State v. BakerState v. Baker
- Reporters:
- ,
- Before:
- Walsh
We granted the State of Delaware leave to file this discretionary appeal from a ruling of the Superior Court, pursuant to
(i) Whether a plain reading of21 Del. C. § 4177(a)(5) requires that the State prove, as an element of the offense, that a defendant had an alcohol concentration of .10 or greater ivhile driving?
(ii) Whether21 Del. C. § 4177(b)(2) , which provides that “drinking after driving” is an affirmative defense which the defendant must prove by a preponderance of the evidence, is an unconstitutional violation of a defendant’s due process rights?
I.
The facts underlying the challenged ruling of the Superior Court affirming two decisions of the Court of Common Pleas are conceded for purposes of this appeal. On May 1, 1995 Robert G. Baker (“Baker”) was involved in an accident, left the scene and drove home where he was arrested two hours later. Baker contended that he “consumed a ‘six pack and a shot’ after the accident,” but before his arrest, which caused his alcohol concentration to exceed .10. Baker was charged with Driving a Vehicle While Under the Influence (“DUI”) in violation of
Baker filed a motion
in limine
in the Court of Common Pleas raising the issue of the constitutionality of
In the early morning hours of September 10, 1995, David M. Butters (“Butters”) was driving home from a bar when he hit a deer with his vehicle. Butters claims that someone drove him home from the accident, he awakened his father and then returned to the accident scene to survey the damage. Butters and his father asserted that they could not move the car so they returned home and called the police. Butters’ father testified that after calling the police, Butters consumed “a large quantity of wine so that he could calm down.” Butters went to a hospital where he was treated for a broken wrist. When interviewed by the police, Butters was found to have an alcohol concentration greater than .10.
Buttei‘s was arrested and charged with Driving a Vehicle While Under the Influence in violation of
Determining that a substantial question of law was at issue with a bearing on future cases, the Superior Court granted the State’s application for leave to appeal the decisions in the Baker and Butters cases pursuant to
II.
A.
Before addressing the merits of the State’s appeal, we note that the present controversy
The specific question addressed in Lewis was whether the trial court had erred in failing to instruct the jury that the State must prove beyond a reasonable doubt that the defendant operated a motor vehicle “while under the influence.” Lewis, 626 A.2d at 1351. The defendant was taken into custody by the police not at the scene of the accident, but later at a party, and was intoxicated at the time of arrest. Defendant contended that he drank after driving and that the State must show he was intoxicated while driving. The State argued that it need show only that the defendant was in control of the vehicle, and that a timely test provided the appropriate level of intoxication. Id. at 1356.
We held that before the defendant may be found guilty of driving under the influence, the State must prove the defendant drove at or about the time charged, and the defendant was under the influence of alcohol while he drove. 626 A.2d at 1356-57. To the extent the State relied on scientific evidence to prove “under the influence” the BAC test must be taken within four hours of the driving, and the results of the test must demonstrate beyond a reasonable doubt that the BAC level is at .10 or more at the time of driving. Id. at 1355-56 Thus, Lewis turns on the issue of the timing of alcohol consumption, not the timing of the BAC test.
Coxe
and
Slaughter
were the leading cases interpreting the driving under the influence statute prior to
Lewis.
We sought in those cases to interpret
The claim that the test result created a “presumption” of guilt was also addressed in State v. Rucker, Del.Super., 297 A.2d 400 (1972). Rucker challenged his conviction on the basis that the BAC test had a variance which could have placed the defendant’s BAC level beneath that required by the statute. The trial court found that the variance operated to “reduce[ ] the reading beyond the .1 presumption” and dismissed the charge against the defendant. Id. at 402. The Superior Court concluded that there was no statutory presumption of guilt since the State must‘prove that the defendant had the required BAC level while driving, as determined by proper and timely testing. Id.
In Brank v. State, Del.Supr., 528 A.2d 1185 (1987) we again had occasion to address the presumptive effect of the BAC test. Although the main issue in that case related to invocation of the right to counsel, the defendant had asserted that the jury instructions under the statute were improper in creating a presumption relating to BAC level. Id. at 1191. We held that intoxication was not to be presumed, but must be proven beyond a reasonable doubt, with the other statutory elements, to secure a conviction. Id. at 1191-92.
