed the Sixth Amendment rea- fined punishable as those by no more son of Fourteenth, was limited than six prison months in and a fine $500 Louisiana, Duncan v. sufra, to trials [citing And, 18 U.S.C. with a few § 1]. potential where the punishment was for exceptions, crimes triable six months more.” at 2008. in the American States since the late And, 18th century were two generally punish- years also after Argersinger,

able no more than a Court in prison Codispoti six-month v. Pennsylvania, 418 (footnotes term.” Id. at 1889 omitted). 2687, 2691, 41 L.Ed.2d (1974),stated, referring to Duncan and Baldwin then concludes with the state- (see Bloom supra): note ment: time, “Where the “Since accused possibly our cannot face decisions have more than six imprisonment, months’ dividing established fixed we line between have held that these disadvantages petty and serious offenses: those [of crimes conviction imprisonment], carrying onerous a sentence of more than six' though they be, may may outweighed months are serious crimes and those by the benefits that speedy result from carrying a sentence of six months or less Illinois, 15. Frank "(2) followed Bloom v. Any other offense is a misdemeanor. "(3) misdemeanor, Any day was decided the same as Duncan and held which, as provision set forth in the defining contempts that criminal would be treated “like offense, does not exceed other crimes insofar as the trial is period of six months or fine of not more concerned," except legisla- that if there were no $5,000 $10,000 then for an and individual tively sentence, fixed maximum then the sen- person individual, both, other than an or is actually imposed tence would be looked to “as petty offense." the best of the evidence seriousness of the of- (3) Clause adding amended in 1984 the fense." 88 1486-87. language set forth in provision defining "as the 1, U.S.C., "$5,000 by substituting the offense” provides: Section for an $10,000 individual person for a "Notwithstanding any other than Congress Act of to the an contrary: previous individual" in lieu of "$500.” “(1) Any 8(1), (2). punishable Pub.L. §§ 98-596 offense death or exeeding year for a term one felony. rized confinement crimes.”17 more than six months. suggest that do not Callan Colts Finally, sub silentio —certain- the overall emphasis have been overruled trend of in say. An offense opinions, is not for us to and the ly, language that in the most “petty recent, is not a at common law above-quoted indictable such from Co- III, purposes of Article Sec- dispoti, strongly against offense” counsel expan- an 3, or the Sixth Amendment tion clause reading sive of Callan or Colts to autho- no more than a one- though it carries even rize the federal courts to declare an offense maximum sentence. Colts. Never- month nonpetty any on the basis of criteria other significant theless, points three we believe than whether it was indictable at common emerge analysis an from law and whether its maximum sentence writings in this area. Court’s exceeds the Baldwin line. These crite- two bright-line, ria make for objective test. origi- First, clear that the Court it seems To third judicial per- add a criterion—the prece- nally strictly common law followed ception of the “seriousness” otherwise dent, developing concern but with some offense, intrinsically either or as the penalties might allow severe with- judges “public” generally conceive to jury. possibili- This protection out the regard apart it from the status it had at danger posed the related ty doubtless —and common pen- law and its current maximum by burgeoning statutory offenses without inject alty inherently to and inesca- opened common antecedents —in effect law —is pably subjective imprecise factor into potentially troublesome prospect of a Essentially, the calculus. this would in- protection in the Constitu- gap which judges applying in volve the same sort of intended to provisions tion’s were legislative criteria that the in branch did Ultimately, the Court chose to afford. place the first when it fixed the maximum gap by employing Baldwin’s close that however, Legislatures, sentence. are far objective, bright-line grounded test task, equipped perform better practice of the Colonies and the historical responsive changes are likewise more original states. recogni- attitude and more amenable Second, held or stat- the Court has never misperceptions of their tion and correction any than a ed crime is a “serious” rather respect. in this offense on the basis of criteria is, moreover, particularly It undesirable other than whether its maximum autho- imprecise subjective inject such cri six rized confinement exceeded months teria into the calculus now that the Sixth at common law. whether was indictable applicable to the Amendment has been held put, has never identi- Otherwise Court states, imposes for to do so national being nonpet- false any particular fied uniformity.18 com- What “serious” Ver ty which was both not indictable at Louisiana, autho- not be “serious” mon law and carried a mont support ciary "trump" panel majority in the dis- Wisconsin’s characterization of found White, (DWI), joined by senting opinion there involved but rather of Justice the offense Wisconsin, (then) Rehnquist, in Welsh v. both treat that of- Justice that Wisconsin free 2091, 2101, 80 L.Ed.2d fense as one of civil forfeiture and also to autho- (as persuaded We are not of Welsh's rize arrest therefor without a warrant did Amendment, statute), might relevance. Welsh was a Fourth the Wisconsin be made trial, Argersinger. not a Moreover, exigent case. circumstances. Id. at in-home in Cf. majority White). (dissenting opinion in Welsh observed: of Justice "Given that the classification of state crimes States, among significance widely differs may 18. It is thus not without that short- considerably any particular ly Court broad- attach to offense seems to after Duncan the qualify provide character of trials which would the clearest and most consistent indica- ened the purposes. arresting tion of the trials for Sixth Amendment State’s interest individu- decided, suspected committing day als Baldwin was that offense.” 104 The same Florida, S.Ct. at 2100 n. 14. Justice Blackmun in his in Williams v. held ju- six-person expressed concurrence 2100, a similar view. Id. at 26 L.Ed.2d 446 that Moreover, prosecutions in state criminal it is clear that the Welsh ries would suffice crimes, years advocating judi- nonpetty later it was dissent was not that the and two federal 1210 particular problem’s “authority

