State v. Pickering

H51 STATE of Maine

Jeffrey PICKERING.

Supreme Judicial Court of Maine.

Argued March July

Decided

1153 Portland, Aranson, Atty., Dist.

Paul Moss, Atty. (orally), Asst. Gen. Wayne S. plaintiff. Augusta, (orally), Lilley, Daniel Eggert Paul E. Portland, for defendant. NICHOLS, GODFREY, ROB-

Before ERTS, CARTER, VIOLETTE and WATH- EN, JJ.

WATHEN, Justice. Pickering was convict- Jeffrey

Defendant Court jury Superior ed verdict the of- County) of (Cumberland while operating a motor vehicle fense of intoxicating liquor. the influence under (1983). The defend- 1312-B § 29 M.R.S.A. on from appeal issues presents ant three justice (1) presiding the conviction: in exclud- erred, hearing, the suppression for reliability a test the ing evidence of content; im- (2) complaint the blood-alcohol operating him with charged permissibly or, alterna- influence in the while under the an exces- tive, having while operating with content; con- (3) his sive blood-alcohol guarantees viction violates constitutional the since equal protection, process due charged he was for which criminal conduct to a traffic by also declared only penalty for civil infraction appeal and affirm deny provided. We conviction. judgment I. arrest placed was under

The defendant morning Septem- hours of during early vehicle a motor operating ber for intoxicating influence of under the while test intoxilyzer to an He submitted liquor. blood-alco- determining purpose filed complaint The criminal content. hol vio- charged that he the defendant against operating by 1312-B lated M.R.S.A. § or more having 0.10% vehicle “while motor his or while blood weight of alcohol intoxicating liquor.” the influence under re- to moved trial, the defendant Prior alternative, elect one the State to quire H55 the complaint, dismiss and to suppress the results obtained were 0.149% and test results. All motions were denied. At 0.168%. He further testified intox- that the trial, upon conclusion conviction prior machine was calibrated six ilyzer days “operating influence as again day defendant’s arrest and on the charged,” the defendant was sentenced to arrest, each following the and on occasion fine, jail, 90-day 48 hours in and a $850 acceptable tested within machine an suspension his operator’s license. The however, range. acknowledged, It was present appeal followed. the machine was not calibrated immediately performed prior to the tests on the defend- II. ant. Defendant moved suppress the results At the conclusion of the officer’s testimo- of the on intoxilyzer grounds test ny, sought call a chemist it not properly was administered be- an expert witness. an Through offer of cause of the “inherent unreliability proof, he asserted that the witness would intoxilyzer.” The motion was heard on the testify that since the time of arrest morning that trial was scheduled to com- regulations departmental for use in- mence. The defendant’s first witness toxilyzer changed respects.2 had in two the officer who administered the His test. testing While it was conceded that the com- testimony clearly compliance established plied regulations with the in effect at prerequisites set forth in M.R. arrest, 1312(6) for admission time of S.A. into evi- defendant wished to § dence of test testing results.1 The officer testified demonstrate that the would not the test was administered twice and have regulations been valid under the in 1312(6) provides bearing 1. 29 M.R.S.A. § in relevant ment were a statement of manu- the part: Department facturer or the of of Human accepted prima Services shall be in court as 6. Administration of tests. .... facie evidence the materials were of a law enforcement officer test [A] the composition quality as stated. any person probable of breath whom there is comply any provisions Failure to with of this operated attempted cause to believe has or to any regulations promul- with subsection or operate a motor vehicle while the influ- gated not, by itself, in this subsection shall liquor intoxicating of ence and who has cho- result in the of test, self-contained, exclusion evidence of blood- by sen breath a use of a level, alcohol the unless evidence is deter- testing apparatus breath-alcohol to determine sufficiently to be level, mined reliable. provided testing the blood-alcohol the apparatus reasonably pro- is available. The person by A certified the Maine Criminal operation testing cedures for the of self- Academy, under Justice certification stan- testing apparatuses contained breath-alcohol by academy, qualified be dards to set the as provided by regulation promulgat- shall as self-contained, operate approved to breath-al- by Department ed the of Human Services. apparatuses testing may operate cohol those any accepted The result of such test shall be apparatuses purpose collecting for the of prima as facie evidence of the blood-alcohol analyzing sample specimen a of defendant’s any level in court. breath. self-contained, Approved breath-alcohol test- ing apparatus stamp approval shall have a of proof 2. The offer of was as follows: by Department affixed the of Human Serv- periodic promulgated testing. stamp are ices after now standards [T]here That of period operation breathilyzer approval the of the test which shall valid for a limited of require things. requires year. Testimony several One that the no more than or other bearing equipment be made each test evidence that the was the calibration check before is Two, discrepancy stamp approval accepted a of in run. then when there is shall be court equipment percent prima test as facie that the .02 between two results— evidence require approved by Department first two test results be run— of Human .02, opera- discrepancy by when a there is required Services for use the law enforcement offi- analyze sample specimen to tor is be administered a third and cer to collect and Testimony fourth test test with that the defendant’s breath. or oth- because first (sic) any operat- discrepancy er evidence that materials used in individual considered inherently ing checking operation equip- invalid. results in this case. the test suppressing The proffered at of trial. effect the time in declining no error that the The court committed have testified expert witness would evidence unreliabil- proffered hear the compliance in to testing, although ity. effect the time of regulations in scientifically un-