Lewis is not at variance with these earlier eases. First, the Lewis requirement that the defendant drove a motor vehicle directly corresponds to the requirement of Coxe that the State prove operation of the vehicle. Lewis, 626 A.2d at 1355; Coxe, 281 A.2d at 607. Second, Lewis requires that the State also prove the defendant was under the influence, equivalent to Coxe’s requirement that the defendant operate the vehicle with the prohibited BAC. Lewis, 626 A.2d at 1355; Coxe, 281 A.2d at 607.
Lewis’ finding that the jury must be instructed that they must find beyond a reasonable doubt that the defendant operated a vehicle while under the influence, 626 A.2d at 1351, where no similar instruction was necessary in Coxe and Slaughter, does not reflect a departure from previous decisions. Lends’ holding is made in a different factual context. Indeed, this Court noted that Coxe did not provide the basis for a proper jury instruction in Lewis because the issue was not the same. 626 A.2d at 1356. Each case required a different emphasis on the elements of the offense but did not dispense with the need to prove all elements of the offense.
In our view, the amendments accomplished in 70 Del. Laws, c. 26 are not reflective of, or a return to, the law formulated by this Court in Coxe and Slaughter. More to the point, the amendments eliminate an element of the offense present in those cases and emphasized in Lewis — the proof of convergence of driving and blood alcohol content.
B.
In order to answer the question of whether a plain reading of
Where a statute is challenged on the basis of overbreadth and vagueness “a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982) (footnotes omitted). If the statute implicates no constitutionally protected conduct, the challenge should be upheld “only if the enactment is impermissibly vague in all of its applications.” Id. at 495, 102 S.Ct. 1186. “A law that does not reach constitutionally protected conduct and therefore satisfies the overbreadth test may nevertheless be challenged on its face as unduly vague,” if a due process violation is implicated. Id. at 497, 102 S.Ct. 1186. “To succeed, however, the complainant must demonstrate that the law is impermissibly vague in all of its applications.” Id.; In re Kennedy, Del.Supr., 472 A.2d 1317, 1330, cert. denied, 467 U.S. 1205, 104 S.Ct. 2388, 81 L.Ed.2d 346 (1984). “[Wjhere a statute imposes criminal penalties, the standard of certainty is higher. This concern has, at times, led [the Supreme Court of the United States] to invalidate a criminal statute on its face even when it could conceivably have had some valid application.” Kolender v. Lawson, 461 U.S. 352, 358 n. 8, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983) (citations omitted).
1.
We begin our overbreadth analysis by examining the legislative purpose of the 1995 amendments. In determining legislative intent it is important to “give effect to the whole statute, and leave no part superfluous.”
Keeler v. Harford Mutual Ins. Co.,
Del. Supr., 672 A.2d 1012, 1016 (1996). The “evil” to which
The next factor in the overbreadth analysis is whether the statute reaches a substantial amount of constitutionally protected conduct. A statute is facially over-broad when it “does not aim specifically at
The State answers the overbreadth challenge to
But the challenge here is not to the authority of the legislature to enact a statute prohibiting a BAC of less than .10, a power clearly within the legislative purview. The claim is that
As to the second overbreadth factor, the State claims that the statutory language and the accompanying Synopsis clearly indicate that the legislature did not intend to punish people for consumption of alcohol not associated with the operation of a vehicle. The State argues that Baker and Butters have failed to provide evidence that
Although the State argues that no evidence was presented that the statute would be enforced against an individual whose alcohol consumption was not connected with the operation of a vehicle, this is exactly what was argued by Baker and Butters in the courts below. Baker contended that he consumed a “six pack and a shot” after his accident; Butters testified that he consumed “a large quantity of wine” in order to calm down after his accident. Since
The State, Baker, and Butters have all pointed to authority from other jurisdictions that have similar DUI statutes in support of their arguments concerning the constitutionality of
The Arizona DUI statute
3
was challenged on the basis of overbreadth in two Arizona
The Cacavas court took its analysis further. The court stated that “[i]n any event” the statute was not unconstitutionally over-broad because “[w]e do not believe that either drinking or driving are fundamental rights.” 811 P.2d at 370. The court, quoting from an earlier Arizona Supreme Court case stated, “[ejven if we assume that a right to drive is fundamental when one can meet the qualifications set by the legislature, and assume that one of suitable age has a ‘right’ to drink in a state which licenses and permits the sale of alcoholic beverages, the statute does not affect these rights. It does not prohibit driving. It does not prohibit drinking. It prohibits drinking and driving.” 811 P.2d at 370, quoting Fuenning v. Superior Court, Ariz.Supr., 139 Ariz. 590, 680 P.2d 121, 128 (1983). 4
Later, in State v. Martin, Ariz. Ct.App., 174 Ariz. 118, 847 P.2d 619, 621 (1992), the statute again faced a challenge on the basis of overbreadth. The court held that because the defendant had not alleged that the statute substantially infringed upon “protected First Amendment freedoms or that he [was] a member of a class of ‘innocent’ defendants” he did not have standing to assert the over-breadth challenge. Id. at 624.