terms either of con- proposition for the that DWI of popular per- crete manifestations or the constituted an indictable offense at com- it in ception or evaluation of of each those Indeed, mon law.” 818 F.2d at 1175. the vary Not do conditions from states. authorities hold that DWI was not an such state, people’s attitudes, to but so do state 212, Rodgers, offense. State 91 v. N.J.L. prudential. According- both normative (1917); State, 102 A. 433 Whirley v. 450 respecting ly, least offenses not at indict- 836, (Fla.1984); So.2d 838 State ex rel. law, legislature at common when the able Parker, 181, Sellers v. 87 Fla. 100 So. 260 of state to elects make criminal certain (1924); Morrill, 707, State 123 v. N.H. 465 borders, conduct within that state’s it is 882, A.2d Superi- Rothweiler v. to entitled determine that the of- likewise Court, 37, 479, 100 Ariz. 410 P.2d fense has created shall be a “serious” 1362, (“the (1966) A.L.R.3d offense of by fixing penalty one it a maximum driving while under the influence of intoxi- concededly “petty” which is under the liquor cating was not a common law of- bright-line Inevitably, of rule Baldwin. fense”). This is also made clear our different determinations will be made in following discussion of Colts and Clawans. states, different within one state particular in Whether DWI is disagreement. there will be bona such also fide simply offense as history, constitutionally requires But there is no warrant in precedent, policy judi- despite carrying federal only “petty” maxi- second-guess ciary legislative to that deter- mum has also been addressed judiciary’s mination on basis of own Court, indirectly prior twice to conclusions, ground- necessarily which are recently summary Duncan and more subjective, criteria, unquantifiable ed in re- respecting affirmance a Louisiana DWI specting publicly perceived the intrinsic or prosecution. against seriousness of that offense particular of laws state. case latter Bairnsfather — Louisiana, U.S. -, III. (1987), 95 L.Ed.2d 195 where the Court’s Turning specific states, to appeal now the offense of memorandum order “The DWI, recognized the absence of dismissed for want of a substantial federal Apodaca Oregon, government, applied held 406 U.S. were the same as those to (1972), L.Ed.2d that less than unan- through the states the Fourteenth Amendment. acceptable imous verdicts were state criminal Apodaca, Similarly, at S.Ct. prosecutions nonpetty of offenses. Both of Massachusetts, Ludwig v. S.Ct. contrary pre-Dun- many these were decisions justices four voted statements, holdings, can if to reverse on the basis that Sixth Callan’s III, respecting Article Section clause applicable Amendment trial de novo rule long-estab- the Sixth Amendment and violated; the states and had been Justice Powell practice lished universal standing during under- common provided the crucial vote for on affirmance period respecting those aspect apply this basis that did not Callan provisions. suppose One cannot but that the ("[T]he Ludwig, the states. 96 S.Ct. at 2789 specter posed flexibility of diminished state ato trial afforded the Fourteenth likely Duncan had substantial influence on guaranteed Amendment is not identical to that these results. As Justice Harlan said of Amendment.”). the Sixth Justice Powell’s recogni- Williams: "The decision evinces ... a respect, though clearly minority this view in 'incorporationist' tion that the view of the Due Court, one nevertheless decisive on Amendment, Process Clause of the Fourteenth (and at least those two occasions doubtless is underlay which Duncan and is now carried for- juries required the reason that the in federal Baldwin, tempered ward into must be to allow persons criminal cases must still twelve ordering the States more elbow room in their verdicts). and reach unanimous systems." Baldwin, own criminal process J„ jurisprudential development, (Harlan, This opinion dissenting in Baldwin then, provides against any Williams). a further concurring caution result Sub- Powell, reading pre-Duncan opinions sequently, broad Justice whose concurrence necessary reducing Apodaca, would have the effect of the “elbow the affirmance in rejected principle ordering aspect requirements room” allowed the states in Amendment, applied justice the Sixth systems. to the federal their criminal