testing, was nevertheless subsequent by reliable evidenced III. change regulations. suppression in The complaint in this case The criminal justice such evidence of unrelia- ruled that with a violation of 29 charged defendant weight went of the test results bility to “operating 1312-B for motor M.R.S.A. § than their The admissibility. rather more having by 0.10% or vehicle while de- to hear the witness and court declined his blood or while un- weight of alcohol in to suppress. nied motion liquor.” intoxicating der the influence of Court, added.) Superior In the (emphasis sec set forth in prerequisites moved, success, to re- without 1312(6) indicia tion serve as foundational the alterna- elect quire State any reliability. The statute declares that now con- appeal, the defendant tives. On require in compliance test taken with those disjunctive, use of the by tends that prima facie evidence of blood-alco ments alternative, him in the charging in court.3 address any hol level Evidence deprived him of a unanimous potentially reliability of the result ing accuracy deprive and did him “his jury verdict an properly administered test creates ability vigorously against defend each jury of fact in issue to be considered charge.” cites no authority Defendant weighing the evidence. See State Whit position and find it to be support of his we also (Me.1981). 436 A.2d ney, without merit.5 Hebert, 185, 186(Me.1981) State v. 437 A.2d calib (accuracy speedometer which was in this case follows complaint pursuant procedure goes rated to standard language of the statute. Gener the exact weight).4 only pleadings, ally, it is sufficient departmental complaint employ for the indictment or Subsequent changes not, more, language adequately render the of the statute if it regulations do without provides tests which were “a defendant of reasonable and inadmissible the results of compliance intelligence with normal with a clear identifica properly administered in provisions charged.” of crime and statutory regulatory and tion conduct Saucier, Accordingly, 57, (Me.1980); v. testing. effect at the time of 421 A.2d 58 State Cameron, 8, for v. A.2d 9 any defendant failed to establish basis see also 456 State Bush, 565, 1977); 1312(6) (Minn. State v. 3. 569 While criteria section N.W.2d 386, legislative (Mo.App.1980); v. of foun- State constitutes a determination 595 S.W.2d 388 reliability, compliance Gerber, 75, 90-91, 403, with dational lack Neb. N.W.2d 206 291 regu- departmental procedural Ghylin, those criteria or (1980); v. State 411-12 248 N.W.2d necessarily preclude admissi- Palomino, lations does not 825, (N.D.1976); State v. 37 831-32 bility long As as the blood-alcohol results. 309, 312, 107, (1978); Or.App. 587 P.2d 109 reliable”, “sufficiently test results test remains Benson, 20, Pa.Super. Commonwealth v. 280 McConvey, v. State 459 will be admissible. 31-32, 383, (1980); State v. Hel A.2d 389 421 (Me.1983). at A.2d 562 567-568 mer, 808, (S.D.1979). See also 813 278 N.W.2d Clark, 1151, R.I., (R.I. State v. 423 A.2d 1158 ruling upon preliminary courts in Other 1980) presence (benzidine test used detect admissibility con of blood alcohol tests have Annot., generally blood). 96 A.L.R.3d 745 See, e.g., sistently applied this same rationale. (1980). Bush, 274, People (1981); Cal.Rptr. v. 171 279 Liuafi, 637, 625, App. 623 State v. 1 Hawaii Hickey, 459 (Me.1983), 5.See State v. A.2d 573 State, 1271, v. (1981); Shultz Ind. 1279 P.2d general discussion those factors which People 1127, (1981); App., 417 1136-37 N.E.2d suggest requiring need State Carter, 394, 399-400, Mich.App. v. 259 78 make an election. Dille, 883, (1977); State v. 258 N.W.2d 884-85 1157 (Me.1983); Carter, 37, thermore, v. 444 State A.2d 39 legislative recent amendment (Me.1982); 855, Gordon, 1312-B, v. expressly permits State 437 A.2d to section 822, 857 (Me.1981); Holt, charge State v. 391 A.2d a statement of the in the alterna- 824 (Me.1978). tive, charged The conduct in this legisla- is evidence the fact that the case, 1312-B, pursuant section section 1312-B to clearly ture intended address identified, crime, has providing no reasonable one alternative methods of basis to claim he was uninformed of or proof. 1312-B(1-A) pro- 29 M.R.S.A. § confused charge nature of vides:

against him. The fact that the underlying Pleading proof. The alternative phrased statute is disjunctive does 1, paragraphs defined in subsection A and not alter this conclusion. B bemay pleaded in the alternative. The to, may, required but shall not be State placed The defendant was no disadvan prior elect to submission fact [sic] tage by the use of the word “or” in the finder.6 complaint. State, In Ramsey 228 A.2d 529, (Me.1967), upheld this Court an IV.

indictment charge which set forth a of inde liberties, cent alternatives, stated in two remaining appeal issue on involves a joined by disjunctive. so, doing consideration of the cer- constitutionality of we noted: “The statute described the of tain provisions of the 1981 reform of fense, in disjunctive; yet we think the driving” 1981, Maine’s “drunk law.7 In acts prohibited constitute but offense adopted P.L.1981, 468, legislature ch. charged which may conjunctive in the or 5-12 to September become effective on §§ charged by alleging descrip either 18, 1981. it Insofar as is relevant to the Id., tion of the offense.” quoting, State case, present the enactment resulted in Farnham, 545, 258, 541, 119 Me. 112 A. creation both criminal and civil viola- jurisdictions Other applied have influence, operating tion for under the reasoning same in upholding indict penalty provisions different for each of- ments which disjunctive statutory track fense. 1312-B of 29 M.R.S.A. speci- Section language proscribing driving while under fies the criminal violation as follows: influence, similar to that now chal A person guilty Offense. See, lenged. Weidner, e.g., State v. criminal violation this section if he 742, 166-67, Neb. 219 N.W.2d operates or attempts operate a motor (1974); Carsner, State v. 45 Or.App. vehicle: 560, 561, 608 P.2d rev’d on other 117 - A. under the While influence of intox- grounds, (1980); 289 Or. P.2d icating or liquor drugs or a combination v. Sheppard, 248 S.C. 150 S.E.2d liquor drugs; 916, 917 (S.C.1966). having by B. While 0.10% or more weight of alcohol in his blood. legislative