The Arizona eases are distinguishable from the cases under review. First, both Baker and Butters have contended that they are among a “class of innocent defendants.” Additionally, while it is true that overbreadth challenges frequently are brought to challenge infringement of First Amendment freedoms, the statute at issue here, standing alone with no implied element requiring a connection of drinking with driving, imposes criminal sanctions on activity that was hot meant to be proscribed. There is no claim of a constitutional right to “drink and drive,” and that is not the issue before us. An overbroad application of the DUI statute infringes on a person’s liberty interest in having to defend a criminal action for conduct that the legislature clearly did not intend to proscribe.
The Georgia Supreme Court also- held that the Georgia DUI statute was not unconstitutionally broad. Bohannon v. State, Ga.Supr., 269 Ga. 130, 497 S.E.2d 552, 557 (1998). Using an analysis similar to the Arizona courts, the Georgia Supreme Court majority perceived Bohannon’s position as “contend[ing] that a person has the constitutional right to drink and drive so long as he is not impaired and a constitutional right to drink and drive so long as his blood-alcohol content does not reach a specified level at the time of driving.” Id. at 557.
We have considered the other decisions advanced by the State but find them distinguishable or unpersuasive.
See State v. Chirpich,
Minn. Ct.App., 392 N.W.2d 34, 37
The Pennsylvania Supreme Court recently addressed a claim of overbreadth and vagueness directed against that state’s DUI law
5
, a statute similar to
In a similar vein, we find that
2.
A statute is void for vagueness if it fails to give a person of ordinary intelligence fair notice that his contemplated behavior is forbidden by the statute, or if it encourages arbitrary or erratic enforcement.
Sanders v.
[t]hat the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties ...; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.
State v. J.K, Del.Supr., 383 A.2d 283, 291 (1977), cert. denied, 435 U.S. 1009, 98 S.Ct. 1882, 56 L.Ed.2d 392 (1978), quoting Connolly v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). “The underlying principle is that no man [or woman] shall be held criminally responsible for conduct which he [or she] could not reasonably understand to be proscribed.” United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 98 L.Ed. 989 (1954).
Although the void for vagueness doctrine “focuses both on actual notice to citizens and arbitrary enforcement, [the Supreme Court of the United States] has recognized recently that the. more important aspect ... ‘is not actual notice, but the other principal element of the doctrine — the requirement that a legislature establish minimal guidelines to govern law enforcement.’ ” Kolender v. Lawson, 461 U.S. 352, 357-58, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983), quoting Smith v. Goguen, 415 U.S. 566, 574, 94 S.Ct. 1242, 39 L.Ed.2d 605 (1974). “It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large.” Kolender, 461 U.S. at 358 n. 7, 103 S.Ct. 1855, quoting United States v. Reese, 92 U.S. 214, 221, 23 L.Ed. 563 (1875). Minimal guidelines for law enforcement are necessary to prevent a “standardless sweep” allowing the pursuit of “personal predilections.” Robinson v. State, Del.Supr., 600 A.2d 356, 365 (1991).