1211 motion, Brennan, Powell, court denied the and ment. The trial Justices question.” sought in the review Lou jurisdiction and Bairnsfather probable note Scalia “would Circuit, Appeal, Second Court of argument”; and isiana for oral case and set the relief.20 The Su appeal which denied Louisiana dismiss the “would Justice Stevens denied relief preme Court likewise jurisdiction.” for want (Chief Statement, dissenting). Dixon opinion and Justice the Jurisdictional examined Bairnsfather, (La. State v. 491 So.2d State 1336 as well appendixes, its several Affirm, 1986).21 appealed to the Unit Bairnsfather Dismiss or Motion to of Louisiana’s Court, and his Jurisdic rehearing ed States motion appellant’s and essentially presents Statement there There, tional Bairnsfather Bairnsfather. presented by Lan the same as those courts sec issues Louisiana with charged in the appeal.22 The Jurisdictional dry’s DWI, contrary to LSA-R.S. State offense ond essentially argu the same trial ment advances filed a motion 14:98.19 He support trial, asserting ments and authorities23 that jury requesting a court contention that he was enti Sixth Baimsfather’s jury under to a was entitled he under the Sixth tled to a trial Amend States Constitu the United to Amendment panel opinion in this case. ment as does the was a second offense DWI tion because state, Af in Motion to Dismiss or by reason The its serious, petty, offense not a and firm, exclusively on the relied almost nature, consequences of convic of its hun fine of five ground that imposable, and sentence tion and the su maximum confinement 779(B) (see dred dollars and art. note LSA-C.Cr.P. trial, for the violation pra of six months authorized a ), denying the to “petty” offense under Bald- Amend- rendered it a Sixth contrary to the invalid as Bairnsfather, appellant someone fixed “Is offense DWI Is for second 19. The operating charged a C as follows: as a second offender with 14:98 section conviction, in violation Loui- regardless of intoxicated vehicle while “C. On a second 14:98, required by before offense occurred the second whether siana Statutes Revised conviction, the offender shall the first or after States to the United Consti- Sixth Amendment hundred dollars less than three fined jury? a to be tried before tution and five hundred dollars and imprisoned more than required by anyone so “If he and thirty days nor less than for not United States the Sixth Amendment Imposition or execu- six months. more than jury, then is to be tried before Constitution suspended un- shall not be tion sentence 779B, Pro- Code of Louisiana Criminal Article less: cedure, repugnant to the United States Consti- "(1) placed probation on The offender is tution?” serve fif- condition that he with a minimum court-ap- jail participate days teen Statement ar Jurisdictional 23.Bairnsfather’s partic- program proved substance abuse ” this, se and gued was “malum in that DWI improvement ipate court-approved driver ain punishments au together considered program; or the “loss of’ 14:98 C and thorized section "(2) placed probation on offender is conviction, consequent on made driver’s license perform minimum condition he with a thirty "petty” so as rather than it a "serious” court-approved eight-hour days com- the Sixth trial under participate entitle munity in a him activities and service (and program and art. court-approved abuse to render LSA-C.Cr.P. substance Amendment court-approved im- 779(B) driver participate in a it denied because unconstitutional program.” provement trial). relied on same cited and He therein principally relied on those authorities as unpublished Appeal's order 20. The following, Landry, including viz.: part: "Applicant is not entitled states in Clawans; Duncan; Colts; Cran United States v. DWI, charge second Cir.1981); (9th er, United v. States 652 F.2d 23 ruling no error in the ... find [W]e offense.... (D.Md.1978); Woods, F.Supp. Roth complained of." (S.D.Ohio Blair, weiler; F.Supp. Brady trial, the trial set for bench but 21. The case Court, 1976); Municipal 86 S.D. Parham through disposition of granted stays court O'Brien, (1972); N.W.2d 501 Su- appeal the United States Bairnsfather’s Annot., Right P.2d 883 Haw. preme Court. Jury in Criminal Prosecution Trial Offense, 16 Driving or Similar While Intoxicated "Questions following listed the 22. Bairnsfather (1967 Supp.1986). A.L.R.3d Statement: in his Jurisdictional Presented” win. We conclude that a resolution ad- lessly ... but with having ... driven at the verse to Baimsfather of the substantive forbidden speed rate of and recklessly, ‘so ” appeal merits of his cannot in princi- as to endanger property and individuals.’ pled manner be reconciled with the result S.Ct. Again, at 53. the Court made reached the here. We charge likewise clear that the was not merely reck- conclude that dismissing appeal the driving, less but rather driving “so reck- want of a substantial question, lessly federal endanger ‘as to property and individ- ” Supreme Court in did uals.’ (emphasis added). reach Id. This, it was Baimsfather and so held, resolve the substantive “was an merits of indictable offense at common appeal, and this seems lav/” which a particularly was required. in light clear of Justice Colts cited jurisdic- Stevens’ State v. Rodgers propo- sition in petty tional dissent. thus a rul- offenses a was not Baimsfather ing required, on and precedential the merits then went on value, to particularly rely case, on that stating: albeit with less such value than an opinion of the Court after full briefing “The argu- Jersey and New Court of Errors and Appeals, ment. Ry. Rodgers, Southern Co. v. Al- supra, Seaboard has Milling lied Corp., discussed the U.S. distinction S.Ct. between traffic 2388, 2398, 60 offenses of a petty character, L.Ed.2d 1017 Tully subject to summary Griffin, Inc., proceedings v. U.S. indictment and trial by jury, (1976). L.Ed.2d 227 those of a serious Such dismis- character, amounting public sals binding are on to courts, nuisances lower which law; indictable at common not free in its other exami- cases to rule different- nation of subject ly makes clear presented on the issues to and declared the offense now under review is of the insubstantial the Supreme Court. Hicks latter character.” 51 S.Ct. at Miranda, v. 2289-90, 45 (1975). L.Ed.2d 223 This is at It thus behooves us to see what State v. least so as to precise presented “the issues Rodgers say had to subject. There and necessarily by” dismissals, decided DWI, was held that a six- carried though rulings such “should not be under- month sentence, maximum public not a stood as breaking ground.” new nuisance or Mandel otherwise an offense indictable Bradley, v. law, common and that accordingly there 2240-41, 53 L.Ed.2d 199 was no entitlement to by jury. trial Clear- ly gave Colts approval its to holding Clearly there is nothing in Baimsfather State Rodgers was, DWI as Colts which is in tension with or breaks new it, characterized one of those “traffic of- ground respecting Duncan, Frank, Bald- fenses of petty character subject sum- win, or Codispoti. mary proceedings without indictment and Moreover, plainly follows Baimsfather by jury.” 51 S.Ct. at Further, Clawans, Colts the two \xe-Duncan what the Jersey New Court cases which the indirectly Court con- State v. Rodgers said of DWI is as true sidered the offense of DWI relation today of the Louisiana offense as it was in trial. 1917 of the Jersey offense, New namely, Colts, In the Court considered a charge “that it is not essential to the existence of of driving over speed limit and reckless- the statutory offense that the driver ... be ly so as to endanger others. The statute so intoxicated that he drive,” cannot safely prohibited, in separate clauses, speeding, that it suffices that as a result of alcohol driving, reckless and driving so as en- consumption the driver is under “an abnor- danger persons or property. Although the mal physical mental or condition ... which only thirty deprive tends to him of that clearness of days, the Court held a jury required. intellect and control himself which he It stressed that the accused was “not possess,” would otherwise and that convic- charged merely with ... exceeding ... possible tion is though “even he drives so limit speed or merely ... driving reck- slowly and so skillfully and carefully that annoyed endangered.” of Rodgers. public approval Moreover, is not its as the recognized Duncan, drawing the Rodgers, State 102 A. at 435.24 line between and “serious” of significance To refuse to accord to this necessarily fenses will “attaching involve driving reck- distinction between DWI consequences different which, to events actually endangered lessly so as to have they line, when lie near the actually differ with Colts simply disagree others is very little.” 