GREGORY BEN SEREIKA, APPELLANT, v. THE STATE OF NEVADA, RESPONDENT.
No. 28826
SUPREME COURT OF NEVADA
February 26, 1998
955 P.2d 175
Frаnkie Sue Del Papa, Attorney General; Noel S. Waters, District Attorney and John C. Eck, Deputy District Attorney, Carson City, for Respondent.
Per Curiam:
Gregory Ben Sereika was convicted of driving under the influence of intoxicating liquor pursuant to
Sereika drove his motorcycle to the Carson Nugget on the night of June 2, 1995, where he consumed four alcoholic drinks. Sereika was involved in an accident on his way home, failed a series of field sobriety tests shortly thereafter, and was arrested for driving under the influence of intoxicating liquor. Sereika was given two breath tests at the police station, and his blood alcohol level was measured at .15 and .16, respectively.
Sereika stood trial for driving under the influence of intoxicating liquor in violation of
Sereika challenges the provision of
Consideration of Sereika‘s appeal comports with precedent, as “[w]e have previously recognized the futility of objecting to an instruction whose validity has been consistently upheld.” Jones, 101 Nev. at 576, 707 P.2d at 1130. The reasoning in Jones stems from our earlier reliance on federal authority to excuse failure to request jury instructions “which, at the time of... trial, would have been inconsistent with the law as it then existed.” St. Pierre v. State, 96 Nev. 887, 892, 620 P.2d 1240, 1243 (1980) (quoting United States v. Wanger, 426 F.2d 1360 (9th Cir. 1970)). We conclude that this reasoning is directly applicable in the instant case, as it would have been futile for Sereika to object to an instruction that merely recited the requirements for conviction under the applicable statute.
Sereika‘s challenge to
Vagueness
We have artiсulated a clear standard for vagueness challenges. The test for vagueness is whether the terms of the statute are “so vague that people of common intelligence must necessarily guess as to [their] meaning.” Cunningham v. State, 109 Nev. 569, 570, 855 P.2d 125, 125 (1993). This rule comports with the federal standard that a statute is unconstitutionally vague if it fails “to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.” United States v. Harriss, 347 U.S. 612, 617 (1954).
We conclude that
This statutory language is very specific, and Sereika does not suggest any alternative interpretations as evidence of vagueness. Sereika contends that ordinary persons will be unable to anticipate their blood alcohol level two hours after driving; however, he provides no evidence that such forecasting is any more difficult than knowing if their blood alcohol level has crossed the .10 threshold at the time of driving. Sereika‘s conclusory assertion that the clear language of
Overbreadth
Sereika‘s overbreadth challenge is based on two distinct arguments; however, each argument concerns circumstances under which a defendant could be guilty under the law without having driven with a blood alcohol level at or exceeding .10. The first such сircumstance involves what Sereika refers to as “the rising blood alcohol defense.” This defense employs the argument that, although the defendant exceeded the legal blood alcohol limit at the time of the test, the alcohol was still in the defendant‘s stomach at the time of the alleged infraction. The second circumstance arises when the defendant does not ingest the alcohol until after driving, but reaches the prohibited level of blood alcohol within the critical two-hour period.
Sereika‘s rising blood alcohol defense is clearly his strongest basis for asserting that
formulated at that time.
In response to McLean, the Nevada Legislature amended its statutory scheme to remove the contested presumption, repealing
Sereika misapprehends the critical issues involved in his appeal. His principle contention is that the “statute sweeps unnecessarily broadly into activity which has not been declared unlawful in this state, that is, operating a motor vehicle with a blood alcohol level below .10 percent.” This logic is predicated on the misconception that the prohibition against a blood alcohol
Because the new statutory scheme does not utilize a presumption to impose liability, Sereika‘s argument misses the present constitutional issue. Under the current scheme, a defendant‘s blood alcohol level at the time of driving is simply irrelevant to his violation of
Although Sereika does not invoke any specific constitutional provisions to support his overbreadth claim, challenges to statutes enacted pursuant to the legislature‘s general economic and social welfare regulatory powers generally fall under the framework of substantive due process or equal protection. See 2 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure § 15.4, at 389-412 (2d ed. 1992). Because Sereika does not claim to have suffered any impingement of a fundamental right or to have been subjected to any suspect classification or invidious discrimination, the statute at issue is not subject to the heightened forms of scrutiny developed for such circumstances. The United States Supreme Court has held that “[u]nless a statute provokes ‘strict judicial scrutiny’ because it interferes with a ‘fundamental right’ or discriminates against a ‘suspect class,’ it will ordinarily survive an equal protection attack so long as the challenged classification is rationally related to a legitimate governmеntal purpose.” Kadrmas v. Dickenson Pub. Sch., 487 U.S. 450, 457-58 (1988) (citations omitted).