The Superior Court found our DUI statute “ereat[ed] confusion as to what level of alcohol in the blood is prohibited since the statute could be interpreted as creating two circumstances in which a person could be prosecuted: 1) a BAC of .10 or greater while driving or 2) a BAC less than .10 while driving but more than .10 within [four] hours of driving.” 1997 WL 716896 at *6. The Superior Court concluded that “an ordinary person could not contemplate their future conduct.” 1997 WL 716896 at *6.
Baker and Butters argue that
The State, Baker, and Butters rely on the same authorities from other jurisdictions also in support of their respective arguments concerning the vagueness challenge to
We hold that
Not only does
Because we cannot reconcile the vague language and sweeping implications of
III.
The second question accepted for review is whether the designation of “drinking after driving” as an affirmative defense in
Baker and Butters argue that
The United States Supreme Court in
In re Winship
explicitly held that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970);
Walls v. State,
Del.Supr., 560 A.2d 1038, 1046,
cert. denied,
493 U.S. 967, 110 S.Ct. 412, 107 L.Ed.2d 377 (1989). The elements of each criminal offense are defined by the state through statutory enactment. 560 A.2d at 1046;
An affirmative defense may stand where the state is required to prove beyond a reasonable doubt “all of the elements included in the definition of the offense of which the defendant is charged,” and where no “further facts are either presumed or inferred in order to constitute” that offense.
Patterson v. New York,
432 U.S. 197, 205-06, 210, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977). “It would be an abuse of affirmative defenses, as it would be of presumptions in the criminal law, if the purpose or effect were to unhinge the procedural presumption of innocence which historically and constitutionally shields one charged with crime.... The affirmative defense, intelligently used, permits the gradation of offenses at the earlier stages
of
prosecution and certainly at the trial, and thus offers the opportunity to a defendant to allege or prove, if he can, the distinction between the offense charged and the mitigating circumstances which should ameliorate the degree or kind of offense.”
Patterson,
432 U.S. at 211 n. 13, 97 S.Ct.
The Delaware Criminal Code is explicit in its allocation of burden of proof in criminal cases. The State must present “some credible evidence tending to prove the existence of each element of the offense,”
As contrasted with a “simple” defense that raises or suggests reasonable doubt, the Delaware Criminal Code recognizes that the General Assembly may create affirmative defenses which “the defendant has the burden of establishing ... by a preponderance of the evidence.”
Only two other jurisdictions have addressed directly the issue of whether an affirmative defense involving evidence of consumption of alcohol after driving but before testing impermissibly shifts to the defendant the State’s burden of proving every element of the offense beyond a reasonable doubt. 9 The Supreme Court of Washington found the affirmative defense contained in its DUI statute was unconstitutional, while the Arizona Court of Appeals upheld its affirmative defense provision.
The Arizona Court of Appeals in Cacavas upheld its affirmative defense provision 10 because the “statute has created a new crime” that no longer includes operating or controlling a vehicle with a BAC of .10 percent or greater. 811 P.2d at 368-69. And in Martin the court stated that the “essential element ... is having a BAC of 0.10 percent within two hours after driving. [The affirmative defense provision] neither establishes that element nor places the burden of disproving it on the defendant.” 847 P.2d at 624.
Notwithstanding any disagreement about the necessary elements, we find that the Arizona affirmative defense provision is distinguishable from
The Washington Supreme Court in
Credi-ford
struck down an affirmative defense provision in its DUI statute
11
which is virtually identical to
We hold that
IV.
On the basis of the foregoing, we affirm the decisions of the Superior Court and conclude that
Notes
. The challenged statute,
(a) No person shall drive a vehicle:
(1) When the person is under the influence of alcohol;
(2) When the person is under the influence of any drug;
(3) When the person is under the influence of any combination of alcohol and any drug;
(4) When the person’s alcohol concentration is .10 or more; or
(5) When the person’s alcohol concentration is, within 4 hours after the time of driving, .10 or more.
(b) In a prosecution for a violation of subsection (a) of this section:
(2) It shall be an affirmative defense to a prosecution premised on subsection (a)(5) of this section if the person proves by a preponderance of the evidence that the person consumed a sufficient quantity of alcohol after the time of driving and before any sampling to cause the person‘s alcohol concentration to exceed .10. Such evidence shall not be admitted unless notice of this defense is given to the prosecution at least 20 days before the trial.
