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People v. Moore, 561 NE 2d 648 - Ill: Supreme Court 1990ReadHow citedSearch
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People v. Moore, 561 NE 2d 648 - Ill: Supreme Court 1990
138 Ill.2d 162 (1990)
561 N.E.2d 648

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant,
v.
THOMAS MOORE, Appellee.

No. 68934.

Supreme Court of Illinois.

Opinion filed September 26, 1990.

163*163 Neil F. Hartigan, Attorney General, of Springfield, and John Baricevic, State's Attorney, of Belleville (Robert J. Ruiz, Solicitor General, Terence M. Madsen and Douglas K. Smith, Assistant Attorneys General, of Springfield, and Kenneth R. Boyle, Stephen E. Norris and Raymond F. Buckley, Jr., of the Office of the State's Attorneys Appellate Prosecutor, of Mt. Vernon, of counsel), for the People.

Christopher Cueto and Kathleen A. Moore, of Cueto, 164*164 Daley, Williams, Moore & Cueto, Ltd., of Belleville, for appellee.

Appellate court reversed; circuit court reversed; cause remanded.

JUSTICE RYAN delivered the opinion of the court:

The defendant, Thomas Moore, was charged with the offense of driving under the influence of alcohol (DUI) (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(a)(4)). The State appeals the ruling of the appellate court (184 Ill. App.3d 102), which affirmed the St. Clair County circuit court's order suppressing the result of defendant's breath test, and other evidence. The circuit court held that the previous ruling following a hearing on defendant's petition to rescind his statutory summary driver's license suspension acted as collateral estoppel for purposes of the criminal DUI trial. We reverse.

The record indicates that on February 6, 1987, Officers Bachesta and Wasser, while on routine patrol, observed a yellow Ford Maverick that defendant was driving make a wide right turn onto O'Fallon Road from Route 157 in Caseyville, Illinois. The officers then followed defendant's vehicle for several blocks until the officers again observed defendant make a wide turn, at which time the officers activated their emergency lights and made a traffic stop. Upon defendant's tendering his driver's license, Wasser detected a strong odor of alcohol on defendant's breath and noticed that defendant had bloodshot eyes. The officers arrested Moore, informed him of the consequences of driving while under the influence of alcohol or drugs and took him to the Caseyville police department, where, in accord with the advice of his counsel, defendant submitted to a breathalyzer test. That test revealed that defendant had a blood-alcohol content of 0.17%. The statute provides that a person shall not drive an automobile while the alcohol concentration in his blood is 0.10 or more. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501(1).) Defendant was immediately 165*165 served with notice of the statutory summary suspension of his driving privileges, and he was later served with confirmation of his suspension. Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501.1.

On February 11, 1987, defendant filed a request for a hearing to rescind the statutory summary suspension of his driver's license. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 2-118.1.) The circuit court of St. Clair County heard Moore's argument and held that the arresting officer did not have probable cause to stop defendant solely because defendant made two wide turns onto unmarked streets. The court also precluded the admission of the police report to establish the results of defendant's breath test.

Defendant then filed a motion to suppress, directed to the DUI criminal proceeding against him, alleging that the issue of probable cause had already been litigated and resolved in favor of defendant in the proceeding to rescind the summary suspension of his driver's license. Therefore, defendant argued, the State was precluded from offering any evidence in the DUI proceeding that was obtained after and pursuant to the stop. The circuit court agreed, holding that all of the elements necessary for the application of collateral estoppel exist, and no exception applies. The State filed a notice of appeal of the circuit court's order granting defendant's motion to suppress. (107 Ill.2d R. 604(a).) The appellate court affirmed. (184 Ill. App.3d 102.) The State filed a petition for leave to appeal (107 Ill.2d R. 315), which we granted.

The sole issue before this court is whether the results of a statutory summary suspension hearing can act as collateral estoppel to bar litigating in the DUI criminal proceeding a question decided in the earlier license suspension hearing. We agree with the holding of other panels of the appellate court in this State, which have all decided the issue contrary to the holding of the appellate 166*166 court in this case. Those cases hold that the doctrine of collateral estoppel cannot be used in such a manner.

The doctrine of collateral estoppel applies to bar the trial of an issue that has been fairly and completely resolved in a prior proceeding. (People v. Grayson (1974), 58 Ill.2d 260.) The doctrine applies "when a party or someone in privity with a party participates in two separate and consecutive cases arising on different causes of action and some controlling fact or question material to the determination of both causes has been adjudicated against that party in the former suit by a court of competent jurisdiction." (Emphasis in original.) (Housing Authority v. Young Men's Christian Association (1984), 101 Ill.2d 246, 252; Buttitta v. Newell (1988), 176 Ill. App.3d 880.) Although the situation in this case appears to contain all the elements necessary for application of the doctrine of collateral estoppel, for various reasons we conclude that the results of a statutory summary suspension hearing cannot act as a bar to litigating the same issues in the criminal DUI proceeding.

Illinois law provides that one who is convicted of driving while under the influence of drugs or alcohol is subject to various stiff penalties. (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501.) In recognition of the fact that it often takes a very long time for the State to prosecute impaired drivers and remove their drivers' licenses, however, the legislature has enacted a system separate from the criminal proceeding in which a motorist's license is summarily suspended when he or she either fails a chemical test or refuses to submit to such a test. These suspensions last for three months or six months, respectively, beginning on the forty-sixth day following notice of the suspension (see Ill. Rev. Stat. 1987, ch. 95 1/2, par. 11-501.1), and serve the salutary purpose of promptly removing impaired drivers from the road. To insure that the State has not violated any due process rights a motorist 167*167 might have in retaining his or her driving privileges until convicted, however, the legislature has also created a mechanism whereby the motorist may file a written petition to rescind the statutory summary suspension of his or her license and receive a hearing. Ill. Rev. Stat. 1987, ch. 95 1/2, par. 2-118.1.

The scope of the summary suspension hearing is limited to four questions: (1) whether the person was placed under arrest; (2) whether the arresting officer had probable cause to believe that the person was driving while under the influence; (3) whether the person refused to take a chemical test; and (4) whether the person failed a test to which that person submitted (Ill. Rev. Stat. 1987, ch. 95 1/2, par. 2-118.1(b).) These hearings are civil in nature, and the court may rely on law enforcement officers' official reports in the absence of the officers themselves.

Several panels of the appellate court have addressed the precise issue in this case of whether the results of these statutory summary suspension hearings can act as collateral estoppel to bar litigating a question in the later criminal proceeding that a court decided in the suspension hearing. With the sole exception of the appellate court in this case, all have held that the doctrine of collateral estoppel cannot apply.

In People v. Stice (1988), 168 Ill. App.3d 662, 664-65, the fourth district of the appellate court stated that the rescission hearing is in essence a type of administrative hearing that is designed to quickly resolve one or more of four narrow issues. The Stice court reasoned that if rescission hearings were given collateral estoppel effect, it would frustrate the goal of expediency because the State would be forced to call witnesses and generally treat the proceeding as a trial. For this reason, the Stice court concluded that collateral estoppel should not apply.

168*168 The second district of the appellate court concurred with this holding in People v. Filitti (1989), 190 Ill. App.3d 884, 886. The Filitti court, while agreeing with the appellate court in the present case that the elements for application of the doctrine of collateral estoppel exist in this situation, identified and applied exceptions to the general application of the doctrine when an injustice will be worked against a party (citing Collins v. St. Jude Temple No. 1 (1987), 157 Ill. App.3d 708, 712) or when it is "warranted by differences in the quality or extensiveness of the procedures followed in the two courts" (Restatement (Second) of Judgments § 28(3)(1982)).

Most recently, in People v. Flynn (1990), 197 Ill. App.3d 13, a panel of the first district of the appellate court also refused to apply the doctrine of collateral estoppel in this situation. Like the courts in Stice and Filitti, the Flynn court reasoned that the statutory summary suspension hearing is a type of an administrative proceeding rather than a part of the criminal proceeding, as the appellate court in the present case found. The Filitti court found support from the decision of this court in Koss v. Slater (1987), 116 Ill.2d 389, 395, in which this court ruled that, because the natures of the two proceedings are so different, the summary suspension hearing is not part of the criminal process but is, rather, merely an administrative device that is designed to remove impaired drivers from the road promptly. As such, this court held in Koss, indigent defendants are not entitled to appointment of counsel for these proceedings.

The appellate court in the present case, however, was unable to find a meaningful distinction between the framework of a DUI proceeding and other criminal proceedings where a determination of a motion to suppress evidence, for instance, ordinarily is given preclusive effect. (184 Ill. App.3d at 106.) The appellate court cited several similar instances in which the doctrine has been 169*169 held to apply and noted the seriousness of one's having his or her driving privileges taken away, especially in rural areas, where little or no public transportation is available.

While we agree with the appellate court in this case that the distinction between the functions of a statutory summary suspension hearing in a DUI case and a preliminary hearing in a criminal case can often be slight, and perhaps even insignificant (People v. Puleo (1981), 96 Ill. App.3d 457, 465), the differences in procedures involved are, nevertheless, very real. The legislature has specifically directed that the license suspension proceedings are to be swift and of limited scope. As the Stice court noted, if these proceedings were given preclusive effect, it would render meaningless this legislative purpose. That is, the practical effect would be that the State or municipality could not rely on the sworn police report at these proceedings but, rather, would be required to have the arresting officer, and other witnesses, testify. The goal of conducting swift hearings for the sole purpose of determining whether a court has sufficient reason to rescind summary suspension of a motorist's driving privileges will be thwarted. Given this probable result, and the fact that no injustice will be done to either party by declining to give preclusive effect to these license suspension hearings, we decline to do so.

Counsel for defendant urges this court to adopt a case-by-case approach and, when the record reveals that the summary suspension hearing provided a full and fair disposition of an issue, such as whether the officer had probable cause to arrest, it should act as collateral estoppel, but when an issue is resolved in a cursory fashion it should not be given preclusive effect. We think that such a solution would be unworkable. Given even the possibility that the results of a summary suspension hearing would act as collateral estoppel, the State would likely 170*170 find it necessary to treat the suspension hearing as an integral part of the criminal trial rather than merely an administrative device at the disposal of the defendant in which the defendant can halt the otherwise automatic suspension of his driving privileges. The process would seldom, if ever, be swift. Law enforcement officers would be required to testify regardless of whether the defendant subpoenaed them. The State would also be required to present witnesses to establish that defendant was in fact driving and was doing so while impaired, and experts will often be required to testify concerning the accuracy of the various chemical testing devices.

For these reasons, we hold that both the appellate court and the circuit court erred by precluding a determination in the criminal DUI trial of the issue of whether the officers had probable cause to arrest defendant and whether the evidence obtained from that arrest must have been suppressed. The judgments of the appellate court and the circuit court are reversed and the cause is remanded to the circuit court of St. Clair County.

Appellate court reversed; circuit court reversed; cause remanded.

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State v. Vasser, 870 SW 2d 543 - Tenn: Court of Criminal Appeals 1993ReadHow citedSearch
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State v. Vasser, 870 SW 2d 543 - Tenn: Court of Criminal Appeals 1993
870 S.W.2d 543 (1993)

STATE of Tennessee, Appellee,
v.
Reed VASSER, Jr., Appellant.

Court of Criminal Appeals of Tennessee, at Knoxville.

August 19, 1993.

James C. McSween, III, Fred L. Myers, Jr., Newport, for appellant.

Charles W. Burson, Atty. Gen. of Tennessee, and Jeannie Kaess, Asst. Atty. Gen. of Tennessee, Nashville, Alfred C. Schmutzer, Jr., Dist. Atty. Gen., Sevierville, James L. Gass, Asst. Dist. Atty. Gen., Newport, for appellee.

No Permission to Appeal Applied for to the Supreme Court.

OPINION

TIPTON, Judge.

The defendant, Reed Vasser, Jr., appeals as of right from his conviction for driving under the influence of an intoxicant (DUI) and sentence imposed by the Jefferson County Circuit Court. He received the minimum sentence allowed by law, including forty-eight hours in jail and a two hundred fifty dollar fine. He contends (1) that the evidence was insufficient to show that he was driving a motor vehicle as defined by T.C.A. § 55-1-103(d), (2) that the trial court should not have found him guilty beyond a reasonable doubt solely upon the police officer's testimony, and (3) that the trial court erred in denying him judicial diversion after he served forty-eight hours in jail. We hold that the evidence was sufficient and that the trial court properly refused to grant the defendant judicial diversion.

Wesley Ballew, a Jefferson County Sheriff's Deputy, testified that on June 30, 1991, he saw a van travelling down a road at a high rate of speed and weaving from side to side. He turned on his blue lights and signaled for the van to pull over. The van sped away and ultimately turned into a driveway. Deputy Ballew stated that the defendant got out and staggered back to the patrol car.

Deputy Ballew testified that he smelled a strong odor of an alcoholic beverage on the defendant. He said he asked the defendant to perform a field sobriety test and that after attempting the test, the man admitted that he was too drunk to complete the test, telling Deputy Ballew to take him to jail. He stated that the defendant then laid on the ground and started hollering and complaining about his back. An ambulance was called and the defendant was taken to a hospital. Subsequently, 544*544 the defendant was taken to jail. He refused to take a breath test.

The defendant testified that he was driving a three-quarter ton van toward his house when he realized that he was being followed by a patrol car with lights flashing. He said he pulled into his driveway and walked back toward the patrol car as the deputy walked forward to meet him. The deputy accused him of not stopping, accused him of being intoxicated and arrested him for DUI and failure to yield to the patrol car's flashing lights. The defendant denied having anything to drink. He said that the deputy did not ask him to take a field sobriety test and he denied telling the deputy he was too drunk to take the test.

The defendant testified that the deputy handcuffed him, but the handcuffs hurt his wrists. He said he fell out of the patrol car onto the ground. He said he told the deputy that he was in pain and asked the deputy to call an ambulance. The defendant stated that he got into the ambulance, but he said he did not remember anything else. He said when he woke up, he was in the hospital. The defendant said that he was confused and he did not remember a nurse taking a blood sample from him. The trial court found the defendant guilty of DUI.

The defendant contends that the state failed to prove that the defendant was driving the type of vehicle which would bring into play the DUI statutes. He relies upon T.C.A. § 55-1-103(d) which defines motor vehicle to mean "every vehicle which is self-propelled, excluding motorized bicycles and every vehicle which is not propelled by electric power obtained from overhead trolley wires." Basing his contention upon a grammatical reading of the statute, the defendant contends that every vehicle which is not propelled by electric power obtained from overhead trolley wires is excluded from the definition of motor vehicle. However, we need not seek to determine the legislative intent for this apparently inartfully drawn provision, although we can presume that the legislature did not intend the absurdity resulting from the defendant's interpretation. See, e.g., State v. Harrison, 692 S.W.2d 29, 31 (Tenn. Crim. App. 1985).

T.C.A. § 55-10-401(a) prohibits driving "any automobile or other motor driven vehicle" while under the influence of any intoxicant. The evidence submitted by the defendant reflects that he was driving a fourwheel, Ford utility van. The defendant does not contend that he was not driving a motor driven vehicle as expressly provided by the above statute. Also, the definition of motor vehicle upon which the defendant relies applies to chapters one through six of Title 55 and not chapter ten, in which the DUI statutes appear. See T.C.A. § 55-1-102 (the meanings provided in chapter one are for the purpose of chapters one through six of Title 55). The DUI statutes cover the defendant's driving of the van.

As to the trial court's reliance upon Deputy Ballew's testimony, the defendant simply argues that the state should be required to prove its case by more than the deputy's testimony. Clearly no such requirement exists in the law. There is no merit to this issue.

Finally, the defendant contends that he was entitled to judicial diversion after serving forty-eight hours in jail as required by law. The trial court stated that the defendant was an excellent candidate for a "deferral of prosecution" pursuant to T.C.A. § 40-35-313, but ruled that it had no authority to grant the relief requested. T.C.A. § 40-35-313, commonly called the judicial diversion statute, provides in part as follows:

(a)(1) If any person who has not previously been convicted of a felony or a Class A misdemeanor is found guilty or pleads guilty to a misdemeanor which is punishable by imprisonment or a Class C, D or E felony, the court may, without entering a judgment of guilty and with the consent of such person, defer further proceedings and place him on probation upon such reasonable conditions as it may require and for a period of time not less than the period of the maximum sentence for the misdemeanor with which he is charged, or not more than the period of the maximum sentence of the felony with which he is charged....

In pertinent part, the remaining provisions of T.C.A. § 40-35-313 entitle a defendant who 545*545 successfully complies with the conditions of probation to a dismissal of the charge and proceedings against him and to expungement of all public, official records relating to the case.

It is readily apparent that T.C.A. § 40-35-313 contains no exception to its application to all misdemeanors, including DUI. The state defends the trial court's ruling by referring to the Sentencing Commission Comments to T.C.A. § 40-35-313, which at the time of the offense, stated that the statute applied to "all misdemeanors except for convictions for driving under the influence," citing T.C.A. § 55-10-403(b)(1). Initially, we note that the Sentencing Commission Comments were not enacted by the legislature and they do not have the force of law. Obviously, a commission charged with the responsibility of drafting legislation may, through its comments, greatly assist in understanding the purpose and the meaning of proposed legislation and if the legislature was provided such comments in its consideration of the proposed legislation, the comments could lend weight in determining legislative intent. See, e.g., Minichiello v. Royal Business Funds Corp., 18 N.Y.2d 521, 277 N.Y.S.2d 268, 223 N.E.2d 793 (N.Y. 1966), cert. denied, 389 U.S. 820, 88 S.Ct. 41, 19 L.Ed.2d 72 (1967). However, aside from the fact that it is not clear that the comments to T.C.A. § 40-35-313 were provided to the legislature, the comments should not be used to circumvent the plain meaning of the statutory language. Therefore, given the all inclusive language of T.C.A. § 40-35-313, the resolution of the issue of its application to DUI cases involves reviewing it in conjunction with the DUI law.

The DUI penalty provision enacted as T.C.A. § 55-10-403(b)(1) (Supp. 1992) provides:

No person charged with violating the provisions of §§ 55-10-401 — XX-XX-XXX [DUI] shall be eligible for suspension of prosecution and dismissal of charges pursuant to the provisions of §§ 40-15-102 — XX-XX-XXX [pretrial diversion] and XX-XX-XXX(a)(3) — (c)(3) [destruction of criminal records] or for any other pretrial diversion program nor shall any person convicted under such sections be eligible for suspension of sentence or probation pursuant to § 40-21-101 [repealed probation provision] or any other provision of law authorizing suspension of sentence or probation until such time as such person has fully served day for day at least the minimum sentence provided by law.

(bracketed explanation added). This means that the defendant was not eligible for pretrial diversion and upon conviction for his first DUI offense was not eligible to have the minimum sentence of forty-eight hours in jail suspended. Also, he was not eligible for probation for that minimum sentence.

The issue in this case is ultimately resolved by a determination of whether or not T.C.A. § 55-10-403(b)(1) prohibits the application of T.C.A. § 40-35-313 in DUI cases. We conclude that it does based upon our interpretation of the DUI penalty provision's requirement that a "convicted" person must serve the minimum "sentence," and our determination that the trial court's withholding of a judgment of guilt under judicial diversion would prohibit imposition of any DUI sentence and prevent the application of both statutes in the fashion suggested by the defendant.

In a general sense, a "conviction" has been defined as "the result of a criminal trial which ends in a judgment or sentence that the accused is guilty as charged." Black's Law Dictionary 333 (6th ed. 1990). In one sense, it is viewed as necessarily including the judgment on the finding of guilt or verdict. In McClain v. State, 186 Tenn. 401, 210 S.W.2d 680, 681 (1948), the Court stated that absent "a minute entry showing that the Trial Judge approved the verdict ... and sentenced the Defendant, the conviction of guilt is incomplete." Accord Ray v. State, 576 S.W.2d 598, 602 (Tenn. Crim. App. 1978); Spencer v. State, 125 Tenn. 64, 69-70, 140 S.W. 597, 598-599 (1911) (technically, "a conviction involves, not only a verdict, but also a sentence passed by the court"). In fact, this has been called the "technical" meaning of "conviction." Vasquez v. Courtney, 272 Or. 477, 537 P.2d 536, 537 (1975).

Actually, the technical meaning is used in terms of requiring a "judgment of conviction." See Tenn.R.Crim.P. 32(e) ("judgment 546*546 of conviction shall set forth the plea, the verdict or findings, and the adjudication and sentence"). In this sense, the judgment provides the legal authority for the executive branch of government to incarcerate a person who is sentenced to confinement. See T.C.A. §§ 40-20-101, 40-23-101. Also, the technical meaning is normally used, absent statutory definition to the contrary, when referring to the indirect or subsequent consequences which might result, such as, future civil disabilities. See Vasquez v. Courtney, 537 P.2d at 537-538 and cases cited therein.

If the technical meaning were applied to the legislature's reference to a "convicted" person in the DUI statute, a strong and, perhaps, conclusive argument could be made that the statute does not preclude a defendant from obtaining judicial diversion totally, without serving any time in jail. The reason is that the judicial diversion statute precludes the entry of a judgment of guilt. Thus, a trial court could decide that a defendant merited diversion and, by refusing to enter a judgment of guilt, prevent the defendant from even reaching the status of a "convicted" person which would be necessary to bring the DUI statutory prohibitions into play.

However, a further review of the authorities shows that what is meant by "conviction" actually depends upon the context in which it is being used. See 21A Am.Jur.2d Criminal Law § 1023 (1981). In State ex rel. Barnes v. Garrett, 135 Tenn. 617, 188 S.W. 58 (1916), the petitioner sought habeas corpus relief from the trial court's continued requirement that he serve a sentence even though he had been granted a pardon by the governor during the course of his direct appeal of his conviction for carrying a pistol. Under Article III, Section 6 of the Constitution of Tennessee, the governor is empowered to grant pardons "after conviction." The state argued that because the petitioner's direct appeal suspended the judgment entered by the trial court against him, he did not stand convicted and, thus, there was no "conviction" upon which a pardon might operate.

In concluding that the state constitution's use of the word "conviction" did not include nor imply the imposition of a judgment or sentence, our Supreme court relied upon evidence that the framers of our constitution understood the word "conviction" to relate only to the verdict as shown by Article I, Section 5 of the constitution:

Elections to be free and equal — Right of suffrage. — The elections shall be free and equal, and the right of suffrage, as hereinafter declared, shall never be denied to any person entitled thereto, except upon conviction by a jury of some infamous crime, previously ascertained and declared by law, and judgment thereon by court of competent jurisdiction.

(emphasis added). Thus, for the purposes of the validity of a pardon, the Court held that although an appeal suspended the judgment, it did not affect the verdict and the petitioner stood convicted unless a new trial were awarded. 188 S.W. at 60.

Also, in analyzing how the word "conviction" is used, the Supreme Court noted that the word "does not ordinarily include nor imply judgment or sentence, but has a meaning entirely separate and apart from judgment or sentence" in Tennessee statutes. Id. Some of the statutory examples given by the Court are similar to presently existing statutes. See e.g., T.C.A. § 40-20-111 (regarding concurrent or cumulative sentences, providing that if "any person has been convicted of two (2) or more offenses, judgment shall be rendered on each conviction after the first ..."); T.C.A. § 40-20-112 ("Upon conviction for any felony, it shall be the judgment of the court that the defendant be infamous ..."); T.C.A. § 40-20-116(a) ("Whenever a felon is convicted of stealing or feloniously taking or receiving property, or defrauding another thereof, the jury shall ascertain the value of such property ...").

Without further detailing the many illustrations existing in our criminal statutes, we note that the legislature often uses the word "conviction" to denote a stage of the process occurring in the trial court after which such further action by the trial court must be taken or may be authorized. In this context, "when the word `conviction' is used in connection with the successive steps in a criminal case, the reference is to the verdict." 21A Am.Jur.2d Criminal Law § 1024 at 569; 547*547 see State v. Morrill, 105 Me. 207, 73 A. 1091, 1092 (1909); People v. Fabian, 192 N.Y. 443, 85 N.E. 672, 675 (N.Y. 1908). In this respect, from the language used in T.C.A. § 55-10-403(b)(1), we derive no indication that the legislature intended anything more than the finding of guilt stage of the case by referring to a "convicted" person. In fact, in referring to mandatory sentencing requirements for such a "convicted" person, it is obvious that the legislature was referring to a successive step of the case.[1] Therefore, we conclude that the legislature intended to prohibit probation or suspension of a sentence for any person found guilty of DUI. Likewise, such person must serve the minimum sentence provided by law.

In mandating a minimum "sentence" upon a person's conviction for DUI, the legislature effectively removed judicial diversion from the alternatives available to a trial court in DUI cases. A sentence is a "judgment formally announced by the court or judge upon the defendant after his conviction in a criminal prosecution... ." Black's Law Dictionary 1362 (6th ed. 1990). It is often viewed to be synonymous with a "judgment" of conviction and its pronouncement is considered to be the court's judgment. 79 C.J.S. Sentence (1952) at 1042; 21 Am.Jur.2d Criminal Law § 525 (1981) at 869. Also, as previously indicated, the authority to enforce the legislative mandate that a minimum sentence be served must flow from the court's entry of a judgment which imposes the sentence.

However, judicial diversion necessarily precludes the entry of a judgment of guilty and requires imposition of probation. Thus, by its terms, T.C.A. § 40-35-313 precludes the imposition of a sentence of confinement which could be enforced so as to comply with the mandates of the DUI law. The DUI statute and the judicial diversion statute cannot be applied in conjunction with each other. With such a conflict, the DUI statute, being specific in its application, works an exception to the general judicial diversion law. See Cole v. State, 539 S.W.2d 46, 49 (Tenn. Crim. App. 1976); Watts v. Putnam County, 525 S.W.2d 488, 492 (Tenn. 1975).

Upon the defendant's jury conviction for first offense DUI, the trial court was obligated to impose and the defendant was obligated to serve the minimum sentence in jail. To comply with the statute, the trial court was required to impose its judgment upon the verdict of guilt, if it approved of that verdict, and it could not withhold entry of the judgment as otherwise provided by the judicial diversion statute. Therefore, the trial court did not err in determining that it was without authority to grant the defendant judicial diversion. The judgment is affirmed.

SCOTT, P.J., and WHITE, J., concur.

[1] We note that another portion of the DUI penalty statute relates to enhanced penalties based upon prior convictions. See, e.g., T.C.A. § 55-10-403(a) and (c)(2). We need not attempt to determine what the legislature intended in these subsections.

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Town of Mt. Pleasant v. Roberts, 713 SE 2d 278 - SC: Supreme Court 2011ReadHow citedSearch
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Town of Mt. Pleasant v. Roberts, 713 SE 2d 278 - SC: Supreme Court 2011
393 S.C. 332 (2011)
713 S.E.2d 278

The TOWN OF MT. PLEASANT, Appellant,
v.
Treva ROBERTS, Respondent.

No. 27005.

Supreme Court of South Carolina.Decided July 11, 2011.
Heard June 7, 2011.

335*335 Charles Mac Gibson, Jr., of Charleston, and Ira A. Grossman, of Mt. Pleasant, for Appellant.

Diedreich P. von Lehe, III, of Charleston, for Respondent.

Justice BEATTY.

The Town of Mount Pleasant ("Town") appeals the circuit court's order reversing and dismissing Treva Roberts's municipal court conviction for driving under the influence ("DUI")[1] 336*336 on the ground the arresting officer's vehicle was not equipped with a video camera pursuant to section 56-5-2953 of the South Carolina Code.[2] The Town contends the circuit court erred in: (1) ruling on the appeal as it was divested of appellate jurisdiction given Roberts failed to obtain a bond or pay her court-ordered fine prior to initiating her appeal; and (2) "narrowly construing" section 56-5-2953 to require the reversal of Roberts's DUI conviction and dismissal of the charge. We affirm as modified.

I. Factual/Procedural History

On November 11, 2007, at approximately 1:00 a.m., Officer Bruce Burbage of the Town of Mount Pleasant's Police Department conducted a traffic stop of Roberts after observing her driving erratically. As a result of his initial observations, Officer Burbage conducted three field sobriety tests, on which he noted Roberts "performed pretty poorly."

Subsequently, Officer Burbage arrested Roberts for DUI and transported her to the Mount Pleasant Police Department where Roberts was offered, but refused, a breathalyzer test. There was no recording of the initial traffic stop, field sobriety tests, or the arrest as neither Officer Burbage's vehicle nor the backup officer's was equipped with a video camera.[3]

337*337 In response to Roberts's discovery motions,[4] which included a request for production of the incident site videotape, the Town's prosecutor forwarded an "Affidavit for Failure to Produce Videotape" executed by Officer Burbage on October 16, 2009. The affidavit, a form generated by the Town, included a "checked" box that stated:

At the time of the Defendant's arrest the vehicle I was operating had not been equipped with a videotaping device and therefore pursuant to Section 18 of Senate Bill 174 of 1998,[5] the videotaping requirement regarding vehicles is not applicable.

On October 30, 2009, a municipal court judge conducted a jury trial on Roberts's DUI charge. Prior to trial, Roberts moved to dismiss the charge based on Officer Burbage's failure to videotape the entire arrest pursuant to section 56-5-2953. Roberts asserted that section 56-5-2953 conferred upon her a statutory right to have the roadside arrest videotaped. Because Officer Burbage failed to comply with the statutorily-mandated procedure, Roberts claimed this violation warranted the dismissal of her DUI charge. The motion to dismiss was denied.

The Town relied on subsection (G) of the statute for the proposition that the videotaping requirement took effect only "once the law enforcement vehicle is equipped with a videotaping device."[6] Because Officer Burbage's vehicle was not 338*338 equipped with a video camera, the Town argued that the videotaping provisions of section 56-5-2953 were inapplicable and, thus, the failure to videotape Roberts's arrest did not warrant the dismissal of the DUI charge.[7]

In support of her motion, Roberts called several law enforcement officers from Charleston, Berkeley, and Dorchester counties in an attempt to establish that the Town had fewer video cameras than other municipalities despite the Town's significantly higher number of DUI arrests.[8] Given these statistics, Roberts argued that the Town had willfully avoided complying with the 1998 statute as it had not requested from the South Carolina Department of Public Safety (DPS) additional video cameras in response to the increasing number of DUI arrests. Roberts also offered evidence that the Town was financially able to purchase additional video cameras, but had chosen not to do so.[9]

The Town countered Roberts's arguments by claiming that DPS was solely responsible for providing the video cameras and, thus, the Town did not have a duty to request or 339*339 purchase additional cameras in order to comply with the statute.[10]

At the conclusion of the pre-trial hearing, the municipal court judge denied Roberts's motion to dismiss based on a "strict interpretation" of section 56-5-2953. In his written return, the judge concluded that "there is no requirement that the Town of Mount Pleasant obtain any video cameras and that the statute only provides what the Town must do once they get the video cameras on board." Further, the judge ruled that "Section 56-5-2953(G) indicated that the other provisions of [the statute] take effect ... once the vehicle is equipped with a [videotaping] device."

Roberts was convicted and appealed her conviction to the circuit court, arguing the municipal court judge erred in denying her motion to dismiss the charge based upon the Town's failure to comply with the "mandatory" videotaping provisions of section 56-5-2953.

The Town moved to dismiss the appeal for lack of jurisdiction based on Roberts's failure to obtain a bond or pay the court-ordered fine prior to initiating the appeal. The Town contended the circuit court was without jurisdiction to rule on the appeal given Roberts did not comply with the procedural requirements of section 14-25-95 of the South Carolina Code,[11] which governs appeals from municipal court to circuit court.

340*340 The circuit court judge issued a written order in which it reversed Roberts's DUI conviction and dismissed the charge. The judge initially determined that it had "subject matter jurisdiction" to hear the appeal. In so ruling, the judge found jurisdiction was vested in the circuit court when Roberts timely filed and served her notice of appeal as required by section 14-25-95. The judge further concluded that Roberts's "non-entry into a bond and non-payment of the fine assessed [did] not deprive [the court] of the subject matter jurisdiction." Additionally, the judge held that all issues with respect to the non-entry into a bond or non-payment of the fine were moot as Roberts had appeared at the hearing and paid her fine the day of the hearing.

As to the merits of Roberts's appeal, the judge specifically found that the videotaping requirements of section 56-5-2953 were mandatory based on this Court's decision in City of Rock Hill v. Suchenski, 374 S.C. 12, 646 S.E.2d 879 (2007).[12] Interpreting subsection (G) of the statute, the judge concluded that this provision was "merely to provide a reasonable grace period for law enforcement agencies to equip their vehicles with video recording devices." The judge explained that to construe subsection (G) as proposed by the Town would permit law enforcement agencies to "successfully circumvent [the statute's videotaping requirements] ad infinitum" by not requesting video cameras from DPS.

The judge also ruled that the Town's failure to produce a videotape of Roberts's conduct at the incident site was not "excused" as none of the enumerated exceptions in subsection (B) of section 56-5-2953[13] were satisfied.

341*341 The judge concluded that the Town's failure to comply with the videotaping requirements a decade after the enactment of section 56-5-2953 was "unreasonable" and constituted a violation of the statute that warranted the reversal of Roberts's conviction and the dismissal of the DUI charge.

The Town appealed the circuit court's order to the Court of Appeals. This Court certified the case from the Court of Appeals pursuant to Rule 204(b), SCACR.

II. Discussion

A. Standard of Review

"In criminal appeals from a municipal court, the circuit court does not conduct a de novo review; rather, it reviews the case for preserved errors raised to it by an appropriate exception." City of Cayce v. Norfolk S. Ry. Co., 391 S.C. 395, 399, 706 S.E.2d 6, 8 (2011); see S.C.Code Ann. § 14-25-105 (Supp.2010) ("There shall be no trial de novo on any appeal from a municipal court."). "Therefore, our scope of review is limited to correcting the circuit court's order for errors of law." Suchenski, 374 S.C. at 15, 646 S.E.2d at 880.

B. Appellate Jurisdiction

As a threshold matter, we must address the Town's jurisdictional challenge as any defect in the circuit court's appellate jurisdiction would necessarily affect this Court's jurisdiction to rule on the Town's appeal.

The Town asserts the circuit court judge erred in characterizing its jurisdictional challenge as one that implicated subject matter jurisdiction rather than appellate jurisdiction. The Town avers the circuit court judge did not have appellate jurisdiction to rule on Roberts's appeal given Roberts failed to either pay the court-ordered fine or obtain a bond prior to initiating her appeal to the circuit court. Under the Town's interpretation of section 14-25-95, the circuit court could only be vested with appellate jurisdiction if one of the above-listed prerequisites was satisfied.

Because our analysis of this issue and the Town's second issue is dependent upon our evaluation of the applicable 342*342 statutes, we begin with an overview of this state's well-established rules of statutory construction.

1.

"The primary rule of statutory construction is to ascertain and give effect to the intent of the legislature." Bryant v. State, 384 S.C. 525, 529, 683 S.E.2d 280, 282 (2009). When a statute is penal in nature, it must be strictly construed against the State and in favor of the defendant. State v. Blackmon, 304 S.C. 270, 273, 403 S.E.2d 660, 662 (1991). However, "[a]ll rules of statutory construction are subservient to the one that the legislative intent must prevail if it can be reasonably discovered in the language used, and that language must be construed in light of the intended purpose of the statute." State v. Sweat, 386 S.C. 339, 351, 688 S.E.2d 569, 575 (2010) (citation omitted).

In ascertaining legislative intent, "a court should not focus on any single section or provision but should consider the language of the statute as a whole." Mid-State Auto Auction of Lexington, Inc. v. Altman, 324 S.C. 65, 69, 476 S.E.2d 690, 692 (1996). Where the statute's language is plain, unambiguous, and conveys a clear, definite meaning, the rules of statutory interpretation are not needed and the court has no right to impose another meaning. Gay v. Ariail, 381 S.C. 341, 345, 673 S.E.2d 418, 420 (2009).