The history to section 1312-B supports this construction. describes a See Section 1312-C traffic infrac- (110th using L.D. Legis.1981). language.8 Fur- tion identical April 6. Dichotomy This subsection became effective on of the Civil-Criminal the Maine OUI 1982, subsequent Law, to the date of the offense in Me.L.Rev. 385 clear, however, legisla- this It is case. that the adopted any ture the subsection to remove 8.The full text of section is as follows: 1312-C might clarify doubt which have existed and to operating § 1312-C. Traffic infraction of P.L.1981, its earlier enactment. ch. 679 intoxicating liquor of or under the infíuence (emergency preamble). drugs or an lev- excessive blood-alcohol el; suspension fíne and spectrum aFor review of the entire of consti- charge. person 1. Election of has When a by presented tutional issues the 1981 reform been arrested or summonsed under section Comment, By see 1312-B, Constitutional Issues Raised 1312 for a violation of section right a motor operate for the sion of the to vehicle penalties provided The criminal days. for not less than include, a of section 1312-B as violation $350, minimu, not a fine of not less than by which the The mechanism deter of less 48 consecutive hours incarcera- than incident is made whether an is to mination tion, operate of the to suspension right and or be as a traffic infraction as a prosecuted days. a at motor vehicle for least 90 Sec- 1312-C. crime is described in section Es hand, 1312-C, provides tion on the other as of sentially, outline form less than penalty operating civil a fine of not All of charges $250 is as follows: $500, or with an excessive together suspen- nor more than with a under the influence attomey may having charge for to A. Was tested as a blood-alcohol the State elect more; oper- of level of or defendant with the traffic infraction 0.20% driving speed ating intoxicating in li- B. Was excess under the influence of by during drugs quor 30 miles an hour or more or with an blood-al- limit or excessive prosecution operation resulted in the level The determi- which cohol under section. State, attorney operating the influence or with a of for under for under nation more; of or provisions level of subsections 5 and that a blood-alcohol 0.10% attempted prosecuted person Eluded to elude an offi- under either this C. or should be 2501-A, cer, subsection shall as defined in section or under section 1312-B not be section 3, during operation subject which resulted in the to review. person prosecution operating under the influence A com- for 2. Traffic infraction defíned. if a blood-alcohol level of or mits a infraction under this section or with traffic 0.10% more; operates attempts operate a or he or to motor Had convicted of a violation of D. been vehicle: para- section subsection While of intoxicat- former A under influence A, liquor graph ing liquor drugs of a of section or convicted violation or combination 1312-B, guilty adjudicated drugs; or of a traffic in- and or years by weight having section within the more fraction under this B.While or 0.10% immediately preceding the date of the com- of alcohol in his blood. proof. Pleading mission of the new offense. 2-A. The alternatives 2, paragraphs The set out in sub- A B 6. Construction. matter defined may subsection pleaded not of the of- section 5 and 7 are elements be in the alternative. The State to, subject proof disproof may, required prior or fense and are not to not be elect shall prerequisites for conviction fact finder. as or conditions to submission to the adjudication operating or section or under this section 3. Fine. The traffic infraction intoxicating liquor 1312-B. or influence attorney operating The for drugs 7. Other circumstances. or with an excessive blood- may charge State elect to a violation of violation for which fine of alcohol level is a 1312-B, prosecution may in lieu civil $500 nor than $250 not less than more section section, any adjudged, fine shall not be under this other circumstanc- the minimum include, but suspended. These circumstances are es. to, permit op- Suspension. The or limited when the defendant: license operation erate, During right operate A. the course of the a motor vehicle or prosecution operat- any for right apply in the license which resulted ing for or obtain a violating person adjudicated guilty under the influence: subsec- (1) operating suspended by one and 30 Was between 2 shall the court for tion limit; speed period suspension days. an hour in excess of the period miles officer, (2) stop as defined suspended Failed to an the court. The shall not be 2501-A, 2; suspension give in section subsection shall notice court accident; (3) custody operator’s or physical Was in a traffic of an involved take shall any moving (4) permit provided Committed other violation or as in section 2241- license may impose attorney Secretary believes of State an H. prosecution; period suspension, provided warrants additional duty 1312-D, 1-A, comply Had with the B. failed subsection section any suspension blood breath test within period until satis- submit to take a or of extend immediately years preceding opera- any imposed by the him 6 of conditions the faction 1312-D, prosecution in for which the pursuant subsection 3. tion operating resulted to section or a the influence under In lieu criminal violation. The attor- charge or more. ney to a blood-alcohol level for the shall not elect State 0.10% attorney the for the State The discretion of violation of subsection 2 in lieu criminal subject not be to prosecution this subsection shall 1312-B with re- under section any spect review. to defendant who:

H59 blood-alcohol level commenced initially premises equal protec are The defendant his charges, criminal to which attach all of argument upon four recent relatively tion procedural rights, the and substantive con that suggest state court decisions which based, or otherwise stitutionally applicable penalize statutes differ separate to prosecutions criminal generally. ently for same v. People the conduct. See Chubbuck, 347, v. State 449 A.2d 350 (Me. Colo., (1982); Mumaugh, 644 P.2d 299 State 1982). (110th See also L.D. 1541 Legis. Modica, v. 58 Hawaii 567 420 P.2d Chubbuck, 1981). But see 449 A.2d at 351 Wilson, v. (1977); App.2d 60 Ohio State n. 10. Subsection 1 attorney authorizes the aff’d, (1978), N.E.2d 1206 58 397 Ohio St.2d for the a charge State elect to defendant (1979); Jessup, 388 745 N.E.2d State who has been or arrested summonsed for a 304, 641 Wash.App. (1982). P.2d 1185 violation of section 1312-B with traffic cases The defendant concludes from these statute, prosecu infraction. Under the “if the crime with severe penal that more is subject tor’s election only to limita applied, ties is to then must be that statute imposed tion upon that discretion section include an additional element must 1312-C(5).9 The expressly declares in proved by be State order to differen the prosecutor’s that determination and dis it tiate from the statute with a lesser penal cretion “shall not subject to review” nor short, argued In it is ty.” any duplica- that shall the circumstances set forth in subsec is tive statute unconstitutional. The inher tions 5 and 7 become of elements position ent in weakness defendant’s requiring “proof fense or disproof.” Chub- authority buck, upon which he relies is that it A.2d at 350. Supreme fails consider the United States in defendant the present case in Court decision United States v. Batcheld and charged arrested awith er, 442 U.S. 60 L.Ed.2d pursuant violation to section 1312-B. It is case, In that it was held that undisputed that attorney for State duplicative containing overlapping statutes did not charge thereafter elect traffic of particular definitions criminal conduct infraction. The argues on appeal providing penalties but different for that that “to impose the criminal on sanctions conduct not necessarily do offend constitu him when there is no difference between guarantees. tional violations, the criminal and civil is a viola tion of the Equal Protection and Due Proc Batchelder, In employed Court ess Clauses of United States following analytical framework an short, of Maine Constitutions.” In the de 1) examination of duplicative statutes: fendant contends the duplicative that stat whether due process are the statutes violated facially utes re unconstitutional and quests 2) lack judgment vagueness; of notice and wheth conviction reversed.10 duplicative er the existence of the statutes speci- repealed by impli- 9. Subsection 7 of 29 M.R.S.A. 1312-C § be deemed to have the other instance, fies non-inclusive list circumstances under legislative cation. overall prosecution may clear, which criminal be indicated. design patently language both from of the statute the statement fact which present It should be noted case accompanied (1981) L.D. when the bill readily distinguishable from other instances Legislature. was first introduced the 110th upon which this Court has been called to con legislature expressly intended that identi- duplicative overlapping sider criminal stat both cal conduct constitute a criminal offense example, Anderson, utes. For in State a civil and further intended to infraction (Me. 1979) Bryce, A.2d 1290 and State v. prosecution authority provide the with the (Me. 1968), A.2d 726 the Court reconciled charges. cir- elect between Under these issue, overlapping utilizing statutes at the con no we have occasion to resort cumstances cept repeal by implication. The defendant statutory ad- construction rather we must argue this case does not the two prevail dress the constitutional issues. provisions must over the oth er as matter construction or that one must the Due Process Clause are equal protection requirements and implicated process due prohibited conduct avoiding prosecutorial interest in excessive not satisfied. The obtaining equal justice; in discretion and under both sec- authorized punishment 3) discretion prosecutorial and whether such clearly and section 1312-C are tion 1312-B delegation impermissible amounts to an unambiguously set forth. find that same legislative authority. We analyzing the to be useful in framework B) Equal Prosecutorial Discretion — in this presented constitutional issues case. Protection advanced most argument The A) Process Notice—Due upon focuses forcefully by the defendant Batchelder, main- Supreme In Court granted the unusual discretion which is “vague sentencing provisions tained that procedure the election prosecution by if questions they constitutional do may pose Although section 1312-C. the civil clarity not state with sufficient the conse- prohibit identical con provisions criminal given criminal quences violating stat- duct, authority prosecutor given After ute.” Id. at at 2204.11 S.Ct. persons prosecuted to select those to be contested, reviewing the statutes therein two civilly. entirely possible It is provi- found that those Supreme Court situated, similarly might be persons “unambiguously [specified] sions the activi- criminally while the other prosecuted ty proscribed penalties and the available in the civilly. a result has prosecuted Such further upon conviction.” Id. Court See, strong e.g., criticism. Ber past evoked noted: States, 131, 140, ra v. United U.S. violate particular may That this conduct 685, 691, (Black, (1956) 100 L.Ed. 1013 S.Ct. both Titles does not detract from the J., dissenting). Although notice afforded each. uncertainty statutes create as to which Batchelder, however, the United charged crime and therefore what may Supreme Court undercut substantial States penalties imposed, they do so argument. ly, completely, if not defendant’s single greater no extent than would specifically pur held that for Court authorizing various alternative doctrine, is “no there poses constitutional n long overlapping punishments. So difference between the discre appreciable clearly define the con- provisions deciding when prosecutor tion a exercises punishment and the au- prohibited duct of two stat charge whether to under one thorized, requirements the notice elements and the discre utes with different are satisfied. Due Process Clause two choosing tion he exercises when one of Id. with identical elements.” Bat statutes chelder, at 2205.12 case, 442 U.S. at defendant does present In the the critical role argue holding recognizes the notice not and could not Such facts, Although involving largely parallel provi- 11. Batchelder two involved sions, narrowly distinguishable ele- Batchelder contained the same from the both of which ments, prohibiting Here, charge felons from re- present convicted civil the lesser is a case. ceiving violation, firearms in interstate commerce. provision. not an alternative criminal U.S.C.App. 922(h), 924(a); U.S.C. present §§ in case was the defendant Since 1202(a) (1968). convicted Batchelder was § pursuant offense, charged that distinc- with the criminal 924(a), 922(h) sections analytical significance in the tion has no provided penalties than five of not more Additionally, present the two statuto- context. $5,000 years prison fine or both. Sec- in or a Batchelder, proscriptions ry unlike those however, penalty 1202(a), set a maximum tion case, fully present coextensive. are not $10,000 only years prison fine or or a two n. 5. 99 S.Ct. at 442 U.S. at n. Batchelder, to five was sentenced both. who 924(a), challenged years the use under section of his as a violation of the harsher sentence process. right equal protection and due