88 S.Ct. at 1453.25 Louisiana, bor) months, require proof up 1942, not or In DWI does for to six or both. Acts 43, 1948, driving. finding of reckless See State v. Redf No. art. 98. In the sentence for a DWI (La. Cir.1987). App. earn, 504 So.2d 1005 1st first offense was made a fine of not less than Further, though guilty one can be of DWI even twenty-five one hundred dollars nor more than dollars, not realize that he was under the influ he did imprisonment four hundred or in the Moreover, ence, not intend to be so. and did parish jail thirty days for not less than nor more (2) prosecution where the is under clause 1948, 331, eight than months. Acts No. § 1. The A, proscribing driving section 14:98 with a maximum confinement for first offense DWI percent, blood alcohol content above .10 it is apparently eight remained at months from 1948 necessary to show that the accused’s facul to 1968 when it was reduced to six months. thereby. any way ties were in diminished See 1968, 647, Baldwin, Acts No. 1. See also § 90 Cir.), Singer, (La.App. 457 So.2d 690 4th (“In response S.Ct. at 1889 to the decision in denied, (La.1984). writ 458 So.2d 465 Most Duncan, penalty Louisiana has lowered the for "percentage” type have a similar DWI states statute, months, certain misdemeanors to six and has Annot., see Per Se Alcohol Stat Offense provided penalty for a trial where the still utes, 4th 149 at 154 and such 54 A.L.R. (footnote omitted)). exceeds six months” Since justly impos statutes have been characterized as 1968, the maximum confinement for first and ing liability” establishing per or "a se "a strict second offense DWI has not exceeded six violation,” "[wjhen proved so that the State has (without labor). months hard For third offense operating the vehicle and his the defendant DWI, however, imprisonment may be or "with 0.10%, blood alcohol concentrate was over there year without hard labor for not less than one inferences, presumptions are no or and the stat years.” nor more than five § 14:98 D. proved.” utory Ziltz, People violations have been 38, 42, 43, 40, Ill.2d 74 Ill.Dec. (1983). 455 98 life, panel inju- 25. The observes that the loss of 70, 72, N.E.2d State, 73 See also Lester v. ry, property damage high- on the nation’s 235, 142, (1984) Ga. S.E.2d 144-45 ways "present devastating problem social driving ("Impaired ability is not a 'fact neces today," asserting nearly America half the sary to The elements constitute crime’.... people in the nation will at some time be in- ability of the crime ... are irrelevant to the any volved in an alcohol-related acci- automobile impairment individual to drive without "approximately dent and that there are two mil- having while a blood-alcohol count of .12% or year. lion" DWI arrests each F.2d at 1176& 606, State, (Del. higher."); Coxe v. 281 A.2d dispute n. We neither the nor the statistics (same). 1971) gravity problem, impli- the social true nor the Indeed, governmental response conventional DWI has been held not cation therefrom that Nevertheless, turpitude. Comp- highly appropriate. to be an offense of moral See this furnishes (Tex.1965). support panel’s Jay, the most attenuated for the ton 389 S.W.2d 639 holding. govern- We observe that the first Louisiana DWI stat- ultimate The nature of the 1922, response problem part provided ute was enacted in for a first mental cational, rehabilitative, edu- —what exceeding regulatory (e.g., limiting offense sentence of a fine not five restrictions, dollars, sales, etc.) "imprisonment parish liquor in the driver’s license hundred months, laws) jail exceeding (e.g., shop” for a term not six or other civil "dram .and 1922, 1936, criminal, 132, part both.” Acts No. 2. In what and the kind of criminal Act, amended, (e.g., criminalizing drinking repealed response and a new at certain enacted, ages driving open DWI statute was under which the maxi- or alcohol containers vehicle; penalty causing injury mum for DWI "without the character and the extent of the offenses) person property" imprisonment grades penalty; or DWI of DWI a—is determination, parish municipal jail thirty legislative especially or for not less than matter months, (with days legislatures nor more than four or a fine of for the of the several states fifty congressional spend- not less than dollars nor more than two action available under the — dollars, Dole, fifty ing power; hundred or both. Acts No. see South Dakota v. -, (1987)). injury person prop- § 3. If there were Moreover, erty, problem necessarily the confinement could be "with or without is not (the up year, up nothing hard labor” and to one and the fine same in each state tells us were, Louisiana) to one thousand dollars. 1 & 2. In §§ about and even if it this would again, require the law was rewritten and the maximum each state to address it in the same way for first offense DWI was increased to a fashion. There is more than one to skin a dollars, Further, surely wrong fine of no more than three hundred cat. to conclude—as (without provision panel inferentially greater hard la- does—that the Colts, After Supreme Court next in- constitutionally prosecuted without directly considered DWI in Clawans. where the maximum penalty does There, (then) opinion Justice Stone’s for the not exceed applicable to petty offenses Court, in upholding nonjury conviction for generally. The Nebraska Supreme Court, punishable by offense three months’ others, among has read Clawans as catego imprisonment, relied on the fact that: rizing petty DWI as a offense. State v. “A number of states have continued in Amick, 173 Neb. N.W.2d force providing trial, statutes (1962). See City also Albuquerque v. jury, of violations of municipal ordi- Arias, 64 N.M. 328 P.2d nances, sundry statutory offenses, (1958) (same). punishable by commitment for three Accordingly, Colts and Clawans months or (foot more.” 57 S.Ct. at 663 plainly indicate omitted). note regards DWI properly offense specific (as first op- statute where the maximum confinement autho posed to embracing statutes violations of rized does not exceed six months. Taken municipal ordinances generally) cited together with Baimsfather, cases, these Justice support in Stone of above-quot- the the ones which Supreme the ed statement is: has matter, addressed the should be deci (1924 Comp. “N.J. Laws Supp.), 135- §§ of sive the issue. 63(3),135-76 (operating motor vehicle un Certainly, there is no convincing body der liquor; months; influence of of six see lower federal Klinges Pleas, v. Court of Common court decisions to the con 130 trary. 601, panel The A. 1084, heavily relied 3 N.J.Misc. 4 7).” N.J. United Misc. Craner, States 57 S.Ct. v. (9th at 663 652 n. 6. F.2d 23 Cir. 1981), which held that DWI in a national The cited Klinges case holds that the New park, for which the penalty maximum Jersey statute, DWI which authorizes con a five hundred dollars fine and six months’ up finement months, of to six is not uncon imprisonment, “petty” was not a offense. stitutional because a trial is not autho However, the relevance of Craner is un rized. 3 1084, N.J.Misc. 4 N.J.Misc. 130 dermined the fact that there the majori A. 601 (1925).26 at 602 In the Clawans ty part expressly text, relied on the Justice fact Stone by stating, continued Secretary of the Interior, who set “Convictions under legislation such penalty, maximum upheld been many highest fixed it at times in courts, the state despite level authorized. objections majority to the denial of Craner ob served, trial.” (footnote “We omitted). at 664 cannot hazard that the Secre Among cases tary’s cited Justice indiscriminate authorization of Stone this support of offenses, this is Congress’s statement State varied v. Par ker, 87 general Fla. (1924), 100 260 So. limitation on the a DWI sentence the Sec prosecution. See 57 retary at 664 may authorize, n. 7. Sure represents a con ly, then, is Clawans another example legislative sidered judgment of the gravity Court’s recognition that DWI of the offense of DUI.” Id. Judge at 25. people number particular who commit of- social realities do not lead us conclude fense the more "serious” is that offense charge on a criminal speeding by driving purposes "petty” On doctrine. eighty miles an highway, hour on the or of reasoning, such speeding would be a more seri- selling cigarettes minor, to a is a there Sixth ous offense than purpose. murder Amendment to a trial where the maxi- Moreover, greater the number of offenses possible "petty.” mum is clearly sentence greater expedition the need for in their Indeed, resolution. grave speeding is also a most 26. New Jersey apparently still follows this rule. problem nation, social there See, Roth, e.g., N.J.Super. State v. 154 381 strong fifty-five evidence that the miles hour (1977); Linnehan, A.2d speed many limit saved thousands of lives each N.J.Super. denied, A.2d 34 cert.