If the statute is ambiguous, however, courts must construe the terms of the statute. Lester v. S.C. Workers' Comp. Comm'n, 334 S.C. 557, 561, 514 S.E.2d 751, 752 (1999). "A statute as a whole must receive practical, reasonable, and fair interpretation consonant with the purpose, design, and policy of lawmakers." Sloan v. S.C. Bd. of Physical Therapy Exam'rs, 370 S.C. 452, 468, 636 S.E.2d 598, 606-07 (2006). In interpreting a statute, the language of the statute must be read in a sense that harmonizes with its subject matter and accords with its general purpose. Hitachi Data Sys. Corp. v. Leatherman, 309 S.C. 174, 178, 420 S.E.2d 843, 846 (1992).

"Any ambiguity in a statute should be resolved in favor of a just, equitable, and beneficial operation of the law." Bennett v. Sullivan's Island Bd. of Adjustment, 313 S.C. 455, 458, 438 S.E.2d 273, 274 (Ct.App.1993). Courts will reject a 343*343 statutory interpretation that would lead to a result so plainly absurd that it could not have been intended by the Legislature or would defeat the plain legislative intention. Unisun Ins. Co. v. Schmidt, 339 S.C. 362, 368, 529 S.E.2d 280, 283 (2000).

2.

As an initial matter, we agree with the Town's argument that the circuit court judge erred in classifying the jurisdictional challenge as one of subject matter jurisdiction. See Great Games, Inc. v. S.C. Dep't of Revenue, 339 S.C. 79, 83 n. 5, 529 S.E.2d 6, 8 n. 5 (2000) ("The failure of a party to comply with the procedural requirements for perfecting an appeal may deprive the court of `appellate' jurisdiction over the case, but it does not affect the court's subject matter jurisdiction."); see also State v. Brown, 358 S.C. 382, 596 S.E.2d 39 (2004) (recognizing that failure to timely appeal a conviction from magistrate court does not implicate subject matter jurisdiction).

Clearly, the circuit court had subject matter jurisdiction to hear and determine Roberts's appeal from her municipal court conviction as the Legislature has specifically authorized it to do so. See S.C.Code Ann. § 14-5-340 (1977) ("Circuit judges may hear appeals from magistrates' courts and municipal courts to the court of general sessions and the court of common pleas, upon notice as required by law being given for the hearing of such appeals."); S.C. Const. art. V, § 11 ("The Circuit Court shall be a general trial court with original jurisdiction in civil and criminal cases, except those cases in which exclusive jurisdiction shall be given to inferior courts, and shall have such appellate jurisdiction as provided by law.").

As for the circuit court's appellate jurisdiction, we find that Roberts properly met the prerequisites of section 14-25-95. Pursuant to this Code section, Roberts was required to file her notice of appeal with the municipal court "within ten days after sentence is passed or judgment rendered, or the appeal is considered waived." Id. § 14-25-95. There is no dispute that Roberts timely filed her appeal with the municipal court. Having met this procedural prerequisite, the circuit court was vested with appellate jurisdiction to determine 344*344 Roberts's appeal. Cf. Town of Hilton Head Island v. Godwin, 370 S.C. 221, 224, 634 S.E.2d 59, 61 (Ct.App.2006) ("A party who fails to timely appeal or take any other timely action necessary to correct an error is procedurally barred from contesting the validity of the conviction.").

Unlike the Town, we do not believe the circuit court was divested of appellate jurisdiction because Roberts failed to obtain a bond or pay her court-ordered fine prior to filing her notice of appeal with the municipal court. These two provisions of section 14-25-95 do not implicate jurisdiction as there is no temporal restriction in that sentence of the statute. Instead, these provisions serve the purpose of insuring that an appellant will appear for the hearing before the circuit court. If an appellant fails to comply with these provisions, the municipality may issue a bench warrant to address any delinquency on the part of the appellant.

Finally, we note that Roberts appeared at the hearing and paid her fine; therefore, any related issue is moot. See Linda Mc Company, Inc. v. Shore, 390 S.C. 543, 557, 703 S.E.2d 499, 506 (2010) ("A case becomes moot when judgment, if rendered, will have no practical legal effect upon the existing controversy. This is true when some event occurs making it impossible for the reviewing Court to grant effectual relief." (citations omitted)).

C. Reversal of DUI conviction/Dismissal of DUI charge

Having found that the circuit court was vested with appellate jurisdiction, we must next decide whether the Town's violation of the videotaping provisions of section 56-5-2953 warranted the reversal of Roberts's DUI conviction and the dismissal of the charge.

Although this is the specific question presented, we believe there is a more fundamental question to consider in analyzing section 56-5-2953: if the Legislature imposes a statutory obligation on the State to create evidence and provides a sanction for inexcusable noncompliance, does the State's failure to do so necessarily warrant a per se dismissal of the accused's case?

Up until this point, our appellate courts have affirmatively answered this question when a law enforcement agency inexcusably 345*345 failed to videotape a DUI arrest with an existing video camera. In the instant case, the Town failed to create a videotape of Roberts's DUI arrest because the patrol vehicle had never been equipped with a video camera.

The Town argues the circuit court judge erred in construing section 56-5-2953 to require the dismissal of Roberts's DUI charge on the basis that the arresting officer's vehicle was not equipped with a video camera.

Applying the rules of statutory construction, the Town maintains that in promulgating section 56-5-2953 the Legislature clearly provided for instances where an incident site videotape would not be available as demonstrated by certain statutory exceptions.[14] Furthermore, because the Legislature mandated in subsection (D) that DPS would supply the video cameras, the Town claims that it was not obligated to purchase or request additional videotape equipment; thus, its failure to equip Officer Burbage's vehicle with a camera rendered the mandatory provisions of section 56-5-2953 inapplicable pursuant to subsection (G).

The key case in the analysis of this issue is City of Rock Hill v. Suchenski, 374 S.C. 12, 646 S.E.2d 879 (2007). In Suchenski, the defendant was convicted in municipal court for driving with an unlawful alcohol concentration (DUAC). Id. at 14, 646 S.E.2d at 879. On appeal, the circuit court reversed the conviction based on the City of Rock Hill's failure to videotape the defendant's entire arrest as the arresting officer's camera "ran out of tape." Id. The circuit court did not address whether the arresting officer's failure to comply with section 56-5-2953 was excused pursuant to an exception in subsection (B) of the statute. Id. at 14, 646 S.E.2d at 880.

This Court affirmed the circuit court's decision. In so ruling, we found that any argument concerning the exceptions for noncompliance in section 56-5-2953(B) was not preserved as the circuit court had not ruled on this issue and the City of Rock Hill had not sought a post-judgment ruling regarding 346*346 this issue. Id. at 16, 646 S.E.2d at 880. We also rejected the City of Rock Hill's contention that a violation of the videotaping statute should not result in dismissal of a charge if there was no showing of prejudice to the defendant. Id. at 16, 646 S.E.2d at 881. We found the plain language of the statute provided that the "failure to produce videotapes would be a ground for dismissal if no exceptions apply." Id.

Although the decision in Suchenski indisputably established that the videotaping provisions of section 56-5-2953 are mandatory and not optional, we did not address whether the failure to comply with the statute could be excusable if the law enforcement vehicle was never equipped with a camera. Specifically, we were not required to assess the import of subsection (G) with respect to the statutory exceptions of subsection (B).

Subsection (B) of section 56-5-2953 outlines several statutory exceptions that excuse noncompliance with the mandatory videotaping requirements. Noncompliance is excusable: (1) if the arresting officer submits a sworn affidavit certifying the video equipment was inoperable despite efforts to maintain it; (2) if the arresting officer submits a sworn affidavit that it was impossible to produce the videotape because the defendant either (a) needed emergency medical treatment or (b) exigent circumstances existed; (3) in circumstances including, but not limited to, road blocks, traffic accidents, and citizens' arrests; or (4) for any other valid reason for the failure to produce the videotape based upon the totality of the circumstances.

Our appellate courts have strictly construed section 56-5-2953 and found that a law enforcement agency's failure to comply with these provisions is fatal to the prosecution of a DUI case. See Suchenski; 374 S.C. at 17, 646 S.E.2d at 881 (holding that "dismissal of the DUAC charge is an appropriate remedy provided by section 56-5-2953 where a violation of subsection (A) is not mitigated by subsection (B) exceptions"); Murphy v. State, 392 S.C. 626, 709 S.E.2d 685 (S.C. Ct.App. 2011) (recognizing the State's noncompliance with section 56-5-2953, which is not mitigated by a statutory exception, warranted dismissal; holding that video complied with section 56-5-2953(A) even though it did not capture a continuous full view of the accused at the incident site (citing Suchenski)).

347*347 Although our appellate courts have acknowledged these statutory "escape valves," they have so far considered their application only where a law enforcement agency failed to create a video recording of the DUI arrest because the video camera malfunctioned. Our courts, however, have not analyzed whether these exceptions apply where the law enforcement vehicle has never been equipped with a video camera as in the instant case.

Taking into consideration the purpose of section 56-5-2953, which is to create direct evidence of a DUI arrest, we find the Town's protracted failure to equip its patrol vehicles with video cameras, despite its "priority" ranking, defeats the intent of the Legislature and violates the statutorily-created obligation to videotape DUI arrests. Accordingly, we do not believe that the Town should be able to continually evade its duty by relying on subsection (G) of section 56-5-2953. Thus, we hold that the Town's failure to equip its patrol vehicles does not negate the application of the statutory exceptions in subsection (B).

Under the specific facts of this case, we find the Town failed to satisfy any of the above-outlined statutory exceptions. Significantly, the Town conceded in municipal court and before the circuit court that the initial three exceptions did not apply and could not justify its failure to videotape Roberts's DUI arrest.

Thus, the only feasible exception is that there was a "valid reason" for the Town's failure to comply with the mandatory videotaping requirements. Although the Town did not explicitly reference this provision, it argued that Officer Burbage's patrol vehicle was not equipped with a video camera because DPS had not supplied the Town with a sufficient number of cameras and the Town was not obligated to expend funds to purchase the cameras.

As we interpret the circuit court judge's order, we do not discern a ruling that the Town was obligated to purchase the cameras with its own funds. Instead, the circuit court judge imposed an obligation on the Town to request additional video cameras given the Town's "high ranking" for DUI arrests as compared to other municipalities.

348*348 Consequently, the question becomes whether the Town's failure to request additional video cameras constituted a "valid reason for the failure to produce the videotape based upon the totality of the circumstances." Id. § 56-5-2953(B). We find the Town's explanation is disingenuous given its significantly higher number of DUI arrests as compared to smaller municipalities.[15] Moreover, the Town's interpretation of subsection (G) is nonsensical as the requirements of section 56-5-2953 could be circumvented in perpetuity if a law enforcement agency purposefully does not request additional video cameras.

Admittedly, the Legislature was silent with respect to a time requirement for when vehicles must be equipped with video cameras. However, applying the rules of statutory construction, we find the Town's interpretation would defeat the legislative intent of section 56-5-2953 and the overall DUI reform enacted in 1998.

Finding that neither subsection (G) nor the statutory exceptions in subsection (B) excuse the Town's noncompliance with section 56-5-2953, the question becomes whether the failure to videotape a DUI arrest warrants a per se dismissal of the DUI case or whether, as the Town contends, the accused must establish that he or she was prejudiced.

As evidenced by this Court's decision in Suchenski, the Legislature clearly intended for a per se dismissal in the event a law enforcement agency violates the mandatory provisions of section 56-5-2953. Notably, the Legislature specifically provided for the dismissal of a DUI charge unless the law enforcement agency can justify its failure to produce a videotape of a DUI arrest. Id. § 56-5-2953(B) ("Failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal of any charge made pursuant to Section 56-5-2930 ... if [certain exceptions are met]."). The term "dismissal" is significant as it explicitly 349*349 designates a sanction for an agency's failure to adhere to the requirements of section 56-5-2953.

Furthermore, it is instructive that the Legislature has not mandated videotaping in any other criminal context. Despite the potential significance of videotaping oral confessions, the Legislature has not required the State to do so. By requiring a law enforcement agency to videotape a DUI arrest, the Legislature clearly intended strict compliance with the provisions of section 56-5-2953 and, in turn, promulgated a severe sanction for noncompliance.

Thus, we hold that dismissal is the appropriate sanction in the instant case as this was clearly intended by the Legislature and previously decided by this Court in Suchenski.

Our decision should in no way be construed as eradicating subsection (G) of section 56-5-2953. Instead, we emphasize that subsection (G) is still viable and must be read in conjunction with subsection (B) as these exceptions, under the appropriate factual circumstances, could operate to excuse a law enforcement agency's noncompliance due to the failure to equip a patrol vehicle with a video camera. For example, we can conceive of a scenario where a law enforcement agency establishes a "valid reason" for failing to create a video of the incident site by offering documentation that, despite concerted efforts to request video cameras, it has not been supplied with the cameras from DPS.

III. Conclusion

In conclusion, the circuit court judge erred in classifying the Town's jurisdictional challenge as one involving subject matter jurisdiction. Because Roberts timely served her notice of appeal on the municipal court, she met the procedural requirements of section 14-25-95; thus, her failure to obtain a bond or pay the court-ordered fine did not divest the circuit court of appellate jurisdiction.

As to the merits, we find the Town's prolonged failure to equip its patrol vehicles with video cameras defeats the intent of the Legislature; therefore, the Town should not be able to avoid its statutorily-created obligation to produce a videotape by repeatedly relying on subsection (G) of section 56-5-2953. Because the Town failed to establish any statutory exception 350*350 to excuse its noncompliance, we hold the circuit court judge correctly reversed Roberts's DUI conviction and dismissed the charge. Accordingly, we affirm as modified the decision of the circuit court judge.

AFFIRMED AS MODIFIED.

TOAL, C.J., PLEICONES, KITTREDGE and HEARN, JJ., concur.

[1] S.C.Code Ann. § 56-5-2930 (2006).

[2] Section 56-5-2953 provides in relevant part:

(A) A person who violates Section 56-5-2930, 56-5-2933, or XX-X-XXXX must have his conduct at the incident site and the breath test site videotaped.

(1) The videotaping at the incident site must:

(a) begin not later than the activation of the officer's blue lights and conclude after the arrest of the person for a violation of Section 56-5-2930, 56-5-2933, or a probable cause determination that the person violated Section 56-5-2945; and

(b) include the person being advised of his Miranda rights before any field sobriety tests are administered, if the tests are administered.

S.C.Code Ann. § 56-5-2953 (2006). This section was amended effective February 10, 2009. Act No. 201, 2008 S.C. Acts 1682-85. Accordingly, we have cited to the 2006 Code as the amended statute is not applicable to the instant case.

[3] At the time of Roberts's arrest, the "best case scenario" was that only two of the Town's twelve police department vehicles on patrol that night were camera-equipped. According to the annual inventory records of the South Carolina Department of Public Safety, the Town in 2007 had a total of seven in-car camera systems, of which one was acquired in 2001 and the remaining six in 2002.

[4] Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); Rule 5, SCRCrimP.

[5] Section 18 provides in relevant part:

The provisions in Section 56-5-2953(A), (B), and (C) take effect for each law enforcement vehicle used for traffic enforcement as soon as the law enforcement vehicle used for traffic enforcement is equipped with a videotaping device.

Act No. 434, 1998 S.C. Acts 3236.

[6] Subsection (G) provides in pertinent part:

The provisions contained in Section 56-5-2953(A), (B), and (C) take effect for each law enforcement vehicle used for traffic enforcement once the law enforcement vehicle is equipped with a videotaping device.

Id. § 56-5-2953(G).

[7] As will be discussed, this argument would be valid but for the Town's obvious intentional efforts to avoid complying with section 56-5-2953.

[8] According to records produced by the South Carolina Law Enforcement Division (SLED), the Town made 2,796 DUI arrests between 1998 and 2008. Based on these arrest records, the Town ranked first out of all municipalities for total DUI arrests. The Department of Public Safety used these statistics to determine the priority for issuing additional video cameras; thus, law enforcement agencies with the "highest ranking" for DUI arrests received priority in terms of the issuance of additional video cameras.

Despite these statistics, several nearby municipalities with fewer DUI arrests had received more video cameras from DPS than the Town, for example: (1) the City of Folly Beach made 162 DUI arrests and received 6 cameras; (2) the Town of Moncks Corner made 198 DUI arrests and received 13 cameras; and (3) the City of the Isle of Palms made 339 DUI arrests and received 13 cameras.

[9] Roberts offered evidence that the Town had recently expended: (1) $65,145 for the replacement of a "Town of Mt. Pleasant" sign at the Long Point Road Exit of I-526 East; (2) $100,000 for a marketing firm's development of a new Town slogan and logo; (3) $1,328,064.70 for the renovation of the "Farmer's Market" on Coleman Boulevard; and (4) $6,000,000 for a parcel of property known as the "O.K. Tire Store," which was intended to be developed into a park.

[10] In support of its claim, the Town referenced subsection (D) of section 56-5-2953, which states in relevant part:

The Department of Public Safety is responsible for purchasing, maintaining, and supplying all videotaping equipment for use in all law enforcement vehicles used for traffic enforcement. The Department of Public Safety also is responsible for monitoring all law enforcement vehicles used for traffic enforcement to ensure proper maintenance of videotaping equipment.

Id. § 56-5-2953(D).

[11] Section 14-25-95 provides:

Any party shall have the right to appeal from the sentence or judgment of the municipal court to the Court of Common Pleas of the county in which the trial is held. Notice of intention to appeal, setting forth the grounds for appeal, must be given in writing and served on the municipal judge or the clerk of the municipal court within ten days after sentence is passed or judgment rendered, or the appeal is considered waived. The party appealing shall enter into a bond, payable to the municipality, to appear and defend the appeal at the next term of the Court of Common Pleas or shall pay the fine assessed.

S.C.Code Ann. § 14-25-95 (Supp.2010).

[12] City of Rock Hill v. Suchenski, 374 S.C. 12, 15, 646 S.E.2d 879, 880 (2007) ("Section 56-5-2953 commands the arresting officer to videotape the individual during a DUI arrest.").

[13] Id. § 56-5-2953(B) ("Failure by the arresting officer to produce the videotapes required by this section is not alone a ground for dismissal of any charge made pursuant to Section 56-5-2930, 56-5-2933, or XX-X-XXXX if [certain exceptions are met])."

[14] See, e.g., State v. Landis, 362 S.C. 97, 606 S.E.2d 503 (Ct.App.2004) (recognizing that law enforcement agency's failure to videotape a DUI arrest was excusable as the arresting officer submitted an affidavit that certified the videotape machine was inoperable at the time of the arrest).

[15] It is interesting to note that the Town requested fifty additional cameras in May 2009 apparently after recognizing that its failure to videotape DUI arrests may severely impact the prosecution of its pending DUI cases. The Town's request was in response to a DPS survey, dated April 28, 2009, that stated in part, "The Department is glad to announce that the original requests have been fulfilled, and we have officially awarded over 3200 camera systems."

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People v. Quigley, 697 NE 2d 735 - Ill: Supreme Court 1998ReadHow citedSearch
Highlighting dui
People v. Quigley, 697 NE 2d 735 - Ill: Supreme Court 1998
697 N.E.2d 735 (1998)
183 Ill.2d 1
231 Ill.Dec. 950

The PEOPLE of the State of Illinois, Appellee,
v.
Michael QUIGLEY, Appellant.

No. 82750.

Supreme Court of Illinois.

June 18, 1998.

736*736 Mark A. Rouleau, Rockford, for Michael Quigley.

State's Attorneys Appellate Prosecutor, Elgin, Jim Ryan, Attorney General, Criminal Appeals Div., Chicago, State's Attorney Winnebago County, Rockford, Robert K. Villa, Assistant Attorney General, Chicago, for the People.

Justice NICKELS delivered the opinion of the court:

Defendant was charged with two driving under the influence (DUI) offenses, one a misdemeanor and the other a felony, in separate prosecutions based on the same incident. The misdemeanor charge was dismissed on speedy-trial grounds. In this appeal, we determine what effect, if any, this dismissal has on the subsequent prosecution of the remaining, felony DUI charge. The circuit court of Winnebago County ruled that the State could proceed on the felony charge, and the appellate court affirmed (No. 2-95-1643 (unpublished order under Supreme Court Rule 23)). We allowed defendant's petition for leave to appeal (166 Ill.2d R. 315).

BACKGROUND

The underlying factual allegations are relatively simple. On August 27, 1994, defendant was involved in a multiple-vehicle collision while driving his car on Route 251 in or near the Village of Machesney Park. An individual in one of the other vehicles was injured as a result of the collision, suffering a broken ankle. A deputy sheriff of Winnebago County responded to the scene and asked defendant to perform field sobriety tests and a breathalyzer test. Defendant failed the field sobriety tests. The breathalyzer test revealed that defendant's blood-alcohol content (BAC) was 0.14.

Although the underlying allegations are straightforward, the circuit court proceedings are somewhat convoluted. Defendant was initially charged with two ordinance violations of DUI. Defendant filed a speedy-trial demand in connection with both of these ordinance violations.

Nearly three months later, on November 23, 1994, a grand jury indicted defendant for 737*737 aggravated DUI under section 11-501(d)(3) of the Illinois Vehicle Code. This statute provides:

"(d) Every person convicted of committing a violation of this Section shall be guilty of aggravated driving under the influence of alcohol or drugs or a combination of both which shall be a Class 4 felony if:

* * *

(3) such person in committing a violation of paragraph (a) was involved in a motor vehicle accident which resulted in great bodily harm or permanent disability or disfigurement to another, when such violation was the proximate cause of such injuries." (Emphasis added.) 625 ILCS 5/11-501(d)(3) (West 1992).

Section 11-501(d)(3) requires, as a predicate for aggravated DUI, a violation of paragraph (a). Section 11-501(a) provides, in pertinent part:

"(a) A person shall not drive or be in actual physical control of any vehicle within this State while:

1. the alcohol concentration in such person's blood or breath is 0.10 or more based on the definition of blood and breath units in Section 11-501.2;

2. under the influence of alcohol * * *." 625 ILCS 5/11-501(a) (West 1992).

The indictment alleged aggravated DUI based on the violation of section 11-501(a)(2). The felony charge was docketed as case 94-CF-2699.

On December 15, 1994, the ordinance charges against defendant were dismissed. On that date, the State filed an information against defendant charging him with a misdemeanor violation of section 11-501(a)(1), driving while having a BAC of 0.10 or more.[1] The misdemeanor charge was docketed as case 94-TR-39335.

The record states that the misdemeanor "file [was] to be set with [the] felony charge." The misdemeanor and felony DUI charges were consolidated or intended to be consolidated. On January 6, 1995, however, the circuit court dismissed the felony charge of aggravated DUI. The reason for this dismissal is unclear from the record. Thus, only the misdemeanor DUI charge remained pending against defendant.

On January 18, 1995, defendant filed a speedy-trial demand in the felony DUI case, which had been dismissed. On February 1, 1995, defendant was reindicted on the same charge of aggravated DUI. The reindicted felony charge was docketed as case 95-CF-250. Thus, defendant was again facing the misdemeanor and felony DUI charges in two separate cases.

On June 6, 1995, defendant filed a motion to dismiss the misdemeanor DUI case on the grounds that the State had violated his right to a speedy trial. Defendant argued that the speedy-trial period had expired on April 10, 1995. On September 15, 1995, the circuit court granted the motion to dismiss the misdemeanor DUI case with prejudice on speedy-trial grounds. The State did not appeal the dismissal.

On September 25, 1995, defendant filed a motion to dismiss the aggravated DUI charge based generally on: (1) compulsory joinder grounds, and (2) double jeopardy grounds. The circuit court denied the motion to dismiss. The circuit court found that the charges were not subject to compulsory joinder because the two DUI charges were not based on the same act. Thus, the State was not required to bring the two DUI charges in a single prosecution. The circuit court further determined that double jeopardy did not bar the subsequent prosecution of the felony DUI charge. Based on this reasoning, the circuit court allowed the State to proceed with its prosecution of the felony DUI charge. Defendant immediately appealed the denial of the motion to dismiss on double jeopardy grounds. See 145 Ill.2d R. 604(f).

Defendant raised the same arguments in the appellate court. Defendant's arguments 738*738 were again rejected.[2] The appellate court agreed with the circuit court that there was no compulsory joinder violation. The appellate court held that the State was not required to bring the misdemeanor and felony DUI charges in one proceeding because the offenses were not based on the same act. The appellate court also agreed that there was no double jeopardy violation. The appellate court held that the speedy-trial dismissal of the misdemeanor DUI charge did not constitute an "acquittal" for double jeopardy purposes. Thus, the subsequent prosecution was not barred.

ANALYSIS

The issue here involves the interrelationship of compulsory joinder, double jeopardy, and speedy-trial principles. The parties raise arguments addressing each of these areas. We consider each in turn.

I. Compulsory Joinder

Section 3-3 of the Criminal Code of 1961 requires the compulsory joinder of certain offenses in a single prosecution. Section 3-3 provides:

"(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.

(b) If the several offenses are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c), if they are based on the same act.

(c) When 2 or more offenses are charged as required by Subsection (b), the court in the interest of justice may order that one or more of such charges shall be tried separately." (Emphasis added.) 720 ILCS 5/3-3 (West 1992).

This statute was enacted to prevent the prosecution of multiple offenses in a piecemeal fashion and to forestall, in effect, abuse of the prosecutorial process. See People v. Mullenhoff, 33 Ill.2d 445, 447, 211 N.E.2d 744 (1965); People v. Golson, 32 Ill.2d 398, 410-12, 207 N.E.2d 68 (1965). A prosecutor might otherwise harass a defendant through successive prosecutions of multiple offenses and put a defendant through the expense of several trials until the prosecutor obtains a result that satisfies him. See Golson, 32 Ill.2d at 410-12, 207 N.E.2d 68; People v. Kennedy, 161 Ill.App.3d 197, 199, 112 Ill.Dec. 785, 514 N.E.2d 251 (1987); People v. Lewis, 112 Ill. App.3d 626, 629-30, 68 Ill.Dec. 272, 445 N.E.2d 916 (1983).

We now address the compulsory joinder issue. Section 3-3 requires joinder where multiple charges are known to the prosecutor when the prosecution begins, the charges are within the jurisdiction of a single court, and the charges are based on the same act. In the instant case, the parties do not dispute that the misdemeanor and aggravated DUI charges were known to the proper prosecuting officer at the time the prosecution began or that the charges were within the jurisdiction of a single court. Neither party suggests that the circuit court ordered separate trials in the "interest of justice." 720 ILCS 5/3-3(c) (West 1992). The parties only dispute whether the two DUI charges were "based on the same act."

The appellate court found that the charges were not based on the same act. The appellate court stated that, although the two offenses required that defendant be intoxicated, each offense was premised on a different act. Specifically, the appellate court found that defendant committed the offense of misdemeanor DUI when he started driving his vehicle. He could have been arrested and charged with misdemeanor DUI any time before the accident. Defendant then committed 739*739 the offense of aggravated DUI when he performed some other act that led to the accident. The appellate court stated that the offenses were completely separate acts that occurred at separate times. Thus, the misdemeanor and aggravated DUI charges were not required to be joined in a single prosecution.

The appellate court relied, in part, on People v. Mueller, 109 Ill.2d 378, 94 Ill.Dec. 524, 488 N.E.2d 523 (1985). In Mueller, the defendant was charged with murdering two individuals and concealing their bodies. Defendant was initially charged with the murders. Defendant claimed self-defense and was acquitted by a jury. After the trial, defendant was subsequently charged with homicidal concealment. He was convicted on this charge. On appeal to this court, the defendant argued that he should have been charged in a single prosecution because both charges were based on the same act. This court disagreed, finding that the two charges were based on separate acts. The shooting of the victims served as the basis for the murder charges, and the hiding of the bodies was the basis for the concealment charge. This court stated that joinder is not required where multiple offenses arise from a series of closely related acts. Mueller, 109 Ill.2d at 385, 94 Ill.Dec. 524, 488 N.E.2d 523. Accordingly, the charges were not subject to compulsory joinder. See also People v. Astorga, 245 Ill.App.3d 124, 130-32, 184 Ill.Dec. 462, 613 N.E.2d 779 (1993) (simultaneous possession of a stolen scale and possession of controlled substance with intent to deliver were not based on the same act); People v. Thomann, 197 Ill.App.3d 516, 519-20, 143 Ill. Dec. 820, 554 N.E.2d 755 (1990) (possession of videotape of child pornography on one date was separate act from possession of advertisements containing similar material nearly two months later); People v. Navis, 24 Ill.App.3d 842, 846, 321 N.E.2d 500 (1974) (act of driving while intoxicated was independent of and had no relationship to the simultaneous act of driving while license revoked).

Defendant herein argues that the two offenses are based on a single act, driving under the influence, and relies on People v. Mullenhoff, 33 Ill.2d 445, 211 N.E.2d 744 (1965). In Mullenhoff, the defendant was initially charged with attempt to commit deviate sexual assault. The defendant was found not guilty. The defendant was then charged with attempted rape and convicted. On appeal to this court, the defendant argued that the charges should have been brought as part of a single prosecution because they were based on the same act. This court found that both offenses arose out of the same conduct. Accordingly, the charges were subject to compulsory joinder. See also People v. Hiatt, 229 Ill.App.3d 1094, 1097, 172 Ill.Dec. 372, 595 N.E.2d 733 (1992) (possession of a videotape containing child pornography and possession of photos of different children were single act of possession); People v. Mitsakopoulos, 171 Ill.App.3d 198, 200-01, 121 Ill.Dec. 135, 524 N.E.2d 1183 (1988) (compulsory joinder applied to theft and forgery charges based on the defendant's unauthorized control over the proceeds of a check); People v. Baker, 77 Ill.App.3d 943, 944-45, 33 Ill.Dec. 831, 397 N.E.2d 164 (1979) (simultaneous possession of a controlled substance and possession of cannabis were same act of possession for purposes of compulsory joinder). We agree with defendant that the misdemeanor and felony DUI charges were based on the same act.

The language of the DUI statute supports this interpretation. Section 11-501(d)(3) is violated if an individual

"in committing a violation of paragraph (a) was involved in a motor vehicle accident which resulted in great bodily harm or permanent disability or disfigurement to another, when such violation was the proximate cause of such injuries." (Emphasis added.) 625 ILCS 5/11-501(d)(3) (West 1992).

Under section 11-501(d)(3), aggravated DUI occurs when an individual commits some form of misdemeanor DUI, in violation of paragraph (a), and other circumstances are present. The legislature added aggravating factors that change the misdemeanor DUI to a Class 4 felony. The essential and underlying criminal act, however, remains the same: driving while under the influence. The physical injury caused to others by driving while under the influence produces the felony. See 740*740 People v. Avery, 277 Ill.App.3d 824, 830, 214 Ill.Dec. 507, 661 N.E.2d 361 (1995).

Driving while under the influence may lead to some other act that, in turn, leads to the accident. The underlying cause of both misdemeanor and aggravated DUI, however, is driving while under the influence. The misdemeanor DUI and the aggravated DUI charges are based on the same act. Section 11-501(d)(3) does not require any other specific act or Vehicle Code violation. Any other act resulting in an accident involving great bodily harm, by itself, would not support the aggravated DUI charge.

This interpretation is further supported by the committee comments to the compulsory joinder statute. The "same act" requirement applies primarily to two situations: (1) where several persons are affected by one act, and (2) where several different statutes are violated by one act. Ill.Ann.Stat., ch. 38, par. 3-3, Committee Comments-1961, at 102 (Smith-Hurd 1989). Two examples of the violation of several different statutes by one act include: (1) an illegal sale which also involves illegal possession of certain property, (2) and driving a vehicle recklessly while intoxicated. Ill.Ann.Stat., ch. 38, par. 3-3, Committee Comments-1961, at 102 (Smith-Hurd 1989). Causing an accident while intoxicated is similar to driving recklessly while intoxicated. Both are based on the act of driving while intoxicated.

In the instant case, the appellate court erred in failing to recognize that the misdemeanor DUI is a continuing offense that does not just occur when an individual starts driving his vehicle. The misdemeanor DUI offense continues while a defendant is driving and proximately causes the accident. Defendant was allegedly engaged in only one continuous and uninterrupted act of driving while under the influence. In this instance, the phrase "based on the same act" cannot be given a hypertechnical interpretation to create multiple acts based on discrete moments in time. See People v. Pena, 170 Ill.App.3d 347, 350-52, 120 Ill.Dec. 641, 524 N.E.2d 671 (1988) (multiple convictions for DUI and speeding could not be based on different "acts" of DUI and speeding during the same driving episode). Accordingly, we find that the charges should have been brought in one proceeding.

II. Double Jeopardy

Double jeopardy principles and additional protections are codified in section 3-4 of the Criminal Code of 1961 (720 ILCS 5/3-4 (West 1992)). See Mueller, 109 Ill.2d at 383, 94 Ill.Dec. 524, 488 N.E.2d 523. Section 3-4(b)(1) addresses the consequences of failing to comply with compulsory joinder under section 3-3. Section 3-4(b)(1) provides:

"(b) A prosecution is barred if the defendant was formerly prosecuted for a different offense, * * * if such former prosecution:

(1) Resulted in either a conviction or an acquittal, and * * * was for an offense with which the defendant should have been charged on the former prosecution, as provided in Section 3-3 of this Code (unless the court ordered a separate trial of such charge) * * *." 720 ILCS 5/3-4(b)(1) (West 1992).

Section 3-4(b)(1) therefore prohibits a subsequent prosecution where the offense charged should have been brought in a former prosecution under section 3-3.

It is well settled, however, that section 3-4(b)(1) only applies where there was a conviction or acquittal in the former prosecution. See People v. Miller, 35 Ill.2d 62, 64-66,219 N.E.2d 475 (1966); People v. Piatt, 35 Ill.2d 72, 73-74, 219 N.E.2d 481 (1966); People v. Lewis, 112 Ill.App.3d 626, 630, 68 Ill.Dec. 272, 445 N.E.2d 916 (1983); People v. Peterson, 108 Ill.App.3d 856, 859, 64 Ill.Dec. 438, 439 N.E.2d 1103 (1982); People v. Tate, 47 Ill.App.3d 33, 35-36, 5 Ill.Dec. 425, 361 N.E.2d 748 (1977). For purposes of the statute, "[a]n `acquittal' occurs when the trier of facts-the jury, or the court when a jury is waived-renders a verdict or finding of not guilty." Ill.Ann.Stat., ch. 38, par. 3-4, Committee Comments-1961, at 125 (Smith-Hurd 1989). The Criminal Code defines an "acquittal" as "a verdict or finding of not guilty of an offense, rendered by a legally constituted jury or by a court of competent jurisdiction authorized to try the case without a jury." 720 ILCS 5/2-1 (West 1992). An acquittal generally requires some resolution of a defendant's factual guilt or innocence. 741*741 See United States v. Scott, 437 U.S. 82, 97-99, 98 S.Ct. 2187, 2197-98, 57 L.Ed.2d 65, 78-79 (1978); People v. Tripp, 208 Ill.App.3d 1006, 1009-11, 153 Ill.Dec. 811, 567 N.E.2d 769 (1991); People v. Crowe, 195 Ill.App.3d 212, 219, 141 Ill.Dec. 868, 552 N.E.2d 5 (1990); People v. Luallen, 188 Ill.App.3d 862, 863-64, 136 Ill.Dec. 431, 544 N.E.2d 1206 (1989). In the instant case, the misdemeanor DUI prosecution was not terminated by an acquittal or a conviction. It was terminated by a pretrial order of dismissal. Accordingly, double jeopardy and related protections, as contained in section 3-4(b)(1), do not apply to a speedy-trial dismissal, which occurs before trial.