H61 prosecutorial 1977), discretion our system charged within the defendant was with be in maintaining flexibility of law a vehicle while ing and sensi- in control there was Heald, v. tivity. percent See 382 A.2d alcohol in his A State 0.10 or more blood. (Me.1978). 301 say statutory provision proscribed That is not to that such second totally placed greater discretion is “unfettered.” activity Selectivi- same burden ty in the Supreme enforcement of criminal laws on state. The Dakota South subject to constitutional The there no constraints. Court held that was violation Equal prohibits guarantees given Protection Clause selective any constitutional enforcement upon unjustifiable necessarily “based an broad discretion extended very race, State, standard such as or ar- religion other to In Crews v. 366 prosecutors. bitrary denied, classification.” Id. See v. Oyler 117 cert. (Fla.Dist.Ct.App.), So.2d Boles, 448, 456, 501, 506, 368 U.S. 7 (Fla.1979), 376 70 the defendant was So.2d defendant, however, 446 (1962). charged L.E.2d The to pursuant statute carrying not here appeal does claim on despite concealed of a weapon existence prosecutor employed impermissible such municipal proscribing ordinance the identi in exercising factors his discretion.13 activity. cal Florida The District Court Appeals upheld prosecutor’s exercise Although holding was Batchelder against attack, rea discretion constitutional largely ignored by the in courts those deci soning that such discretion is necessary upon relies, sions which the many defendant system inherent in of law. o.ur state courts have had the occasion apply to logic its analogous occasions, under fact situations to prior two this Court has On that which we now In Batchelder, confront. v. applied State the rationale of al- Watts, 601 (Mo.1980), though S.W.2d 617 the de distinguishable in situations from charged fendant was with operating Jones, a mo present case. In v. 405 State greater tor vehicle with than (Me.1979), 0.10% blood 149 argued A.2d the defendant despite alcohol the existence of a separate that it was improper bring for the State to proscribing statute operating while intoxi an indictment (17 reckless conduct —A cated, which penalties. mandated lesser 211) M.R.S.A. rather than an indictment § The court rejected challenge, defendant’s charges for the less serious driv- reckless finding the (29 constitutional issues resolved ing 1311) en- driving M.R.S.A. to § Batchelder. In 92 Karpinski, (29 1314). Court, State v. danger M.R.S.A. § 599, 285 (1979), Batchelder, Wis.2d N.W.2d 729 in pros citing noted that the absence ecutor, discretion, charged his de allegations that the to prosecute decision fendant with classification, a criminal violation when the an upon arbitrary was based prosecuted same conduct could have been “[wjhere epi- same criminal conduct or offense, an ordinance gives violation a civil action. sode rise to more than Supreme Wisconsin Court that given deciding found has prosecution discretion any improper prosecutorial absence of charge ‘contrary which offense to unless a ” discrimination, necessary, such discretion is at legislative plainly appears.’ intent Id. and not from a de prosecutorial (citing 13(1)). dissimilar 152 17—A In M.R.S.A. § Anderson, termination of to all. v. prosecute (Me.1979), whether at 409 1290 State A.2d Gerdes, (S.D. 252 N.W.2d 335 we ruled that felony-murder that, occasion, prior criminally person prosecuted 13. The record reflects on was duty comply conduct, to defendant with the failed for similar defendant would still have submit to a or breath Pursuant blood test. show that enforcement was such selective guidelines 1312-C(7)(B), deliberately impermissible forth in set section un- made on an Heald, suggests justifiable such circumstance that criminal standard. See A.2d Berrios, prosecution appropriate. United was also States (2d Cir.1974); Mottram v. F.2d dismiss, pre-trial hisAt motion to defendant Murch, F.Supp. (D.Me.1971). Again, person introduced evidence that another simi- attempted argue