year. Cigarette smoking, which is so addictive 99 N.J. 491 A.2d 723 responsible for so much death and disabili- ty, grave problem. likewise a social But these concurrence, contrary concensus which is Sneed, special plain in his Craner implication Baimsfather, Clawans, exclusively on this relied would have factor, he was Colts that DWI is a special offense for ground; absent purposes Sixth Amendment ‘pet offense as unless its maxi- treat the DUI “inclined to ” contrast, mum Here, authorized sentence exceeds the at 28. ty.’ Baldwin line. by the Louisiana penalty fixed does, course, represent its Legislature legislative judgment of the “considered IV. v.

gravity of the offense.” United States Woods, (D.Md.1978), panel F.Supp. holding, large also For relied in its Craner, is, part perception collat- panel, like on its adverse relied on conviction, regula consequences of park eral a DWI of a national DWI violation “particularly suspension driving tion, distinguishable for the thus is privileges” sig- which it held “constitutes To F.Supp. at 1345.27 reasons. same consequence, collateral nificant and there- and Woods are not the extent that Craner by jury fore a trial is necessitated.” 818 disagree. limited, respectfully so we F.2d at 1177. The also noted “seri- States hand, in United On the other repercussions, ous economic such as in- Cir.), Jenkins, cert. de (4th 780 F.2d 472 premiums” “public crease insurance nied, Id. opprobrium.” disagree. United States L.Ed.2d 724 (W.D.Va.1981); Fletcher, F.Supp. 1053 potential So far as concerns the ef Rodriguez, F.Supp. and Matos v. conviction, of fects Court’s prose a DWI (D.P.R.1976),it held that on the maximum sen emphasis has been Amend give rise to Sixth cution did not particularly on the tence imposable and maximum where the ment entitlement possible This was maximum confinement. imprisonment, though including penalty, (see, e.g., Clawans case in note Baldwin threshold.28 not exceed the did text) supra, and accompanying and increas by the holding was also made The same In both Duncan’s and ingly thereafter. Jenkins, Craner, and district courts of current and late Baldwin’s discussions present case. states, century practice in the eighteenth length made is to the the lower reference unable to conclude that We are Duncan, at developed any possible clear confinement. federal courts have (maximum by jury. one Colts sentence Additionally, on the See Woods court relied thirty days’ imprison- dollars fine and resi- hundred ment; Maryland, state of defendant's law of law”). common park "indictable offense at apparently in which the dence and Moreover, length attempt of the located, to add up provided penalties of sup- DWI, other authorized sentence to maximum year’s for first offense one confinement to arrive at posed of seriousness in order indicia would prosecution which Baldwin and for measuring point "petty-serious” stick is on the F.Supp. required jury. at 1345. No apples attempting and to add far too close applicable here. special such circumstances possible oranges. Apart maximum (S.D.Ohio 1976), from the Blair, F.Supp. Brady v. (or imposed, sentence in case sentence support panel, not to but we elect does lacking any legislatively contempts fixed maxi- it. follow mum), laying indictability of the and the aside (because (a panel prosecution conduct at common law Jenkins un- viewed Act, 13) by Colts the offense serious under 18 U.S.C. itself renders § der the Assimilative Crimes Callan), supposed pen- indicia of serious- inapposite and other as because there the maximum quantifiable, cannot be alty thirty days’ imprisonment and hence and a two ness are meaningfully aggregated or to the Landry to each other hundred fine. at 1177 n. 3. dollars simply support length sentence. It is in the Jen- of the maximum While this view finds some disap- (see 745), say public impossible' much opinion that so kins 780 F.2d at we are not course, (which, really quan- be persuaded, proval tified) cannot seems to us that if the maxi- as, determinative, potential say, two months’ then the Bald- is the same mum sentence is confinement, controls; the offense must be tried if nature of the so that win line the "intrinsic” controls, five possi- by sentence is of the if the maximum then the shortness only four. but not if it is months’ confinement ble confinement does remove the 1454; Baldwin, 90 S.Ct. at 1889-90.29 reer” “quite suffer reper- serious” adverse And, noted, Argersinger, as we have This, us, cussions. to, it seems to refers Codispoti, and 94 S.Ct. at and holds nondeterminative for offenses 2691, speak dividing of the line between a maximum exceeding sentence not petty being and offenses serious fixed confinement, six months’ the same consid- length potential maximum conf erations as those the characterized as Moreover, Baldwin observed: inement.30 repercussions” “serious economic “Indeed, prospect imprisonment “public opprobium.” We know of no basis for however short a time will seldom be which we can say standard that such viewed the accused as a trivial or repercussions opprobium resulting ‘petty’ may matter and result well from a DWI conviction are as a matter of quite repercussions serious affecting law different in kind from those resulting reputation. his career and his Where from confinement for conviction of numer- possibly the accused cannot face more offenses, ous other concededly petty such imprisonment, than six months’ we have public drunkenness. As for increased disadvantages, held that these onerous premiums, insurance easily these can as be, though they may outweighed couple speeding tickets, result from a speedy the benefits that result from from a fender-bender or two never crimi- inexpensive nonjury adjudications.” nally prosecuted. Id. 90 S.Ct. at 2191 added). (emphasis Nor does the notes, sixty-day maximum Baldwin justly anyone As driver’s suspension provided sentenced to six months’ license LSA-R. likely “reputation” A(l) his to have and “ca- S. 32:414 alter the result.31 passing 29. Baldwin does here one contain refer- five exceeds hundred dollars. It seems evident fíne, imprisonment, ence to the as well as for a that the license reinstatement fee and conven Jersey current New offense. properly regarded tional court costs are not part punishment, and Louisiana has like Duncan, recognize 30. We 88 S.Ct. at 1453- respecting wise so held the costs under articles Baldwin, 90 S.Ct. at each refers to 887(C) (D). Henderson, 491 So.2d offense definition of 1§ 18 U.S.C. (La. 1986). Further, nonpayment of such which was then based on a sentence being items cannot result in the accused’s im of six months five hundred dollars fine. prisoned period for a of more than six months However, Hoffman, in 422 U.S. Muniz (including any directly imposed). confinement S.Ct. 45 L.Ed.2d 319 held Court 884; Thigpen, LSA-C.Cr.P art. State v. 275 So. contempt a ten thousand dollars fine could (La.1973). generally 2d nonpay Nor can constitutionally imposed be on local labor any imprisonment ment result in where it is union without a trial. The noted that merely inability. bona the result of financial "imprisonment intrinsically fide and fines are differ- Georgia, See Bearden v. 2064, ent" and that: We are inclined to thing deprivation “It is one to hold of being view the maximum fine as five hundred liberty beyond individual’s a six-month term dollars, dollars. Even if it were one thousand imposed protec- should not be however, change this would not the result. As trial, quite of tions suggest but it is another to noted, confinement, the focus is on the not the that, circumstances, regardless of the fine; further, a ten sustained thousand Muniz required any greater is where fine than fine, Congress dollars then found five thou contemplated.” $500 is appropriate Thereafter, petty 1(3) sand dollars offenses 18 U.S.C. § amended to historically, individuals. Viewed it is evident petty increase maximum fine amount in the that, inflation, because of one offense definition thousand dollars to five thousand dollars for (or 1984) today substantially an individual is worth and ten thousand less dollars for oth- 16, supra. ers. See note than five hundred dollars was both when Con fifty gress spe- figure do not consider that the dollars first used that § 18 U.S.C. provisions 887(C) (which 1948) cial costs of early LSA-C.Cr.P. arts. was at least as as and when (D) (that (C) being inapplica- under clause Baldwin decided in 1970. event), appellant any ble supra, see note costs, Department Safety required fifty more 31.The of Public conventional court and the required suspend period dollars fee the license for such order to reinstate the con- license, However, suspended driver's viction of first offense LSA-R.S. 32:667 DWI. Id. § G, Department may when modify suspension added to the maximum authorized fine so as to dollars, grant five driving privileges hundred render the offense "seri- restricted in case sus- theory ous” deprive on the pension that the maximum fine thus "will him or his licensee] [the wholly incongruous It seems days to hold that in jail and is also unable to drive for tips possible suspension license the scale to the next succeeding forty days because his entitlement, long- when we have suspended license is is obviously less se- recognized “that a defendant need not be vere than one under which the defendant informed, pleading guilty before to a serves all those same sixty days in jail intoxicated, charge driving (during while that as which he is for that reason unable consequence conviction, drive) a collateral though of his suffering no license sus- suspended.” pension. his license driver’s will be These commonsense observations Hinton, Moore (5th F.2d 782-83 reinforced Court’s Cir.1975). Indeed, opinion Frank. There, years’ several courts have held three pro- bation, though suspension significant that license infringement does not suffice to freedom, “petty” take DWI out of the deemed not sufficiently offense cate gory. See, Jenkins, onerous to e.g., make an “petty” 780 F.2d at otherwise of- fense serious. As Frank stated (six-month (89 Fletch suspension); automatic 6): er, at 1506-07 n. 1054; Amick, & F.Supp. 114 N.W. Morrill, 895;