III. Compulsory Joinder and Speedy-Trial Principles

The parties also raise an issue concerning the interaction of compulsory joinder and speedy-trial principles. Initially, however, we consider the scope of review on appeal. We note that defendant took an interlocutory appeal to the appellate court on double jeopardy grounds under Rule 604(f). In turn, this court allowed defendant's petition for leave to appeal under Rule 315. In this appeal, both parties have thoroughly addressed compulsory joinder, given its relationship to double jeopardy. The parties further dispute whether the aggravated DUI charge should be dismissed based on the interrelationship of compulsory joinder and speedy-trial principles. We address the issue in the interest of judicial economy. See Schrock v. Shoemaker, 159 Ill.2d 533, 537, 203 Ill.Dec. 787, 640 N.E.2d 937 (1994) (scope of review not limited to certified question where interlocutory appeal arose under Rule 308); Bright v. Dicke, 166 Ill.2d 204, 208, 209 Ill.Dec. 735, 652 N.E.2d 275 (1995); People v. Berland, 74 Ill.2d 286, 310, 24 Ill.Dec. 508, 385 N.E.2d 649 (1978); 155 Ill.2d R. 366(a)(5).

Compulsory joinder requires the State to bring multiple charges in a single prosecution. The charges are tried together unless the circuit court determines that a separate trial is required in the interest of justice. See 720 ILCS 5/3-3(c) (West 1992). Once a speedy-trial demand is filed, the multiple charges are subject to the same speedy-trial period. If the charges are required to be brought in a single prosecution, the speedy-trial period begins to run when the speedy-trial demand is filed, even if the State brings some of the charges at a later date. "Where new and additional charges arise from the same facts as did the original charges and the State had knowledge of these facts at the commencement of the prosecution, the time within which trial is to begin on the new and additional charges is subject to the same statutory limitation that is applied to the original charges." People v. Williams, 94 Ill.App.3d 241, 248-49, 49 Ill. Dec. 820, 418 N.E.2d 840 (1981); see also People v. Stanley, 266 Ill.App.3d 307, 309-11, 204 Ill.Dec. 605, 641 N.E.2d 1224 (1994); People v. Hinkle, 234 Ill.App.3d 663, 666-68, 175 Ill.Dec. 604, 600 N.E.2d 535 (1992); People v. Hawkins, 212 Ill.App.3d 973, 979-81, 157 Ill.Dec. 30, 571 N.E.2d 1049 (1991); People v. Howard, 205 Ill.App.3d 702, 710, 151 Ill.Dec. 113, 563 N.E.2d 1219 (1990); People v. Wilkey, 202 Ill.App.3d 756, 758, 147 Ill. Dec. 838, 559 N.E.2d 1178 (1990); People v. Crowe, 195 Ill.App.3d 212, 214-16, 141 Ill. Dec. 868, 552 N.E.2d 5 (1990); People v. Alcazar, 173 Ill.App.3d 344, 354, 122 Ill.Dec. 827, 527 N.E.2d 325 (1988); People v. Rodgers, 106 Ill.App.3d 741, 744, 62 Ill.Dec. 165, 435 N.E.2d 963 (1982); People v. King, 8 Ill.App.3d 2, 4-6, 288 N.E.2d 672 (1972).

The State argues that the misdemeanor and aggravated DUI charges were not subject to the same speedy-trial limitation. The State relies on subsection (e) of the speedy-trial statute (725 ILCS 5/103-5(e) (West 1992)), which discusses the simultaneous prosecution of multiple offenses. It essentially provides that a defendant who simultaneously demands trial on more than one charge pending against him must be tried or found guilty after waiver of trial on, at least, one charge within the initial 160-day period. A defendant may then be tried on the remaining charges within another 160 days. If one of the charges was brought to trial in a timely manner but the trial was terminated without a judgment, such as by mistrial, the statute provides additional time within which to try the remaining charges. See 725 ILCS 5/103-5(e) (West 1992). The 742*742 State argues that this statute gave it additional time to prosecute the aggravated DUI charge.

We reject the State's argument. Application of section 103-5(e) ordinarily arises where the State is simultaneously pursuing two separate prosecutions against a defendant. Section 103-5(e) preserves a defendant's right to a speedy trial while also lessening the State's burden of preparing more than one charge for trial. See People v. Cavitt, 246 Ill.App.3d 514, 520, 186 Ill.Dec. 476, 616 N.E.2d 666 (1993). The statute provides additional time as long as the State elects to proceed on one of the charges within the initial 160-day period, either by trial or by guilty plea. See People v. Beard, 271 Ill.App.3d 320, 325-28, 207 Ill.Dec. 655, 648 N.E.2d 111 (1995); Cavitt, 246 Ill.App.3d at 520, 186 Ill.Dec. 476, 616 N.E.2d 666; People v. Holmes, 234 Ill.App.3d 931, 939-40, 176 Ill.Dec. 287, 601 N.E.2d 985 (1992).

The instant case involves multiple charges that were required to be tried together. There was no trial or plea of guilty on either charge within the initial 160-day period. Instead, the misdemeanor DUI charge was dismissed on speedy trial grounds because it had not been brought to trial within the requisite time. The State cannot obtain more time on the aggravated DUI charge by relying on the fact that the misdemeanor DUI charge was terminated by the State's own action. Thus, section 103-5(e) does not apply.

The State also argues that defendant invited error by preventing consolidation of the cases. On June 6, 1995, defendant filed a motion to dismiss the misdemeanor DUI case on speedy-trial grounds. Defendant argued that the speedy-trial period had run on April 10, 1995. While the motion was pending, the State apparently requested consolidation of the two cases on July 3, 1995, and defendant objected. It is not clear from the record the basis of the objection, and the State did not obtain a ruling on its request for consolidation. The circuit court later ruled that the speedy-trial period had run. The State argues that it sought to consolidate the two cases and that defendant objected. The State argues that a party may not invite error and thereafter seek relief from that error.

The State's argument of invited error is without merit for several reasons. First, defendant cannot be said to have invited error where the State never obtained a ruling on its request for consolidation. Second, the circuit court determined that the speedy-trial period on the misdemeanor DUI case had run before June 6, 1995. The State's request to consolidate on July 3, 1995, was therefore untimely. As stated earlier, because the DUI offenses should have been brought in a single prosecution, both offenses were subject to the same speedy-trial limitation. Third, the State has not shown how defendant, by objecting, prevented the State from proceeding on the cases within the speedy-trial period. Accordingly, defendant did not invite error.

In the instant case, the circuit court determined that the speedy-trial period had run on the misdemeanor DUI charge. The State could have appealed that determination. See 145 Ill.2d R. 604(a)(1); 725 ILCS 5/114-1(a)(1) (West 1992); 725 ILCS 5/103-5 (West 1992). It did not. Because the State did not appeal this determination, we do not consider the correctness of the dismissal of the misdemeanor DUI charge on speedy-trial grounds. The State may not now seek to relitigate the issue. The aggravated DUI charge was essentially a new and additional charge that should have been brought with the misdemeanor DUI charge and was subject to the same speedy-trial limitation. The State did not act in a timely manner to bring the two related charges in a single proceeding. The aggravated DUI charge is therefore barred on speedy-trial grounds.

CONCLUSION

For the foregoing reasons, the prosecution of the aggravated DUI charge is barred. The judgment of the appellate court and the order of the circuit court are reversed.

Appellate court judgment reversed; circuit court order reversed.

[1] The statute was later amended. This section is now violated if an individual drives with a BAC of 0.08. See Pub. Act 90-43, § 5, eff. July 1, 1997. The amendment does not apply to this case.

[2] Defendant raised an additional double jeopardy argument in both the circuit and appellate courts. Based on defendant's BAC, defendant's driver's license was automatically suspended pursuant to statute. See 625 ILCS 5/11-501.6 (West 1992). Defendant argued that the statutory summary suspension constituted a "punishment" for purposes of double jeopardy. Defendant argued that he could not receive an additional punishment in connection with the prosecution of the felony DUI charge. The lower courts rejected this argument. Defendant has not raised that argument in this court. Defendant's argument was recently rejected by this court in People v. Lavariega, 175 Ill.2d 153, 221 Ill.Dec. 840, 676 N.E.2d 643 (1997).

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People v. Snook, 16 Cal. 4th 1210 - Cal: Supreme Court 1997ReadHow citedSearch
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People v. Snook, 16 Cal. 4th 1210 - Cal: Supreme Court 1997
16 Cal.4th 1210 (1997)

THE PEOPLE, Plaintiff and Respondent,
v.
GUY EDWARD SNOOK, Defendant and Appellant.

Docket No. S056760.

Supreme Court of California.

December 18, 1997.

1213*1213 COUNSEL

Jeff Brown, Public Defender, Paul F. DeMeester, Deputy Public Defender, and Susan Bookout, under appointments by the Supreme Court, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Janelle Marie Boustany, Laura W. Halgren, Esteban Hernandez and Demetra P. Lewis, Deputy Attorneys General, for Plaintiff and Respondent.

Dennis L. Stout, District Attorney (San Bernardino), Grover D. Merritt and Mary L. Andonov, Deputy District Attorneys, as Amici Curiae on behalf of Plaintiff and Respondent.

OPINION

BROWN, J.

Driving a vehicle while under the influence of alcohol or drugs is a misdemeanor. (Veh. Code, § 23152; see id., §§ 23160, 23165, 23170; all further statutory references are to the Vehicle Code unless otherwise noted.) Driving under the influence (DUI) may be charged as a felony rather than a misdemeanor when the offense occurs within seven years of three or more separate DUI violations which resulted in convictions. (§ 23175, subd. (a); hereafter section 23175(a).)

In this case we decide what happens when DUI convictions do not follow the chronological sequence in which the offenses were committed. Does the enhanced penalty still apply when the conviction for the first offense comes last? And if the increased penalty is imposed, would it violate the ex post facto clauses of the state and federal Constitutions?

We conclude the Legislature intended to subject repeat DUI offenders to enhanced penalties regardless of the order in which the offenses were committed and the convictions obtained, and the imposition of such a penalty does not violate any constitutional prohibition against ex post facto laws. Accordingly, the judgment of the Court of Appeal is reversed.

I. FACTS AND PROCEDURAL HISTORY

On April 6, 1992, defendant was arrested for DUI. He was released from custody with a promise to appear in municipal court on May 6, 1992. On April 24, 1992, a three-count misdemeanor complaint was filed, charging 1214*1214 defendant with DUI (§ 23152, subd. (a)); driving a vehicle while having 0.08 percent alcohol in the bloodstream (§ 23152, subd. (b)); and driving with a suspended driver's license (§ 14601.1, subd. (a)). Defendant appeared in court on May 6 as promised, was informed the court had no record of his matter and was not detained, but a bench warrant was later issued.

For the next 22 months, no further proceedings were held in connection with the April 6, 1992, offense. In the meantime, defendant was arrested for DUI on June 11, 1992, two months after defendant had committed his first DUI offense, and twice the following year, on September 23, 1993, and October 25, 1993. Defendant was convicted of all charges arising from the three arrests on October 2, 1992, January 25, 1994, and February 25, 1994, respectively.

When action resumed on the April 6, 1992, violations, the original misdemeanor complaint was amended to charge count Nos. 1 and 2 as felonies under section 23175(a), and an information was filed on April 27, 1994. Defendant admitted the truth of the allegations of three separate DUI violations occurring within seven years of the charged offenses. On July 26, 1994, after court trial, defendant was found guilty of the April 6, 1992, offenses. Imposition of sentence was suspended and defendant was placed on three years' probation on condition he spend three hundred sixty-five days in local custody.

Defendant appealed his conviction on various grounds, arguing primarily the 22 months between his offenses and trial constituted a denial of the constitutional right to speedy trial. The Court of Appeal requested supplemental briefing from the parties on whether the section 23175(a) allegations constituted an ex post facto or other impermissible application of law because the separate violations resulting in convictions occurred after the April 6, 1992, offenses. Defendant made the same argument unsuccessfully in the trial court in a motion to dismiss, but did not raise the issue on appeal.

In the unpublished part of the Court of Appeal's opinion, the court rejected defendant's speedy trial claim. In the portion of its opinion certified for publication, the Court of Appeal held section 23175(a) could not be applied to increase defendant's present offense from a misdemeanor to a felony, and struck the enhanced penalty. Characterizing section 23175(a) as a general recidivist statute, the court determined the provision could not be used to increase the penalty for a first offense as a result of subsequent offenses. In the Court of Appeal's view, an interpretation of section 23175(a) permitting a penalty enhancement for a first offense on the basis of later-committed acts cannot further the purpose of a recidivist statute because the enhanced penalty could not deter earlier conduct. Consequently, 1215*1215 the court construed section 23175(a) to permit the enhanced penalty only for subsequent offenses. The Court of Appeal also concluded that applying section 23175(a) to enhance the penalty of defendant's first offense based on later-committed acts would violate the constitutional prohibition against ex post facto laws.

We granted the People's petition for review.

II. DISCUSSION

A. Construction of Section 23175(a)

(1a) Under the Court of Appeal's construction, in order to charge DUI as a felony, the offense must have occurred after the commission of the three or more separate violations triggering the enhanced penalty. In reviewing the decision of the Court of Appeal, we consider anew the proper interpretation of section 23175(a).

(2a) The court's role in construing a statute is to "ascertain the intent of the Legislature so as to effectuate the purpose of the law." (People v. Jenkins (1995) 10 Cal.4th 234, 246 [40 Cal. Rptr.2d 903, 893 P.2d 1224]; see also Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1226 [23 Cal. Rptr.2d 397, 859 P.2d 96].) In determining the Legislature's intent, a court looks first to the words of the statute. (People v. Pieters (1991) 52 Cal.3d 894, 898 [276 Cal. Rptr. 918, 802 P.2d 420].) "[I]t is the language of the statute itself that has successfully braved the legislative gauntlet." (Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal. App.4th 1233, 1238 [8 Cal. Rptr.2d 298].)

(1b) When looking to the words of the statute, a court gives the language its usual, ordinary meaning. (Alexander v. Superior Court, supra, 5 Cal.4th at p. 1225; Moyer v. Workmen's Comp. Appeals Bd. (1973) 10 Cal.3d 222, 230 [110 Cal. Rptr. 144, 514 P.2d 1224].) If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs. (People v. Coronado (1995) 12 Cal.4th 145, 151 [48 Cal. Rptr.2d 77, 906 P.2d 1232]; Kizer v. Hanna (1989) 48 Cal.3d 1, 8 [255 Cal. Rptr. 412, 767 P.2d 679].)

In relevant part, section 23175(a) provides: "If any person is convicted of a violation of Section 23152 and the offense occurred within seven years of three or more separate violations of [any of three enumerated DUI offenses], or any combination thereof, which resulted in convictions, that person shall be punished by imprisonment in the state prison, or in the county jail for not less than 180 days nor more than one year, and by a fine of not less than 1216*1216 three hundred ninety dollars ($390) nor more than one thousand dollars ($1,000)."

Section 23175(a) does not require the three or more triggering offenses to precede commission of the DUI offense underlying the present charge. By its terms, the statute requires only that the three or more "separate violations" which resulted in convictions occurred within seven years of the charged offense. A "separate" violation is a violation that is "unconnected; not united or associated; distinct." (Webster's New Internat. Dict. (2d ed. 1959) p. 2281.)

Moreover, when read in the context of the entire DUI penalty enhancement scheme to which section 23175 belongs, it is clear the term "separate violations" means that the three or more DUI offenses which resulted in convictions must simply be different from the offense at issue in the present proceeding, and not merely different from one another. The Legislature has employed the term "separate violation" or "separate violations" in all of the statutes increasing the penalties for repeat DUI offenders. (See §§ 23165 [penalty for conviction of DUI enhanced when offense occurred within seven years of a "separate violation" of DUI], 23170 [same, but for two "separate violations"], 23185 [enhanced penalty for person convicted of DUI and causing bodily injury when offense occurred within seven years of a "separate violation" of DUI] and 23190 [same, but for two "separate violations"].) A "separate violation" as it appears in the penalty enhancement provisions triggered by only one DUI conviction (§§ 23165, 23185) clearly describes the relationship between the present offense and the offense triggering an enhanced penalty. There is nothing to indicate the Legislature intended this term to have any different meaning in section 23175(a). (Cf. People v. Wells (1996) 12 Cal.4th 979, 985 [50 Cal. Rptr.2d 699, 911 P.2d 1374] [recognizing principle that, absent contrary indications, Legislature's use of similar term in related statute reflects legislative intent that same meaning apply].)

Finally, we observe that the statute, by its terms, permits a DUI offense to be charged as a felony if the violation occurred within seven years "of" three or more other separate DUI violations that resulted in convictions, thus allowing convictions for offenses that occurred before or after the offense underlying the present conviction to be used to trigger an enhanced penalty. It would seem that if the Legislature had intended to count only "separate violations" that occurred prior to the offense presently at issue, it would have used the word "after" rather than "of."

(2b) If the statutory language is clear and unambiguous, the provision should be applied according to its terms without further judicial construction 1217*1217 so long as the literal meaning is in accord with the purpose of the statute. (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735 [248 Cal. Rptr. 115, 755 P.2d 299].) (1c) As the legislative history of section 23175 amply demonstrates, in enacting and amending the language of section 23175 to provide an enhanced penalty on conviction of a DUI offense occurring within seven years of three or more separate DUI violations, the Legislature "meant what it said."

When first enacted in 1983, former section 23175 provided for enhanced punishment when a defendant was convicted of DUI and the offense occurred "within five years of three or more prior offenses which resulted in convictions of violations of [enumerated DUI offenses]...." (Stats. 1983, ch. 637, § 3, p. 2546.) In 1984, shortly after the enactment of former section 23175, the Legislature amended that provision and four other DUI penalty enhancement statutes by substituting the words "separate violations" for "prior offenses." (Stats. 1984, ch. 1205, §§ 1-5, pp. 4129-4130.)

The legislation amending former section 23175 in 1984 also added section 23217 to the Vehicle Code to explain why "separate violations" replaced "prior offenses" in former section 23175 and the other enhanced penalty provisions amended in the same act. (Stats. 1984, ch. 1205, § 14, p. 4136.) Section 23217 read as follows when enacted:

"The Legislature finds and declares that some repeat offenders of the prohibition against driving under the influence of alcohol... may be escaping the intent of the Legislature to punish the offender with progressively greater severity if the offense is repeated one or more times within a five-year period. This situation may occur when a conviction for a subsequent offense occurs before a conviction is obtained on an earlier offense.

"The Legislature further finds and declares that the timing of court proceedings should not permit a person to avoid aggravated mandatory minimum penalties for multiple separate offenses occurring within a five-year period. It is the intent of the act enacting this section, in changing the word `prior' to the word `separate,' to provide that a person be subject to enhanced mandatory minimum penalties for multiple offenses within a period of five years, regardless of whether the convictions are obtained in the same sequence as the offenses had been committed."[1] (§ 23217, as added by Stats. 1984, ch. 1205, § 14, p. 4136.)

1218*1218 Section 23217 expresses the Legislature's concern that some DUI offenders were escaping enhanced punishment for multiple offenses when their convictions did not occur in the same order as the offenses were committed. The Legislature sought to remedy this situation by defining the offenses triggering enhancement as "separate violations" rather than as "prior offenses." By enacting these amendments, the Legislature did away with the requirement of a sequential relationship between the offense underlying the present conviction and the three or more offenses triggering an enhanced penalty under section 23175(a), thereby broadening the reach of the enhanced penalty provisions. (Cf. People v. Albitre (1986) 184 Cal. App.3d 895 [229 Cal. Rptr. 289] [term "prior offenses" in former section 23190 refers to timing of offenses which trigger enhanced punishment].) Specifically changing the language of the statute from "prior offenses" to "separate violations" evidences the Legislature's purposeful departure from the traditional approach taken in habitual offender statutes. (Cf. People v. Balderas (1985) 41 Cal.3d 144, 201 [222 Cal. Rptr. 184, 711 P.2d 480] [applying rationale of habitual offender statutes that offender undeterred by prior experience in criminal justice system is deserving of more severe punishment]; see also People v. McGee (1934) 1 Cal.2d 611, 614 [36 P.2d 378]; People v. Espinoza (1979) 99 Cal. App.3d 59, 74 [159 Cal. Rptr. 894]; People v. Diaz (1966) 245 Cal. App.2d 74, 77-78 [53 Cal. Rptr. 666].)

The legislative materials available to lawmakers who considered Assembly Bill No. 3833 in 1984 (which became chapter 1205 of the 1984 Statutes) also strongly suggest section 23175(a) is aimed at punishing more harshly the person who commits multiple DUI offenses, regardless of the sequence in which the offenses were committed and the convictions obtained. As described in bill analyses prepared by several legislative committees, Assembly Bill No. 3833 sought to "prevent a person from being able to circumvent the enhanced penalties for repeat DUI offenses by manipulating the timing of court proceedings," and "close a loophole in the law that allows some repeat DUI offenders to escape enhanced punishments mandated by law for a repeat offense." (Sen. Com. on Judiciary, analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.) p. 2; see also Assem. Crim. Law & Pub. Safety Com., analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.) pp. 1-2; and see Sen. Republican Caucus, analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.) p. 2; cf. Legis. Analyst, analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.) p. 1 [because current law bases enhanced penalties on prior offenses, repeat offender may receive lower fine or sentence if court proceedings for prior offense are delayed].) As these analyses explained to legislators, by changing the words "prior offenses" to 1219*1219 "separate violations," a later-obtained conviction can be punished by the enhanced penalty for a multiple DUI offense regardless of when that offense occurred. (Sen. Com. on Judiciary, analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.) p. 3; see also Assem. Crim. Law & Pub. Safety Com., analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.) p. 1.)

Defendant argues nonetheless the legislative materials support the Court of Appeal's construction of section 23175(a). Defendant points to a statement in one committee bill analysis that Assembly Bill No. 3833 was meant "to prevent a person from being able to circumvent the enhanced penalties for repeat DUI offenses by manipulating the timing of court proceedings" (Sen. Com. on Judiciary, analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.) p. 2, italics added), and a statement in an enrolled bill report that the Legislature "declares the intent for DUI offenders, convicted multiple times within a five-year period, [is] to suffer greater penalties for each succeeding offense." (Dept. of Health & Welfare, Enrolled Bill Rep., analysis of Assem. Bill No. 3833 (1983-1984 Reg. Sess.) Sept. 7, 1994, p. 1, italics added.)

(2c) Legislative materials inform our construction of a statute only when the words of the statute are unclear (People v. Jones (1993) 5 Cal.4th 1142, 1146 [22 Cal. Rptr.2d 753, 857 P.2d 1163]), but a clear statement of intent may serve to confirm a provision's plain meaning. (1d) Here, although some of the language in these legislative materials, read in isolation, could be viewed as supporting the Court of Appeal's construction of section 23175(a), when read in light of the entire available legislative history, the statements do not support defendant's claim that the date of the commission of the offense, but not the date of conviction, should control application of section 23175(a). To the contrary. The Legislature's substitution of "separate violations" for "prior offenses" in former section 23175, its explanation for doing so in section 23217, and the legislative materials available to assist and inform the Legislature's consideration of Assembly Bill No. 3833, taken together, amply reflect the Legislature's goal of preventing the DUI offender from escaping an enhanced penalty for multiple offenses. They indicate moreover the Legislature's intention to punish all repeat DUI offenders harshly, regardless of the order in which offenses and convictions have occurred. In light of the statute's purpose, we conclude section 23175 must be read to permit imposition of an enhanced penalty on conviction of a violation of section 23152 if that offense was committed within seven years of three or more separate DUI violations resulting in convictions, regardless of the order in which the three separate DUI offenses occurred or the convictions were obtained.

In construing section 23175 to provide an enhanced penalty only for subsequent offenses, the Court of Appeal reasoned that imposing a penalty 1220*1220 enhancement for a first offense on the basis of later-committed offenses could have no deterrent effect on past conduct. This rationale presumes a person can only be deterred from committing multiple DUI offenses by the threat of progressively harsher punishment for each subsequent DUI offense. However, in amending section 23175, the Legislature could reasonably have believed that closing the loophole that allowed some repeat offenders to avoid enhanced punishment would serve to increase the statute's overall deterrent effect. A person with DUI charges pending who knows he or she risks exposure to felony punishment if convicted of three other DUI offenses, in whatever order they were committed, may well refrain from driving under the influence again for fear of the consequences.

Moreover, to construe section 23175(a), as the Court of Appeal does, perpetuates the "loophole" the Legislature sought to close. Under the Court of Appeal's interpretation of section 23175(a), a defendant who committed four separate drunk driving offenses close in time could still escape the enhanced penalty by pleading guilty to the second, third and fourth offenses before going to trial on the first offense. This type of manipulation is precisely the situation the Legislature intended to remedy. (See § 23217.) Because the Court of Appeal's construction serves to defeat, rather than promote, the Legislature's purpose in amending former section 23175 in 1984, we decline to adopt it here. (People v. King (1993) 5 Cal.4th 59, 69 [19 Cal. Rptr.2d 233, 851 P.2d 27]; see also People v. Pieters, supra, 52 Cal.3d at pp. 898-901.)

B. Ex Post Facto

(3a) The Court of Appeal concluded its construction of section 23175(a) was compelled by the constitutional prohibition against ex post facto laws. (U.S. Const., art. I, § 10, cl. 1; Cal. Const., art. I, § 9.) (4a) In deciding whether application of section 23175(a) to the circumstances of this case violates the ex post facto clause of the state and federal Constitutions, we begin by noting that we interpret the ex post facto clause in the California Constitution no differently than its federal counterpart. (See People v. McVickers (1992) 4 Cal.4th 81, 84 [13 Cal. Rptr.2d 850, 840 P.2d 955]; Tapia v. Superior Court (1991) 53 Cal.3d 282, 295 [279 Cal. Rptr. 592, 807 P.2d 434].) Thus, United States Supreme Court precedent not only controls the federal constitutional question, but also provides persuasive authority as to whether a statute is an ex post facto law under California law. (People v. Helms (1997) 15 Cal.4th 608, 614 [63 Cal. Rptr.2d 620, 936 P.2d 1230].)

In Collins v. Youngblood (1990) 497 U.S. 37 [110 S.Ct. 2715, 111 L.Ed.2d 30], the court endorsed the view of its earlier decisions establishing that the 1221*1221 ex post facto clause prohibits three categories of legislative acts: any provision "`[1] which punishes as a crime an act previously committed, which was innocent when done; [2] which makes more burdensome the punishment for a crime, after its commission, or [3] which deprives one charged with crime of any defense available according to law at the time when the act was committed....'" (Id. at p. 42 [110 S.Ct. at p. 2719], quoting Beazell v. Ohio (1925) 269 U.S. 167, 169 [46 S.Ct. 68, 68, 70 L.Ed. 216]; cf. People v. McVickers, supra, 4 Cal.4th at p. 84.)

(3b) Focusing on the second category of prohibited legislative acts, those which make more burdensome the punishment for a crime after its commission, defendant argues the Court of Appeal correctly invoked the ex post facto clause in this case. Defendant points out that when he committed the April 6, 1992, offense, his crime was a misdemeanor, but at the time he was convicted of that offense, section 23175(a) made the crime a felony.

We reject defendant's argument. The increase in defendant's penalty in this case cannot be attributed to any change in law, since section 23175(a) was effective at the time defendant committed the instant offense. Rather, it was defendant's own conduct that ultimately increased his punishment. A self-inflicted change in defendant's status as a repeat offender does not constitute an ex post facto violation. The decisions of courts in other jurisdictions are in accord. (See Cornwell v. United States (D.C. 1982) 451 A.2d 628, 630; State v. Banks (1981) 105 Wis.2d 32 [313 N.W.2d 67, 76].)

(4b) Our conclusion is fully consistent with one of the primary purposes of the ex post facto clause: to prevent unforeseeable punishment. "Critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases punishment beyond what was prescribed when the crime was consummated." (Weaver v. Graham (1981) 450 U.S. 24, 30 [101 S.Ct. 960, 965, 67 L.Ed.2d 17].) (3c) The portion of section 23175(a) relevant to this case has been in effect since 1985. At the time defendant committed his first offense in 1992, he was on notice that if he committed a DUI offense within seven years of three or more other DUI violations resulting in convictions, he could be subject to felony punishment. The mere fact that conviction of the offense that was first in time was obtained after he had committed the offenses triggering the enhanced penalty does not contravene the prohibition of the ex post facto clause.

III. CONCLUSION AND DISPOSITION

We conclude the Legislature intended to punish repeat DUI offenders with enhanced penalties, regardless of the order in which the offenses were 1222*1222 committed or the convictions obtained. Moreover, imposition of an enhanced penalty on a fourth DUI conviction for an offense predating the triggering violations does not contravene the constitutional proscription against ex post facto laws, so long as the commission of the offense underlying the section 23175(a) charge occurred after the statute's 1984 amendment became effective.

The judgment of the Court of Appeal striking the allegations and true findings of three or more separate violations under section 23175(a) and remanding to the trial court for resentencing is reversed. The Court of Appeal is hereby directed to affirm the trial court's judgment in its entirety.

George, C.J., Mosk, J., Kennard, J., Baxter, J., Werdegar, J., and Chin, J., concurred.

[1] In 1986, the Legislature amended section 23175 (Stats. 1986, ch. 1117, § 6, p. 3934), and the other DUI penalty enhancement provisions, substituting "seven years" for "five years" of a separate violation of the enumerated offenses. In 1988, section 23175 was further amended to make imprisonment in state prison an alternative to imprisonment in the county jail. (Stats. 1988, ch. 599, § 1, p. 2160; id., ch. 1553, § 2, p. 5580.) That provision was redesignated section 23175 (a) in 1990. (Stats. 1990, ch. 44, § 6, p. 255.)

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Melbourne v. State, 679 So. 2d 759 - Fla: Supreme Court 1996ReadHow citedSearch
Highlighting dui
Melbourne v. State, 679 So. 2d 759 - Fla: Supreme Court 1996
679 So.2d 759 (1996)

Jeanie H. MELBOURNE, Petitioner,
v.
STATE of Florida, Respondent.

No. 86029.

Supreme Court of Florida.

September 5, 1996.

762*762 Terrence E. Kehoe of the Law Offices of Terrence E. Kehoe, Orlando, for Petitioner.

Robert A. Butterworth, Attorney General, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Respondent.

SHAW, Justice.

We have for review Melbourne v. State, 655 So.2d 126 (Fla. 5th DCA 1995), which expressly construes a provision of the state and federal constitutions. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We approve Melbourne as explained herein.

Jeanie Melbourne was driving under the influence (DUI) on June 12, 1992, when she turned in front of an oncoming vehicle, killing two people and injuring a third. She was convicted of two counts of DUI manslaughter and one count of DUI with serious bodily injury. The district court affirmed.

I. PEREMPTORY CHALLENGE

The following discussion took place at voir dire when defense counsel objected to the State's use of a peremptory challenge to strike a black venireperson, Mr. Wells:

Mr. Mason (defense counsel): Does anyone have alcoholism in their family or any friends who are alcoholics, or anything along those lines?

. . . .

Mr. Wells: My wife. She died of alcohol.

Mr. Mason: What do you do for W.E.S.H. T.V.?

Mr. Wells: I work in programming. Whatever you see is whatever I do.

Mr. Mason: Do you work nights or do you work days?

Mr. Wells: I work days.

Mr. Mason: Would you like to serve again?

Mr. Wells: I will do what I have to do.

. . . .

Mr. Bressler (prosecutor): We'd also strike Number 19, your honor.

Mr. Mason: Mr. Dewey Wells, the black man, I would raise a Baxter Johans challenge, JOHANS. He's a black man, Number 19.

Ms. Munyon: The State has not stricken any black jurors at all. The defense has stricken juror Number 10, Tillman, as well as juror Number 13, which are black.

The State accepted both of those jurors.

Mr. Bressler: Kelvin McCall was a black juror that the defense struck.

Mr. Mason: I have nothing else to say.

The Court: Well, I don't see anything in this record to indicate that there's any— that the State in exercising this challenge to a black person is in any way acting in a discriminatory fashion, or singling out Mr. Wells because of his race in its exercise of peremptory challenge.

The record should reflect that the defense has excused two peremptory challenges to excuse black males and exercised its exercise of the—

Mr. Mason: I've used seven per Kim.

Melbourne claims that as a result of the above discussion she is entitled a new trial. First, she asserts that the court failed to conduct a proper inquiry into the State's motivation for striking Mr. Wells as required under State v. Johans, 613 So.2d 1319 (Fla. 1993). Second, she contends that the explanation offered by the State was insufficient under State v. Neil, 457 So.2d 481 (Fla.1984), and State v. Slappy, 522 So.2d 18 (Fla.), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988). We disagree.

763*763 A seminal Florida case on this issue is Neil, wherein this Court set out a procedure for dealing with racially-motivated peremptory challenges:

[T]rial courts should apply the following test. The initial presumption is that peremptories will be exercised in a nondiscriminatory manner. A party concerned about the other side's use of peremptory challenges must make a timely objection and demonstrate on the record that the challenged persons are members of a distinct racial group and that there is a strong likelihood that they have been challenged solely because of their race [this is step 1]. If a party accomplishes this, then the trial court must decide if there is a substantial likelihood that the peremptory challenges are being exercised solely on the basis of race. If the court finds no such likelihood, no inquiry may be made of the person exercising the questioned peremptories. On the other hand, if the court decides that such a likelihood has been shown to exist, the burden shifts to the complained-about party to show that the questioned challenges were not exercised solely because of the prospective jurors' race [step 2]. The reasons given in response to the court's inquiry need not be equivalent to those for a challenge for cause.... [The court must then determine whether] the party has actually been challenging prospective jurors solely on the basis of race.... [step 3].

Neil, 457 So.2d at 486-87 (footnotes omitted).

Because trial courts had difficulty applying Neil, this Court refined the procedure in subsequent cases. We simplified step 1:

Rather than wait for the law in this area to be clarified on a case-by-case basis, we find it appropriate to establish a procedure that gives clear and certain guidance to the trial courts in dealing with peremptory challenges. Accordingly, we hold that from this time forward a Neil inquiry is required when an objection is raised that a peremptory challenge is being used in a racially discriminatory manner.

Johans, 613 So.2d at 1321.

We also required that in step 2 the proponent of the strike demonstrate "a `clear and reasonably specific' racially neutral explanation of `legitimate reasons' for the [strike]," and that in step 3 the judge must decide whether the proffered reasons are "first, neutral and reasonable and, second, not a pretext." Slappy, 522 So.2d at 22.

In spite of these refinements, Florida courts have continued to have difficulty in applying Neil, particularly following Johans.[1] The State in the present proceeding has submitted for consideration the recent United States Supreme Court decision in Purkett v. Elem, ___ U.S. ___, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995), wherein that Court summarized its holding in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986):

Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step 1), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If a race-neutral explanation is tendered, the trial court must then decide (step 3) whether the opponent of the strike has proved purposeful racial discrimination.

Purkett, ___ U.S. at ___-___, 115 S.Ct. at 1770-71 (citations omitted).

The United States Supreme Court elaborated on step 2 further:

The second step of this process does not demand an explanation that is persuasive, or even plausible. "At this [second] step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral."