defendant has not discrimi- larly charged situated natory appeal. on Assuming arguendo civilly criminally. or selective enforcement and not 202) doctrine, repeal grant not such a of dis- (17-A did tutional that M.R.S.A. § that criminal exception accomplice improper constitute an to the is and the cretion (17-A 57) applied when being M.R.S.A. down as fa- statute must struck § “intentional-knowing” to the murder stat- cially unconstitutional.15 As was stated in (17-A 201). Having deter- ute M.R.S.A. § Batchelder: overlapped, mined the we that statutes 922(h) to proceed under decision § [A] stated: does not greater empower [the offense] Thus, single when a violates more act to ultimate predetermine the Government statute, the to than one elect Rather, merely it en- criminal sanctions. proceed under either against accused sentencing judge impose to ables the The discretion to choose un- statute. ... 1202(a) prison sentence than longer § prosecute der which to is vested in the him from permit precludes would and attorney grand jury, prosecuting and by greater fine authorized imposing invidious dis- provided impermissible no is no 1202(a). importantly, More there § crimination is involved. dis- difference between the appreciable at decid- prosecutor Id. 1306. cretion a exercises when under of two ing charge whether one It on the basis of is fair conclude statutes with different elements and Batchelder and our own decisions Ander choosing he when one discretion exercises Jones, duplica- son and that in case of of two statutes with identical elements. statutes, or overlapping tive both situation, In deter- the former once he state guarantee equal and federal support that the will convic- proof mines is limited to the defense of protection statute, his tion either decision under discriminatory prosecution. faces in indistinguishable from the he present controversy distin prosecutor may the latter context. guishable pro from in that the Batchelder penalties available by be influenced hibited section 1312-B conduct both fact, upon conviction, standing this 1312-C is coextensive and iden and section alone, does not rise to violation give defense, argued by tical. not Although or Due Process Equal Protection have that identical suggested commentators ... Just as a defendant has no Clause. statutes, statutes, overlapping opposed elect of two right constitutional which distinguishable are and should found un federal statutes shall be the applicable constitutional on the basis of “unfettered” and prosecution, of his indictment basis See, e.g., prosecutorial discretion. Com penal- is he entitled to choose the neither ment, Statutes, Prosecutorial Duplicative he sen- ty under which will be scheme Discretion, and the Illinois Armed Violence tenced. Statute, Law of 71 Journal of Criminal Batchelder, 442 at 2205. at S.Ct. U.S. In the ab Criminology stract, prosecutorial argued it could be that C) Legislative Delegation Improper qualita totally unguided discretion is analyze issue of Finally, we choosing when between tively different perspec from the prosecutorial discretion except statutes which are identical ar legislative delegation. not tive It was punishment.14 prepar We are terms ed, promulgating that however, gued in Batchelder to state as a matter consti- prosecutorial present consider the statute To discretion In the case we the extent dégree dealing particular only applied differs in when with identical defend- as it is to this statutes, overlapping speculate rather we note the than have on ant. We no occasion guidance by 5 and 7 of litigant afforded subsections might by which be raised those issues 1312-C, mandatory specify section both charged infraction than the with the civil rather prosecutor optional standards to assist criminal offense. in his of either a criminal or civil election charge. issue, legisla Justices, provisions CARTER, ROBERTS and con- curring. ture impermissibly delegated responsibil its Batchelder, to fix criminal ity penalties. In agree We with the result reached rejected