The scrutiny involved is indeed minimal, as “the due process clause can be thought to interpose a bar only if the statute manifests a patently arbitrary classification, utterly lacking in rational justification.” Flemming v. Nestor, 363 U.S. 603, 611 (1960). “The day is gone when this court uses the Due Process Clause of the Fourteenth Amendment to strike down state laws . . . because they may be unwise, improvident, or out of harmony with a particular school of thought.” Williamson v. Lee Optical of Oklahoma, 348 U.S. 483, 488 (1955).
Under rational basis review, courts are not limited to consideration of the justifications actually asserted by the legislature. Instead, the United States Supreme Court has upheld statutes when it has been able to infer any conceivable rational bаsis for their enactment. See, e.g., Williamson, 348 U.S. 483. This court has also determined that “[i]t is well settled under rational basis scrutiny that the reviewing court may hypothesize the legislative purpose behind legislative action.” Boulder City v. Cinnamon Hills Assocs., 110 Nev. 238, 249, 871 P.2d 320, 327 (1994). “If any state of facts may reasonably be conceived to justify [the legislation], a statut[e] . . . will not be set aside.” State v. District Court, 101 Nev. 658, 662, 708 P.2d 1022, 1025 (1985). Accordingly, the issue is limited to whether the Nevada Legislature could possibly have had any rational basis for prohibiting persons from having a blood alcohol level of .10 or more within two hours after driving.
We conclude that there is at least one conceivable rational basis for the enactment of
We also conclude that promotion of the rising blood alcohol defense, and the concomitant practice of rushing to one‘s car immediately after ingesting alcohol so as to get home before the alcohol is fully absorbed, is contrary to good public policy. Because drivers have little control over the traffic conditions and delays to which they are subject, the state has a legitimate interest in prohibiting people from driving at thе onset of inevitably impending intoxication. We find that
Sereika‘s second overbreadth argument is that a person might not ingest the alcohol until after driving, but would still reach the prohibited level of blood alcohol within the critical two-hour period. Under such circumstances, the person would be in violation of
Sereika provides no evidence that
After considering each of Sereika‘s arguments, we conclude that
ROSE, J., concurring:
Sereika‘s conviction for driving under the influence of alcohol is based solely on
The evidence presented at trial established that at approximately 1:00 a.m. a compact car ran into the rear of Sereika‘s motorcycle, tossing Sereika ten to fifteen feet forward onto the asphalt. One witness testified that Sereika appeared shaken immеdiately after the collision, but he did not smell any alcohol on Sereika‘s breath. The person whose car ran into Sereika stated that he was disheveled and walking with a limp. The first officer at the scene testified that she smelled alcohol on Sereika‘s breath and that he flunked three tests administered to determine whether he displayed indications of intoxication. Sereika told the investigating officer that he had three or four beers one-half hour earlier and had eaten a steak dinner an hour prior to the accidеnt.
Sereika was taken to the Carson City jail and given two breath tests, one at 2:25 a.m. and the second one a minute later. He registered a .16 and .15 respectively on these tests. A criminalist testified that the intoxilyzer was properly calibrated and that the
Two views have emerged from courts when faced with accepting a blood alcohol test result as presumptive or conclusive evidence of driving under the influence when no other expert testimony is presented to ascertain the driver‘s blood alcohol content when the vehicle was operated. In Miller v. State, 597 So. 2d 767, 769-70 (Fla. 1991), the Florida Supreme Court stated:
The weight of authority is exemplified by State v. Kubik, 235 Neb. 612, 456 N.W.2d 487 (1990). In Kubik, the Nebraska Supreme Court held that the numerical blood-alcohol content was admissible evidence if obtained within a reasonable time after the defendant was stopped, even if the state cannot provide a scientific basis for extrapolating the blood-alcohol content back to the time when the defendant was operating a vehicle. The Kubik Court determined that the inability of the state to “relate back” was a question of credibility or the weight of the evidence, not admissibility, and that evidence of blood-alcohol content thus was admissible provided an unreasonable amount of time had not elapsed until the test was taken.