Id. at ___, 115 S.Ct. at 1771 (brackets in original) (quoting Hernandez v. New York, 500 U.S. 352, 360, 111 S.Ct. 1859, 1866, 114 764*764 L.Ed.2d 395 (1991)). The Court noted that in step 3 "[the] whole focus [is not] upon the reasonableness of the asserted nonracial motive... [but] rather ... the genuineness of the motive .... a finding which turn[s] primarily on an assessment of credibility." Id. at ___-___, 115 S.Ct. at 1771-72.

In light of Purkett and due to the difficulty some Florida courts have had in applying our state law, we set forth the following guidelines to assist courts in conforming with article I, section 16, Florida Constitution, and the equal protection provisions of our state and federal constitutions. These guidelines encapsulate existing law and are to be used whenever a race-based objection to a peremptory challenge is made. The goal of these guidelines is the elimination of racial discrimination in the exercise of peremptory challenges.

A party objecting to the other side's use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis,[2] b) show that the venireperson is a member of a distinct racial group,[3] and c) request that the court ask the striking party its reason for the strike.[4] If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike.[5]

At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2).[6] If the explanation is facially race-neutral[7] and the court believes that, given all the circumstances surrounding the strike,[8] the explanation is not a pretext, the strike will be sustained (step 3). The court's focus in step 3 is not on the reasonableness of the explanation but rather its genuineness.[9] Throughout this process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination.[10]

Voir dire proceedings are extraordinarily rich in diversity and no rigid set of rules will work in every case.[11] Accordingly, reviewing courts should keep in mind two principles when enforcing the above guidelines. First, peremptories are presumed to be exercised in a nondiscriminatory manner.[12] Second, the trial court's decision turns primarily on an assessment of credibility and will be affirmed on appeal unless 765*765 clearly erroneous.[13] The right to an impartial jury guaranteed by article I, section 16, is best safeguarded not by an arcane maze of reversible error traps, but by reason and common sense.

Applying these principles to the present case, we conclude that Melbourne failed to preserve this issue for review because she did not renew her objection before the jury was sworn.[14] Any error could have been corrected easily at that point without compromising the whole trial at the outset. It is entirely possible that events transpiring subsequent to the initial objection caused Melbourne to become satisfied with the jury and abandon her claim.

We address the merits of the claim for instructional purposes only. As noted above, the entire text of defense counsel's objection reads as follows: "I would raise a Baxter Johans challenge, J O H A N S. He's a black man...." Giving these words their plain meaning, defense counsel seemed to be voicing a general objection on racial grounds to the State's strike. Both the State and trial court responded that the defense, not the State, had exercised prior strikes against black jurors. Defense counsel seemed satisfied, expressing no further objection ("I have nothing else to say."). At no time did defense counsel request that the court ask the State its reason for the strike. To require an entire new trial under these circumstances would do nothing to further the principles underlying Neil but rather would erode the legitimacy of that decision. We find no error.

II. DOUBLE JEOPARDY

As noted above, Melbourne caused the death of two persons and injury of a third for which she was convicted of two counts of DUI manslaughter and one count of DUI with serious bodily injury. Melbourne claims as her second issue that these multiple convictions violate double jeopardy because the convictions arise from a single violation of the DUI statute. We disagree.

This Court has held that only one conviction can arise from a single violation of the driving with a suspended license statute even though injury results to several persons. Boutwell v. State, 631 So.2d 1094 (Fla.1994). Florida courts also have held, however, that multiple convictions can arise from a single violation of the DUI statute where injury results to several persons. See, e.g., Wright v. State, 592 So.2d 1123 (Fla. 3d DCA 1991), quashed on other grounds, 600 So.2d 457 (Fla.1992). The different constructions of these two statutes, we conclude, are not contradictory; the link between the statutory violation and resultant injury is fundamentally different.

In the case of driving with a suspended license, the link between the violation and injury is indirect—the suspended license in no way causes the driver's carelessness or negligence. To allow multiple convictions for a single violation of this statute would be illogical because the violation does not cause injury to any of the victims. In the case of DUI, on the other hand, the link is direct— the driver's intoxication results in his or her inability to drive safely. The DUI driver may sustain multiple convictions because the violation causes injury to each victim. We find no error.

III. CONCLUSION

Based on the foregoing, we approve the result in Melbourne on the above issues.[15] To the extent that Slappy and its progeny require a "reasonable" rather than a "genuine" nonracial basis for a peremptory strike, we recede from those cases. While the Florida Constitution cannot guarantee that every peremptory challenge exercised in 766*766 Florida will be rational, it can guarantee that each will be nonracial.

It is so ordered.

KOGAN, C.J., and OVERTON, GRIMES, HARDING, WELLS and ANSTEAD, JJ., concur.

[1] See, e.g., Ratliff v. State, 666 So.2d 1008, 1014 (Fla. 1st DCA 1996) ("Beginning with step two moves the trial forward more expeditiously."); Holiday v. State, 665 So.2d 1089, 1090 (Fla. 3d DCA 1995) ("[A]n objector must do something more than merely objecting....").

[2] State v. Neil, 457 So.2d 481, 486 (Fla.1984). A simple objection and allegation of racial discrimination is sufficient, e.g., "I object. The strike is racially motivated."

[3] Id.

[4] See generally State v. Johans, 613 So.2d 1319 (Fla.1993).

[5] See generally id. at 1321 ("[W]e hold that from this time forward a Neil inquiry is required when an objection is raised that a peremptory challenge is being used in a racially discriminatory manner."). Johans eliminated the requirement that the opponent of the strike make a prima facie showing of racial discrimination.

[6] The explanation will be deemed race-neutral for step 2 purposes as long as no predominant discriminatory intent is apparent on its face. See generally Purkett v. Elem, ___ U.S. ___, ___, 115 S.Ct. 1769, 1771, 131 L.Ed.2d 834 (1995).

[7] If the explanation is not facially race-neutral, the inquiry is over; the strike will be denied.

[8] Relevant circumstances may include—but are not limited to—the following: the racial make-up of the venire; prior strikes exercised against the same racial group; a strike based on a reason equally applicable to an unchallenged juror; or singling the juror out for special treatment. See generally State v. Slappy, 522 So.2d 18 (Fla.), cert. denied, 487 U.S. 1219, 108 S.Ct. 2873, 101 L.Ed.2d 909 (1988).

[9] The Florida Constitution does not require that an explanation be nonracial and reasonable, only that it be truly nonracial. Reasonableness is simply one factor that a court may consider in assessing genuineness. See generally Purkett, ___ U.S. at ___-___, 115 S.Ct. at 1771-72.

[10] See id. at ___, 115 S.Ct. at 1771.

[11] See generally Hernandez v. New York, 500 U.S. 352, 374, 111 S.Ct. 1859, 1874, 114 L.Ed.2d 395 (1991) (O'Connor, J., concurring in judgment) ("Absent intentional discrimination ... parties should be free to exercise their peremptory strikes for any reason, or no reason at all. The peremptory challenge is, `as Blackstone says, an arbitrary and capricious right; and it must be exercised with full freedom, or it fails of its full purpose.' Lewis v. United States, 146 U.S. 370, 378, 13 S.Ct. 136, 139, 36 L.Ed. 1011 (1892) (internal quotation marks omitted).").

[12] Neil, 457 So.2d at 486.

[13] See, e.g., Ratliff v. State, 666 So.2d 1008 (Fla. 1st DCA 1996).

[14] See Joiner v. State, 618 So.2d 174, 176 (Fla. 1993) ("[C]ounsel's action in accepting the jury led to a reasonable assumption that he had abandoned, for whatever reason, his earlier objection.").

[15] We agree with Melbourne on her third claim, i.e., that the DUI judgment contains a scrivener's error. We order that reference to section 877.111, Florida Statutes (1991), be struck from the judgment.

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State v. Orr, 375 NW 2d 171 - ND: Supreme Court 1985ReadHow citedSearch
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State v. Orr, 375 NW 2d 171 - ND: Supreme Court 1985
375 N.W.2d 171 (1985)

STATE of North Dakota, Plaintiff and Appellee,
v.
Kenneth L. ORR, Defendant and Appellant.

Crim. No. 1073.

Supreme Court of North Dakota.

October 1, 1985.

173*173 John E. Greenwood, Asst. State's Atty., Jamestown, for plaintiff and appellee.

Hjellum, Weiss, Nerison, Jukkala, Wright & Paulson, Jamestown, for defendant and appellant; argued by Thomas E. Merrick, Jamestown.

LEVINE, Justice.

Kenneth L. Orr appeals his sentence for driving under the influence in violation of North Dakota Century Code § 39-08-01. We reverse and remand.

On July 6, 1984 Orr was charged with driving under the influence of intoxicating liquor (DUI). The State subsequently moved to amend the complaint to allege that this was Orr's second DUI offense within five years and that if convicted he should be sentenced as a second DUI offender pursuant to NDCC § 39-08-01(5)(b). Attached to the motion was a certified copy of a Jamestown Municipal Court report sheet which declared that Orr had pleaded guilty to a DUI charge on December 8, 1982, received a fine and a five-day suspended jail sentence.

Orr unsuccessfully resisted the State's motion, claiming the municipal court judgment could not be used as proof of his previous DUI conviction because he had not been represented by a lawyer in that proceeding and there was no evidence on the record that he had been advised of, and waived, his right to counsel.

Following a bench trial Orr was found guilty of DUI and sentenced to four days in jail (26 days suspended) to be served consecutively, given a $500.00 fine and ordered to submit to alcohol evaluation. Section 39-08-01(5)(b), NDCC, provides that the sentence for a second DUI conviction within five years must include at least four days' imprisonment, of which 48 hours must be served consecutively, or ten days' community service, at least a $500.00 fine and referral for addiction evaluation.

Orr contends that his municipal court DUI conviction, which was based upon a guilty plea, could not be used to enhance his punishment for the subsequent DUI conviction pursuant to NDCC § 39-08-01(5)(b) when there was no proof that he was advised of, and waived, his right to counsel before pleading guilty to the earlier DUI charge. Consequently, Orr argues that he was sentenced as a second offender in violation of his rights secured by the sixth and fourteenth amendments to the United States Constitution and article I, § 12 of the North Dakota Constitution.

1. First or Second Offense?

At the outset, we note that the trial court failed to articulate its reasons for imposing the particular sentence, in spite of the mandate of NDCC § 12.1-32-02(5), which provides:

"All sentences imposed shall be accompanied by a written statement by the court setting forth the reasons for imposing the particular sentence. The statement shall become part of the record of the case."

Such a statement would have obviated our need to question whether Orr was sentenced as a first offender or as a second. If Orr were sentenced as a first offender, the issue he raises is a non-issue since there would be no enhancement by virtue of a prior conviction. If, on the other hand, his first conviction were the impetus for the trial court's sentence of incarceration then the issue raised by Orr is properly before us. The mere fact that four days' imprisonment was imposed does not by itself provide the answer, because that sentence could have been imposed for either a first or second offense under §§ 39-08-01(3) and 12.1-32-01(6).

In spite of the absence of a concise explanation for the sentence by the trial court,[1] we are able to glean from the record a basis to conclude that the trial court did sentence Orr to jail only because he was a second offender. The complaint was amended, with leave of court, and over 174*174 Orr's objection, to allege a second offense and to request sentencing as a second offender. It is not disputed that first offenders in Stutsman County are not sentenced to jail. That the sentence imposed is four days' incarceration and a $500.00 fine, which is the minimum penalty for a second conviction, is, we believe, more than mere coincidence. Finally, the trial court indicated in response to Orr's renewed objection to use of the prior conviction to enhance punishment for his second offense, that he had already decided against Orr's position:

"Well, I made the ruling [i.e., prior conviction was valid for purpose of enhancing sentence for subsequent conviction] and I'm going to stand by it and Mr. Orr I sentence you to pay the fine of $500.00, thirty days in jail, twenty-six suspended...." [Emphasis added.]

Taken as a whole, the record satisfies us that Orr was sentenced to incarceration solely because he was a second offender.

2. Waiver

One accused in a criminal proceeding has the right to the assistance of counsel and the court must inform an accused of that right. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); State v. Heasley, 180 N.W.2d 242 (N.D.1970); U.S. Const. Amend. VI and XIV; N.D. Const. art. I, § 12; NDRCrimP 5, 11, and 44.

There was nothing in the municipal court record to indicate that Orr had been advised of, and waived, his right to counsel prior to pleading guilty. Orr does not recall if he was advised of his right to counsel but states that he was not represented by an attorney.

The county court, relying on the presumptions of NDCC § 31-11-03(14-17), presumed that the municipal judge duly informed Orr of his right to counsel and that Orr validly waived that right. It concluded, therefore, that the prior conviction could be used for enhancement purposes.

The trial court erred in presuming that Orr had validly waived that right when the record did not affirmatively indicate such a waiver.[2] State v. Gustafson, 278 N.W.2d 358 (N.D.1979); Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967); Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). Such a presumption is impermissible because waiver has particularly far-reaching effects in the context of guilty pleas. Insofar as a guilty plea is itself a conviction it constitutes a relinquishment of three important constitutional rights: the privilege against self-incrimination, the right to trial by jury, and the right of confrontation. McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). We cannot presume a waiver of these three important constitutional rights from a silent record. State v. Hagemann, 326 N.W.2d 861 (N.D.1982); see also State v. Nordstrom, 331 N.W.2d 901 (Minn.1983). Consequently, the county 175*175 court erred in ruling Orr waived his right to counsel.

3. Enhancement

Having determined that it has not been shown that Orr waived his right to counsel, our next inquiry goes to the effect of Orr's uncounseled DUI conviction on the present case. The issue is whether or not Orr may be sentenced to mandatory imprisonment as a second DUI offender pursuant to NDCC § 39-08-01(5)(b) when his first DUI conviction resulted from an uncounseled guilty plea without evidence of waiver of counsel.

Orr argues that Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), a plurality per curiam opinion, prohibits use of his first ordinance conviction to enhance his present sentence to include imprisonment. The State counters that Baldasar is not binding precedent because it forbids using a prior uncounseled conviction only when that conviction was punishable by over six months' imprisonment. We agree that because Orr's first DUI conviction was not punishable by over six months' incarceration, Baldasar does not preclude its use to enhance Orr's present sentence. The State also contends that Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), controls and validates Orr's enhanced punishment. We disagree. Resolution of the parties' arguments requires careful analysis of Baldasar and Lewis.

In Baldasar, the petitioner was convicted of a felony and sentenced to a one-to-three-year prison term. At trial, his counsel objected unsuccessfully to evidence establishing an earlier misdemeanor conviction, without counsel or valid waiver of counsel and for which Baldasar received no imprisonment. Under Illinois law, the first conviction enhanced the subsequent offense from a misdemeanor punishable by fine and imprisonment for up to one year to a felony punishable by fine and imprisonment for up to three years. The Supreme Court reversed the conviction in a concurrence by Justice Blackmun and two concurrences written by Justices Stewart and Marshall, joined by Justices Brennan and Stevens.[3] There was no majority rationale for the result.

We follow the Supreme Court's direction in interpreting the holding of a plurality decision.

"When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, `the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds ....'..." Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51 L.Ed.2d 260 (1977).

We thus review the respective positions of the assenting five Justices in Baldasar contained within the three concurrences in order to discern the narrowest grounds of their divergent positions.

In Justice Blackmun's concurrence he maintained his dissenting position in Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979),[4] repeating his bright-line test. That test requires counsel to be appointed when an indigent defendant is charged with a non-petty offense or is actually sentenced to a prison term. Because Baldasar's first conviction was for an offense punishable by more than six months' imprisonment, and because counsel was not appointed or waived, Baldasar's first conviction was invalid and could not be used to support enhancement.

Justice Marshall wrote that even if, under Scott, actual imprisonment determines the constitutional right to counsel, the defendant's 176*176 "prior uncounseled misdemeanor conviction could not be used collaterally to impose an increased term of imprisonment upon a subsequent conviction." 446 U.S. at 226, 100 S.Ct. at 1587 (Marshall, J., concurring). He reasoned that a valid conviction for a subsequent offense does not render a prior uncounseled conviction more reliable and a conviction that could not be used directly to impose a prison term logically could not be used indirectly to enhance imprisonment under a recidivist statute. His analysis was based on the rationale underlying the right to counsel: an indigent's fundamental right to a fair trial depends upon the appointment of counsel.

Justice Stewart stated that imposing an increased prison term solely because of a prior conviction violated the rule of Scott. 446 U.S. at 224, 100 S.Ct. at 1586 (Stewart, J., concurring).

The opinions of Justices Marshall and Stewart would, we believe, preclude the use of Orr's first conviction for enhancement purposes. They focused on the increased imprisonment for the subsequent offense and gave no regard to the authorized penalty for the first offense. They share the view that an unreliable prior conviction, regardless of the length of potential imprisonment, cannot be used for enhancement.

However, the fifth and deciding vote is Justice Blackmun's. Justice Blackmun's bright-line test would not preclude the use of Orr's prior conviction for enhancement purposes because the penalty for Orr's first conviction was not more than six months' imprisonment and Orr was not actually imprisoned. Thus, under Justice Blackmun's view, Orr's first conviction was valid and therefore available for enhancement purposes.

It is our view that, on its narrowest grounds, Baldasar held only that an uncounseled misdemeanor conviction punishable by more than six months' imprisonment cannot under the sixth amendment be used to increase a prison term under an enhanced penalty provision.

Orr was neither imprisoned nor was his prior offense punishable by more than six months' imprisonment. Therefore we conclude that Baldasar does not preclude the subsequent use of Orr's prior uncounseled ordinance conviction under an enhanced penalty provision.

The State further argues that this case is controlled by Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980).

In Lewis, the court held a defendant's prior uncounseled felony conviction, even though invalid under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), may support a subsequent conviction under the Omnibus Crime Control and Safe Street Act of 1968. 18 USC § 1202(a)(1) (1976). The Act prohibits a convicted felon from receiving, possessing, or transporting any firearm. The defendant, without the assistance of counsel, had been convicted in 1961 of a felony and thereafter was tried and convicted of violating 18 USC § 1202(a)(1). The Court, after examining § 1202(a)(1) and its legislative history, found nothing to indicate that Congress intended to allow a defendant to challenge the validity of a prior conviction as a defense to prosecution under § 1202(a)(1). Lewis at 445 U.S. 62, 100 S.Ct. 919. Rather, the Court concluded that Congress could rationally determine that any felony conviction, even an allegedly invalid one, is a sufficient basis for prohibiting the possession of a firearm. Lewis at 445 U.S. 66-67, 100 S.Ct. 921-22.

The Court distinguished Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967) (uncounseled conviction cannot be used for enhancement of punishment under a recidivist statute); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) (uncounseled conviction cannot be considered by court in sentencing defendant after later conviction); and Loper v. Beto, 405 U.S. 473, 92 S.Ct. 1014, 31 L.Ed.2d 374 (1972) (uncounseled conviction cannot be used to impeach general credibility of defendant), on the ground that in each of those cases the 177*177 subsequent conviction or sentence violated the sixth amendment because it depended upon the reliability of the prior uncounseled conviction. In Lewis, the Court concluded the federal gun laws "focus not on reliability, but on the mere fact of conviction... in order to keep firearms away from potentially dangerous persons." Lewis 445 U.S. at 67, 100 S.Ct. at 921-22. Thus, the Court reasoned that imprisonment for violating § 1202(a)(1) does not "enhance punishment" on account of the prior conviction, but rather enforces an "essentially civil disability through a criminal sanction." Id.

The State asserts analogously that NDCC § 39-08-01(5) does not enhance punishment due to a past DUI conviction. It argues the focus of the increased punishment provided by § 39-08-01(5) is not on the reliability of the previous uncounseled conviction, but on the mere fact of conviction.

We disagree. Section 39-08-01(5) is distinguishable from the federal gun statute. Here mandatory incarceration upon a second offense does not enforce an "essentially civil disability." A first DUI conviction may result in incarceration and is therefore not an essentially civil disability. NDCC § 12.1-32-01(6). Rather, § 39-08-01(5) increases punishment for repeat offenders simply because a second, third or fourth offense is considered a more serious crime requiring harsher punishment. Consequently, § 39-08-01(5) is clearly an enhancement statute that necessarily focuses on the reliability of the first conviction, and not on the mere fact of its occurrence. It is therefore distinguishable from the federal statute under consideration in Lewis.[5]

The federal statute is further distinguishable in that it allows a convicted felon to administratively remove his disability and thus lawfully possess a firearm. Section 39-08-01 does not have any similar procedure permitting a DUI offender to expunge or limit the effect of a DUI conviction.

4. Article I, Section 12, N.D. Const.

Orr also asserts his sentence violates art. I, § 12, of the North Dakota Constitution.

Article I, § 12, N.D. Const., provides that the accused shall have the right "to appear and defend in person and with counsel." That language differs from the sixth amendment which provides "The accused shall enjoy the right to ... have the Assistance of Counsel for his defense."

Section 12 of the North Dakota Constitution is a guarantee that one accused of a crime is entitled to counsel. State v. Whiteman, 67 N.W.2d 599 (N.D.1954). This right has long been zealously guarded not only by the courts of this State, see, e.g., State v. Heasley, 180 N.W.2d 242 (N.D.1970); State v. Whiteman, supra; State v. O'Neill, 117 N.W.2d 857 (N.D. 1962), cert. den., 373 U.S. 939, 83 S.Ct. 1544, 10 L.Ed.2d 694 (1963), but also by the Legislature as far back as 1895. See, e.g., North Dakota Revised Code 1895 § 7749 (in all criminal prosecutions accused shall have the right to defend with counsel) R.C.1895 § 8075 (defendant at arraignment must be informed of right to counsel and counsel must be appointed if desired); R.C.1895 § 8407 (indigent criminal defendant entitled to court-appointed attorney in district court); R.C.1895 § 6607 (county court of increased jurisdiction to appoint counsel for indigent defendant in misdemeanor case). Prior to statehood the right to counsel was acknowledged by the territorial laws. See Revised Code of the Territory of Dakota 1877, Code of Criminal Procedure § 11(2); Compiled Laws of the Territory of Dakota 1887 § 7035(2).

We have traditionally recognized that the right to counsel under our Constitution 178*178 is fundamental because it enables an accused to procure a fair trial. State v. Whiteman, supra; State v. Heasley, supra. This special regard for the intrinsic value of § 12 has been exercised independently of any compulsion under federal law or the federal constitution.[6] See, e.g., State v. Heasley, supra; State v. Whiteman, supra; State v. O'Neill, supra. Consequently, we must consider whether § 12 permits the use of an uncounseled conviction to enhance a term of imprisonment for a subsequent offense.

Underlying our judicial constitutional interpretation that § 12 provides the key to a fair trial is the belief that counsel will, if not guarantee, then at least facilitate the optimum outcome for a defendant in a given case. Uncounseled convictions, thus, are to be rightly regarded with skepticism. They are unreliable.[7] Scott, supra; Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Tucker, supra; Burgett, supra. We agree that the denial of the right to counsel impeaches "the very integrity of the fact-finding process," Linkletter v. Walker, 381 U.S. 618, 639, 85 S.Ct. 1731, 1743, 14 L.Ed.2d 601 (1965), and that the right to counsel is "fundamental and essential to a fair trial." Gideon v. Wainwright, supra. Long before Linkletter and Gideon our own state courts recognized the substance of this principle when they considered issues of waiver of counsel. See, e.g., State v. Throndson, 49 N.D. 348, 191 N.W. 628 (1922); State v. Thompson, 56 N.D. 716, 219 N.W. 218 (1928).

We are guided by such federal cases as Argersinger, supra; Scott, supra; Tucker, supra; and Burgett, supra, which recognize in unequivocal fashion that an uncounseled conviction is too unreliable to support the sanction of imprisonment. We believe that whether the imprisonment is a result of a first conviction, as in Scott, or because of a conviction for a subsequent offense, as in Orr's case, makes no difference. Merely because Orr was validly convicted of a second offense does not confer reliability on his earlier uncounseled conviction. Furthermore, because the defect in Orr's prior conviction was the denial of counsel, he would, in effect, "suffer anew" the deprivation of his right to counsel if he were subsequently imprisoned solely because of the previous uncounseled conviction. See Burgett, supra. To allow an accused's punishment to be enhanced to include imprisonment solely because of a prior uncounseled conviction violates the dictate of art. I, § 12 that one accused of a crime is entitled to counsel.

We hold that absent a valid waiver of the right to counsel the resulting conviction cannot, under art. I, § 12, N.D. Const., be 179*179 used to enhance a term of imprisonment for a subsequent offense.

As a practical consequence of our holding, municipal courts (and all others) must obtain a valid waiver of counsel on the record or afford a nonindigent defendant the opportunity to retain counsel, or appoint counsel for an indigent DUI defendant[8] regardless of the penalty to be imposed, if enhancement of punishment for a subsequent conviction is not to be precluded.[9] While this may constitute an economic burden, our constitution must prevail. See Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (there can be no equal justice where the kind of trial a person gets depends on the amount of money he has); Watson v. City of Memphis, Tenn., 373 U.S. 526, 83 S.Ct. 1314, 10 L.Ed.2d 529 (1963) (vindication of constitutional rights cannot be made dependent upon any theory that it is less expensive to deny than to afford them). We recognize the concentrated legislative effort to deter those who endanger us all by their drinking and driving. We believe that promotion of such a strong public policy merits the necessary allocation of public funds to pass constitutional muster. Of course, not all DUI defendants are indigent and not all DUI violations will recur. For those that are and do, we can only ascribe to the principle that our constitution applies to ever-changing needs and problems facing society and implementation of its edicts may often require varying and innovative adaptations.

5. Burden of Proof

The final issue to be resolved is the allocation of the burden to prove the validity of a prior uncounseled conviction to justify its use to enhance punishment, when the record is silent on waiver.

In Burgett v. Texas, supra, the Supreme Court held that a prior felony conviction was presumed void and could not be used to enhance punishment, where the record did not indicate that the defendant had, or waived, counsel. Because of an accused's constitutional right to counsel in a felony case, the record's failure to affirmatively show counsel or waiver was fatal. The same reasoning applies to this case where we have held that an accused is constitutionally entitled to counsel in a misdemeanor case if the resulting conviction is sought to be used for enhancement to include imprisonment. Here, the silent record is insufficient to overcome the presumption that the prior uncounseled conviction was void for enhancement purposes.

Therefore, the State, in seeking to imprison Orr as a second offender based on his earlier presumptively void uncounseled conviction, had the burden to overcome this presumption once Orr raised the issue in a pretrial proceeding by resisting the motion to amend.[10] To meet its burden the State 180*180 could rely on parol or other evidence that Orr waived his right to counsel.[11] This the State has failed to do.

Accordingly, we reverse and remand with instruction that Orr be sentenced without regard to the prior municipal court DUI conviction.

MESCHKE and GIERKE, JJ., concur.

VANDE WALLE, Justice, concurring specially.

For reasons stated later herein, I concur in the result reached by the majority opinion. I agree with much of what is stated therein. I write specially to express my doubt concerning the particular posture of this case in which the defendant does not even allege he was not informed of his right to counsel at the time of his plea of guilty in municipal court but only alleges he does not remember whether or not he was so informed. The majority opinion concludes that this is sufficient to cause the State to prove the validity of the prior uncounseled conviction. Footnotes 10 and 11 of the majority opinion analogize this to the burden the State has when it seeks to introduce evidence obtained by a warrantless search and seizure because warrantless searches and seizures are presumptively unconstitutional. But the problem with such an analogy is that the first conviction, uncounseled though it was, is not presumptively unconstitutional. Perhaps these statements reflect my difficulty with the concept that a conviction which is unquestionably valid in and of itself is invalid for the purpose of enhancement.

Secondly, I am not convinced there is a good reason for concluding that Lewis v. United States, 445 U.S. 55, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980), is not applicable. The rationale that the law involved in Lewis did not enhance punishment as a result of a prior conviction but rather enforced an essentially civil disability through a criminal sanction raises a serious question in my mind as to the soundness of the distinction. And, if there is such a distinction, it appears to me that our law concerning drunk drivers may very well serve the same purpose, i.e., it does not enhance punishment on account of the prior conviction but rather enforces an "essentially civil disability through a criminal sanction"—keeping the drunk driver off the road.

Finally, I am not convinced Article I, Section 12, of the North Dakota Constitution provides any greater protection than does the Sixth Amendment to the United States Constitution. Although the wording in the North Dakota Constitution is somewhat different, the significance of that difference escapes me and is not explained by the majority opinion. I agree with the majority opinion the history of our statutory law is that defendants in county and district court were entitled to counsel. Whether those provisions were equally applicable to municipal court may be open to question. But, as discussed below, I would reserve for another day the question of whether or not our constitutional provision provides greater protection than does the Sixth Amendment. Statements in the majority opinion, including those at footnote 6, 181*181 may well cast doubt upon the validity of the initial conviction in municipal court for its own purpose without the issue of enhancement, because they seem to imply that the comments to Rule 44, N.D.R. Crim.P., relative to Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), do not limit the right to counsel under Article I, Section 12, of the North Dakota Constitution. If, indeed, that is the law, it would appear that the uncounseled plea of guilty, without any indication on the record of a knowing and valid waiver of the right to counsel, would make the conviction invalid under our Constitution despite the fact there was no imprisonment for the conviction, contrary to the holding in Argersinger.

After having written the above, perhaps I should dissent rather than concur specially. However, I agree with the majority that uncounseled convictions are not always reliable.[1] I further agree with the majority that, as a matter of policy, the record in municipal court as well as other courts should reflect that a defendant was advised of his right to counsel (and the appointment of counsel in his behalf if he is indigent and entitled to appointment of counsel under Argersinger) and his voluntary waiver of counsel if, indeed, that happened. I believe a fair reading of Rule 11(f) of the North Dakota Rules of Criminal Procedure requires that result. We do not anticipate a question of constitutional law in advance of the necessity of deciding it and will not formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied. See, e.g., State v. King, 355 N.W.2d 807 (N.D.1984). Thus I would leave for another day the significant constitutional issue reached by the majority opinion. The failure of the record of the previous conviction to reflect a valid waiver of right to counsel is sufficient reason to hold that the trial court must disregard the previous conviction for purposes of enhancement. A rule such as Rule 11(f) should be considered substantive as well as procedural and we may choose to enforce the rule in such a prophylactic manner.

ERICKSTAD, C.J., concurs.

[1] Because the issue was not raised, the effect of noncompliance with the statutory requirement remains undecided. City of Riverside v. Smuda, 339 N.W.2d 768 (N.D.1983).

[2] The record is silent because municipal courts are not courts of record. NDCC § 27-01-01. However, NDRCrimP 11(f) requires that a verbatim record be made of the proceedings at which a defendant enters a plea. Rule 11(f) must be followed by municipal courts so far as applicable. NDRCrimP 1. The apparent conflict between § 27-01-01 and Rule 11(f) was considered by the Rules Committee but no action was taken to resolve the conflict. See Minutes of Rules Committee, November 18-20, 1971, p. 37. Nevertheless, in response to the 1983 amendments to ch. 39-08 the North Dakota Municipal Benchbook (1984) was made available to municipal courts for use as a procedural guide. The Benchbook states that a record of the proceedings where a guilty plea is entered must be made pursuant to Rule 11(f) and specifically refers to the impact of Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980). (For our discussion of Baldasar see infra.) The Benchbook also includes a waiver of right to counsel form to be used by municipal courts. See Benchbook pp. 32-33, 45. The precursor to the Benchbook also gave similar instructions to make a record of guilty pleas and contained a suggested waiver of rights form. See North Dakota Court Manual, pp. III-79-80, III-84, Appendix (1982). The possibility of making municipal courts ones of record is being studied. See Report and Recommendations of the Municipal Court Study Subcommittee of the Judicial Planning Committee of the North Dakota Judicial System, September 25, 1984. See also Minutes, Municipal Court Study Committee, July 16, 1985.

[3] Justice Powell, writing for the four dissenters, argued that a constitutionally valid conviction is valid for all purposes, including enhancement.

[4] Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979) held that absent a valid waiver, no person may be imprisoned for any offense, misdemeanor or felony, unless he were represented by counsel. Thus, under Scott, an uncounseled conviction is valid so long as the accused is not actually sentenced to a term of incarceration.

[5] The cases cited by the State in support of its argument that § 39-08-01(5) is a "Lewis -type" statute are also distinguishable. All those cases purport to involve enforcement of an "essentially civil disability" by criminal sanction and thus were deemed to be controlled by Lewis. See Schindler v. Clerk of Circuit Court, 715 F.2d 341 (7 Cir.1983), cert. den., ___ U.S. ___, 104 S.Ct. 1419, 79 L.Ed.2d 745 (1984); State v. O'Neill, 473 A.2d 415 (Me.1984); State v. Novak, 107 Wis.2d 31, 318 N.W.2d 364 (1982).

[6] We do not believe that the Explanatory Note to Rule 44, NDRCrimP, which states that counsel would be appointed only when required under the holding of the United States Supreme Court in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), indicates any intention that in North Dakota the right to counsel guaranteed by § 12 is to be limited by or to the holdings of the United States Supreme Court. There is no evidence in the minutes of the Rules Committee, or otherwise, to demonstrate such intent. See Minutes of Rules Committee, December 11-15, 1972, pp. 44-48. Furthermore, whereas we have adopted, insofar as practical, the Federal Rules of Criminal Procedure as our own, and granted great weight to the federal courts' interpretation of those rules, State v. Morris, 316 N.W.2d 80 (N.D.1982), there is no such analogous policy or practice with regard to the relationship between the sixth amendment and § 12. We have often recognized that our constitution may afford broader rights than those granted under the federal constitution. City of Bismarck v. Altevogt, 353 N.W.2d 760 (N.D.1984). See, e.g., State v. Nordquist, 309 N.W.2d 109 (N.D.1981); State v. Lewis, 291 N.W.2d 735 (N.D.1980); Johnson v. Hassett, 217 N.W.2d 771 (N.D.1974), as has the United States Supreme Court. California v. Ramos, 459 U.S. 1301, 103 S.Ct. 285, 74 L.Ed.2d 19 (1982) (states free to provide greater protection in their criminal justice system than federal constitution requires).

[7] That uncounseled convictions often do not accurately reflect guilt or innocence has been long recognized: "Left without the aid of counsel [an accused] may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible." Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). See also Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

[8] The record does not indicate whether or not Orr was indigent. Assuming he was not, he nevertheless had the right to retain counsel at his own expense or waive that right.

[9] We note Justice Stewart's observation in a footnote to Baldasar that the prohibition against using an uncounseled prior conviction for enhancement of punishment was anticipated by the State in its brief in Scott:

"When prosecuting an offense the prosecutor knows that by not requesting that counsel be appointed for defendant, he will be precluded from enhancing subsequent offenses. To the degree that the charging of offenses involves a great deal of prosecutorial discretion and selection, the decision to pursue conviction with only limited use comes within proper scope of that discretion." Baldasar v. Illinois, 446 U.S. 223, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980). [Emphasis in original.]

[10] Orr's objection to the State's motion to amend was sufficient to raise the enhancement issue even though he did not specifically state that he was not informed of, and did not waive, his right to counsel. We do not believe that a defendant should be precluded from challenging the use of a prior conviction for purposes of enhancement solely because he cannot affirmatively state that he did not waive his right to counsel. The difficulty in recalling exactly what was said in prior proceedings is one of the most compelling reasons for making a record of guilty pleas. A record "forestalls the spin-off of collateral proceedings that seek to probe murky memories." Boykin v. Alabama, 395 U.S. 238, 246, 89 S.Ct. 1709, 1713, 23 L.Ed.2d 274 (1969). A defendant's "murky memory" is not surprising given the passage of time and the ordinary citizen's unfamiliarity with court procedure. Therefore, a defendant need only challenge the use of a prior uncounseled conviction for enhancement purposes to properly raise this issue.