the Court flatly argument, join We Court. do Part IV finding provisions that the “plainly demar opinion we its re Court’s because believe range cate the of penalties prosecutors upon the Supreme liance United States judges may seek impose. light Court’s decision in United States Bat specificity, power Congress of that chelder, U.S. S.Ct. has those delegated officials is no broad (1979) misplaced. L.Ed.2d 755 is The stat er the authority they than exer routinely ute which the defendant was convict enforcing cise in the criminal laws.” Bat provide disparate pen ed does not criminal chelder, 126, 442 U.S. at 99 S.Ct. at 2205. Rather, alties for the same conduct. No further requirement legislative guid alternatively purports to authorize imposed, ance was nor any guidelines, were either criminal or civil sanctions for the 1312-C, as are such set forth in section 1312-B, same conduct. 29 M.R.S.A. §§ incorporated into statutory up scheme (Supp.1982-1983). 1312-C held in Batchelder. prevents No constitutional limitation Batchelder, inAs statutory contested Legislature imposing from both a criminal provisions in this plainly case demarcate the and a civil sanction for same conduct. range penalties prosecutors Mitchell, and Helvering 391, 399, v. 303 U.S. 58 judges may impose and therefore satisfy 630, 633, (1938). S.Ct. 82 L.Ed. 917 Indeed the constitutional requirement that there be the sanctions even be cumulative rath “sufficient or specific general- er than alternative. United ex rel. States standards — ized, or explicit implicit” to prevent Hess, 537, 548-A9, 317 63 Marcus U.S. arbitrary irresponsible pow- exercise 379, 386-87, (1943). L.Ed. S.Ct. 443 We byer Superin- those entrusted with it. See any need express opinion not as to whether tending City Committee of the School a Legislature validly has established Bangor v. Bangor Association, Education Helvering, civil sanction. See 303 U.S. at (Me.1981). 433 A.2d 399-404, 58 at 633-636. The S.Ct. existence hardly of an civil invalid sanction could note, again, We once properly pros avail this defendant who was present distinguishable case is from Bat- upon a complaint ecuted criminal with no chelder competing statutory pro in that the any prosecutorial indication of election visions here are identical rather than mere the civil alternative. State v. Chub ly overlapping. To the extent that such a buck, (Me.1982); 449 A.2d 349-52 see meaning distinction retains after Batcheld Crocker, generally 435 A.2d er, we find that the mandatory optional J., (Me.1981) (Carter, concurring) 77-85 guidelines specified in 5 and 7 subsections (criticizing majority for overbroad treat supply comply sufficient standards to issue). Finally, ment of constitutional there due requirements process the con suggestion any no im is in this record of text of an analysis delegation declining proper prosecutorial conduct legislative authority. prosecution. civil challenge Defendant’s constitutional NICHOLS, Justice, dissenting. his conviction fails. operating-under-the-influ- When Maine’s entry must be: years ago ence statute was revised two Judgment of conviction affirmed. option given radical innovation in his or her unfettered every prosecutor, ROBERTS, discretion, GODFREY, treat certain of this CARTER and violations VIOLETTE, JJ., concurring. offenses rather than as criminal law as civil range cases 1983). (Supp.1982- offenses. 29 M.R.S.A. all but narrow § 1983). prosecution mandatory, ap where criminal Confronted on Defendant’s challenge constitu as to whether peal with a to the law’s the decision record, jail de tionality, goes mount their today’s majority gains stat duplicative aspects suspen- fense to of this receives a stiffer fine and license whether, ute on the decision of the United States sion, merely as a civil treated v. Bat Supreme violator, Court United States and a he receives a lesser fine chelder, 442 U.S. ulti- suspension, shorter rests over upheld L.Ed.2d That case prosecutor. mately with on statutes lapping, duplicative, scheme violates the consti- This a felon. possession by of a firearm Pro- guarantees Equal tutional of both The majority’s is inapposite. Batchelder Due Process Clause tection Clause and the misplaced. reliance is Amendment.2 Fourteenth unfortunate, they did suggest, It is I stat- did not involve identical Batchelder follow line of cases led not instead statutes there utes. The two federal 697, P.2d 698 Pirkey, v. Or. degree pro- only to the overlapped issue (1955). duplicative case struck down This In the hibiting of the same conduct. some drawing checks with insuf- statutes on bank hand, a us, there is on other case before ficient funds in the bank. of both the sub- redundancy terms total em- language offense and the stance has observed: One commentator impossible It is the two sections. ployed Batchelder, spite In identical statutes to violate section 1312-B for a motorist ever are unconstitutional. No case has 1312-C, it violating and also section without are identi- upheld totally statutes which a sec- impossible for motorist violate except punishment.1 cal section violating without also tion 1312-C majority appears by today’s The decision 1312-B. court first in which a represent the instance starting down of distinction is that point has held We are A second otherwise. statutes lonely a road. two federal penalties roughly were challenged in Batchelder of our 1312-B and section 1312-C Section greater a provided The first statute same. pro- influence statute operating-under-the second, than the prison maximum sentence in identical terms. scribe identical conduct greater maxi- authorized a while second respect only The differ sections Moreover, there mum fine than the first.3 is a offense punishment. criminal a possibility a very was real jail a minimum D which carries Class crime re- penalty with the same up would end hours, minimum fine sentence a was under which he of the statute gardless suspension. license ninety-day a $350 operating-un- contrast, in our charged. 1312-B(2) (Supp.1982-1983). 29 M.R.S.A. § statute, great a there is no der-the-influence contrast, infraction carries the traffic By traf- penalty for the disparity between fine term, imposing only a jail $250-$500 for the crimi- penalty 29 fic infraction and forty-five day suspension. and a license fines, longer license (4) (Supp.1982- nal offense. Stiffer 1312-C(3) & M.R.S.A. § Statutes, process para- Comment, Duplicative issues which are Prosecutorial tion and the due Discretion, mount Armed Violence here. and the Illinois Statute, Law and Crimi- 71 Journal of Criminal 226, nology 922(h) subject of 18 U.S.C. are § 3.Violators years prison maxi- term of five a maximum U.S.C.App. $5,000; Mitchell, of 18 Helvering mum violators 303 U.S. fine v. subject two-year upon 1202(a) (1938), maximum are to a relied § S.Ct. L.Ed. 917 $10,000. See concurring opinion, fine of in which term and a maximum was case in the 118-19, Batchelder, only question at 442 U.S. at 99 S.Ct. jeopardy raised. double protec- equal to the 2201-02. has no relevance case