2d at is, 123 N.H. course, “Probation significant (1983)(sixty-day 465 A.2d infringement freedom, to two- personal it but year Further, suspension). suspen certainly license less onerous a restraint than multiple jail cases, sion is often incident to In noncontempt minor itself.6 Con moving gress traffic violations. has not possibility viewed the years’ probation five enough onerous Certainly, sixty-day the Louisiana maxi make an otherwise offense ‘seri suspension mum for first offense DWI can ous.’ not suffice to render it a “serious” offense. A(l), Under LSA-R.S. 32:414 the sus

pension period "6. upon commences to run noti required monthly Petitioner is to make officer, reports probation to his only associate fication of guilty plea. conviction or It law-abiding persons, maintain reasonable hence cannot said to increase the maxi hours, regularly, report job changes work all mum potential hardship beyond that re officer, probation his proba and not leave the permission sulting from pro imprisonment, tion district without the six months’ of his bation officer.” imprisoned one iswho for six months suf These same considerations likewise dem- nothing fers more virtue of the fact that onstrate that the probationary conditions suspended during his license was the first provided B, see note section 14:98 confinement, through two months of his supra, play if come into out impris that time he is virtue of his suspended, sentence is do not suffice to onment in event unable to drive. And render this otherwise offense a is, course, potential sen “serious” one. tence purposes, which is looked to for these actually imposed. rather than the sentence V. See, e.g., S.Ct. at 1453. Fur Duncan, 88 ther, alia, suspension license inter Finally, panel, citing, can be said to Jen- penalty actually imposed kins, make the Annot., more 780 F.2d at 474 n. only onerous than it to Right by Jury to Trial in Criminal Prose- otherwise would be the extent that the defendant serves Driving less cution While Intoxicated or sixty days prison. than Offense, Similar (1967 It is obvious 16 A.L.R.3d 1373 that a sentence with Supp.1986), no confinement and considered in some that suspension license for the sixty days twenty-four next states a defendant is less severe than one trial, under which the with DWI entitled to a defendant sixty days serves those same study “a of the authorities indicates that prison though his unsuspended. only license is deny right six states defendants the to Or, example, to take another by jury charges.” a sentence a trial on DWI 818 F.2d under twenty which the defendant serves at 1174 2.n. life,