[11] The State has a similar burden when it seeks to introduce evidence obtained by a warrantless search and seizure. Because warrantless searches and seizures are presumptively unconstitutional, the State has the burden to overcome the presumption by proving an exception to the warrant requirement. Arkansas v. Sanders, 442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235 (1979); State v. Abrahamson, 328 N.W.2d 213 (N.D.1982); see, e.g., State v. Emens, 649 F.2d 653 (9 Cir.1983). This case is analogous because in both situations the State seeks to introduce evidence which is presumed to have been obtained unconstitutionally. In the fourth amendment context, the State seeks to use evidence acquired without a warrant and in this case the State endeavors, in order to justify enhancement, to introduce evidence of a conviction obtained when Orr was not represented by counsel. Therefore, in both situations it is presumed that the evidence was acquired by violating the defendant's constitutional rights and thus the State bears the burden to prove that the evidence was obtained constitutionally.

[1] The unreliability of the uncounseled plea and subsequent conviction may well be due more to the fact that the ultimate consequences of the first conviction for driving while under the influence were not nearly so great in 1982, when the current law involving subsequent offenses was not so severe as it is now, than to the lack of legal counsel. There may well be persons who, under the former statutes, entered pleas of guilty after being advised by counsel that it would be less expensive to plead guilty and pay a fine than it would be to go to trial. Those persons cannot, of course, take advantage of today's decision.

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Com. v. Musau, 69 A. 3d 754 - Pa: Superior Court 2013ReadHow citedSearch
Highlighting dui
Com. v. Musau, 69 A. 3d 754 - Pa: Superior Court 2013
69 A.3d 754 (2013)
2013 PA Super 159

COMMONWEALTH of Pennsylvania, Appellee
v.
John M. MUSAU, Appellant.

No. 1811 EDA 2011

Superior Court of Pennsylvania.Submitted January 8, 2013.
Filed June 28, 2013.

755*755 Karl Baker, Public Defender, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: LAZARUS, J., OTT, J., and STRASSBURGER, J.[*]

OPINION BY STRASSBURGER, J.:

John M. Musau (Appellant) appeals from his judgment of sentence of 90 days to 5 years of imprisonment following his conviction for driving under the influence (DUI), 75 Pa.C.S. § 3802(a)(1). We vacate Appellant's judgment of sentence and remand for resentencing consistent with this opinion.

At 3:45 a.m. on June 11, 2010, Officer Felicia Seabron of the Philadelphia Police found Appellant in the driver's seat of a vehicle stopped in front of a fire hydrant. The engine was running, the car was in gear, and Appellant's foot was on the brake. When Officer Seabron knocked on the window, Appellant put the car in park and took the keys out of the ignition. Appellant, who smelled of alcohol, had bloodshot eyes, and could barely stand, also could produce no driver's license, registration, or proof of insurance. Appellant was taken to police headquarters where he refused to submit to chemical testing.

Upon these facts, the trial court convicted Appellant of DUI. Because Appellant refused testing and had a prior DUI conviction, the trial court graded Appellant's offense as a first-degree misdemeanor pursuant 756*756 to 75 Pa.C.S. § 3803(b)(4). Accordingly, the trial court sentenced Appellant to incarceration for a minimum of 90 days to a maximum of 5 years, to be served on 45 consecutive weekends with immediate parole after serving the first weekend. This timely appeal followed. Both Appellant and the trial court complied with Pa. R.A.P. 1925.

In his concise statement filed pursuant to Rule 1925(b), Appellant challenged only the sufficiency of the evidence to sustain his conviction, and the trial court's opinion addresses that issue alone. However, in his brief on appeal, Appellant abandons that argument and instead asks this Court to consider the legality of his sentence. "As long as the Court has jurisdiction over the matter, a legality of sentencing issue is reviewable and cannot be waived." Commonwealth v. Stein, 39 A.3d 365, 367 (Pa.Super.2012). Therefore, we will address the issue which Appellant presents in the first instance to this Court: "[i]s not six months [of] incarceration the maximum permissible sentence, pursuant to 75 Pa.C.S. § 3803(a), for a second conviction for [DUI] under § 3802(a), notwithstanding the offense's grading as a first-degree misdemeanor?" Appellant's Brief at 3.

Before we examine the language of the statute at issue, we consider the applicable rules of statutory construction. "The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly." 1 Pa.C.S. § 1921(a).

In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions, among others, may be used:

(1) That the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.

(2) That the General Assembly intends the entire statute to be effective and certain.

1 Pa.C.S. § 1922.

Further, if two statutes appear to conflict, they are to be construed by giving effect to both when possible. See Commonwealth v. Hansley, ___ Pa. ___, 47 A.3d 1180, 1186 (2012). "When the conflict between the provisions cannot be reconciled, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail." Id. (internal quotation omitted).

Finally, penal statutes must be strictly construed. Commonwealth v. Dixon, 53 A.3d 839, 846 (Pa.Super.2012). However, "the rule of lenity itself has limits." Commonwealth v. Wilgus, 615 Pa. 32, 40 A.3d 1201, 1210 (2012).

The need for strict construction does not require that the words of a penal statute be given their narrowest possible meaning or that legislative intent be disregarded, nor does it override the more general principle that the words of a statute must be construed according to their common and approved usage. It does mean, however, that where ambiguity exists in the language of a penal statute, such language should be interpreted in the light most favorable to the accused. More specifically, where doubt exists concerning the proper scope of a penal statute, it is the accused who should receive the benefit of such doubt. Significantly, a court may not achieve an acceptable construction of a penal statute by reading into the statute terms that broaden its scope.

Id. (quoting Commonwealth v. Booth, 564 Pa. 228, 766 A.2d 843, 846 (2001)).

757*757 We now turn to section 3803 of the vehicle code, which provides in relevant part as follows.

(a) Basic offenses. — Notwithstanding the provisions of subsection (b):

(1) An individual who violates section 3802(a) (relating to driving under influence of alcohol or controlled substance) and has no more than one prior offense commits a misdemeanor for which the individual may be sentenced to a term of imprisonment of not more than six months and to pay a fine under section 3804 (relating to penalties).

* * *

(b) Other offenses. —

* * *

(4) An individual who violates section 3802(a)(1) where the individual refused testing of blood or breath, or who violates section 3802(c) or (d) and who has one or more prior offenses commits a misdemeanor of the first degree.

75 Pa.C.S. § 3803. The statutory maximum sentence for misdemeanors of the first degree is five years' imprisonment. 18 Pa.C.S. § 106(b)(6), (e).

Appellant does not dispute that his conviction properly was graded as a first degree misdemeanor, which he acknowledges is required by "the plain language of subsection (b)(4)." Appellant's Brief at 8. However, Appellant also claims that "[i]t is equally clear from the statute that subsection (a) dictates that the maximum sentence [A]ppellant could receive for this particular offense is six months [of] incarceration." Id. Because the word "notwithstanding" is defined as "`nevertheless' or `in spite of,'" Appellant argues that "the statute clearly indicates that while subsection (b) dictates the grading of a second offense where there is a BAC refusal, subsection (a) dictates the maximum punishment for that offense." Id. at 9.

The Commonwealth claims that Appellant's construction would cause "an entire statutory subsection to be a legal nullity." Commonwealth's Brief at 6. The Commonwealth contends that Appellant's interpretation of subsection (a) "renders subsection (b) of the statute mere (and non-effectual) surplusage and precludes the imposition of the more stringent sentencing provision set forth" in subsection (b)(4). Id, at 5-6. It is the Commonwealth's position that "the term `notwithstanding' gives section 3803(b)(4) legal effect independent of section 3803(a), and that its effect is to enable courts to punish repeat DUI offenders with a more stringent sentence if they refuse to submit to alcohol testing." Id, at 6.

We are constrained to agree with Appellant. The American Heritage Dictionary defines the word notwithstanding as "in spite of" or "although." American Heritage Dictionary of the English Language 1203-04 (4th ed. 2006). Our Supreme Court has defined "notwithstanding" as "regardless of." See City of Philadelphia v. Clement & Muller, 552 Pa. 317, 715 A.2d 397, 399 (1998) (holding that the plain meaning of the phrase "notwithstanding a contrary provision of law of the Commonwealth ..." is "regardless of what any other law provides..."). Given these definitions, the Commonwealth's interpretation might be persuasive if the legislature had instead prefaced subsection (a) with "except as provided in subsection (b),"[1] or began 758*758 subsection (b) with "notwithstanding the provisions of subsection (a)." But it did not. Therefore, we hold that the plain language of the statute, giving the words their ordinary meanings, indicates as follows: regardless of the fact that refusal to submit to blood alcohol testing results in the grading of the offense as a first degree misdemeanor, the maximum sentence for a first or second DUI conviction is six months' imprisonment.

In claiming that giving the language of the statute its plain meaning results in the nullification of subsection (b), the Commonwealth conflates grading and sentencing. As this Court has noted, "[i]t is entirely possible for the legislature to have different motives when grading an offense and fixing its punishment." Commonwealth v. Ruffin, 16 A.3d 537, 543 (Pa.Super.2011) (holding that a clear indication that the legislature intended to elevate the grading of fleeing or attempting to elude police did not necessarily evidence an intent to punish the crime more severely). See also Commonwealth v. Davis, 421 Pa.Super. 454, 618 A.2d 426, 430 (1992) (en banc) ("[T]he express classification of possession of marijuana as a misdemeanor in the Controlled Substance Act is clear evidence of the General Assembly's intent to grade the offense as a misdemeanor rather than a summary offense, notwithstanding that the sentence for the offense is consistent with a summary offense."). As Appellant acknowledges, his offense is graded as a first-degree misdemeanor as a consequence of his refusal of BAC testing; rather than as an ungraded misdemeanor as it would otherwise have been. Contrary to the Commonwealth's claim, subsection (b)(4) is not rendered a nullity by giving "notwithstanding" its plain meaning.

Further, our interpretation is consistent with the rule that the specific trumps the general. See Hansley, supra. The statute relied upon by the Commonwealth to establish a five-year maximum sentence for Appellant's first-degree misdemeanor conviction, 18 Pa.C.S. § 106, is a general provision of the crimes code that classifies offenses. The statute's provision of a five-year maximum for misdemeanors of the first degree has not been amended since its enactment in 1972. Section 3803 of the vehicle code, amended to its present form in 2004, specifically provides a six-month maximum sentence for a first or second DUI conviction.

Accordingly, we hold that that the maximum sentence allowable for Appellant's conviction is six months' imprisonment.[2] This holding renders Appellant's sentence of 90 days to five years of imprisonment illegal. Therefore, we must vacate Appellant's judgment of sentence and remand the case for resentencing.

Judgment of sentence vacated. Case remanded for resentencing consistent with this opinion. Jurisdiction relinquished.

[*] Retired Senior Judge assigned to the Superior Court.

[1] In fact, within the same act which amended section 3803 to add the "notwithstanding" language at issue, the legislature amended section 3804(a), which provides the penalties for DUI — general impairment convictions, to read "[e]xcept as stated in subsection (b) [which provides penalties for aggravated DUI offenses such as high rate of blood alcohol] or (c) [which provides penalties for highest rate of blood alcohol and controlled substances]...." 75 Pa.C.S. § 3804(a). Clearly the legislature was aware of the difference between "notwithstanding" and "except."

[2] If the legislature did not in fact intend to create a lesser maximum sentence for the first-degree misdemeanor of a first or second DUI with refusal than is permissible generally for misdemeanors of the first degree, such an "oversight is best left to the Legislature to correct." Commonwealth v. Gordon, 992 A.2d 204, 207 n. 8 (Pa.Super.2010).

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State v. Harbaugh, 754 So. 2d 691 - Fla: Supreme Court 2000ReadHow citedSearch
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State v. Harbaugh, 754 So. 2d 691 - Fla: Supreme Court 2000
754 So.2d 691 (2000)

STATE of Florida, Petitioner,
v.
Robert HARBAUGH, Respondent.

No. SC93037.

Supreme Court of Florida.

March 9, 2000.

692*692 Robert A. Butterworth, Attorney General, Celia Terenzio, Senior Assistant Attorney General, and Ettie Feistmann, Assistant Attorney General, West Palm Beach, Florida, for Petitioner.

Alan T. Lipson of Essen, Essen, Susaneck, Canet & Lipson, P.A., Aventura, Florida, for Respondent.

PER CURIAM.

We have for review a district court's decision on the following question, certified to be of great public importance.

WHERE A DEFENDANT REQUESTS THAT THE JURY DETERMINE THE EXISTENCE OF PRIOR DUI CONVICTIONS IN A FELONY DUI TRIAL, SHOULD THE BIFURCATED PROCEDURE OF STATE V. RODRIGUEZ, 575 SO.2d 1262 (FLA. 1991), BE AMENDED IN LIGHT OF UNITED STATES V. GAUDIN, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995)?

Harbaugh v. State, 711 So.2d 77, 83 (Fla. 4th DCA 1998). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer the question in the affirmative.

In State v. Rodriguez, 575 So.2d 1262 (Fla.1991), this Court established the procedure whereby a defendant charged with felony DUI, requiring three previous convictions 693*693 of misdemeanor DUI in addition to the presently charged DUI,[1] must be tried in a bifurcated process.

We conclude that if a defendant charged with felony DUI elects to be tried by jury, the court shall conduct a jury trial on the elements of the single [present] incident of DUI at issue without allowing the jury to learn of the alleged prior [misdemeanor] DUI offenses. If the jury returns a guilty verdict as to that single incident of DUI, the trial court shall conduct a separate proceeding without a jury to determine, in accord with general principles of law, whether the defendant had been convicted of DUI on three or more prior occasions. All evidence of the prior DUI convictions must be presented in open court and with full rights of confrontation, cross-examination, and representation by counsel. The trial court must be satisfied that the existence of three or more prior DUI convictions has been proved beyond a reasonable doubt before entering a conviction for felony DUI.

Id. at 1266 (footnote omitted).

The import of the Rodriguez decision was that, absent the bifurcated process, the jury is directly confronted with evidence of defendant's prior criminal activity and the presumption of innocence is destroyed and that "[i]f the presumption of evidence is destroyed by proof of an unrelated offense, it is more easily destroyed by proof of a similar related offense." Id. at 1265 (quoting State v. Harris, 356 So.2d 315, 317 (Fla.1978)). We found support for the bifurcated process in Shargaa v. State, 102 So.2d 814 (Fla.1958), wherein we explained:

[Based on] our traditional concepts of due process in the administration of the criminal laws, the State should not be permitted merely to charge an accused with the commission of a crime and buttress its current charge with a simultaneous allegation that the accused had previously been convicted of a totally unrelated crime committed years before. It appears to us that the product of such a procedure would substantially destroy the historical presumption of innocence which clothes every defendant in a criminal case and in the mind of the average juror would in a measure place upon the accused the burden of showing himself innocent rather than upon the State the responsibility of proving him guilty.

Id. at 816. Thus, we held in Rodriguez that in the circumstance where a felony DUI charge contains an element of prior misdemeanor DUI offenses, in order to protect the defendant's presumption of innocence, due process allows a trial judge to make the determination of the existence vel non of the alleged prior misdemeanor offenses after the jury returns a guilty verdict in the present DUI charge. Rodriguez, 575 So.2d at 1266.

In so holding, we made an unarticulated constitutional tradeoff. We preserved the defendant's presumption of innocence but at the cost of the defendant's constitutional right to have the jury and not the trial judge make the ultimate finding of guilt. See In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). In United States v. Gaudin, 515 U.S. 506, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995), the United States Supreme Court reviewed this latter issue.

In Gaudin, the Court was presented with the question of whether it is constitutional for the trial judge to refuse to submit the question of "materiality" to the jury where a defendant is criminally charged with making material false statements to a federal agency under 18 U.S.C. § 1001. Gaudin, 515 U.S. at 507, 115 S.Ct. 2310. In analyzing the issue, the Court reaffirmed its previous holding that the Due Process Clause[2] and the Sixth 694*694 Amendment[3] to the United States Constitution require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which the defendant is charged. Id. at 509-10, 115 S.Ct. 2310.[4]

Examining the Rodriguez bifurcated trial process in felony DUI prosecutions in light of Gaudin, we hold that in this bifurcated process the jury, not the judge, must determine the verdict from the evidence presented in the second phase. In State v. Woodruff, 676 So.2d 975, 977-78 (Fla. 1996), we held that in order to establish the crime of felony DUI there be: (1) a conviction of the current misdemeanor DUI; and (2) proof of an additional element of the existence of three or more prior misdemeanor DUI convictions. § 316.192(2)(b), Fla. Stat. Given, therefore, that every element of felony DUI must be proven to the satisfaction of the jury beyond a reasonable doubt, the jury, unless waived by the defendant, must decide the issue regarding the three prior convictions. See Gaudin, 515 U.S. at 523-24, 115 S.Ct. 2310 (Rehnquist, C.J., concurring). It follows then that felony DUI trials must be conducted before the jury in two stages because the concern remains about tainting the consideration of the current misdemeanor DUI with evidence concerning the past DUI.[5]

We caution that the State may only submit a certified copy of each judgment in order to evidence a defendant's prior DUI convictions and shall not develop the facts underlying any such offense unless the defendant contests the validity thereof at trial. See State v. Vazquez, 419 So.2d 1088 at 1091 (Fla.1982); Parker, 408 So.2d 1037 at 1038. Furthermore, based on our recent decision in Brown v. State, 719 So.2d 882 (Fla.1998), the State and the trial court should accept a defendant's stipulation to three prior misdemeanor DUI convictions. As in Brown, where a defendant stipulates to the three prior DUI convictions, the State's burden of proof for that element is satisfied. Id. We likewise make clear that the defendant may not collaterally attack the prior convictions in the second phase of these trials.

Finally, we hold in accord with Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999), that a Gaudin error is subject to harmless error review. As stated in Neder:

In a case such as this one, where a defendant did not, and apparently could not, bring forth facts contesting the omitted element, answering the question whether the jury verdict would have been the same absent the error does not fundamentally undermine the purposes of the jury trial guarantee.

. . . .

....[A] court, in typical appellate-court fashion, asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. If the answer to that question is "no," holding the error harmless does not "reflec[t] a denigration of the constitutional rights involved." [Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)].

We therefore answer the certified question in the affirmative and remand this 695*695 case to the district court for further proceedings in accord with this opinion.

We decline to address the State's argument that the district court erred in ordering a new trial on another ground. Therefore, we find no basis for disturbing the district court's decision, and it is approved.

It is so ordered.

HARDING, C.J., and WELLS, ANSTEAD and PARIENTE, JJ., concur. SHAW, J., dissents with an opinion.

SHAW, J., dissenting.

I respectfully dissent from the majority opinion because I am convinced that defendants charged with felony DUI are not entitled to a bifurcated trial. The parties agree that three prior misdemeanor DUI convictions are an element of felony DUI. See § 316.193(2)(b), Fla. Stat. (1995); State v. Rodriguez, 575 So.2d 1262, 1265 (Fla.1991)("[P]rior DUI convictions [are] an essential element of felony DUI...."). This being the case, we are then faced with the issue of whether an element of a crime may be presented after the jury retires to consider its verdict. Florida Rule of Criminal Procedure 3.430 answers the question negatively by disallowing the recall of a jury in order to give it additional evidence on the charged offense after it retires to consider the verdict. See id. ("After the jurors have retired to consider their verdict the court shall not recall the jurors to hear additional evidence."); Scott v. State, 664 So.2d 3, 4 (Fla. 3d DCA 1995)("The presentation of new evidence after the court submits the cause to the jury is improper."). In felony DUI prosecutions, therefore, the State must present its evidence of the charged offense-including that of prior DUIs-in a unitary trial.

The majority of states that have considered the question of bifurcation regarding felony drunk driving offenses that include prior like offenses as an element have held that such defendants are not entitled to a bifurcated trial.[6] Use of a unitary trial would be consistent with other offenses where the State proves-in a single continuous proceeding-the existence of a prior conviction as a necessary element of the charged offense.[7] See Parker v. State, 408 696*696 So.2d 1037, 1038 (Fla.1982)(recognizing the State's burden of proving, within a standard unitary trial, the element of being a convicted felon in a prosecution for possession of a firearm by a convicted felon), overruled on other grounds, Brown v. State, 719 So.2d 882 (Fla.1999).[8] Moreover, similar fact evidence is admissible before the jury in a unitary proceeding if relevant to prove the charged offense notwithstanding that it may be (and generally is) highly prejudicial. See Williams v. State, 110 So.2d 654, 658 (Fla.1959)(affirming the admission of evidence concerning an alleged prior unrelated attempted rape based on its relevance to the charged rape).

I also disagree with the majority's conclusion that the failure in this instance to present evidence of prior DUIs to the jury is harmless error under Neder v. United States, 527 U.S. 1, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). The facts in Neder make it easily distinguishable from the instant case. Neder was convicted of filing false federal income tax returns and of federal mail fraud, wire fraud, and bank fraud. The district court erroneously instructed the jury that to convict on the tax offenses it need not consider the materiality of any false statements even though that language was used in the indictment. In other words, the jury was instructed that materiality "is not a question for the jury to decide." In reviewing the error, the Supreme Court held that an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair and is subject to harmless error analysis. See id., 119 S.Ct. at 1837. The Court went on to find that the error in Neder was harmless because the prosecutor presented the jury with substantial evidence of the omitted element of materiality such that "no jury could reasonably find that Neder's failure to report substantial amounts of income on his tax return was not `a material matter.'" Id. This is in stark contrast to the instant case where no evidence of the missing element (three prior DUIs) was presented to the jury. Thus, it is impossible for an appellate court to say, as it did in Neder, that the omitted element was uncontested and supported by overwhelming evidence such that the jury verdict would have been the same absent the error. See id. The failure to present any evidence of prior DUIs to the jury, therefore, cannot be considered harmless error in this instance.

[1] See § 316.193(2)(b), Fla. Stat. (1995).

[2] No person shall be "deprived of life, liberty, or property, without due process of law...." U.S. Const. amend. V.

[3] "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury...." U.S. Const. amend. VI.

[4] The Court then applied the well-settled law to the circumstance of a materiality finding necessary in the criminal false statement charge and held that the materiality of the alleged statement was an element of the offense; therefore, the jury had to determine whether the alleged statement was material in order to find the accused guilty. See Gaudin, 515 U.S. at 522-23, 115 S.Ct. 2310.

[5] We recognize that Florida Rule of Criminal Procedure 3.430 provides that "after the jurors have retired to consider their verdict the court shall not recall the jurors to hear additional evidence." This rule does not apply to this bifurcated process, which contemplates two separate verdicts by the same jury.

[6] See State v. Geschwind, 136 Ariz. 360, 666 P.2d 460, 462-63 (1983)(holding that because prior conviction for DWI is an element of charged felonious second DWI offense, the defendant was not entitled to a bifurcated trial on each charge, evidence of the first offense was necessarily admissible pursuant to the state's burden of proving all the elements of the crime charged, and, for the same reasons, the evidence was not unfairly prejudicial); State v. Lugar, 734 So.2d 14, 16 (La. Ct.App.1999); Weaver v. State, 713 So.2d 860, 865 (Miss.1997)("[The prior convictions] were necessary elements of the Felony DUI for which [defendant] was charged in the case sub judice. Therefore, each had to be proved to the jury in order to obtain a conviction for Felony DUI."); People v. Keller, 214 A.D.2d 825, 625 N.Y.S.2d 325, 326 (1995)(holding that evidence of defendant's prior misdemeanor DWI conviction was properly submitted to a grand jury as evidence of the defendant's guilt of charged felony DWI); Farmer v. Commonwealth, 10 Va.App. 175, 390 S.E.2d 775, 776 (1990)(holding that "evidence of prior DUI convictions is necessary to prove the substantive offense of driving under the influence as a third or subsequent offense, and therefore, is admissible during the guilt stage of a bifurcated trial"-where second half of bifurcated trial pertained to sentencing); and State v. Fox, No. 25171, ___ So.2d ___, ___, 1998 WL 831604, at *2 (W.Va. Nov.23, 1998). But see Peters v. State, 286 Ark. 421, 692 S.W.2d 243, 245 (1985)(holding that a trial for felony DWI should be bifurcated so that the "jury must first hear evidence of guilt... [and if] the defendant is found guilty of the instance of DWI alleged, the jury will then hear evidence of previous convictions" even though the convictions constituted an "element" of the instant offense); Ross v. State, 950 P.2d 587, 591 (Alaska Ct.App.1997)(stating in dicta that bifurcation is "recommend[ed]" in such cases even though a unitary trial is "permissible" and "fair").

[7] Federal circuit courts of appeal that have considered the issue of bifurcated trials for defendants charged with possession of a firearm by a convicted felon have consistently rejected bifurcation. See United States v. Underwood, Nos. 95-5441, 95-5442, 1996 WL 536796, at *6, 97 F.3d 1453 (6th Cir. Sept.20, 1996) (Table); United States v. Nguyen, 88 F.3d 812, 818 (9th Cir.1996); United States v. Dean, 76 F.3d 329, 332 (10th Cir.1996); United States v. Jacobs, 44 F.3d 1219, 1222-23 (3d Cir.1995); United States v. Birdsong, 982 F.2d 481, 482 (11th Cir.1993); United States v. Collamore, 868 F.2d 24, 28 (1st Cir.1989). The following reasons are frequently provided:

Any other holding would have three impermissible results. First, if the jury did not return a guilty verdict on the possession portion of the crime, the government would be precluded from proving an essential element of the charged offense. Second, a bifurcated proceeding would withhold from the jury all knowledge of the prior felony element of the crime. Third, the bifurcation order would require omitting an element of the charged offense from the jury instructions. A district court may not eliminate an element of the crime charged.

Underwood, 1996 WL 536796, at * 6, 97 F.3d 1453 (quoting United States v. Barker, 1 F.3d 957, 959 (9th Cir.1993)). These reasons are also applicable to bifurcation of felony DUI trials under Florida law.

[8] Employment of a stipulation pursuant to Brown may better address the concern about unfair prejudice while maintaining the integrity of trial procedures. In Brown, this Court held that the State's burden of proof as to the element of being a convicted felon (in a prosecution for possession of a firearm by a convicted felon) could be satisfied by a defendant's stipulation that must be accepted by the trial court. See Brown, 719 So.2d at 889. The court would then instruct the jury-within the same unitary trial-that the element is proven by agreement of the parties. See id. Thus, Brown shows how a stipulation in the instant case may be more sensible and consistent with Florida precedent than a bifurcated trial resulting in a double verdict.

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Nichols v. United States, 511 US 738 - Supreme Court 1994ReadHow citedSearch
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Nichols v. United States, 511 US 738 - Supreme Court 1994
511 U.S. 738 (1994)

NICHOLS
v.
UNITED STATES

No. 92-8556.

United States Supreme Court.Argued January 10, 1994.
Decided June 6, 1994.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

739*739 Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined. Souter, J., filed an opinion concurring in the judgment, post, p. 749. Blackmun, J., filed a dissenting opinion, in which Stevens and Ginsburg, JJ., joined, post, p. 754. Ginsburg, J., filed a dissenting opinion, post, p. 765.

William B. Mitchell Carter, by appointment of the Court, 510 U. S. 942, argued the cause for petitioner. With him on the briefs was Mary Julia Foreman.

Deputy Solicitor General Bryson argued the cause for the United States. With him on the brief were Solicitor General Days, Assistant Attorney General Harris, Michael R. Dreeben, and Thomas E. Booth.[*]

740*740 Chief Justice Rehnquist delivered the opinion of the Court.

In this case, we return to the issue that splintered the Court in Baldasar v. Illinois, 446 U. S. 222 (1980): Whether the Constitution prohibits a sentencing court from considering a defendant's previous uncounseled misdemeanor conviction in sentencing him for a subsequent offense.

In 1990, petitioner Nichols pleaded guilty to conspiracy to possess cocaine with intent to distribute, in violation of 21 U. S. C. § 846. Pursuant to the United States Sentencing Commission's Guidelines (Sentencing Guidelines), petitioner was assessed three criminal history points for a 1983 federal felony drug conviction. An additional criminal history point was assessed for petitioner's 1983 state misdemeanor conviction for driving under the influence (DUI), for which petitioner was fined $250 but was not incarcerated.[1] This additional criminal history point increased petitioner's Criminal History Category from Category II to Category III.[2] As a result, petitioner's sentencing range under the Sentencing Guidelines increased from 168-210 months (under Criminal History Category II) to 188-235 months (under Category III).[3]

741*741 Petitioner objected to the inclusion of his DUI misdemeanor conviction in his criminal history score because he was not represented by counsel at that proceeding. He maintained that consideration of that uncounseled misdemeanor conviction in establishing his sentence would violate the Sixth Amendment as construed in Baldasar, supra. The United States District Court for the Eastern District of Tennessee found that petitioner's misdemeanor conviction was uncounseled and that, based on the record before it, petitioner had not waived his right to counsel.[4] 763 F. Supp. 277 (1991). But the District Court rejected petitioner's Baldasar argument, explaining that in the absence of a majority opinion, Baldasar "stands only for the proposition that a prior uncounseled misdemeanor conviction may not be used to create a felony with a prison term." 763 F. Supp., at 279. Because petitioner's offense was already defined as a felony, the District Court ruled that Baldasar was inapplicable to the facts of this case; thus, petitioner's constitutional rights were not violated by using his 1983 DUI conviction to enhance his sentence.[5] It sentenced petitioner to the maximum term allowed by the Sentencing Guidelines under its interpretation of Baldasar, a term 25 months longer than if the misdemeanor conviction had not been considered in calculating petitioner's criminal history score.

742*742 A divided panel of the Court of Appeals for the Sixth Circuit affirmed. 979 F. 2d 402 (1992). After reviewing the fractured decision in Baldasar and the opinions from other Courts of Appeals that had considered the issue, the court held that Baldasar limits the collateral use at sentencing of a prior uncounseled misdemeanor conviction only when the effect of such consideration is to convert a misdemeanor into a felony.[6] The dissent, while recognizing that "numerous courts have questioned whether [Baldasar] expresses any single holding, and, accordingly, have largely limited Baldasar to its facts," nevertheless concluded that Baldasar proscribed the use of petitioner's prior uncounseled DUI conviction to enhance his sentence under the Sentencing Guidelines. 979 F. 2d, at 407-408 (citations omitted).

We granted certiorari, 509 U. S. 953 (1993), to address this important question of Sixth Amendment law, and to thereby resolve a conflict among state courts[7] as well as Federal Courts of Appeals.[8] We now affirm.

743*743 In Scott v. Illinois, 440 U. S. 367 (1979), we held that where no sentence of imprisonment was imposed, a defendant charged with a misdemeanor had no constitutional right to counsel.[9] Our decision in Scott was dictated by Argersinger v. Hamlin, 407 U. S. 25 (1972), but we stated that "[e]ven were the matter res nova, we believe that the central premise of Argersinger —that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment—is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel." Scott, supra, at 373.

One year later, in Baldasar v. Illinois, 446 U. S. 222 (1980), a majority of the Court held that a prior uncounseled misdemeanor conviction, constitutional under Scott, could nevertheless not be collaterally used to convert a second misdemeanor conviction into a felony under the applicable Illinois sentencing enhancement statute. The per curiam opinion in Baldasar provided no rationale for the result; instead, it referred to the "reasons stated in the concurring opinions." 744*744 446 U. S., at 224. There were three different opinions supporting the result. Justice Stewart, who was joined by Justices Brennan and Stevens, stated simply that the defendant "was sentenced to an increased term of imprisonment only because he had been convicted in a previous prosecution in which he had not had the assistance of appointed counsel in his defense," and that "this prison sentence violated the constitutional rule of Scott . . .." Ibid. Justice Marshall, who was also joined by Justices Brennan and Stevens, rested his opinion on the proposition that an uncounseled misdemeanor conviction is "not sufficiently reliable" to support imprisonment under Argersinger, and that it "does not become more reliable merely because the accused has been validly convicted of a subsequent offense." 446 U. S., at 227-228. Justice Blackmun, who provided the fifth vote, advanced the same rationale expressed in his dissent in Scott —that the Constitution requires appointment of counsel for an indigent defendant whenever he is charged with a "nonpetty" offense (an offense punishable by more than six months' imprisonment) or when the defendant is actually sentenced to imprisonment. 446 U. S., at 229-230. Under this rationale, Baldasar's prior misdemeanor conviction was invalid and could not be used for enhancement purposes because the initial misdemeanor was punishable by a prison term of more than six months.

Justice Powell authored the dissent, in which the remaining three Members of the Court joined. The dissent criticized the majority's holding as one that "undermines the rationale of Scott and Argersinger and leaves no coherent rationale in its place." Id., at 231. The dissent opined that the majority's result misapprehended the nature of enhancement statutes that "do not alter or enlarge a prior sentence," ignored the significance of the constitutional validity of the first conviction under Scott, and created a "hybrid" conviction, good for the punishment actually imposed but not available for sentence enhancement in a later prosecution. 745*745 446 U. S., at 232-233. Finally—and quite presciently—the dissent predicted that the Court's decision would create confusion in the lower courts. Id., at 234.

In Marks v. United States, 430 U. S. 188 (1977), we stated that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, `the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . .' " Id., at 193, quoting Gregg v. Georgia, 428 U. S. 153, 169, n. 15 (1976). This test is more easily stated than applied to the various opinions supporting the result in Baldasar. A number of Courts of Appeals have decided that there is no lowest common denominator or "narrowest grounds" that represents the Court's holding. See, e. g., United States v. Castro-Vega, 945 F. 2d 496, 499-500 (CA2 1991); United States v. Eckford, 910 F. 2d 216, 219, n. 8 (CA5 1990); Schindler v. Clerk of Circuit Court, 715 F. 2d 341, 345 (CA7 1983), cert. denied, 465 U. S. 1068 (1984). Another Court of Appeals has concluded that the holding in Baldasar is Justice Blackmun's rationale, Santillanes v. United States Parole Comm'n, 754 F. 2d 887, 889 (CA10 1985); yet another has concluded that the "consensus" of the Baldasar concurrences is roughly that expressed by Justice Marshall's concurring opinion. United States v. Williams, 891 F. 2d 212, 214 (CA9 1989). State courts have similarly divided.[10] The Sentencing Guidelines have also reflected uncertainty over Baldasar.[11] We think it not useful 746*746 to pursue the Marks inquiry to the utmost logical possibility when it has so obviously baffled and divided the lower courts that have considered it. This degree of confusion following a splintered decision such as Baldasar is itself a reason for reexamining that decision. Payne v. Tennessee, 501 U. S. 808, 829-830 (1991); Miller v. California, 413 U. S. 15, 24-25 (1973).

Five Members of the Court in Baldasar —the four dissenters and Justice Stewart—expressed continued adherence to Scott v. Illinois, 440 U. S. 367 (1979). There the defendant was convicted of shoplifting under a criminal statute which provided that the penalty for the offense should be a fine of not more than $500, a term of not more than one year in jail, or both. The defendant was in fact fined $50, but he contended that since imprisonment for the offense was authorized by statute, the Sixth and Fourteenth Amendments to the United States Constitution required Illinois to provide trial counsel. We rejected that contention, holding that so long as no imprisonment was actually imposed, the Sixth Amendment right to counsel did not obtain. Id., at 373-374. We reasoned that the Court, in a number of decisions, had already expanded the language of the Sixth Amendment well beyond its obvious meaning, and that the line should be drawn between criminal proceedings that resulted in imprisonment, and those that did not. Id., at 372.