H65 suspensions both mandatory prison operating-under-the-influ- convicted of terms ence, may in the ride balance. identical in There is no all possibility respects. Al- equivalent punishment. though there may be no justifica- rational tion for treating these citizens differently,

Third, Batchelder involved two criminal the statute one, authorizes for jail, and statutes. A conviction under either would the other, merely result a fine. Here, Such patently record. Section 1312-C is nothing unequal more than a traffic in- treatment identically situated fraction, while a conviction persons under section guarantee violates the of equal pro- 1312-B brands the defendant as a criminal. tection of the law afforded all citizens In addition to the greatly increased penal- the United States Constitution. obtaining 1312-B, ties under section a de- There is still another constitutional infir- fendant convicted escape thereunder cannot mity in the manner in the decision opprobium of criminality. prosecute given whether to defendant civ- Thus, factually Batchelder is legally illy or criminally delegated prose- to the distinguishable from case before us. cutor. In Justice historic phrase, Cardozo’s Those courts which have heretofore dealt this approaches “delegation the level of with this question have uniformly adhered running riot.” Poultry Corp. Schechter principle that, consistent with equal States, 495, 553, United 295 U.S. protection guarantees, state may not em 837, 853, (1935) (concurring 79 L.Ed. 1570 ploy identical statutes with penal different ties to opinion). disparately punish delegation those Such is also a violation who commit identical acts. People v. Mumaugh, 644 separation powers doctrine. State P.2d 301 (Colo.1982); People v. Marcy, 706-07, at Pirkey, 203 Or. 281 P.2d 69, 628 P.2d 74-75 (Colo.1981); State v. 703. Modica, 58 249, 251, Hawaii 420, 567 P.2d Legislature provided has Although the (1977); 422 Wilson, State v. 60 App.2d Ohio list of “circumstances” prosecutors with a 377, 380-81, 1206, 397 N.E.2d 1209 (1978), deciding wheth- be considered 52, aff’d 58 Ohio St. 388 N.E.2d (1979). 745 criminally, it prosecute er to defendant Spillers State, 23, v. 18, 84 436 Nev. P.2d 23 are no more than made clear that these (Nev.1968); Pirkey, 704, State v. 203 Or. at Wash.App. 29 1312- advisory in nature. M.R.S.A. § 702; 281 P.2d at Jessup, State v. 31 “circumstanc- C(7) (Supp.1982-1983). Such 307-08, 304, 1185, 1188 641 (1982). P.2d meaning when the considera- es” have little The Colorado Court Supreme has articu- entirely preroga- within the tion of them is the guarantee equal lated protection of Furthermore, be- prosecutor. tive way: this “in is permitted prosecution cause criminal Equal protection law is a guaran- circumstances,” the enumerated any other of like tee treatment all those who are significance little real circumstances have similarly situated. per- Classification of Moreover, the prosecutorial guidelines. sons under the criminal law must be un- that: provision statute concludes with legislation der that is reasonable and not attorney for “The discretion arbitrary. There must substantial dif- shall not having ferences this subsection relationship reasonable State under persons public and the Even if the decision involved subject review.” purpose to be achieved. the other section or proceed under clearly impermissible for should be made v. at 74 People Marcy, (quoting 628 P.2d purport- Calvaresi, 277, 281-82, reasons, decision prosecutor’s v. Colo. People 188 316, P.2d The (1975)). judicial 534 318 review. from edly insulated is substituted for caprice prosecutor’s Maine its terms by permits Berra v. United adjudicatory process. those unequal punishment for who commit 691, 131, 140, 76 States, S.Ct. citizens, same 351 act. The conduct of two U.S. 1166 enough prohibitions not It is J., dissent- (1956) (Black, 1013 100 L.Ed. language plain forth in statute be set ing).4 average person;5 by understandable sweep with such provide prosecutor To penal- to the applies as much guarantee to then ing discretionary powers pre of a statute. Commonwealth ty provisions judicial clude review of the exercise any 567,-, 441 N.E.2d Gagnon, 387 Mass. stage possible for that discretion sets the distribu- (1982) (statute prohibiting example, Supreme abuse. For as the Court vague unconstitutionally tion of heroin held observed, a convenient tool has it “furnishes two comprehended penalty its clause discriminatory enforcement ‘harsh and schemes). general- penalty inconsistent against partic local officials prosecuting Note, Doctrine Void-for-Vagueness ly displeas ular deemed to merit their groups Court, 109 U.Pa.L.Rev. Supreme in the ” ——, Lawson, ure.’ Kolender v. U.S. -, (1983) 75 L.Ed.2d S.Ct. conclude, then, duplicative fea- I of Jackson (quoting Papachristou City operating-under-the-influ- of Maine’s tures 847-48, ville, 156, 170, U.S. mus- pass do not constitutional ence statute (1972) Thornhill v. Ala 31 L.Ed.2d 110 seen, sections, pro- as we have ter. These 88, 97-98, bama, 310 U.S. S.Ct. terms in identical identical conduct scribe 741-42, (1940)). 84 L.Ed. 1093 Standardless the defendant convicted prescribe and unreviewable discretion invites arbi substantially penalties criminal offense enforcement of discriminatory

trary for the penalties prescribed higher than the law. It violates the basic notions of a mere guilty found traffic jus and even-handed fundamental fairness sec- between these The choice violation. consti in our underlie the system tice which prosecutor. of a is left to the whim tions guarantees process of due tutional submit, only I statutory pattern, Such equal protection. sepa- doctrine the constitutional offends both the powers6 but also violates ration ordinary intelligence When a motorist Process Clauses and Due Equal Protection foresee whether conduct which cannot Amendment.7 of the Fourteenth amount to a proscribes may Maine statute Therefore, but to infrac- I would see no recourse only or be a traffic criminal offense court below. of the tion, judgment scheme suffer the vacate the vagueness, infirmity further of law. process to a denial of due

amounts constitutionally protected

A defendant life,

against being “required peril speculate as to

liberty property statutes.” Lanzetta

meaning penal Jersey,

New U.S. (statute penalizing (1939) L.Ed. 888

“gangsters”). Me. art. in our state constitution. Const. civil and criminal forth the elements of the 4. With identical, Ill, in some circumstances offenses 1-2. §§ jury prosecutor may deny a defendant a trial opting go of the traffic infraction. the route canvassing thoughtful comment 7.For problems in this statute inherent constitutional Alfaro, Cal.App.3d People Cf. aspects duplicative concluding that 2, 1983) (strik- (Cal.Ct.App. Cal.Rptr. 178 June safeguard the constitu- be eliminated to must ing standard of blood alcohol down the 0.10% defendants, Comment, rights Con- see tional remarkably as un- similar California by the Civil-Criminal Issues Raised stitutional constitutionally vague). Law, Dichotomy 35 Me.L. Maine OUI constitution, Implicit doc- in the federal Rev. explicitly powers separation set trine of

Case Details

Case Name: State v. Pickering

Court Name: Supreme Judicial Court of Maine

Date Published: Jul 1, 1983

Citation: 462 A.2d 1151

Court Abbreviation: Me.