family prevent earning of the necessities of or will him from a livelihood.” Id. persuaded are not the majority We category.32 this The fact that a defendant practice respect state in this sets the consti entitled for DWI in these tutionally required minimum for all states. states thus tells us nothing about how While in Baldwin the Court influenced “petty” “serious” or regard offense is by the fact that Nation, ed, (or entire because all offenses “[i]n all traffic of City York New alone denies an accused the fenses or all offenses where confine right interpose authorized) between himself and a ment is entitle the accused possible prison months, term Hence, of over six jury. thirty states, as to these judgment peers,” commonsense of his “pettiness” “seriousness” or of DWI can (footnote omitted), id. 90 S.Ct. at 1889-90 only by be measured sen maximum practice surely six states authorized, cannot is, course, be tence which what regarded comparable to that of but a repeatedly Court has told us single city. recently observe that more is either the most relevant or the the Court has refused to prac condemn a way relevant to make that determination. tice as unconstitutional notwithstanding states, Of thirty these in nineteen the maxi rejected it had by forty-eight been mum authorized confinement for first of only by states and was followed two. Mar fense DWI does not exceed six months.33 —Ohio, U.S. -, tin These nineteen states must hence count ed as regard states which “pet DWI as a ty” remaining offense. The eleven of While, noted, we do not consider the thirty these states which do not recognize general practice determinative, state to be “petty offense” doctrine maxi nevertheless, since the has addressed penalties mum for first offense DWI which matter, we deem appropriate it exceed the Baldwin six months’ level. completeness interests of to likewise do so. These eleven states may hence be counted panel’s The conclusion that most states re- as ones which regarded DWI is as a gard DWI as a “serious” rather than a Thus, “serious” offense.34 so far we “petty” offense implicitly based on the count nineteen states regarding DWI as majority circumstances that in the of states regarding and eleven “seri a DWI defendant has a trial. ous.” However, this fails to take into account the fact that most states do not follow the remaining twenty-two Of the jurisdic “petty (or offense” states, doctrine at (twenty all do so tions the District of Colum only for bia, offenses as to Rico35) which no confine- and Puerto which have not authorized). ment is Basing analysis our rejected “petty (or offense” doctrine on the United States’ rejected amicus brief filed have it for all traffic offenses banc, us en figures before and relevant it to restricted offenses for which incar citations in which have not authorized), been chal- ceration is not eleven entitle lenged, there appear thirty to be states in the accused to a trial.36 other 32. This brief pur- also includes an 35. The addendum brief of the United States does not in- porting statutory to cite and summarize relevant clude Rico. Puerto We have included it as a provisions judicial and constitutional jurisdiction deci- recognizes "petty offense" fifty of all sions states and the District of Colum- doctrine and considers first offense DWI to be respect bia prisonment fine and im- "petty” purpose on the basis of Matos v. for first offense DWI entitle- Rodriguez, F.Supp. (D.P.R.1976). ment trial therefor. 36. These eleven states are shown in the United 33. The brief of the United States lists these nine- Alabama, being Arizona, States’ brief as Arkan- California, Florida, Idaho, Kansas, teen states as Kentucky, sas, Hawaii, Massachusetts, Maryland, Georgia, Minnesota, Michigan, Mississippi, York, Island, Dakota, New Rhode South Missouri, Montana, Nebraska, Ohio, Oregon, Carolina, North Virginia. Carolina, Utah, Virgi- South West states, appears Of such eleven it four nia, Wisconsin, Wyoming. require jury they a trial because view DWI as 34. These "intrinsically” regardless eleven states are listed serious in the brief of of the autho Alaska, Colorado, Illinois, penalty: (Rothweiler the United States as Superior rized Arizona v. Indiana, Iowa, Maine, Oklahoma, Tennessee, Court, 37, (1966)); Ariz. 410 100 P.2d 479 Hawaii (S Texas, Vermont, O’Brien, Washington. 39, v. 68 Haw. 704 P.2d 883 tate

1219 (all group, though jurisdictions jurisdictions except eleven Arizona and Ha doctrine, following “petty offense” all waii, which hold DWI despite “serious” its of penalties maximum for first provide penalty, see note “petty” 36, supra) may which do not exceed six fense DWI properly jurisdictions hence be counted as (or own, their months’ confinement lower regard DWI as offense threshold); Baldwin none of these has under the standard set the United judicial decision held that first statute or States Court.38 remaining The jury; DWI entitles the accused offense twenty-two jurisdictions (twenty with over opinions reported judicial have six Baldwin level see notes 34 and penalties, there is no such entitlem the effect 36, supra, plus Arizona and Hawaii) can be Thus, twenty-two jurisdic ent.37 regarding counted as as “serious” DWI reject of “petty which do not tions “petty.” thirty-to-twenty- rather than doctrine, may eleven be counted as fense” result majority two reflects that a clear of (either viewing pen serious DWI as (with jurisdictions possibil room for the exceeding petty offenses or alty that for ity that a few states have been misal- viewing it as “intrinsically”) and eleven as located) classifies DWI in a manner which “petty.” entirely meets the standards of the Su Thus, thirty- fifty-two jurisdictions, of preme “petty.” Court’s definition of Loui 37, (those in notes 33 and two referenced aberrationally siana has not fixed an low Hawaii, as refer- supra, plus Arizona and maximum penalty generally for an offense 36, penalties for supra) enced in note regarded deserving higher of a maxim do not exceed the Baldwin DWI which threshold, thirty-two thirty of these um.39 357, 236, State, (1985)); (Fisher (1985); Maryland City 305 Md. 99 N.J. A.2d v. 491 723 Albu (1986)); (Par Arias, 337, querque A.2d 626 and South Dakota 504 v. 64 N.M. P.2d 328 593 531, Court, Municipal (1958); Walker, 470, S.D. 199 ham v. 86 Hamilton v. 65 N.M. 340 (1972)) (in Maryland (1959); Sweat, 512, N.W.2d 501 Dakota, however, and South P.2d 407 State v. N.M. 78 penalty in the authorized (App.1967); Rodriguez, 433 P.2d 229 Matos v. months, in excess of six so cludes confinement (D.P.R.1976). F.Supp. 440 673 any Baldwin would dictate the same result in event). remaining many disagree states out of "petty Of seven 38. That these with the broadly recognize "petty these eleven which offense” doctrine and consider that the accused grant jury offense" doctrine but nevertheless should be entitled to a in all criminal DWI, (or trial for first offense the reason prosecutions all where incarceration is appears simply is, trial entitlement to be that the course, (and possible) irrelevant tells us punishment for the of maximum authorized DWI). nothing they Were it other- of how view fense includes confinement in excess of six wise, necessarily we would conflict with Cla- (or comparable months and state Baldwin course, wans, though, the states are free— doctrine) requires jury. thus reject and statutes —to their own constitutions "petty” exception trial entitle- jurisdictions