We adhere to that holding today, but agree with the dissent in Baldasar that a logical consequence of the holding is that an uncounseled conviction valid under Scott may be relied 747*747 upon to enhance the sentence for a subsequent offense, even though that sentence entails imprisonment. Enhancement statutes, whether in the nature of criminal history provisions such as those contained in the Sentencing Guidelines, or recidivist statutes that are commonplace in state criminal laws, do not change the penalty imposed for the earlier conviction. As pointed out in the dissenting opinion in Baldasar, "[t]his Court consistently has sustained repeat-offender laws as penalizing only the last offense committed by the defendant. E. g., Moore v. Missouri, 159 U. S. 673, 677 (1895); Oyler v. Boles, 368 U. S. 448, 451 (1962)." 446 U. S., at 232.

Reliance on such a conviction is also consistent with the traditional understanding of the sentencing process, which we have often recognized as less exacting than the process of establishing guilt. As a general proposition, a sentencing judge "may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come." United States v. Tucker, 404 U. S. 443, 446 (1972). "Traditionally, sentencing judges have considered a wide variety of factors in addition to evidence bearing on guilt in determining what sentence to impose on a convicted defendant." Wisconsin v. Mitchell, 508 U. S. 476, 485 (1993). One such important factor, as recognized by state recidivism statutes and the criminal history component of the Sentencing Guidelines, is a defendant's prior convictions. Sentencing courts have not only taken into consideration a defendant's prior convictions, but have also considered a defendant's past criminal behavior, even if no conviction resulted from that behavior. We have upheld the constitutionality of considering such previous conduct in Williams v. New York, 337 U. S. 241 (1949). We have also upheld the consideration of such conduct, in connection with the offense presently charged, in McMillan v. Pennsylvania, 477 U. S. 79 (1986). There we held that 748*748 the state could consider, as a sentence enhancement factor, visible possession of a firearm during the felonies of which defendant was found guilty.

Thus, consistently with due process, petitioner in the present case could have been sentenced more severely based simply on evidence of the underlying conduct that gave rise to the previous DUI offense. And the state need prove such conduct only by a preponderance of the evidence. Id., at 91. Surely, then, it must be constitutionally permissible to consider a prior uncounseled misdemeanor conviction based on the same conduct where that conduct must be proved beyond a reasonable doubt.

Petitioner contends that, at a minimum, due process requires a misdemeanor defendant to be warned that his conviction might be used for enhancement purposes should the defendant later be convicted of another crime. No such requirement was suggested in Scott, and we believe with good reason. In the first place, a large number of misdemeanor convictions take place in police or justice courts which are not courts of record. Without a drastic change in the procedures of these courts, there would be no way to memorialize any such warning. Nor is it at all clear exactly how expansive the warning would have to be; would a Georgia court have to warn the defendant about permutations and commutations of recidivist statutes in 49 other States, as well as the criminal history provision of the Sentencing Guidelines applicable in federal courts? And a warning at the completely general level—that if he is brought back into court on another criminal charge, a defendant such as Nichols will be treated more harshly—would merely tell him what he must surely already know.

Today we adhere to Scott v. Illinois, supra, and overrule Baldasar.[12] Accordingly we hold, consistent with the Sixth 749*749 and Fourteenth Amendments of the Constitution, that an uncounseled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction.

The judgment of the Court of Appeals is therefore Affirmed.

Justice Souter, concurring in the judgment.

I write separately because I do not share the Court's view that Baldasar v. Illinois, 446 U. S. 222 (1980), has a holding that can be "overrule[d]," ante, at 748, and because I wish to be clear about the narrow ground on which I think this case is properly decided. Baldasar is an unusual case, not because no single opinion enlisted a majority, but because no common ground united any five Justices. As I read the various opinions, eight Members of the Baldasar Court divided, four to four, over whether an uncounseled misdemeanor conviction that is valid because no prison sentence was imposed, see Scott v. Illinois, 440 U. S. 367 (1979), may be used for automatic enhancement of the prison sentence attached to a subsequent conviction. See Baldasar, 446 U. S., at 224 (Stewart, J., joined by Brennan and Stevens, JJ., concurring); id., at 224-229 (Marshall, J., joined by Brennan and Stevens, JJ., concurring); id., at 230-235 (Powell, J., joined by Burger, C. J., and White and Rehnquist, JJ., dissenting). 750*750 Instead of breaking the tie, the ninth Justice, Justice Blackmun, declined to accept the premise on which the others proceeded (that the prior uncounseled conviction was valid under Scott ), adhering to his earlier position that an uncounseled conviction of the sort involved in Baldasar was not valid for any purpose. See 446 U. S., at 229-230 (Blackmun, J., concurring) (discussing Scott, supra, at 389-390 (Blackmun, J., dissenting)). Significantly for present purposes, Justice Blackmun gave no indication of his view on whether an uncounseled conviction, if valid under Scott, could subsequently be used for automatic sentence enhancement. On the question addressed by the other eight Justices, then, the Baldasar Court was in equipoise, leaving a decision in the same posture as an affirmance by an equally divided Court, entitled to no precedential value, see United States v. Pink, 315 U. S. 203, 216 (1942). Cf. Waters v. Churchill, ante, p. 661; ante, at 685 (Souter, J., concurring); Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney General of Mass., 383 U. S. 413 (1966) (discussed in Marks v. United States, 430 U. S. 188, 193-194 (1977)).

Setting Baldasar aside as controlling precedent (but retaining the case's even split as evidence), it seems safe to say that the question debated there is a difficult one. The Court in Scott, relying on Argersinger v. Hamlin, 407 U. S. 25 (1972), drew a bright line between imprisonment and lesser criminal penalties, on the theory, as I understand it, that the concern over reliability raised by the absence of counsel is tolerable when a defendant does not face the deprivation of his liberty. See Scott, supra, at 372-373; see also Argersinger, supra, at 34-37 (discussing studies showing that "the volume of misdemeanor cases . . . may create an obsession for speedy dispositions, regardless of the fairness of the result") (footnote omitted). There is an obvious and serious argument that the line drawn in Scott is crossed when, as Justice 751*751 Stewart put it in Baldasar, a defendant is "sentenced to an increased term of imprisonment only because he had been convicted in a previous prosecution in which he had not had the assistance of appointed counsel in his defense." 446 U. S., at 224 (concurring opinion) (emphasis in original); see also id., at 227 (Marshall, J., concurring) (petitioner's prison sentence "was imposed as a direct consequence of [the previous] uncounseled conviction and is therefore forbidden under Scott and Argersinger ").

Fortunately, the difficult constitutional question that argument raises need not be answered in deciding this case, cf. Ashwander v. TVA, 297 U. S. 288, 346-347 (1936) (Brandeis, J., concurring), for unlike the sentence-enhancement scheme involved in Baldasar, the United States Sentencing Commission's Guidelines (Guidelines) do not provide for automatic enhancement based on prior uncounseled convictions. Prior convictions, as the Court explains, serve under the Guidelines to place the defendant in one of six "criminal history" categories; the greater the number of prior convictions, the higher the category. See ante, at 740, and n. 2. But the Guidelines seek to punish those who exhibit a pattern of "criminal conduct," not a pattern of prior convictions as such, see United States Sentencing Commission, Guidelines Manual (USSG) ch. 4, pt. A (Nov. 1993) (intro. comment.), and accordingly do not bind a district court to the category into which simple addition places the defendant. Thus, while the Guidelines require that "uncounseled misdemeanor sentences where imprisonment was not imposed" are "to be counted in the criminal history score," USSG App. C, amdt. 353 (Nov. 1993), they also expressly empower the district court to depart from the range of sentences prescribed for a criminalhistory category that inaccurately captures the defendant's actual history of criminal conduct. See id., § 4A1.3. In particular, the Guidelines authorize downward departure "where the court concludes that a defendant's criminal history 752*752 category significantly over-represents the seriousness of a defendant's criminal history or the likelihood that the defendant will commit further crimes." Ibid.[*]

Under the Guidelines, then, the role prior convictions play in sentencing is presumptive, not conclusive, and a defendant has the chance to convince the sentencing court of the unreliability of any prior valid but uncounseled convictions in reflecting the seriousness of his past criminal conduct or predicting the likelihood of recidivism. A defendant may show, for example, that his prior conviction resulted from railroading an unsophisticated indigent, from a frugal preference for a low fine with no counsel fee, or from a desire to put the matter behind him instead of investing the time to fight the charges.

Because the Guidelines allow a defendant to rebut the negative implication to which a prior uncounseled conviction gives rise, they do not ignore the risk of unreliability associated with such a conviction. Moreover, as the Court observes, permitting a court to consider (in contrast to giving conclusive weight to) a prior uncounseled conviction is "consistent with the traditional understanding of the sentencing process," under which a "judge `may appropriately conduct an inquiry broad in scope, largely unlimited either as to the 753*753 kind of information he may consider, or the source from which it may come,' " at least as long as the defendant is given a reasonable opportunity to disprove the accuracy of information on which the judge may rely, and to contest the relevancy of that information to sentencing. Ante, at 747 (quoting United States v. Tucker, 404 U. S. 443, 446 (1972)). Where concern for reliability is accommodated, as it is under the Guidelines, nothing in the Sixth Amendment or our cases requires a sentencing court to ignore the fact of a valid uncounseled conviction, even if that conviction is a less confident indicator of guilt than a counseled one would be. Cf. United States Sentencing Commission, Sentencing Guidelines for United States Courts, 55 Fed. Reg. 5741 (1990) (explaining that valid, uncounseled convictions should be counted in determining a defendant's criminal history category because the alternative would "deprive the [sentencing] court of significant information relevant to the purposes of sentencing").

I therefore agree with the Court that it is "constitutionally permissible" for a federal court to "consider a prior uncounseled misdemeanor conviction" in sentencing a defendant under the Guidelines. Ante, at 748. That is enough to answer the constitutional question this case presents, whether "[t]he District Court should . . . have considered [petitioner's] previous uncounseled misdemeanor in computing [his] criminal history score" under the Guidelines. Pet. for Cert. i; see also Brief for United States I (stating question presented as "[w]hether it violated the Constitution for the sentencing court to consider petitioner's prior uncounseled misdemeanor conviction in determining his criminal history score under the Sentencing Guidelines"). And because petitioner did not below, and does not here, contend that counting his 1983 uncounseled conviction for driving under the influence placed him in a criminal-history category that "significantly overrepresents the seriousness of [his] criminal history or the likelihood that [he] will commit further crimes," USSG 754*754 § 4A1.3, the Court properly rejects petitioner's challenge to his sentence.

I am shy, however, of endorsing language in the Court's opinion that may be taken as addressing the constitutional validity of a sentencing scheme that automatically requires enhancement for prior uncounseled convictions, a scheme not now before us. Because I prefer not to risk offending the principle that "[t]he Court will not `anticipate a question of constitutional law in advance of the necessity of deciding it,' " Ashwander, 297 U. S., at 346 (citation omitted), I concur only in the judgment.

Justice Blackmun, with whom Justice Stevens and Justice Ginsburg join, dissenting.

In 1983, petitioner Kenneth O. Nichols pleaded nolo contendere to driving under the influence of alcohol (DUI) and paid a $250 fine. He was not represented by counsel. Under Scott v. Illinois, 440 U. S. 367 (1979), this uncounseled misdemeanor could not have been used as the basis for any incarceration, not even a 1-day jail sentence. Seven years later, when Nichols pleaded guilty to a federal drug charge, this uncounseled misdemeanor, used to enhance his sentence, led directly to his imprisonment for over two years. The majority's holding that this enhancement does not violate the Sixth Amendment is neither compelled by Scott nor faithful to the concern for reliability that lies at the heart of our Sixth Amendment cases since Gideon v. Wainwright, 372 U. S. 335 (1963). Accordingly, I dissent.

I

The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." In Gideon v. Wainwright, this Court recognized the "Sixth Amendment's guarantee of counsel" as "`fundamental and essential to a fair trial,' " id., at 342, because "`[e]ven the intelligent and educated layman 755*755. . .requires the guiding hand of counsel at every step in the proceedings against him,' " id., at 345, quoting Powell v. Alabama, 287 U. S. 45, 69 (1932).

Both the plain wording of the Amendment and the reasoning in Gideon would support the guarantee of counsel in "all" criminal prosecutions, petty or serious, whatever their consequences. See Scott v. Illinois, 440 U. S., at 376, 379 (Brennan, J., dissenting). Although the Court never has read the guarantee of counsel that broadly, one principle has been clear, at least until today: No imprisonment may be imposed on the basis of an uncounseled conviction. Thus, in Argersinger v. Hamlin, 407 U. S. 25 (1972), the Court rejected a formalistic distinction between petty and non-petty offenses and applied Gideon to "any criminal trial, where an accused is deprived of his liberty." Id., at 32; id., at 41, 42 (Burger, C. J., concurring in result) (because "any deprivation of liberty is a serious matter," no individual "can be imprisoned unless he is represented by counsel").

A year later, Scott confirmed that any deprivation of liberty, no matter how brief, triggers the Sixth Amendment's right to counsel:

"Even were the matter res nova, we believe that the central premise of Argersinger —that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment—is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel. . . . We therefore hold that the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense." 440 U. S., at 373-374.

Finally, although the Court, in Baldasar v. Illinois, 446 U. S. 222 (1980), in one sense, was "splintered," ante, at 740, a 756*756 majority of the Court concluded that an uncounseled conviction could not be used to support a prison term, either initially, to punish the misdemeanor, or later, to lengthen the jail time for a subsequent conviction. See Baldasar, 446 U. S., at 224 (Stewart, J., concurring) (sentencing an indigent "to an increased term of imprisonment only because he had been convicted in a previous prosecution in which he had not had the assistance of appointed counsel in his defense" violated Scott ); 446 U. S., at 226 (Marshall, J., concurring) (even on Scott `s terms, a "prior uncounseled misdemeanor conviction could not be used collaterally to impose an increased term of imprisonment upon a subsequent conviction"); 446 U. S., at 230 (Blackmun, J., concurring) (adhering to dissenting position in Scott that an uncounseled conviction is invalid not only where the defendant is sentenced to any actual incarceration but also where the defendant is convicted of an offense punishable by more than six months in prison).[1]

757*757 Thus, the animating concern in the Court's Sixth Amendment jurisprudence has been to ensure that no indigent is deprived of his liberty as a result of a proceeding in which he lacked the guiding hand of counsel. While the Court has grappled with, and sometimes divided over, extending this constitutional guarantee beyond convictions that lead to actual incarceration, it has never permitted, before now, an uncounseled conviction to serve as the basis for any jail time.

II

Although the Court now expressly overrules Baldasar v. Illinois, ante, at 748, it purports to adhere to Scott, describing its holding as a "logical consequence" of Scott, ante, at 746. This logic is not unassailable. To the contrary, as Justice Marshall stated in Baldasar, "a rule that held a conviction invalid for imposing a prison term directly, but valid for imposing a prison term collaterally, would be an illogical and unworkable deviation from our previous cases." 446 U. S., at 228-229 (concurring opinion). It is more logical, and more consistent with the reasoning in Scott, to hold that a conviction that is invalid for imposing a sentence for the offense itself remains invalid for increasing the term of imprisonment imposed for a subsequent conviction.

The Court skirts Scott `s actual imprisonment standard by asserting that enhancement statutes "do not change the penalty imposed for the earlier conviction," ante, at 747, because they punish only the later offense. Although it is undeniable that recidivist statutes do not impose a second punishment for the first offense in violation of the Double Jeopardy Clause, Moore v. Missouri, 159 U. S. 673, 677 (1895), it also is undeniable that Nichols' DUI conviction directly resulted in more than two years' imprisonment. In any event, our concern here is not with multiple punishments, but with reliability. Specifically, is a prior uncounseled misdemeanor 758*758 conviction sufficiently reliable to justify additional jail time imposed under an enhancement statute? Because imprisonment is a punishment "different in kind" from fines or the threat of imprisonment, Scott, 440 U. S., at 373, we consistently have read the Sixth Amendment to require that courts decrease the risk of unreliability, through the provision of counsel, where a conviction results in imprisonment. That the sentence in Scott was imposed in the first instance and the sentence here was the result of an enhancement statute is a distinction without a constitutional difference.

The Court also defends its position by arguing that the process of sentencing traditionally is "less exacting" than the process of establishing guilt. Ante, at 747. This may be true as a general proposition,[2] but it does not establish that 759*759 an uncounseled conviction is reliable enough for Sixth Amendment purposes to justify the imposition of imprisonment, even in the sentencing context. Nor does it follow that, because the state may attempt to prove at sentencing conduct justifying greater punishment, it also may rely on a prior uncounseled conviction. In McMillan v. Pennsylvania, 477 U. S. 79 (1986), for example, the State was permitted to prove at sentencing that the defendant visibly possessed a firearm during the commission of the felonies of which he was convicted.[3] Where, as in McMillan, the state sets out 760*760 to prove actual conduct rather than the fact of conviction in a sentencing proceeding at which the defendant is represented by counsel, counsel can put the state to its proof, examining its witnesses, rebutting its evidence, and testing the reliability of its allegations. See Argersinger, 407 U. S., at 31 (the accused "`requires the guiding hand of counsel at every step in the proceedings against him,' " quoting Powell v. Alabama, 287 U. S., at 69) (emphasis added). In contrast, where the state simply submits a record of a conviction obtained in a proceeding in which the defendant lacked the assistance of counsel, we lack similar confidence that the conviction reliably reflects the defendant's conduct.

Moreover, as a practical matter, introduction of a record of conviction generally carries greater weight than other evidence of prior conduct. Indeed, the United States Sentencing Commission's Guidelines (Guidelines) require a district court to assess criminal history points for prior convictions, and to impose a sentence within the range authorized by the defendant's criminal history, unless it concludes that a defendant's "criminal history category significantly overrepresents 761*761 the seriousness of a defendant's criminal history or the likelihood that a defendant will commit further crimes." United States Sentencing Commission, Guidelines Manual § 4A1.3 (Nov. 1993). Realistically, then, the conclusion that a state may prove prior conduct in a sentencing proceeding at which the defendant is aided by counsel does not support, much less compel, a conclusion that the state may, in lieu of proving directly the prior conduct, rely on a conviction obtained against an uncounseled defendant.[4]

762*762 III

Contrary to the rule set forth by the Court, a rule that an uncounseled misdemeanor conviction never can form the basis for a term of imprisonment is faithful to the principle born of Gideon and announced in Argersinger that an uncounseled misdemeanor, like an uncounseled felony, is not reliable enough to form the basis for the severe sanction of incarceration. This Court in Gideon stated that "reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." 372 U. S., at 344. Gideon involved a felony, but we recognized in Argersinger, 407 U. S., at 31, that counsel was "often a requisite to the very existence of a fair trial" in misdemeanor cases, as well. In the absence of this "assurance" of or "requisite" to a fair trial, we cannot have confidence in the reliability of the conviction and, therefore, cannot impose a prison term based on it.

These reliability concerns have prompted this Court to hold that an uncounseled felony conviction cannot later be used to increase a prison term under a state recidivist statute, Burgett v. Texas, 389 U. S. 109 (1967), nor even be considered by a court in sentencing for a subsequent conviction, United States v. Tucker, 404 U. S. 443 (1972). The Court offers no reason and I can think of none why the same rules 763*763 should not apply with regard to uncounseled misdemeanor convictions. Counsel can have a profound effect in misdemeanor cases, where both the volume of cases and the pressure to plead are great. See Argersinger, 407 U. S., at 36 ("`[m]isdemeanants represented by attorneys are five times as likely to emerge from police court with all charges dismissed as are defendants who face similar charges without counsel,' " quoting American Civil Liberties Union, Legal Counsel for Misdemeanants, Preliminary Report 1 (1970)); Baldasar, 446 U. S., at 228, n. 2 (Marshall, J., concurring) (recognizing that misdemeanor convictions may be less reliable than felony convictions because they are obtained through "assembly-line justice" and because jurors may be less scrupulous in applying the reasonable-doubt standard to a minor offense). Given the utility of counsel in these cases, the inherent risk of unreliability in the absence of counsel, and the severe sanction of incarceration that can result directly or indirectly from an uncounseled misdemeanor, there is no reason in law or policy to construe the Sixth Amendment to exclude the guarantee of counsel where the conviction subsequently results in an increased term of incarceration.

Moreover, the rule that an uncounseled misdemeanor conviction can never be used to increase a prison term is eminently logical, as Justice Marshall made clear in Baldasar:

"An uncounseled conviction does not become more reliable merely because the accused has been validly convicted of a subsequent offense. For this reason, a conviction which is invalid for purposes of imposing a sentence of imprisonment for the offense itself remains invalid for purposes of increasing a term of imprisonment for a subsequent conviction under a repeatoffender statute." Id., at 227-228 (concurring opinion).[5]

764*764 Finally, this rule is workable. As the Court has engaged in "constitutional line drawing" to determine the "precise limits and . . . ramifications" of Gideon `s principles, Scott, 440 U. S., at 372, it has sought to draw a clear line, one that adequately informs judges, prosecutors, and defendants of the consequences of their actions and decisions. Under the clear rule that an uncounseled misdemeanor conviction can never justify any term of imprisonment, the judge and the parties will know, at the beginning of a misdemeanor trial, that no imprisonment may be imposed, directly or collaterally, based on that proceeding, unless counsel is appointed to represent the indigent accused. See Argersinger, 407 U. S., at 42 (Burger, C. J., concurring in result). Admittedly, this rule might cause the state to seek and judges to grant appointed counsel for more indigent defendants, in order to preserve the right to use the conviction later for enhancement purposes. The Sixth Amendment guarantee of counsel should not be subordinated to these costs. See id., at 43, 44 (Burger, C. J., concurring in result) (accepting that the Court's holding would require the appointment of more defense counsel). In any event, the majority's rule, which exposes indigent defendants to substantial sentence enhancements on the basis of minor offenses, may well have the same result by encouraging more indigent defendants to seek counsel and to litigate offenses to which they otherwise 765*765 might have pleaded. This case is illustrative. When charged with driving under the influence, petitioner sought out an attorney, who told him that he did not need a lawyer if he was pleading nolo contendere. This advice made sense if a $250 fine was the only consequence of the plea. Its soundness is less apparent where the consequences can include a 2-year increase in a prison sentence down the road.

IV

With scant discussion of Sixth Amendment case law or principles, the Court today approves the imposition of two years of incarceration as the consequence of an uncounseled misdemeanor conviction. Because uncounseled misdemeanor convictions lack the reliability this Court has always considered a prerequisite for the imposition of any term of incarceration, I dissent.

Justice Ginsburg, dissenting.

In Custis v. United States, ante, p. 485, the Court held that, with the sole exception of convictions obtained in violation of the right to counsel, a defendant in a federal sentencing proceeding has no right to attack collaterally a prior state conviction used to enhance his sentence under the Armed Career Criminal Act of 1984. This case is dispositively different.

Custis presented a forum question. The issue was where, not whether, the defendant could attack a prior conviction for constitutional infirmity. See ante, at 497 (Custis "may attack his state sentence in Maryland or through federal habeas review").

Here, we face an uncounseled prior conviction tolerable under the Sixth Amendment "assistance of counsel" guarantee only because it did not expose defendant Nichols to the prospect of incarceration. See Scott v. Illinois, 440 U. S. 367 (1979). Today's decision enlarges the impact of that uncounseled conviction. It turns what was a disposition allowing 766*766 no jail time—a disposition made for one day and case alone— into a judgment of far heavier weight. Nichols does not attack his prior uncounseled conviction for what it was. He is seeking only to confine that conviction to the term (no incarceration) that rendered it constitutional.

Recognizing that the issue in this case is not like the one presented in Custis, I join Justice Blackmun's dissenting opinion.

[*] Susan N. Herman and Steven R. Shapiro filed a brief for the American Civil Liberties Union as amicus curiae urging reversal.

Kent S. Scheidegger and Charles L. Hobson filed a brief for the Criminal Justice Legal Foundation as amicus curiae urging affirmance.

[1] At the time of his conviction, petitioner faced a maximum punishment of one year imprisonment and a $1,000 fine. Georgia law provided that a person convicted of driving under the influence of alcohol "shall be guilty of a misdemeanor and, upon conviction thereof, shall be punished by imprisonment for not less than ten days nor more than one year, or by a fine of not less than $100.00 nor more than $1,000.00, or by both such fine and imprisonment." Ga. Code Ann. § 40.6-391(c) (1982).

[2] There are six criminal history categories under the Sentencing Guidelines. United States Sentencing Commission, Guidelines Manual (USSG) ch. 5, pt. A (Nov. 1993) (Sentencing Table). A defendant's criminal history category is determined by the number of his criminal history points, which in turn is based on his prior criminal record. Id., ch. 4, p. A.

[3] The Sentencing Table provides a matrix of sentencing ranges. On the vertical axis of the matrix is the defendant's offense level representing the seriousness of the crime; on the horizontal axis is the defendant's criminal history category. The sentencing range is determined by identifying the intersection of the defendant's offense level and his criminal history category. Id., ch. 5, pt. A (Sentencing Table).

[4] The Government contends that, even if Baldasar v. Illinois, 446 U. S. 222 (1980), prohibits using the prior uncounseled misdemeanor conviction to enhance petitioner's sentence, the District Court applied the wrong legal standard in finding no valid waiver of the right to counsel. Based on Johnson v. Zerbst, 304 U. S. 458, 467-469 (1938), and Parke v. Raley, 506 U. S. 20, 28-29 (1992), the Government argues that petitioner failed to carry his burden to establish the absence of a valid waiver of counsel. We need not address this contention due to our resolution of the Baldasar issue.

[5] Petitioner's instant felony conviction was punishable under statute by not less than 10 years' imprisonment and not more than life imprisonment. See 21 U. S. C. § 841(b)(1)(B); 979 F. 2d 402, 413-414, 417-418 (CA6 1992).

[6] The court also stated that its decision was "logically compelled" by Charles v. Foltz, 741 F. 2d 834, 837 (CA6 1984), cert. denied, 469 U. S. 1193 (1985), 979 F. 2d, at 415-416, 418 ("`[E]vidence of prior uncounselled misdemeanor convictions for which imprisonment was not imposed . . . may be used for impeachment purposes' ").

[7] Cf. Lovell v. State, 283 Ark. 425, 428, 678 S. W. 2d 318, 320 (1984) (Baldasar bars any prior uncounseled misdemeanor conviction from enhancing a term of imprisonment following a second conviction); State v. Vares, 71 Haw. 617, 620, 801 P. 2d 555, 557 (1990) (same); State v. Laurick, 120 N. J. 1, 16, 575 A. 2d 1340, 1347 (Baldasar bars an enhanced penalty only when it is greater than that authorized in the absence of the prior offense or converts a misdemeanor into a felony), cert. denied, 498 U. S. 967 (1990); Hlad v. State, 565 So. 2d 762, 764-766 (Fla. App. 1990) (following the approach of Justice Blackmun, thereby limiting enhancement to situations where the prior uncounseled misdemeanor was punishable by six months' imprisonment or less), aff'd, 585 So. 2d 928, 930 (Fla. 1991); Sheffield v. Pass Christian, 556 So. 2d 1052, 1053 (Miss. 1990) (Baldasar establishes no barrier to the collateral use of valid, uncounseled misdemeanor convictions).

[8] The Sixth Circuit expressly joined the Fifth and Second Circuits in essentially limiting Baldasar to its facts. See Wilson v. Estelle, 625 F. 2d 1158, 1159, and n. 1 (CA5 1980) (a prior uncounseled misdemeanor conviction cannot be used under a sentence enhancement statute to convert a subsequent misdemeanor into a felony with a prison term), cert. denied, 451 U. S. 912 (1981); United States v. Castro-Vega, 945 F. 2d 496, 500 (CA2 1991) (Baldasar does not apply where "the court used an uncounseled misdemeanor conviction to determine the appropriate criminal history category for a crime that was already a felony"), cert. denied sub nom. Cintron-Rodriguez v. United States, 507 U. S. 908 (1992). But see, e. g., United States v. Brady, 928 F. 2d 844, 854 (CA9 1991) (Baldasar and the Sixth Amendment bar any imprisonment in a subsequent case imposed because of an uncounseled conviction in which the right to counsel was not waived).

[9] In felony cases, in contrast to misdemeanor charges, the Constitution requires that an indigent defendant be offered appointed counsel unless that right is intelligently and competently waived. Gideon v. Wainwright, 372 U. S. 335 (1963). We have held that convictions gained in violation of Gideon cannot be used "either to support guilt or enhance punishment for another offense," Burgett v. Texas, 389 U. S. 109, 115 (1967), and that a subsequent sentence that was based in part on a prior invalid conviction must be set aside, United States v. Tucker, 404 U. S. 443, 447-449 (1972).

[10] See n. 7, supra.

[11] The 1989 version of the Sentencing Guidelines stated that, in determining a defendant's criminal history score, an uncounseled misdemeanor conviction should be excluded only if it "would result in the imposition of a sentence of imprisonment under circumstances that would violate the United States Constitution." USSG § 4A1.2, Application Note 6 (Nov. 1989). Effective November 1, 1990, the Sentencing Commission amended § 4A1.2 by deleting the above quoted phrase and adding the following statement as background commentary: "Prior sentences, not otherwise excluded, are to be counted in the criminal history score, including uncounseled misdemeanor sentences where imprisonment was not imposed." USSG App. C, amdt. 353 (Nov. 1993). When the Sentencing Commission initially published the amendment for notice and comment, it included the following explanation: "The Commission does not believe the inclusion of sentences resulting from constitutionally valid, uncounseled misdemeanor convictions in the criminal history score is foreclosed by Baldasar v. Illinois, 446 U. S. 222 (1980)." 55 Fed. Reg. 5741 (1990).

[12] Of course States may decide, based on their own constitutions or public policy, that counsel should be available for all indigent defendants charged with misdemeanors. Indeed, many, if not a majority, of States guarantee the right to counsel whenever imprisonment is authorized by statute, rather than actually imposed. See, e. g., Alaska Stat. Ann. § 18.85.100 (1991) ("serious" crime means any crime where imprisonment authorized); Ariz. Rule Crim. Proc. 6.1(b) (indigent defendant shall be entitled to have attorney appointed in any criminal proceeding that may result in punishment by loss of liberty, or where court concludes that appointment satisfies the ends of justice); Cal. Penal Code Ann. § 15 (West 1988), Cal. Penal Code Ann. § 858 (West 1985); Brunson v. State, 182 Ind. App. 146, 394 N. E. 2d 229 (1979) (right to counsel in misdemeanor proceedings guaranteed by Ind. Const., Art. I, § 13); N. H. Rev. Stat. Ann. § 604-A:2 (1986 and Supp. 1992).

[*] "Congress gave the Sentencing Commission authority to `maintai[n] sufficient flexibility to permit individualized sentences when warranted by mitigating or aggravating factors not taken into account in the establishment of general sentencing practices.' 28 U. S. C. § 991(b)(1)(B). The Commission used this authority in adopting § 4A1.3, which it said was designed to `recognize[] that the criminal history score is unlikely to take into account all the variations in the seriousness of criminal history that may occur.' USSG § 4A1.3 (commentary)." United States v. Beckham, 968 F. 2d 47, 54 (CADC 1992); see also United States v. Shoupe, 988 F. 2d 440, 445 (CA3 1993) ("[I]n Guidelines § 4A1.3, the Commission specifically provided district courts with flexibility to adjust the criminal history category calculated through . . . rigid formulae"). Cf. Miller & Freed, Honoring Judicial Discretion Under the Sentencing Reform Act, 3 Fed. Sent. R. 235, 238 (1991) (discussing "Congress' desire to leave substantial sentencing discretion in the hands of the sentencing judge").

[1] I dissented in Scott v. Illinois, 440 U. S. 367 (1979), in which five Members of the Court held that the Sixth Amendment required counsel only for convictions that were punished by actual imprisonment, and not for offenses that were punishable by imprisonment, but where imprisonment was not imposed. Believing that the line the Court drew did not protect indigent defendants adequately or keep faith with our Sixth Amendment principles, I argued for a right to counsel not only where the defendant was convicted and sentenced to jail time, but also where the defendant was convicted of any offense punishable by more than six months' imprisonment, regardless of the punishment actually imposed. Id., at 389-390.

A year later, when the Court decided Baldasar v. Illinois, 446 U. S. 222 (1980), I adhered to this position, concurring in the Court's per curiam opinion and its judgment that the uncounseled conviction could not be used to justify increasing Baldasar's jail time. Although I based my decision on my belief that the uncounseled conviction was invalid in the first instance because Baldasar was charged with an offense punishable by more than six months in prison, I expressed no disagreement, and indeed had none, with the premise that an uncounseled conviction that was valid under Scott was invalid for purposes of imposing increased incarceration for a subsequent offense. 446 U. S., at 229-230. Obviously, logic dictates that, where the threat of imprisonment is enough to trigger the Sixth Amendment's guarantee of counsel, the actual imposition of imprisonment through an enhancement statute also requires the appointment of counsel.

[2] In support of its position, the majority cites several cases that refer to a sentencing judge's traditional discretion. The cases provide scant, if any, support for the majority's rule sanctioning the use of prior uncounseled convictions as the basis for increased terms of imprisonment. None even addresses the Sixth Amendment guarantee of counsel.

In McMillan v. Pennsylvania, 477 U. S. 79 (1986), the Court held 5 to 4 that a state statute defining visible possession of a firearm as a sentencing consideration that could be proved by a preponderance of the evidence, rather than as an element of the crime that must be proved beyond a reasonable doubt, did not violate due process. McMillan did not involve the use of a prior conviction in a subsequent proceeding. Additionally, McMillan involved only felony convictions, in which the defendants were entitled to counsel at every step of the proceedings to assist in proving or disproving the facts to be relied on in sentencing. The Court also noted that the "risk of error" in the challenged proceeding was "comparatively slight" because visible possession was "a simple, straightforward issue susceptible of objective proof." Id., at 84. The same cannot be said for the reliability of prior uncounseled misdemeanors. See Argersinger v. Hamlin, 407 U. S. 25, 34 (1972) (observing that the volume of misdemeanor cases "may create an obsession for speedy dispositions, regardless of the fairness of the result"); id., at 35 (noting that "`[t]he misdemeanor trial is characterized by insufficient and frequently irresponsible preparation,' " quoting Hellerstein, The Importance of the Misdemeanor Case on Trial and Appeal, 28 The Legal Aid Brief Case 151, 152 (1970)). Moreover, a finding of visible possession did not expose a defendant to a greater or additional punishment than otherwise authorized, McMillan, 477 U. S., at 88, while the prior conviction at issue here exposed petitioner to two additional years in prison.

Wisconsin v. Mitchell, 508 U. S. 476 (1993), in which the Court rejected a First Amendment challenge to a state statute that enhanced a penalty based on the defendant's motive, is no more helpful to the majority's position. The Court simply observed that the defendant's motive was a factor traditionally considered by sentencing judges; it said nothing about the validity of prior convictions or even about the standard required to prove the motive. Similarly, although United States v. Tucker, 404 U. S. 443, 446 (1972), made passing reference to a sentencing judge's broad inquiry, it held only that Gideon v. Wainwright, 372 U. S. 335 (1963), required resentencing where the sentencing court had considered prior felony convictions that later were found to have been uncounseled.

Finally, Williams v. New York, 337 U. S. 241 (1949), was a Confrontation Clause challenge to a sentencing judge's consideration of evidence obtained through a presentence investigation. The court did not rely on any prior convictions; the defendant, who was represented by counsel, did not challenge the accuracy of the information the judge considered, ask the judge to disregard it, or seek to refute or discredit it; and the consideration of this information did not expose the defendant to a greater or additional punishment.