(c)For purposes of ... this section ..., the following definitions shall apply:
(3) “Drive” shall include driving, operating, or having actual physical control of a vehicle.
(5) “While under the influence” shall mean that the person is, because of alcohol or drugs or a combination of both, less able than the person would ordinarily have been, either mentally or physically, to exercise clear judgment, sufficient physical control, or due care in the driving of a vehicle.
(g) For purposes of a conviction premised upon subsection (a) of this section, or any proceeding pursuant to this Code in which an issue is whether a person was driving a vehicle while under the influence, evidence establishing the presence and concentration of alcohol or drugs in the person‘s blood, breath or urine shall be relevant and admissible ....
(1) Evidence of an alcohol concentration of .05 or less in a person‘s blood, breath or urine sample taken within 4 hours of driving and tested as defined in subsection (c)(2) of this section is prima facie evidence that the person was not under the influence of alcohol within the meaning of this statute ....
. United States v. Skinner, W.D.Wash., 973 F.Supp. 975, 980 (1997).
. ARIZ. REV. STAT. ANN. § 28-1381, formerly § 28-692, provides in relevant part:
A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:
2. If the person has an alcohol concentration of 0.10 or more within two hours of driving or being in actual physical control of the vehicle.
C. It is an affirmative defense to a charge of a violation of subsection A, paragraph 2 of this section if the person did not have an alcohol concentration of 0.10 or more at the time of driving or of being in actual physical control of a vehicle. If a defendant produces some credible evidence that the defendant‘s alcohol concentration at the time of driving or being in actual physical control of a vehicle was below 0.10, the state must prove beyond a reasonable doubt that the defendant’s alcohol concentration was 0.10 or more at the time of driving or being in actual physical control of a vehicle.
We note that the Arizona statute sets the relevant time period as “within two hours” while
. The
Fuenning
court was addressing a predecessor DUI statute which was the substantial equivalent of
. The Pennsylvania statute,
(a) Offense defined — A person shall not drive, operate or be in actual physical control of the movement of any vehicle:
(5) if the amount of alcohol by weight in the blood of the person is 0.10% or greater at the time of a chemical test of a sample of the person’s breath, blood or urine, which sample is:
(i) obtained within three hours after the person drove, operated or was in actual physical control of the vehicle ....
The statute further provided an affirmative defense if the “accused [could] establish by a preponderance of the evidence that he or she consumed enough alcohol after the last instance in which the person drove which caused their BAC to rise above .10% at the time of testing.” 681 A.2d at 164.
. Quoting from Skinner, 973 F.Supp. at 980.
. Kolender, 461 U.S. at 358 n. 7, 103 S.Ct. 1855.
. State v. Crediford, Wash.Supr., 130 Wash.2d 747, 927 P.2d 1129, 1138 (1996) (Sanders, J., concurring).
. In State v. Bashaw, Minn. Ct.App., 531 N.W.2d 203 (1995), the court addressed whether the trial court had erred in excluding the defendant’s consumption of alcohol after driving evidence under the notice provision of the affirmative defense section. The court found that error had occurred because the defendant in that case had been charged under a different subsection of the statute, and therefore the notice provision did not apply because his evidence was presented to directly negate an element of the offense. 531 N.W.2d at 208.
. See note 3 supra for the text of Arizona‘s DUI statute.
. The Washington DUI statute, WASH. REV. CODE ANN. § 46.61.502, provides in relevant part:
(1) A person is guilty of driving under the influence of intoxicating liquor or any drug if the person drives a vehicle within this state:
(a) And the person has, within two hours after driving, an alcohol concentration of 0.10 or higher as shown by analysis of the person’s breath or blood ...
(3) It is an affirmative defense to a violation of subsection (l)(a) of this section which the defendant must prove by a preponderance of the evidence that the defendant consumed a sufficient quantity of alcohol after the time of driving and before the administration of an analysis of the person’s breath or blood to cause the defendant’s alcohol concentration to be 0.10 or more within two hours after driving. The court shall not admit evidence of this defense unless the defendant notifies the prosecution prior to the omnibus or pretrial hearing in the case of the defendant’s intent to assert the affirmative defense.