The other line of cases is exemplified by Desmond v. Superior Court, 161 Ariz. 522, 779 P.2d 1261 (1989). In that case, the Arizona Supreme Court held that the inability to “relate back” a defendant‘s blood-alcohol content rendered the numerical reading of the test inadmissible because of its potential unreliability. However, the state still would be entitled to introduce evidence showing that, at the time the test was taken, the defendant tested positive for alcohol, provided the trial court gave a cautionary instruction. This instruction must inform the jury that the evidence of the presence of blood alcohol is admitted for the limited purpose of showing that the defendant had alcohol in the blood at the time the test was taken and that such evidence standing alone is not sufficient to show either that thе defendant was
impaired or had an unlawful blood-alcohol level at the time a vehicle was being operated.
I prefer the line of authority espoused by the Desmond case and the requirement that additional evidence should be presented to show that the accused was intoxicated when he or she was operating the vehicle as well as when the blood or breath test was taken. As the concurrence in the Miller case noted, the state should be required to prove each element of the crime beyond a reasonable doubt, and this includes the fact that the accused was intoxicated when driving a vehicle:
While I concur with the majority‘s analysis as far as it goes, I do so subject to the reservations expressed in my partial dissent in Haas v. State, 597 So. 2d 770 (Fla. 1992) (Kogan, J., concurring in part, dissenting in part). I agree that tests conducted on a blood sample taken within a reasonable time are admissible evidence, under the terms noted by the majority. However, I also find that the State remains subject to the requirement of proving beyond a reasonable doubt every element of the offense.
U.S. Const. Amend. XIV ;art. I, § 9, Fla. Const. Miller, 597 So. 2d at 770 (Kogan, J., concurring).
One federal court hаs expressed concern with a statute that presumes or directs that a person is guilty of driving while intoxicated based solely on a test taken some time thereafter. In McLean v. Moran, 963 F.2d 1306 (9th Cir. 1992), the Ninth Circuit Court of Appeals had difficulty with the application of Nevada‘s law that presumed a person guilty of drunk driving if that person had a .10 or more blood alcohol content when tested after the accident. The court found that while the presumption may be valid if treated as a rebuttable presumption, it had been improperly applied as a cоnclusive presumption by the justice of the peace and, therefore, was unconstitutional. McLean argued, as did Sereika in the case at bar, that a blood alcohol level measured some time after a driver‘s arrest may be higher than if the test had been conducted immediately upon arrest and that the correlation between a person‘s blood alcohol level when driving and a blood alcohol test taken thereafter may fail the “beyond a reasonable doubt” standard necessary to convict in а criminal case. The court concluded:
Absent the statutory presumption, the testimony of the police criminalist and the evidence regarding McLean‘s conduct at the time of her arrest may have failed to establish beyond a reasonable doubt that the [blood alcohol concentration] at the time of driving was at least 0.10%. Thus,
McLean‘s constitutional right to have the State prove every element of the crime beyond a reasonable doubt was violated by the conclusive presumption applied by the judge. Aсcordingly, McLean is entitled to habeas relief. Although we decline to address the facial constitutionality of the statute, we note that, on its face, the type of presumption § 484.381(1) establishes is subject to varying interpretations. The statute may establish a mandatory conclusive or rebuttable presumption and thus raise serious constitutional questions, because the statute does not indicate that the factfinder is free to reject the presumption.
The Nevada legislature responded to the McLean decision by eliminating the presumption of intoxication and replaced it with а law stating that a person is guilty of drunk driving if he or she has a blood alcohol content of .10 or more within two hours of driving a vehicle. To cure any problem that a presumption of intoxication presented in light of the McLean case, the legislature replaced it with a directive; and it seems that such corrective action is going from the frying pan into the fire. The real cure to the problem is to require that some additional evidence be required to show the correlation between the blood alcohol test taken hours after driving and the blood alcohol content when the accused was driving.
While no expert testimony was elicited to establish directly what Sereika‘s blood alcohol content would have been at the time of the collision, the criminalist‘s testimony provided sufficient information about the time it takes to absorb and metabolize alcohol to show that Sereika was intoxicated when driving pursuant to either