[3] McMillan, of course, was a due process case. Curiously, the Court appears to rest its holding as much on the Due Process Clause as on the Sixth Amendment. See ante, at 748. But even if the use of a prior uncounseled conviction does not violate due process, that does not conclusively resolve the Sixth Amendment question. Compare Betts v. Brady, 316 U. S. 455, 462 (1942) (holding that the right to counsel was not required under the Due Process Clause of the Fourteenth Amendment and recognizing due process as a "concept less rigid and more fluid than those envisaged in other specific and particular provisions of the Bill of Rights"), with Gideon v. Wainwright, 372 U. S., at 339 (holding that the Sixth Amendment requires counsel in all state felony prosecutions).

Nor do I read the majority's reliance on due process to reflect an understanding that due process requires only partial incorporation of the Sixth Amendment right to counsel in state courts. This Court long has recognized the "Sixth Amendment's guarantee of counsel" as "`fundamental and essential to a fair trial' " and therefore "made obligatory upon the States by the Fourteenth Amendment." Id., at 342; see also Johnson v. Zerbst, 304 U. S. 458, 462 (1938) (the assistance of counsel "is one of the safeguards of the Sixth Amendment deemed necessary to insure fundamental human rights of life and liberty"); Grosjean v. American Press Co., 297 U. S. 233, 243-244 (1936) ("the fundamental right of the accused to the aid of counsel in a criminal prosecution" is "safeguarded against state action by the due process of law clause of the Fourteenth Amendment"). No decision of this Court even has intimated that the Sixth Amendment right to counsel somehow is diluted or truncated in state proceedings.

[4] Justice Souter concludes that this provision passes Sixth Amendment muster by providing the defendant a "reasonable opportunity" to disprove the accuracy of the prior conviction. Ante, at 753. Even assuming that the Guidelines would permit a sentencing court to depart downward in response to a defendant's claim that his conviction resulted from his lack of sophistication or his calculation that it was cheaper to plead and pay a low fine than to retain counsel and litigate the charge, such a safety valve still does not accommodate reliability concerns sufficiently. As Chief Justice Burger recognized in Argersinger, "[a]ppeal from a conviction after an uncounseled trial is not likely to be of much help to a defendant since the die is usually cast when judgment is entered on an uncounseled trial record." 407 U. S., at 41 (concurring opinion). A collateral proceeding holds forth no greater promise of relief. The uncounseled misdemeanor convictions that are considered inherently unreliable under Argersinger and Scott are presumptively valid under most sentence enhancement schemes, see, e. g., Custis v. United States, ante, p. 485 (limiting a defendant's right to attack as unconstitutional a prior conviction used to enhance a sentence under the Armed Career Criminal Act of 1984, 18 U. S. C. § 924(e)); Parke v. Raley, 506 U. S. 20 (1992) (presumption of validity that attaches to final judgments properly extended to prior convictions used for sentence enhancement under a state recidivism statute), and are presumptively reflected in a defendant's criminal history score—and sentence—under the Guidelines, see United States Sentencing Commission, Guidelines Manual App. C, amdt. 353 (Nov. 1993) ("Prior sentences, not otherwise excluded, are to be counted in the criminal history score, including uncounseled misdemeanor sentences where imprisonment was not imposed").

Moreover, although it might be salutary for courts to consider under the Guidelines a defendant's reasons other than culpability for pleading nolo contendere to a prior misdemeanor conviction, I do not share Justice Souter's confidence that such a benevolent review of a defendant's circumstances is occurring now. Even if it were, a district court, after the most probing review, generally may depart downward only in "atypical" cases, outside the "heartland" carved by each guideline,United States Sentencing Commission, Guidelines Manual, ch. 1, pt. A, comment., 4(b) (Nov. 1991). This does not alleviate our concern in Argersinger that the "typical" misdemeanor case presents pressures to plead guilty or nolo contendere, regardless of the fairness or accuracy of that plea. 407 U. S., at 34-36. Accordingly, I find the district court's authority to depart downward too tenuous a check on the use of unreliable misdemeanor convictions to salvage a sentencing scheme that is,in my view, a violation of Scott.

[5] From another perspective, the prior uncounseled conviction can be viewed as a "hybrid" conviction: valid for the purpose of imposing a sentence, but invalid for the purpose of depriving the accused of his liberty. See Baldasar, 446 U. S., at 232 (Powell, J., dissenting). There is nothing intuitively offensive about a "hybrid." See id., at 226 (Marshall, J., concurring) (noting and accepting that Baldasar's conviction was not valid for all purposes); see also 15 U. S. C. § 16(a) (certain consent decrees or consent judgments in favor of the Government in a civil or criminal antitrust action shall not be prima facie evidence in a subsequent proceeding brought by another party); § 16(h) (district court proceedings leading to a consent judgment proposed by the Government are inadmissible as evidence in subsequent proceedings); 10 J. von Kalinowski, Antitrust Laws and Trade Regulation § 105.02[10], p. 110 (1993) ("[A]llegations based on pleas of nolo contendere in government suits, and the judgments entered thereon, should not be included in the complaint" in a subsequent action).

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MISSOURI, Petitioner
v.
Tyler G. McNEELY.

No. 11-1425.

Supreme Court of United States.Argued January 9, 2013.
Decided April 17, 2013.

1556*1556 John N. Koester, Jr., argued, for Petitioner.

Nichole A. Saharsky, for the United States as amicus curiae, by special leave of the Court, supporting the Petitioner.

Steven R. Shapiro, for Respondent.

John N. Koester, Jr., Counsel of Record, Assistant Prosecuting Attorney, Office of Prosecuting Attorney, Cape Girardeau County, MO, Angel M. Woodruff, Acting Prosecuting Attorney, Jackson, MO, for Petitioner.

Stephen Douglas Bonney, Kansas City, MO, Anthony E. Rothert, Grant R. Doty, St. Louis, MO, Steven R. Shapiro, Counsel of Record, Ezekiel R. Edwards, Brandon J. Buskey, New York, NY, Stephen C. Wilson, Wilson & Mann, L.C., Cape Girardeau, MO, for Respondent.

Justice SOTOMAYOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A, II-B, and IV, and an opinion with respect to Parts II-C and III, in which Justice SCALIA, Justice GINSBURG, and Justice KAGAN join.

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), this Court upheld a warrantless blood test of an individual arrested for driving under the influence of alcohol because the officer "might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence." Id., at 770, 86 S.Ct. 1826 (internal quotation marks omitted). The question presented here is whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment's warrant requirement for nonconsensual blood testing in all drunk-driving cases. We conclude that it does not, and we hold, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances.

I

While on highway patrol at approximately 2:08 a.m., a Missouri police officer stopped Tyler McNeely's truck after observing it exceed the posted speed limit and repeatedly cross the centerline. The officer noticed several signs that McNeely was intoxicated, including McNeely's bloodshot eyes, his slurred speech, and the smell of alcohol on his breath. McNeely acknowledged to the officer that he had consumed "a couple of beers" at a bar, App. 20, and he appeared unsteady on his feet when he exited the truck. After McNeely performed poorly on a battery of 1557*1557 field-sobriety tests and declined to use a portable breath-test device to measure his blood alcohol concentration (BAC), the officer placed him under arrest.

The officer began to transport McNeely to the station house. But when McNeely indicated that he would again refuse to provide a breath sample, the officer changed course and took McNeely to a nearby hospital for blood testing. The officer did not attempt to secure a warrant. Upon arrival at the hospital, the officer asked McNeely whether he would consent to a blood test. Reading from a standard implied consent form, the officer explained to McNeely that under state law refusal to submit voluntarily to the test would lead to the immediate revocation of his driver's license for one year and could be used against him in a future prosecution. See Mo. Ann. Stat. §§ 577.020.1, 577.041 (West 2011). McNeely nonetheless refused. The officer then directed a hospital lab technician to take a blood sample, and the sample was secured at approximately 2:35 a.m. Subsequent laboratory testing measured McNeely's BAC at 0.154 percent, which was well above the legal limit of 0.08 percent. See § 577.012.1.

McNeely was charged with driving while intoxicated (DWI), in violation of § 577.010.[1] He moved to suppress the results of the blood test, arguing in relevant part that, under the circumstances, taking his blood for chemical testing without first obtaining a search warrant violated his rights under the Fourth Amendment. The trial court agreed. It concluded that the exigency exception to the warrant requirement did not apply because, apart from the fact that "[a]s in all cases involving intoxication, [McNeely's] blood alcohol was being metabolized by his liver," there were no circumstances suggesting the officer faced an emergency in which he could not practicably obtain a warrant. No. 10CG-CR01849-01 (Cir. Ct. Cape Girardeau Cty., Mo., Div. II, Mar. 3, 2011), App. to Pet. for Cert. 43a. On appeal, the Missouri Court of Appeals stated an intention to reverse but transferred the case directly to the Missouri Supreme Court. No. ED 96402 (June 21, 2011), id., at 24a.

The Missouri Supreme Court affirmed. 358 S.W.3d 65 (2012) (per curiam). Recognizing that this Court's decision in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, "provide[d] the backdrop" to its analysis, the Missouri Supreme Court held that "Schmerber directs lower courts to engage in a totality of the circumstances analysis when determining whether exigency permits a nonconsensual, warrantless blood draw." 358 S.W.3d, at 69, 74. The court further concluded that Schmerber "requires more than the mere dissipation of blood-alcohol evidence to support a warrantless blood draw in an alcohol-related case." 358 S.W.3d, at 70. According to the court, exigency depends heavily on the existence of additional "`special facts,'" such as whether an officer was delayed by the need to investigate an accident and transport an injured suspect to the hospital, as had been the case in Schmerber. 358 S.W.3d, at 70, 74. Finding that this was "unquestionably a routine DWI case" in which no factors other than the natural dissipation of blood-alcohol suggested that there was an emergency, the court held that the nonconsensual warrantless blood draw violated McNeely's Fourth Amendment right to be free from unreasonable searches of his person. Id., at 74-75.

1558*1558 We granted certiorari to resolve a split of authority on the question whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations.[2] See 567 U.S. ___, 133 S.Ct. 98, 183 L.Ed.2d 737 (2012). We now affirm.

II

A

The Fourth Amendment provides in relevant part that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." Our cases have held that a warrantless search of the person is reasonable only if it falls within a recognized exception. See, e.g., United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). That principle applies to the type of search at issue in this case, which involved a compelled physical intrusion beneath McNeely's skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual's "most personal and deep-rooted expectations of privacy." Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985); see also Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 616, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989).

We first considered the Fourth Amendment restrictions on such searches in Schmerber, where, as in this case, a blood sample was drawn from a defendant suspected of driving while under the influence of alcohol. 384 U.S., at 758, 86 S.Ct. 1826. Noting that "[s]earch warrants are ordinarily required for searches of dwellings," we reasoned that "absent an emergency, no less could be required where intrusions into the human body are concerned," even when the search was conducted following a lawful arrest. Id., at 770, 86 S.Ct. 1826. We explained that the importance of requiring authorization by a "`neutral and detached magistrate'" before allowing a law enforcement officer to "invade another's body in search of evidence of guilt is indisputable and great." Ibid. (quoting Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 92 L.Ed. 436 (1948)).

As noted, the warrant requirement is subject to exceptions. "One well-recognized exception," and the one at issue in this case, "applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment." Kentucky v. King, 563 U.S. ___, ___, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011) (internal quotation marks and brackets omitted). A variety of circumstances may give rise to an exigency sufficient to justify a warrantless search, including law enforcement's need to provide emergency assistance to an occupant of a home, Michigan v. Fisher, 558 U.S. 45, 47-48, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam), engage in "hot pursuit" of a fleeing suspect, United States v. Santana, 427 U.S. 38, 42-43, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), or 1559*1559 enter a burning building to put out a fire and investigate its cause, Michigan v. Tyler, 436 U.S. 499, 509-510, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978). As is relevant here, we have also recognized that in some circumstances law enforcement officers may conduct a search without a warrant to prevent the imminent destruction of evidence. See Cupp v. Murphy, 412 U.S. 291, 296, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973); Ker v. California, 374 U.S. 23, 40-41, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) (plurality opinion). While these contexts do not necessarily involve equivalent dangers, in each a warrantless search is potentially reasonable because "there is compelling need for official action and no time to secure a warrant." Tyler, 436 U.S., at 509, 98 S.Ct. 1942.

To determine whether a law enforcement officer faced an emergency that justified acting without a warrant, this Court looks to the totality of circumstances. See Brigham City v. Stuart, 547 U.S. 398, 406, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (finding officers' entry into a home to provide emergency assistance "plainly reasonable under the circumstances"); Illinois v. McArthur, 531 U.S. 326, 331, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001) (concluding that a warrantless seizure of a person to prevent him from returning to his trailer to destroy hidden contraband was reasonable "[i]n the circumstances of the case before us" due to exigency); Cupp, 412 U.S., at 296, 93 S.Ct. 2000 (holding that a limited warrantless search of a suspect's fingernails to preserve evidence that the suspect was trying to rub off was justified "[o]n the facts of this case"); see also Richards v. Wisconsin, 520 U.S. 385, 391-396, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997) (rejecting a per se exception to the knock-and-announce requirement for felony drug investigations based on presumed exigency, and requiring instead evaluation of police conduct "in a particular case"). We apply this "finely tuned approach" to Fourth Amendment reasonableness in this context because the police action at issue lacks "the traditional justification that ... a warrant ... provides." Atwater v. Lago Vista, 532 U.S. 318, 347, n. 16, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). Absent that established justification, "the fact-specific nature of the reasonableness inquiry," Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996), demands that we evaluate each case of alleged exigency based "on its own facts and circumstances." Go-Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 75 L.Ed. 374 (1931).[3]

Our decision in Schmerber applied this totality of the circumstances approach. In that case, the petitioner had suffered injuries in an automobile accident and was taken to the hospital. 384 U.S., at 758, 86 S.Ct. 1826. While he was there receiving treatment, a police officer arrested the petitioner for driving while under the influence of alcohol and ordered a blood test over his objection. Id., at 758-759, 86 S.Ct. 1826. After explaining that the warrant requirement applied generally to searches that intrude into the human body, 1560*1560 we concluded that the warrantless blood test "in the present case" was nonetheless permissible because the officer "might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened `the destruction of evidence.'" Id., at 770, 86 S.Ct. 1826 (quoting Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964)).

In support of that conclusion, we observed that evidence could have been lost because "the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system." 384 U.S., at 770, 86 S.Ct. 1826. We added that "[p]articularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant." Id., at 770-771, 86 S.Ct. 1826. "Given these special facts," we found that it was appropriate for the police to act without a warrant. Id., at 771, 86 S.Ct. 1826. We further held that the blood test at issue was a reasonable way to recover the evidence because it was highly effective, "involve[d] virtually no risk, trauma, or pain," and was conducted in a reasonable fashion "by a physician in a hospital environment according to accepted medical practices." Ibid. And in conclusion, we noted that our judgment that there had been no Fourth Amendment violation was strictly based "on the facts of the present record." Id., at 772, 86 S.Ct. 1826.

Thus, our analysis in Schmerber fits comfortably within our case law applying the exigent circumstances exception. In finding the warrantless blood test reasonable in Schmerber, we considered all of the facts and circumstances of the particular case and carefully based our holding on those specific facts.

B

The State properly recognizes that the reasonableness of a warrantless search under the exigency exception to the warrant requirement must be evaluated based on the totality of the circumstances. Brief for Petitioner 28-29. But the State nevertheless seeks a per se rule for blood testing in drunk-driving cases. The State contends that whenever an officer has probable cause to believe an individual has been driving under the influence of alcohol, exigent circumstances will necessarily exist because BAC evidence is inherently evanescent. As a result, the State claims that so long as the officer has probable cause and the blood test is conducted in a reasonable manner, it is categorically reasonable for law enforcement to obtain the blood sample without a warrant.

It is true that as a result of the human body's natural metabolic processes, the alcohol level in a person's blood begins to dissipate once the alcohol is fully absorbed and continues to decline until the alcohol is eliminated. See Skinner, 489 U.S., at 623, 109 S.Ct. 1402; Schmerber, 384 U.S., at 770-771, 86 S.Ct. 1826. Testimony before the trial court in this case indicated that the percentage of alcohol in an individual's blood typically decreases by approximately 0.015 percent to 0.02 percent per hour once the alcohol has been fully absorbed. App. 47. More precise calculations of the rate at which alcohol dissipates depend on various individual characteristics (such as weight, gender, and alcohol tolerance) and the circumstances in which the alcohol was consumed. See Stripp, Forensic and Clinical Issues in Alcohol Analysis, in Forensic Chemistry Handbook 437-441 (L. Kobilinsky ed.2012). Regardless of the exact elimination rate, it is sufficient for our 1561*1561 purposes to note that because an individual's alcohol level gradually declines soon after he stops drinking, a significant delay in testing will negatively affect the probative value of the results. This fact was essential to our holding in Schmerber, as we recognized that, under the circumstances, further delay in order to secure a warrant after the time spent investigating the scene of the accident and transporting the injured suspect to the hospital to receive treatment would have threatened the destruction of evidence. 384 U.S., at 770-771, 86 S.Ct. 1826.

But it does not follow that we should depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State and its amici. In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948) ("We cannot ... excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made [the search] imperative"). We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test. That, however, is a reason to decide each case on its facts, as we did in Schmerber, not to accept the "considerable overgeneralization" that a per se rule would reflect. Richards, 520 U.S., at 393, 117 S.Ct. 1416.

The context of blood testing is different in critical respects from other destruction-of-evidence cases in which the police are truly confronted with a "`now or never'" situation. Roaden v. Kentucky, 413 U.S. 496, 505, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). In contrast to, for example, circumstances in which the suspect has control over easily disposable evidence, see Georgia v. Randolph, 547 U.S. 103, 116, n. 6, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006); Cupp, 412 U.S., at 296, 93 S.Ct. 2000, BAC evidence from a drunk-driving suspect naturally dissipates over time in a gradual and relatively predictable manner. Moreover, because a police officer must typically transport a drunk-driving suspect to a medical facility and obtain the assistance of someone with appropriate medical training before conducting a blood test, some delay between the time of the arrest or accident and the time of the test is inevitable regardless of whether police officers are required to obtain a warrant. See State v. Shriner, 751 N.W.2d 538, 554 (Minn.2008) (Meyer, J., dissenting). This reality undermines the force of the State's contention, endorsed by the dissent, see post, at 1575 (opinion of THOMAS, J.), that we should recognize a categorical exception to the warrant requirement because BAC evidence "is actively being destroyed with every minute that passes." Brief for Petitioner 27. Consider, for example, a situation in which the warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer. In such a circumstance, there would be no plausible justification for an exception to the warrant requirement.

The State's proposed per se rule also fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications, particularly in contexts like drunk-driving investigations where the evidence offered to establish 1562*1562 probable cause is simple. The Federal Rules of Criminal Procedure were amended in 1977 to permit federal magistrate judges to issue a warrant based on sworn testimony communicated by telephone. See 91 Stat. 319. As amended, the law now allows a federal magistrate judge to consider "information communicated by telephone or other reliable electronic means." Fed. Rule Crim. Proc. 4.1. States have also innovated. Well over a majority of States allow police officers or prosecutors to apply for search warrants remotely through various means, including telephonic or radio communication, electronic communication such as e-mail, and video conferencing.[4] And in addition to technology-based developments, jurisdictions have found other ways to streamline the warrant process, such as by using standard-form warrant applications for drunk-driving investigations.[5]

We by no means claim that telecommunications innovations have, will, or should eliminate all delay from the warrant-application process. Warrants inevitably take some time for police officers or prosecutors to complete and for magistrate judges to review. Telephonic and electronic warrants may still require officers to follow time-consuming formalities designed to create an adequate record, such as preparing a duplicate warrant before calling the magistrate judge. See Fed. Rule Crim. Proc. 4.1(b)(3). And improvements in communications technology do not guarantee that a magistrate judge will be available when an officer needs a warrant after making a late-night arrest. But technological developments that enable police officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge's essential 1563*1563 role as a check on police discretion, are relevant to an assessment of exigency. That is particularly so in this context, where BAC evidence is lost gradually and relatively predictably.[6]

Of course, there are important countervailing concerns. While experts can work backwards from the BAC at the time the sample was taken to determine the BAC at the time of the alleged offense, longer intervals may raise questions about the accuracy of the calculation. For that reason, exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process. But adopting the State's per se approach would improperly ignore the current and future technological developments in warrant procedures, and might well diminish the incentive for jurisdictions "to pursue progressive approaches to warrant acquisition that preserve the protections afforded by the warrant while meeting the legitimate interests of law enforcement." State v. Rodriguez, 2007 UT 15, ¶ 46, 156 P.3d 771, 779.

In short, while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.

C

In an opinion concurring in part and dissenting in part, THE CHIEF JUSTICE agrees that the State's proposed per se rule is overbroad because "[f]or exigent circumstances to justify a warrantless search ... there must ... be `no time to secure a warrant.'" Post, at 1572 (quoting Tyler, 436 U.S., at 509, 98 S.Ct. 1942). But THE CHIEF JUSTICE then goes on to suggest his own categorical rule under which a warrantless blood draw is permissible if the officer could not secure a warrant (or reasonably believed he could not secure a warrant) in the time it takes to transport the suspect to a hospital or similar facility and obtain medical assistance. Post, at 1572-1574. Although we agree that delay inherent to the blood-testing process is relevant to evaluating exigency, see supra, at 1561, we decline to substitute THE CHIEF JUSTICE's modified per se rule for our traditional totality of the circumstances analysis.

For one thing, making exigency completely dependent on the window of time between an arrest and a blood test produces odd consequences. Under THE CHIEF JUSTICE's rule, if a police officer serendipitously stops a suspect near an emergency room, the officer may conduct a nonconsensual warrantless blood draw even if all agree that a warrant could be obtained with very little delay under the circumstances (perhaps with far less delay than an average ride to the hospital in the jurisdiction). The rule would also distort law enforcement incentives. As with the State's per se rule, THE CHIEF JUSTICE's rule might discourage efforts to expedite the warrant process because it categorically authorizes warrantless blood draws so long as it takes more time to 1564*1564 secure a warrant than to obtain medical assistance. On the flip side, making the requirement of independent judicial oversight turn exclusively on the amount of time that elapses between an arrest and BAC testing could induce police departments and individual officers to minimize testing delay to the detriment of other values. THE CHIEF JUSTICE correctly observes that "[t]his case involves medical personnel drawing blood at a medical facility, not police officers doing so by the side of the road." Post, at 1572, n. 2. But THE CHIEF JUSTICE does not say that roadside blood draws are necessarily unreasonable, and if we accepted THE CHIEF JUSTICE's approach, they would become a more attractive option for the police.

III

The remaining arguments advanced in support of a per se exigency rule are unpersuasive.

The State and several of its amici, including the United States, express concern that a case-by-case approach to exigency will not provide adequate guidance to law enforcement officers deciding whether to conduct a blood test of a drunk-driving suspect without a warrant. THE CHIEF JUSTICE and the dissent also raise this concern. See post, at 1569, 1573-1574 (opinion of ROBERTS, C.J.); post, at 1576-1578 (opinion of THOMAS, J.). While the desire for a bright-line rule is understandable, the Fourth Amendment will not tolerate adoption of an overly broad categorical approach that would dilute the warrant requirement in a context where significant privacy interests are at stake. Moreover, a case-by-case approach is hardly unique within our Fourth Amendment jurisprudence. Numerous police actions are judged based on fact-intensive, totality of the circumstances analyses rather than according to categorical rules, including in situations that are more likely to require police officers to make difficult split-second judgments. See, e.g., Illinois v. Wardlow, 528 U.S. 119, 123-125, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (whether an officer has reasonable suspicion to make an investigative stop and to pat down a suspect for weapons under Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)); Robinette, 519 U.S., at 39-40, 117 S.Ct. 417 (whether valid consent has been given to search); Tennessee v. Garner, 471 U.S. 1, 8-9, 20, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (whether force used to effectuate a seizure, including deadly force, is reasonable). As in those contexts, we see no valid substitute for careful case-by-case evaluation of reasonableness here.[7]

Next, the State and the United States contend that the privacy interest implicated by blood draws of drunk-driving suspects is relatively minimal. That is so, they claim, both because motorists have a diminished expectation of privacy and because our cases have repeatedly indicated that blood testing is commonplace in society and typically involves "virtually no 1565*1565 risk, trauma, or pain." Schmerber, 384 U.S., at 771, 86 S.Ct. 1826. See also post, at 1575, and n. 1 (opinion of THOMAS, J.).

But the fact that people are "accorded less privacy in ... automobiles because of th[e] compelling governmental need for regulation," California v. Carney, 471 U.S. 386, 392, 105 S.Ct. 2066, 85 L.Ed.2d 406 (1985), does not diminish a motorist's privacy interest in preventing an agent of the government from piercing his skin. As to the nature of a blood test conducted in a medical setting by trained personnel, it is concededly less intrusive than other bodily invasions we have found unreasonable. See Winston, 470 U.S., at 759-766, 105 S.Ct. 1611 (surgery to remove a bullet); Rochin v. California, 342 U.S. 165, 172-174, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (induced vomiting to extract narcotics capsules ingested by a suspect violated the Due Process Clause). For that reason, we have held that medically drawn blood tests are reasonable in appropriate circumstances. See Skinner, 489 U.S., at 618-633, 109 S.Ct. 1402 (upholding warrantless blood testing of railroad employees involved in certain train accidents under the "special needs" doctrine); Schmerber, 384 U.S., at 770-772, 86 S.Ct. 1826. We have never retreated, however, from our recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests.

Finally, the State and its amici point to the compelling governmental interest in combating drunk driving and contend that prompt BAC testing, including through blood testing, is vital to pursuit of that interest. They argue that is particularly so because, in addition to laws that make it illegal to operate a motor vehicle under the influence of alcohol, all 50 States and the District of Columbia have enacted laws that make it per se unlawful to operate a motor vehicle with a BAC of over 0.08 percent. See National Highway Traffic Safety Admin. (NHTSA), Alcohol and Highway Safety: A Review of the State of Knowledge 167 (No. 811374, Mar. 2011) (NHTSA Review).[8] To enforce these provisions, they reasonably assert, accurate BAC evidence is critical. See also post, at 1570-1571 (opinion of ROBERTS, C.J.); post, at 1576-1577 (opinion of THOMAS, J.).

"No one can seriously dispute the magnitude of the drunken driving problem or the States' interest in eradicating it." Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110 S.Ct. 2481, 110 L.Ed.2d 412 (1990). Certainly we do not. While some progress has been made, drunk driving continues to exact a terrible toll on our society. See NHTSA, Traffic Safety Facts, 2011 Data 1 (No. 811700, Dec. 2012) (reporting that 9,878 people were killed in alcohol-impaired driving crashes in 2011, an average of one fatality every 53 minutes).

But the general importance of the government's interest in this area does not justify departing from the warrant requirement without showing exigent circumstances that make securing a warrant impractical in a particular case. To the extent that the State and its amici contend that applying the traditional Fourth Amendment totality-of-the-circumstances 1566*1566 analysis to determine whether an exigency justified a warrantless search will undermine the governmental interest in preventing and prosecuting drunk-driving offenses, we are not convinced.

As an initial matter, States have a broad range of legal tools to enforce their drunk-driving laws and to secure BAC evidence without undertaking warrantless nonconsensual blood draws. For example, all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk-driving offense. See NHTSA Review 173; supra, at 1556 (describing Missouri's implied consent law). Such laws impose significant consequences when a motorist withdraws consent; typically the motorist's driver's license is immediately suspended or revoked, and most States allow the motorist's refusal to take a BAC test to be used as evidence against him in a subsequent criminal prosecution. See NHTSA Review 173-175; see also South Dakota v. Neville, 459 U.S. 553, 554, 563-564, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983) (holding that the use of such an adverse inference does not violate the Fifth Amendment right against self-incrimination).

It is also notable that a majority of States either place significant restrictions on when police officers may obtain a blood sample despite a suspect's refusal (often limiting testing to cases involving an accident resulting in death or serious bodily injury) or prohibit nonconsensual blood tests altogether.[9] Among these States, several lift restrictions on nonconsensual blood testing if law enforcement officers first obtain a search warrant or similar court order.[10] Cf. Bullcoming v. New 1567*1567 Mexico, 564 U.S. ___, ___, 131 S.Ct. 2705, 2710-2711, 180 L.Ed.2d 610 (2011) (noting that the blood test was obtained pursuant to a warrant after the petitioner refused a breath test). We are aware of no evidence indicating that restrictions on nonconsensual blood testing have compromised drunk-driving enforcement efforts in the States that have them. And in fact, field studies in States that permit nonconsensual blood testing pursuant to a warrant have suggested that, although warrants do impose administrative burdens, their use can reduce breath-test-refusal rates and improve law enforcement's ability to recover BAC evidence. See NHTSA, Use of Warrants for Breath Test Refusal: Case Studies 36-38 (No. 810852, Oct. 2007).

To be sure, "States [may] choos[e] to protect privacy beyond the level that the Fourth Amendment requires." Virginia v. Moore, 553 U.S. 164, 171, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008). But wide-spread state restrictions on nonconsensual blood testing provide further support for our recognition that compelled blood draws implicate a significant privacy interest. They also strongly suggest that our ruling today will not "severely hamper effective law enforcement." Garner, 471 U.S., at 19, 105 S.Ct. 1694.

IV

The State argued before this Court that the fact that alcohol is naturally metabolized by the human body creates an exigent circumstance in every case. The State did not argue that there were exigent circumstances in this particular case because a warrant could not have been obtained within a reasonable amount of time. In his testimony before the trial court, the arresting officer did not identify any other factors that would suggest he faced an emergency or unusual delay in securing a warrant. App. 40. He testified that he made no effort to obtain a search warrant before conducting the blood draw even though he was "sure" a prosecuting attorney was on call and even though he had no reason to believe that a magistrate judge would have been unavailable. Id., at 39, 41-42. The officer also acknowledged that he had obtained search warrants before taking blood samples in the past without difficulty. Id., at 42. He explained that he elected to forgo a warrant application in this case only because he believed it was not legally necessary to obtain a warrant. Id., at 39-40. Based on this testimony, the trial court concluded that there was no exigency and specifically found that, although the arrest took place in the middle of the night, "a prosecutor was readily available to apply for a search warrant and a judge was readily available to issue a warrant." App. to Pet. for Cert. 43a.[11]

The Missouri Supreme Court in turn affirmed that judgment, holding first that the dissipation of alcohol did not establish a per se exigency, and second that the State could not otherwise satisfy its burden of establishing exigent circumstances. 1568*1568 358 S.W.3d, at 70, 74-75. In petitioning for certiorari to this Court, the State challenged only the first holding; it did not separately contend that the warrantless blood test was reasonable regardless of whether the natural dissipation of alcohol in a suspect's blood categorically justifies dispensing with the warrant requirement. See Pet. for Cert. i.

Here and in its own courts the State based its case on an insistence that a driver who declines to submit to testing after being arrested for driving under the influence of alcohol is always subject to a nonconsensual blood test without any precondition for a warrant. That is incorrect.

Although the Missouri Supreme Court referred to this case as "unquestionably a routine DWI case," 358 S.W.3d, at 74, the fact that a particular drunk-driving stop is "routine" in the sense that it does not involve "`special facts,'" ibid., such as the need for the police to attend to a car accident, does not mean a warrant is required. Other factors present in an ordinary traffic stop, such as the procedures in place for obtaining a warrant or the availability of a magistrate judge, may affect whether the police can obtain a warrant in an expeditious way and therefore may establish an exigency that permits a warrantless search. The relevant factors in determining whether a warrantless search is reasonable, including the practical problems of obtaining a warrant within a timeframe that still preserves the opportunity to obtain reliable evidence, will no doubt vary depending upon the circumstances in the case.

Because this case was argued on the broad proposition that drunk-driving cases present a per se exigency, the arguments and the record do not provide the Court with an adequate analytic framework for a detailed discussion of all the relevant factors that can be taken into account in determining the reasonableness of acting without a warrant. It suffices to say that the metabolization of alcohol in the bloodstream and the ensuing loss of evidence are among the factors that must be considered in deciding whether a warrant is required. No doubt, given the large number of arrests for this offense in different jurisdictions nationwide, cases will arise when anticipated delays in obtaining a warrant will justify a blood test without judicial authorization, for in every case the law must be concerned that evidence is being destroyed. But that inquiry ought not to be pursued here where the question is not properly before this Court. Having rejected the sole argument presented to us challenging the Missouri Supreme Court's decision, we affirm its judgment.

* * *

We hold that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.

The judgment of the Missouri Supreme Court is affirmed.

It is so ordered.

Justice KENNEDY, concurring in part.

I join Parts I, II-A, II-B, and IV of the opinion for the Court.

For the reasons stated below this case does not call for the Court to consider in detail the issue discussed in Part II-C and the separate opinion by THE CHIEF JUSTICE.

As to Part III, much that is noted with respect to the statistical and survey data will be of relevance when this issue is explored in later cases. The repeated insistence in Part III that every case be determined by its own circumstances is 1569*1569 correct, of course, as a general proposition; yet it ought not to be interpreted to indicate this question is not susceptible of rules and guidelines that can give important, practical instruction to arresting officers, instruction that in any number of instances would allow a warrantless blood test in order to preserve the critical evidence.

States and other governmental entities which enforce the driving laws can adopt rules, procedures, and protocols that meet the reasonableness requirements of the Fourth Amendment and give helpful guidance to law enforcement officials. And this Court, in due course, may find it appropriate and necessary to consider a case permitting it to provide more guidance than it undertakes to give today.

As the opinion of the Court is correct to note, the instant case, by reason of the way in which it was presented and decided in the state courts, does not provide a framework where it is prudent to hold any more than that always dispensing with a warrant for a blood test when a driver is arrested for being under the influence of alcohol is inconsistent with the Fourth Amendment.

Chief Justice ROBERTS, with whom Justice BREYER and Justice ALITO join, concurring in part and dissenting in part.

A police officer reading this Court's opinion would have no idea — no idea — what the Fourth Amendment requires of him, once he decides to obtain a blood sample from a drunk driving suspect who has refused a breathalyzer test. I have no quarrel with the Court's "totality of the circumstances" approach as a general matter; that is what our cases require. But the circumstances in drunk driving cases are often typical, and the Court should be able to offer guidance on how police should handle cases like the one before us.

In my view, the proper rule is straightforward. Our cases establish that there is an exigent circumstances exception to the warrant requirement. That exception applies when there is a compelling need to prevent the imminent destruction of important evidence, and there is no time to obtain a warrant. The natural dissipation of alcohol in the bloodstream constitutes not only the imminent but ongoing destruction of critical evidence. That would qualify as an exigent circumstance, except that there may be time to secure a warrant before blood can be drawn. If there is, an officer must seek a warrant. If an officer could reasonably conclude that there is not, the exigent circumstances exception applies by its terms, and the blood may be drawn without a warrant.

I

The Fourth Amendment provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

That language does not state that warrants are required prior to searches, but this Court has long held that warrants must generally be obtained. See Kentucky v. King, 563 U.S. ___, ___, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011). We have also held that bodily intrusions like blood draws constitute searches and are subject to the warrant requirement. See Schmerber v. California, 384 U.S. 757, 767, 770, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

However, "the ultimate touchstone of the Fourth Amendment is `reasonableness,'" 1570*1570 Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006), and thus "the warrant requirement is subject to certain reasonable exceptions," King, 563 U.S., at ___, 131 S.Ct., at 1856. One of those exceptions is known as the "exigent circumstances exception," which "applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment." Ibid. (internal quotation marks and alterations omitted).