37.These eleven are shown ment. Connecticut, being Dela- United States’ brief as ware, Louisiana, Columbia, Neva- the District of jurisdictions reported If we count in which Mexico, da, Hampshire, Jersey, New New New judicial opinions may passed be said to have Dakota, Pennsylvania, Rico North and Puerto whether DWI is the character of offense that (which added). latter we have apart requires from the jurisdictions, report are Of these eleven there penalty provided, jurisdic we can see that four judicial opinions that the ed in six to the effect is, Arizona, namely, tions have stated that accused not entitled to a in a first offense (see Hawaii, Maryland, and South Dakota cases prosecution. Thigpen, DWI See State v. 275 36, supra), eight have held cited note while (La.1973); Hayden, So.2d 760 State v. So.2d 437 eight composed of Louisi that it is not. The 294, Smith, 1983); (La.App. 1st Cir. State v. 99 ana, Nevada, Jersey, Hampshire, New New New 806, (1983); Morrill, Nev. 672 P.2d 631 State v. Mexico, (see and Puerto Rico cases cited in note 707, (1983) (holding, 123 N.H. 465 A.2d 882 37, (State Amick, plus supra), v. 173 Nebraska however, that maximum fine would be reduced 893, (1962)), and Neb. 114 N.W.2d 895-96 dollars); Rodgers, to five hundred State v. Parker, (State 212, 102 Fla. 100 So. 260 Florida (1917); Klinges N.J.L. A. Hilliard, (1924); Pleas, City 207 So.2d Gainesville v. Common 3 N.J.Misc. 4 N.J.Misc. (Fla. (1925); Roth, (Fla.App.), approved, So.2d 689 N.J.Super. 130 A. 601 State v. 1968), Linnehan, appeal dism’d want substantial 381 A.2d 406 denied, N.J.Super. question, 484 A.2d 34 cert. federal Conclusion driving while intoxicated is a serious offense, se, malum in and one which minimize gravity do not the should viewed as be an indictable offense problem presented by social excessive law, at common would still my belief drinking dangerous driving. However, irrespective of whether one state or fifty DWI was never indictable offense at provided states jury for a trial. law, and neither the common elements of potential the crime nor its first offense majority The in a apologetic somewhat penalty under Louisiana law are such that manner states that it does not “minimize Amendment, applicable Sixth as made gravity problem of the social presented to the states the Fourteenth Amend- by drinking dangerous excessive driv- ment, requires Louisiana to one afford ac- ing.” On the other I grave hand see it as a right cused by jury. thereof the to trial problem my now. Some colleagues The correctly district court therefore de- argued person with me that if a commits a appellant’s petition nied corpus, habeas more serious crime while driving while in- judgment accordingly and its toxicated, then he charged will be with a AFFIRMED. more jury serious offense and a right trial My response would attach. is thank God GARZA, Judge, Circuit with whom many people apprehended driving while WILLIAMS, Judge, JERRE S. Circuit intoxicated, while they before kill or maim joins dissenting: someone. It makes little sense to me to I respectfully dissent. say that provide Louisiana need not jury a I trial for apologies original Since have no a DWI defendant unless more panel opinion consequences which I serious authored in this flow case from act of wanting books, driving to burden law I vehicle a without full control of hereby adopt original panel opinion, 818 one’s faculties. in toto F.2d my dissent. problem seriousness of the as I con- However, I want to make some addition- ceive it lies many fact that in state al I comments. am amused the conclu- jurisdictions, DWI cases are as if handled sion in the majority opinion that DWI was production in a mass line where the offend- never an indictable offense at common law. pleads er guilty and the state administers a

The reason it was not indictable at common slap on law is because the offense did not exist at while intoxicated penalty. the wrist a driving If properly considered a Although common thing law. the closest malum se offense, then the state could driving to it was a carriage horse-drawn by jury demand trial offense, a as a serious recklessly, Court even con- is, go which it and it long would way a sidered it a serious offense to drive an solving towards present problem. recklessly public automobile through the persons Those driving accused of while in- streets, and thus a trial was mandat- would toxicated soon learn that their con- ed, though even reprehensible duct was after being indicted days jail Dis- and a fine of $100.00. by grand jury being subject to a trial v, Colts, trict Columbia peers their if the state demands it. We 75 L.Ed. 177 have to treat this serious offense as we Further, I do engage not intend to treat other serious crimes. An offender battle of statistics majority with the who believes that he unlawfully many how provide states for a driving trial while intoxicated under these facts. The protection statistics that I would have the having to be my original referred to in opinion came grand indicted jury and having his from the sources My that I cited. belief case peers tried of his if indicted. State,

L.Ed.2d Whirley misdemeanors, Karel, 450 So.2d all 204 Neb. (Fla.1984) (Fla.Stat. 316.1934(4) (1979)). basis, extends 284 N.W.2d 13-14 On this right cases; to all traffic majority there (eight-to-four) two-to-one gives Nebraska statute being trial for DWI "intrinsically” serious. provide penalty- could The states prosecution

phase of a DWI would if the state so demand- punishment set ed, leniency sentencing by to avoid so as judges. certain perceive members of I cannot our declaring driving Supreme Court not while serious offense. If it intoxicated to be a offense, it a serious would have been indict- and it should able at common law be seen now, and as such it as an indictable offense would be removed from category regardless penalties provid- states.

ed I the court be- would therefore reverse jury trial is mandated low and hold that a driving cases. while intoxicated America, UNITED STATES Plaintiff-Appellee, Pickel, TORO, Jr,, F. Michael Efrain Jose Peoples, Pava and Mario de la Jack Brunk, Jr., Defendants- Robert Edwin Appellants.

No. 87-2117. Appeals, States Court United Fifth Circuit. March 3,1988. Rehearings May Denied

Case Details

Case Name: Philip Landry v. Judge J. Robert Hoepfner and William Guste, Jr., Attorney General, State of Louisiana

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Mar 17, 1988

Citation: 840 F.2d 1201

Docket Number: 85-3784

Court Abbreviation: 5th Cir.