Within the exigent circumstances exception, we have identified several sets of exigent circumstances excusing the need for a warrant. For example, there is an emergency aid exception to the warrant requirement. In Brigham City, supra, at 403, 126 S.Ct. 1943, we held that "law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury." There is also a fire exception to the warrant requirement. In Michigan v. Tyler, 436 U.S. 499, 509, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978), we held that "[a] burning building clearly presents an exigency of sufficient proportions to render a warrantless entry `reasonable.'" And there is a hot pursuit exception to the warrant requirement as well. In United States v. Santana, 427 U.S. 38, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), and Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), we recognized "the right of police, who had probable cause to believe that an armed robber had entered a house a few minutes before, to make a warrantless entry to arrest the robber and to search for weapons." Santana, supra, at 42, 96 S.Ct. 2406. In each of these cases, the requirement that we base our decision on the "totality of the circumstances" has not prevented us from spelling out a general rule for the police to follow.

The exigency exception most on point here is the one for imminent destruction of evidence. We have affirmed on several occasions that "law enforcement officers may make a warrantless entry onto private property ... to prevent the imminent destruction of evidence." Brigham City, supra, at 403, 126 S.Ct. 1943 (citing Ker v. California, 374 U.S. 23, 40, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) (plurality opinion)); see also, e.g., King, supra, at ___, 131 S.Ct., at 1856-1857. For example, in Ker, the police had reason to believe that the defendant was in possession of marijuana and was expecting police pursuit. We upheld the officers' warrantless entry into the defendant's home, with the plurality explaining that the drugs "could be quickly and easily destroyed" or "distributed or hidden before a warrant could be obtained at that time of night." 374 U.S., at 40, 42, 83 S.Ct. 1623.

As an overarching principle, we have held that if there is a "compelling need for official action and no time to secure a warrant," the warrant requirement may be excused. Tyler, supra, at 509, 98 S.Ct. 1942. The question here is whether and how this principle applies in the typical case of a police officer stopping a driver on suspicion of drunk driving.

II

A

The reasonable belief that critical evidence is being destroyed gives rise to a compelling need for blood draws in cases like this one. Here, in fact, there is not simply a belief that any alcohol in the bloodstream will be destroyed; it is a biological certainty. Alcohol dissipates from the bloodstream at a rate of 0.01 percent to 0.025 percent per hour. Stripp, Forensic 1571*1571 and Clinical Issues in Alcohol Analysis, in Forensic Chemistry Handbook 440 (L. Kobilinsky ed.2012). Evidence is literally disappearing by the minute. That certainty makes this case an even stronger one than usual for application of the exigent circumstances exception.

And that evidence is important. A serious and deadly crime is at issue. According to the Department of Transportation, in 2011, one person died every 53 minutes due to drinking and driving. National Highway Traffic Safety Admin. (NHTSA), Traffic Safety Facts, 2011 Data 1 (No. 811700, Dec. 2012). No surprise then that drinking and driving is punished severely, including with jail time. See generally Dept. of Justice, Bureau of Justice Statistics, L. Maruschak, Special Report, DWI Offenders under Correctional Supervision (1999). McNeely, for instance, faces up to four years in prison. See App. 22-23 (citing Mo. Ann. Stat. §§ 558.011, 577.010, 577.023 (West 2011)).

Evidence of a driver's blood alcohol concentration (BAC) is crucial to obtain convictions for such crimes. All 50 States and the District of Columbia have laws providing that it is per se illegal to drive with a BAC of 0.08 percent or higher. Most States also have laws establishing additional penalties for drivers who drive with a "high BAC," often defined as 0.15 percent or above. NHTSA, Digest of Impaired Driving and Selected Beverage Control Laws, pp. vii, x-xviii (No. 811673, Oct. 2012). BAC evidence clearly matters. And when drivers refuse breathalyzers, as McNeely did here, a blood draw becomes necessary to obtain that evidence.

The need to prevent the imminent destruction of BAC evidence is no less compelling because the incriminating alcohol dissipates over a limited period of time, rather than all at once. As noted, the concentration of alcohol can make a difference not only between guilt and innocence, but between different crimes and different degrees of punishment. The officer is unlikely to know precisely when the suspect consumed alcohol or how much; all he knows is that critical evidence is being steadily lost. Fire can spread gradually, but that does not lessen the need and right of the officers to respond immediately. See Tyler, supra.

McNeely contends that there is no compelling need for a warrantless blood draw, because if there is some alcohol left in the blood by the time a warrant is obtained, the State can use math and science to work backwards and identify a defendant's BAC at the time he was driving. See Brief for Respondent 44-46. But that's not good enough. We have indicated that exigent circumstances justify warrantless entry when drugs are about to be flushed down the toilet. See, e.g., King, 563 U.S., at ___-___, 131 S.Ct., at 1857-1858. We have not said that, because there could well be drug paraphernalia elsewhere in the home, or because a defendant's co-conspirator might testify to the amount of drugs involved, the drugs themselves are not crucial and there is no compelling need for warrantless entry.

The same approach should govern here. There is a compelling need to search because alcohol — the nearly conclusive evidence of a serious crime — is dissipating from the bloodstream. The need is no less compelling because the police might be able to acquire second-best evidence some other way.[1]

1572*1572 B

For exigent circumstances to justify a warrantless search, however, there must also be "no time to secure a warrant." Tyler, 436 U.S., at 509, 98 S.Ct. 1942; see Schmerber, 384 U.S., at 771, 86 S.Ct. 1826 (warrantless search legal when "there was no time to seek out a magistrate and secure a warrant"). In this respect, obtaining a blood sample from a suspected drunk driver differs from other exigent circumstances cases.

Importantly, there is typically delay between the moment a drunk driver is stopped and the time his blood can be drawn. Drunk drivers often end up in an emergency room, but they are not usually pulled over in front of one. In most exigent circumstances situations, police are just outside the door to a home. Inside, evidence is about to be destroyed, a person is about to be injured, or a fire has broken out. Police can enter promptly and must do so to respond effectively to the emergency. But when police pull a person over on suspicion of drinking and driving, they cannot test his blood right away.[2] There is a time-consuming obstacle to their search, in the form of a trip to the hospital and perhaps a wait to see a medical professional. In this case, for example, approximately 25 minutes elapsed between the time the police stopped McNeely and the time his blood was drawn. App. 36, 38.

As noted, the fact that alcohol dissipates gradually from the bloodstream does not diminish the compelling need for a search — critical evidence is still disappearing. But the fact that the dissipation persists for some time means that the police — although they may not be able to do anything about it right away — may still be able to respond to the ongoing destruction of evidence later on.

There might, therefore, be time to obtain a warrant in many cases. As the Court explains, police can often request warrants rather quickly these days. At least 30 States provide for electronic warrant applications. See ante, at 1561-1563, and n. 4. In many States, a police officer can call a judge, convey the necessary information, and be authorized to affix the judge's signature to a warrant. See, e.g., Ala. Rule Crim. Proc. 3.8(b) (2012-2013); Alaska Stat. § 12.35.015 (2012); Idaho Code §§ 19-4404, 19-4406 (Lexis 2004); Minn. Rules Crim. Proc. 36.01-36.08 (2010 and Supp.2013); Mont. Code Ann. § 46-5-222 (2012); see generally NHTSA, Use of Warrants for Breath Test Refusal: Case Studies 6-32 (No. 1573*1573 810852, Oct. 2007) (overview of procedures in Arizona, Michigan, Oregon, and Utah). Utah has an e-warrant procedure where a police officer enters information into a system, the system notifies a prosecutor, and upon approval the officer forwards the information to a magistrate, who can electronically return a warrant to the officer. Utah, e-Warrants: Cross Boundary Collaboration 1 (2008). Judges have been known to issue warrants in as little as five minutes. Bergreen, Faster Warrant System Hailed, Salt Lake Tribune, Dec. 26, 2008, p. B1, col. 1. And in one county in Kansas, police officers can e-mail warrant requests to judges' iPads; judges have signed such warrants and e-mailed them back to officers in less than 15 minutes. Benefiel, DUI Search Warrants: Prosecuting DUI Refusals, 9 Kansas Prosecutor 17, 18 (Spring 2012). The police are presumably familiar with the mechanics and time involved in the warrant process in their particular jurisdiction.

III

A

In a case such as this, applying the exigent circumstances exception to the general warrant requirement of the Fourth Amendment seems straightforward: If there is time to secure a warrant before blood can be drawn, the police must seek one. If an officer could reasonably conclude that there is not sufficient time to seek and receive a warrant, or he applies for one but does not receive a response before blood can be drawn, a warrantless blood draw may ensue. See Tyler, supra, at 509, 98 S.Ct. 1942; see also Illinois v. Rodriguez, 497 U.S. 177, 185-186, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) ("in order to satisfy the `reasonableness' requirement of the Fourth Amendment, what is generally demanded of the many factual determinations that must regularly be made by ... police officer[s] conducting a search or seizure under one of the exceptions to the warrant requirement ... is not that they always be correct, but that they always be reasonable"); Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) ("police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure").

Requiring police to apply for a warrant if practicable increases the likelihood that a neutral, detached judicial officer will review the case, helping to ensure that there is probable cause for any search and that any search is reasonable. We have already held that forced blood draws can be constitutional — that such searches can be reasonable — but that does not change the fact that they are significant bodily intrusions. See Schmerber, 384 U.S., at 770, 86 S.Ct. 1826 (upholding a warrantless forced blood draw but noting the "importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt" as "indisputable and great"). Requiring a warrant whenever practicable helps ensure that when blood draws occur, they are indeed justified.

At the same time, permitting the police to act without a warrant to prevent the imminent destruction of evidence is well established in Fourth Amendment law. There is no reason to preclude application of that exception in drunk driving cases simply because it may take the police some time to be able to respond to the undoubted destruction of evidence, or because the destruction occurs continuously over an uncertain period.

And that is so even in situations where police have requested a warrant but do not receive a timely response. An officer who reasonably concluded there was no time to secure a warrant may have blood drawn 1574*1574 from a suspect upon arrival at a medical facility. There is no reason an officer should be in a worse position, simply because he sought a warrant prior to his arrival at the hospital.

B

The Court resists the foregoing, contending that the question presented somehow inhibits such a focused analysis in this case. See ante, at 1567-1568. It does not. The question presented is whether a warrantless blood draw is permissible under the Fourth Amendment "based upon the natural dissipation of alcohol in the bloodstream." Pet. for Cert. i. The majority answers "It depends," and so do I. The difference is that the majority offers no additional guidance, merely instructing courts and police officers to consider the totality of the circumstances. I believe more meaningful guidance can be provided about how to handle the typical cases, and nothing about the question presented prohibits affording that guidance.

A plurality of the Court also expresses concern that my approach will discourage state and local efforts to expedite the warrant application process. See ante, at 1563. That is not plausible: Police and prosecutors need warrants in a wide variety of situations, and often need them quickly. They certainly would not prefer a slower process, just because that might obviate the need to ask for a warrant in the occasional drunk driving case in which a blood draw is necessary. The plurality's suggestion also overlooks the interest of law enforcement in the protection a warrant provides.

The Court is correct when it says that every case must be considered on its particular facts. But the pertinent facts in drunk driving cases are often the same, and the police should know how to act in recurring factual situations. Simply put, when a drunk driving suspect fails field sobriety tests and refuses a breathalyzer, whether a warrant is required for a blood draw should come down to whether there is time to secure one.

Schmerber itself provides support for such an analysis. The Court there made much of the fact that "there was no time to seek out a magistrate and secure a warrant." 384 U.S., at 771, 86 S.Ct. 1826. It did so in an era when cell phones and e-mail were unknown. It follows quite naturally that if cell phones and e-mail mean that there is time to contact a magistrate and secure a warrant, that must be done. At the same time, there is no need to jettison the well-established exception for the imminent destruction of evidence, when the officers are in a position to do something about it.

* * *

Because the Missouri courts did not apply the rule I describe above, and because this Court should not do so in the first instance, I would vacate and remand for further proceedings in the Missouri courts.

Justice THOMAS, dissenting.

This case requires the Court to decide whether the Fourth Amendment prohibits an officer from obtaining a blood sample without a warrant when there is probable cause to believe that a suspect has been driving under the influence of alcohol. Because the body's natural metabolization of alcohol inevitably destroys evidence of the crime, it constitutes an exigent circumstance. As a result, I would hold that a warrantless blood draw does not violate the Fourth Amendment.

I

A

The Fourth Amendment states that "[t]he right of the people to be secure in 1575*1575 their persons ... against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause." Before a search occurs, "a warrant must generally be secured," Kentucky v. King, 563 U.S. ___, ___, 131 S.Ct. 1849, 1856, 179 L.Ed.2d 865 (2011), but "this presumption may be overcome in some circumstances because `[t]he ultimate touchstone of the Fourth Amendment is "reasonableness."'" Ibid. (quoting Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006); alteration in original).

The presence of "exigent circumstances" is one such exception to the warrant requirement. Exigency applies when "`the needs of law enforcement [are] so compelling that [a] warrantless search is objectively reasonable under the Fourth Amendment.'" 563 U.S., at ___, 131 S.Ct., at 1856 (quoting Mincey v. Arizona, 437 U.S. 385, 394, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978); second alteration in original). Thus, when exigent circumstances are present, officers may take actions that would typically require a warrant, such as entering a home in hot pursuit of a fleeing suspect. 563 U.S., at ___, 131 S.Ct., at 1856-1857. As relevant in this case, officers may also conduct a warrantless search when they have probable cause to believe that failure to act would result in "`imminent destruction of evidence.'" Ibid. (quoting Brigham City, supra, at 403, 126 S.Ct. 1943).

B

Once police arrest a suspect for drunk driving, each passing minute eliminates probative evidence of the crime. The human liver eliminates alcohol from the bloodstream at a rate of approximately 0.015 percent to 0.020 percent per hour, ante, at 1560, with some heavy drinkers as high as 0.022 percent per hour, Brief for Petitioner 21 (citing medical studies), depending on, among other things, a person's sex, weight, body type, and drinking history. Ante, at 1560-1561; Brief for United States as Amicus Curiae 23. The Court has acknowledged this fact since Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) ("We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system"). In that case, the Court recognized that destruction of evidence is inherent in drunk-driving cases and held that an officer investigating a drunk-driving crime "might reasonably [believe] that he [is] confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threaten[s] `the destruction of evidence.'" Ibid. (quoting Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964)). The Court explained that drawing a person's blood is "a highly effective means of determining the degree to which [he] is under the influence of alcohol" and is a reasonable procedure because blood tests are "commonplace" and "involv[e] virtually no risk, trauma, or pain."[1] 384 U.S., at 771, 86 S.Ct. 1826. The Court, therefore, held that dissipation of alcohol in the blood constitutes an exigency that allows a blood draw without a warrant.

The rapid destruction of evidence acknowledged by the parties, the majority, and Schmerber's exigency determination 1576*1576 occurs in every situation where police have probable cause to arrest a drunk driver. In turn, that destruction of evidence implicates the exigent-circumstances doctrine. See Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973). In Cupp, officers questioning a murder suspect observed a spot on the suspect's finger that they believed might be dried blood. Id., at 292, 93 S.Ct. 2000. After the suspect began making obvious efforts to remove the spots from his hands, the officers took samples without obtaining either his consent or a warrant. Id., at 296, 93 S.Ct. 2000. Following a Fourth Amendment challenge to this search, the Court held that the "ready destructibility of the evidence" and the suspect's observed efforts to destroy it "justified the police in subjecting him to the very limited search necessary to preserve the highly evanescent evidence they found under his fingernails." Ibid.

In this case, a similar exigency is present. Just as the suspect's efforts to destroy "highly evanescent evidence" gave rise to the exigency in Cupp, the natural metabolization of blood alcohol concentration (BAC) creates an exigency once police have probable cause to believe the driver is drunk. It naturally follows that police may conduct a search in these circumstances.

A hypothetical involving classic exigent circumstances further illustrates the point. Officers are watching a warehouse and observe a worker carrying bundles from the warehouse to a large bonfire and throwing them into the blaze. The officers have probable cause to believe the bundles contain marijuana. Because there is only one person carrying the bundles, the officers believe it will take hours to completely destroy the drugs. During that time the officers likely could obtain a warrant. But it is clear that the officers need not sit idly by and watch the destruction of evidence while they wait for a warrant. The fact that it will take time for the evidence to be destroyed and that some evidence may remain by the time the officers secure a warrant are not relevant to the exigency. However, the ever-diminishing quantity of drugs may have an impact on the severity of the crime and the length of the sentence. See, e.g., 21 U.S.C. § 841(b)(1)(D) (lower penalties for less than 50 kilograms of marijuana); United States Sentencing Commission, Guidelines Manual § 2D1.1(c) (Nov.2012) (drug quantity table tying base offense level to drug amounts). Conducting a warrantless search of the warehouse in this situation would be entirely reasonable.

The same obtains in the drunk-driving context. Just because it will take time for the evidence to be completely destroyed does not mean there is no exigency. Congress has conditioned federal highway grants on states' adoption of laws penalizing the operation of a motor vehicle "with a blood alcohol concentration of 0.08 percent or greater." 23 U.S.C. § 163(a). See also 23 C.F.R. § 1225.1 (2012). All 50 States have acceded to this condition. National Highway Traffic Safety Admin. (NHTSA), Alcohol and Highway Safety: A Review of the State of Knowledge 167 (No. 811374, Mar. 2011) (NHTSA State Review); Mo. Ann. Stat. § 577.012(1)-(2) (West 2011) (establishing Missouri's 0.08 percent BAC standard). Moreover, as of 2005, 32 States and the District of Columbia imposed additional penalties for BAC levels of 0.15 percent or higher. NHTSA State Review 175. Missouri is one such State. See, e.g., Mo. Stat. Ann. §§ 577.010(3)-(4), 577.012(4)-(5) (suspended sentence unavailable even for first offenders with BAC above 0.15 percent unless they complete drug treatment; mandatory jail time if treatment is not completed). As a result, the level of intoxication 1577*1577 directly bears on enforcement of these laws. Nothing in the Fourth Amendment requires officers to allow evidence essential to enforcement of drunk-driving laws to be destroyed while they wait for a warrant to issue.

II

In today's decision, the Court elides the certainty of evidence destruction in drunk-driving cases and focuses primarily on the time necessary for destruction. In doing so, it turns the exigency inquiry into a question about the amount of evidentiary destruction police must permit before they may act without a warrant. That inquiry is inconsistent with the actual exigency at issue: the uncontested destruction of evidence due to metabolization of alcohol. See Part I, supra. Moreover, the Court's facts-and-circumstances analysis will be difficult to administer, a particularly important concern in the Fourth Amendment context.

The Court's judgment reflects nothing more than a vague notion that everything will come out right most of the time so long as the delay is not too lengthy. Ante, at 1562 (justifying delays in part because "BAC evidence is lost gradually and relatively predictably"); ante, at 1561 (same, quoting Brief for Petitioner 27). But hard percentage lines have meaningful legal consequences in the drunk-driving context. The fact that police will be able to retrieve some evidence before it is all destroyed is simply not relevant to the exigency inquiry.

The majority believes that, absent special facts and circumstances, some destruction of evidence is acceptable. See ante, at 1561 ("sufficient for our purposes to note that ... significant delay in testing will negatively affect the probative value" (emphasis added)). This belief must rest on the assumption that whatever evidence remains once a warrant is obtained will be sufficient to prosecute the suspect. But that assumption is clearly wrong. Suspects' initial levels of intoxication and the time necessary to obtain warranted blood draws will vary widely from case to case. Even a slight delay may significantly affect probative value in borderline cases of suspects who are moderately intoxicated or suspects whose BAC is near a statutory threshold that triggers a more serious offense. See supra, at 1576-1577 (discussing laws penalizing heightened BAC levels). Similarly, the time to obtain a warrant can be expected to vary, and there is no reason to believe it will do so in a predictable fashion.

Further, the Court nowhere explains how an officer in the field is to apply the facts-and-circumstances test it adopts. First, officers do not have the facts needed to assess how much time can pass before too little evidence remains. They will never know how intoxicated a suspect is at the time of arrest. Otherwise, there would be no need for testing. Second, they will not know how long it will take to roust a magistrate from his bed, reach the hospital, or obtain a blood sample once there. As the Minnesota Supreme Court recognized in rejecting arguments like those adopted by the Court today:

"[T]he officer has no control over how long it would take to travel to a judge or the judge's availability. The officer also may not know the time of the suspect's last drink, the amount of alcohol consumed, or the rate at which the suspect will metabolize alcohol. Finally, an officer cannot know how long it will take to obtain the blood sample once the suspect is brought to the hospital. Under a totality of the circumstances test, an officer would be called upon to speculate on each of these considerations and predict how long the most probative evidence 1578*1578 of the defendant's blood-alcohol level would continue to exist before a blood sample was no longer reliable." State v. Shriner, 751 N.W.2d 538, 549 (2008) (footnote omitted).

The Court should not adopt a rule that requires police to guess whether they will be able to obtain a warrant before "too much" evidence is destroyed, for the police lack reliable information concerning the relevant variables.[2]

This case demonstrates the uncertainty officers face with regard to the delay caused by obtaining a warrant. The arresting officer clearly had probable cause to believe respondent was drunk, but there was no way for the officer to quantify the level of intoxication to determine how quickly he needed to act in order to obtain probative evidence. Another officer testified at respondent's trial that it typically took 1½; to 2 hours to obtain a drunk-driving warrant at night in Cape Girardeau County, Missouri. See App. 53-54. Respondent submitted an exhibit summarizing six late afternoon and nighttime drunk-driving search warrants that suggests the time may be shorter. Brief for Respondent 56; App. 70. Ultimately this factual tiff is beside the point; the spotty evidence regarding timing itself illustrates the fact that delays in obtaining warrants are unpredictable and potentially lengthy. A rule that requires officers (and ultimately courts) to balance transportation delays, hospital availability, and access to magistrates is not a workable rule for cases where natural processes inevitably destroy the evidence with every passing minute.

The availability of telephonic warrant applications is not an answer to this conundrum. See ante, at 1561-1563, and n. 4. For one thing, Missouri still requires written warrant applications and affidavits, Mo. Ann. Stat. §§ 542.276.2(1), 542.276.2.3 (West Supp.2012), rendering the Court's 50-State survey irrelevant to the actual disposition of this case. Ante, at 1555, n. 4. But even if telephonic applications were available in Missouri, the same difficulties would arise. As the majority correctly recognizes, "[w]arrants inevitably take some time for police officers or prosecutors to complete and for magistrate judges to review." Ante, at 1562. During that time, evidence is destroyed, and police who have probable cause to believe a crime has been committed should not have to guess how long it will take to secure a warrant.

* * *

For the foregoing reasons, I respectfully dissent.

[1] As a result of his two prior drunk-driving convictions, McNeely was charged with a class D felony under Missouri law, which carries a maximum imprisonment term of four years. See Mo. Ann. Stat. §§ 558.011, 577.023.1(5), 577.023.3 (West 2011).

[2] Compare 358 S.W.3d 65 (2012) (case below), State v. Johnson, 744 N.W.2d 340 (Iowa 2008) (same conclusion), and State v. Rodriguez, 2007 UT 15, 156 P.3d 771 (same), with State v. Shriner, 751 N.W.2d 538 (Minn.2008) (holding that the natural dissipation of blood-alcohol evidence alone constitutes a per se exigency), State v. Bohling, 173 Wis.2d 529, 494 N.W.2d 399 (1993) (same); State v. Woolery, 116 Idaho 368, 775 P.2d 1210 (1989) (same).

[3] We have recognized a limited class of traditional exceptions to the warrant requirement that apply categorically and thus do not require an assessment of whether the policy justifications underlying the exception, which may include exigency-based considerations, are implicated in a particular case. See, e.g., California v. Acevedo, 500 U.S. 565, 569-570, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991) (auto-mobile exception); United States v. Robinson, 414 U.S. 218, 224-235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (searches of a person incident to a lawful arrest). By contrast, the general exigency exception, which asks whether an emergency existed that justified a warrantless search, naturally calls for a case-specific inquiry.

[4] See Ala. Rule Crim. Proc. 3.8(b) (2012-2013); Alaska Stat. § 12.35.015 (2012); Ariz. Rev.Stat. Ann. §§ 13-3914(C), 13-3915(D), (E) (West 2010); Ark.Code Ann. § 16-82-201 (2005); Cal.Penal Code Ann. § 1526(b) (West 2011); Colo. Rule Crim. Proc. 41(c)(3) (2012); Ga.Code Ann. § 17-5-21.1 (2008); Haw. Rules Penal Proc. 41(h)-(i) (2013); Idaho Code §§ 19-4404, 19-4406 (Lexis 2004); Ind. Code § 35-33-5-8 (2012); Iowa Code §§ 321J.10(3), 462A.14D(3) (2009) (limited to specific circumstances involving accidents); Kan. Stat. Ann. §§ 22-2502(a), 22-2504 (2011 Cum.Supp.); La.Code Crim. Proc. Ann., Arts. 162.1(B), (D) (West 2003); Mich. Comp. Laws Ann. § 780.651(2)-(6) (West 2006); Minn. Rules Crim. Proc. 33.05, 36.01-36.08 (2010 and Supp.2013); Mont.Code Ann. §§ 46-5-221, 46-5-222 (2012); Neb.Rev.Stat. §§ 29-814.01, 29-814.03, 29-814.05 (2008); Nev. Rev.Stat. § 179.045(2), (4) (2011); N.H.Rev. Stat. Ann. § 595-A:4-a (Lexis Supp.2012); N.J. Rule Crim. Proc. 3:5-3(b) (2013); N.M. Rules Crim. Proc. 5-211(F)(3), (G)(3) (Supp. 2012); N.Y.Crim. Proc. Law Ann. §§ 690.35(1), 690.36(1), 690.40(3), 690.45(1), (2) (West 2009); N.C. Gen.Stat. Ann. § 15A-245(a)(3) (Lexis 2011); N.D. Rules Crim. Proc. 41(c)(2)-(3) (2012-2013); Ohio Rules Crim. Proc. 41(C)(1)-(2) (2011); Okla. Stat. Ann., Tit. 22, §§ 1223.1, 1225(B) (West 2011); Ore.Rev.Stat. § 133.545(5)-(6) (2011); Pa. Rules Crim. Proc. 203(A), (C) (2012); S.D. Codified Laws §§ 23A-35-4.2, 23A-35-5, 23A-35-6 (2004); Utah Rule Crim. Proc. 40(l) (2012); Vt. Rules Crim. Proc. 41(c)(4), (g)(2) (Supp.2012); Va.Code Ann. § 19.2-54 (Lexis Supp.2012); Wash.Super. Ct.Crim. Rule 2.3(c) (2002); Wis. Stat. § 968.12(3) (2007-2008); Wyo. Stat. Ann. § 31-6-102(d) (2011); see generally 2 W. LaFave, Search and Seizure § 4.3(b), pp. 511-516, and n. 29 (4th ed.2004) (describing oral search warrants and collecting state laws). Missouri requires that search warrants be in writing and does not permit oral testimony, thus excluding telephonic warrants. Mo. Ann. Stat. §§ 542.276.2(1), 542.276.3 (West Supp.2012). State law does permit the submission of warrant applications "by facsimile or other electronic means." § 542.276.3.

[5] During the suppression hearing in this case, McNeely entered into evidence a search-warrant form used in drunk-driving cases by the prosecutor's office in Cape Girardeau County, where the arrest took place. App. 61-69. The arresting officer acknowledged that he had used such forms in the past and that they were "readily available." Id., at 41-42.

[6] The dissent claims that a "50-state survey [is] irrelevant to the actual disposition of this case" because Missouri requires written warrant applications. Post, at 1578. But the per se exigency rule that the State seeks and the dissent embraces would apply nationally because it treats "the body's natural metabolization of alcohol" as a sufficient basis for a warrantless search everywhere and always. Post, at 1574. The technological innovations in warrant procedures that many States have adopted are accordingly relevant to show that the per se rule is overbroad.

[7] The dissent contends that officers in the field will be unable to apply the traditional totality of the circumstances test in this context because they will not know all of the relevant facts at the time of an arrest. See post, at 1577. But because "[t]he police are presumably familiar with the mechanics and time involved in the warrant process in their particular jurisdiction," post, at 1573 (opinion of ROBERTS, C.J.), we expect that officers can make reasonable judgments about whether the warrant process would produce unacceptable delay under the circumstances. Reviewing courts in turn should assess those judgments "`from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.'" Ryburn v. Huff, 565 U.S. ___, ___, 132 S.Ct. 987, 992, 181 L.Ed.2d 966 (2012) (per curiam).

[8] Pursuant to congressional directive, the NHTSA conditions federal highway grants on States' adoption of laws making it a per se offense to operate a motor vehicle with a BAC of 0.08 percent or greater. See 23 U.S.C. § 163(a); 23 C.F.R. § 1225.1 (2012). Several federal prohibitions on drunk driving also rely on the 0.08 percent standard. E.g., 32 C.F.R. §§ 234.17(c)(1)(ii), 1903.4(b)(1)(i)-(ii); 36 C.F.R. § 4.23(a)(2). In addition, 32 States and the District of Columbia have adopted laws that impose heightened penalties for operating a motor vehicle at or above a BAC of 0.15 percent. See NHTSA Review 175.

[9] See Ala.Code § 32-5-192(c) (2010); Alaska Stat. §§ 28.35.032(a), 28.35.035(a) (2012); Ariz.Rev.Stat. Ann. § 28-1321(D)(1) (West 2012); Ark.Code Ann. §§ 5-65-205(a)(1), 5-65-208(a)(1) (Supp.2011); Conn. Gen.Stat. §§ 14-227b(b), 14-227c(b) (2011); Fla. Stat. Ann. § 316.1933(1)(a) (West 2006); Ga.Code Ann. § 40-5-67.1(d), (d.1) (2011); Haw.Rev. Stat. § 291E-15 (2009 Cum.Supp.), §§ 291E-21(a), 291E-33 (2007), § 291E-65 (2009 Cum.Supp.); Iowa Code §§ 321J.9(1), 321J.10(1), 321J.10A(1) (2009); Kan. Stat. Ann. § 8-1001(b), (d) (2001); Ky.Rev.Stat. Ann. § 189A.105(2) (Lexis Supp.2012); La. Rev.Stat. Ann. § 32:666.A(1)(a)(i), (2) (Supp. 2013); Md. Transp. Code Ann. § 16-205.1(b)(i)(1), (c)(1) (Lexis 2012); Mass. Gen. Laws Ann., ch. 90, § 24(1)(e), (f)(1) (West 2012); Mich. Comp. Laws Ann. § 257.625d(1) (West 2006); Miss.Code Ann. § 63-11-21 (1973-2004); Mont.Code Ann. § 61-8-402(4), (5) (2011); Neb.Rev.Stat. § 60-498.01(2) (2012 Cum.Supp.), § 60-6,210 (2010); N.H.Rev.Stat. Ann. §§ 265-A:14(I), 265-A:16 (West 2012 Cum.Supp.); N.M. Stat. Ann. § 66-8-111(A) (LexisNexis 2009); N.Y. Veh. & Traf. Law Ann. §§ 1194(2)(b)(1), 1194(3) (West 2011); N.D. Cent.Code Ann. § 39-20-01.1(1) (Lexis Supp.2011), § 39-20-04(1) (Lexis 2008); Okla. Stat., Tit. 47, § 753 (West Supp.2013); Ore.Rev.Stat. § 813.100(2) (2011); 75 Pa. Cons.Stat. § 1547(b)(1) (2004); R.I. Gen. Laws §§ 31-27-2.1(b), 31-27-2.9(a) (Lexis 2010); S.C.Code Ann. § 56-5-2950(B) (Supp.2011); Tenn.Code Ann. § 55-10-406(a)(4), (f) (2012); Tex. Transp. Code Ann. §§ 724.012(b), 724.013 (West 2011); Vt. Stat. Ann., Tit. 23, § 1202(b), (f) (2007); Wash. Rev.Code § 46.20.308(2)-(3), (5) (2012); W. Va.Code Ann. § 17C-5-7 (Lexis Supp.2012); Wyo. Stat. Ann. § 31-6-102(d) (Lexis 2011).

[10] See Ariz.Rev.Stat. Ann. § 28-1321(D)(1) (West 2012); Ga.Code Ann. § 40-5-67.1(d), (d.1) (2011); Ky.Rev.Stat. Ann. § 189A.105(2)(b) (Lexis Supp.2012); Mich. Comp. Laws Ann. § 257.625d(1) (West 2006); Mont.Code Ann. § 61-8-402(5) (2011); N.M. Stat. Ann. § 66-8-111(A) (LexisNexis 2009); N.Y. Veh. & Traf. Law Ann. §§ 1194(2)(b)(1), 1194(3) (West 2011); Ore.Rev.Stat. 813.320(2)(b) (2011); R.I. Gen. Laws § 31-27-2.9(a) (Lexis 2010); Tenn.Code Ann. § 55-10-406(a)(4) (2012); Vt. Stat. Ann., Tit. 23, § 1202(f) (2007); Wash. Rev.Code § 46.20.308(1) (2012); W. Va.Code Ann. § 17C-5-7 (Supp.2012) (as interpreted in State v. Stone, 229 W.Va. 271, ___, 728 S.E.2d 155, 167-168 (2012)); Wyo. Stat. Ann. § 31-6-102(d) (2011); see also State v. Harris, 763 N.W.2d 269, 273-274 (Iowa 2009) (per curiam) (recognizing that Iowa law imposes a warrant requirement subject to a limited case-specific exigency exception).

[11] No findings were made by the trial court concerning how long a warrant would likely have taken to issue under the circumstances. The minimal evidence presented on this point was not uniform. A second patrol officer testified that in a typical DWI case, it takes between 90 minutes and 2 hours to obtain a search warrant following an arrest. App. 53-54. McNeely, however, also introduced an exhibit documenting six recent search warrant applications for blood testing in Cape Girardeau County that had shorter processing times. Id., at 70.

[1] And that second-best evidence may prove useless. When experts have worked backwards to identify a defendant's BAC at the time he was driving, defense attorneys have objected to that evidence, courts have at times rejected it, and juries may be suspicious of it. See, e.g., 1 D. Nichols & F. Whited, Drinking/Driving Litigation § 2:9, pp. 2-130 to 2-137 (2d ed.2006) (noting counsel objections to such evidence); State v. Eighth Judicial District Court, 127 Nev. ___, 267 P.3d 777 (2011) (affirming rejection of such evidence); L. Taylor & S. Oberman, Drunk Driving Defense § 6.03 (7th ed.2010) (describing ways to undermine such evidence before a jury).

[2] This case involves medical personnel drawing blood at a medical facility, not police officers doing so by the side of the road. See Schmerber v. California, 384 U.S. 757, 771-772, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) ("Petitioner's blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment — for example, if it were administered by police in the privacy of the stationhouse"); Brief for Respondent 53, and n. 21 (describing roadside blood draws in Arizona). A plurality of the Court suggests that my approach could make roadside blood draws a more attractive option for police, but such a procedure would pose practical difficulties and, as the Court noted in Schmerber, would raise additional and serious Fourth Amendment concerns. See ante, at 1563-1564.

[1] Neither party has challenged this determination, which this Court has reaffirmed several times. See, e.g., Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 625, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989); Winston v. Lee, 470 U.S. 753, 761-763, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985).

[2] Because the Court's position is likely to result in delay in obtaining BAC evidence, it also increases the likelihood that prosecutors will be forced to estimate the amount of alcohol in a defendant's bloodstream using BAC numbers obtained hours later. In practice, this backwards extrapolation is likely to devolve into a battle of the experts, as each side seeks to show that stale evidence supports its position. There is no need for this outcome. Police facing inevitable destruction situations need not forgo collecting the most accurate available evidence simply because they might be able to use an expert witness and less persuasive evidence to approximate what they lost.