Supreme Court rules DUI does not count as violent felony

The Boston Herald ^ | April 16, 2008 | Associated Press

[green iguana]

Here’s the statute the decision was interpreted against:

The Act defines a “violent felony” as “any crime punishable
by imprisonment for a term exceeding one year” that
(i) threatened use of physical force against the person of
another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents
a serious potential risk of physical injury to another.

Majority opinion was basically that (i) wasn’t violated and for (ii) the inclusion of the example crimes shows that the statute was only written to cover those and similar crimes. DUI, while having an inherent serious risk of potential injury, is too dissimilar from those crimes for the statute to apply. As they put it:

“we find that DUI falls outside the scope of clause (ii). It is simply too unlike the provision’s listed examples for us to believe that Congress intended the provision to cover it.”

The dissent says this:

This interpretation cannot be squared with the text of the statute, which simply does not provide that an offense must be “purposeful,” “violent,” or “aggressive” in order to fall within the residual clause. Rather, after listing burglary, arson, extortion, and explosives offenses, the statute provides (in the residual clause) that an offense qualifies if it “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Therefore, offenses falling within the residual clause must be similar to the named offenses in one respect only: They must, “otherwise”—which is to say, “in a different manner,” ... involve conduct that presents a serious potential risk of physical injury to another.” Requiring that an offense must also be “purposeful,” “violent,” or “aggressive” amounts to adding new elements to the statute, but we “ordinarily resist reading words or elements into a statute that do not appear on its face.”

i.e., the inclusion of burglary, arson, etc., doesn’t limit crimes to those solely similar to them. They also made a big deal out of the fact that this guy had 12 (12!) DUIs...

[rhombus]

Thank you very much. The dissent is interesting and I can understand that point of view too.

[absolootezer0]

afaik the only way to get a felony DUI first try is complicate it with serious injury, death, or child endangerment.
in MI, 3d offense is an automatic felony.

[green iguana]

You’re welcome. I was curious too, and I’m good at cut and paste... ;-)

[Publius Valerius]

I'd also point out that we also have laws against the illegal use of firearms. That doesn't mean there should ever be a presumption on the part of law enforcement that someone carrying a firearm automatically represents an "increased risk" to others.

And neither is possession of alcohol a crime. When you do something with alcohol that causes an increased risk of harm to others, like drinking and driving, the state can legitimately criminalize that conduct, much like might criminalize, say, indiscriminately discharging a firearm into the air.

That's all well and good about what you have to report, but the fact is that speed limits exist to ensure the safety of motorists, and, in many instances, pedestrians. If people drive faster, there is an increased risk of serious accidents. I don't want someone driving down my residential street at 75 miles an hour the same way I don't want someone who just drank 12 beers to be coming towards me on a two-lane highway.

Unless a motorist is committing some kind of other offense, there is no way for this "increased risk" to be ascertained by a police officer without engaging in the kind of "random search" process that is clearly a violation of the Fourth Amendment.

Hmm. So if a policeman is driving along and sees a car swerving down the road, crossing the center line and otherwise failing to maintain control of his vehicle, you think the policeman's observation of the motorist's behavior is a "clear violation of the Fourth Amendment?"

[Publius Valerius]

So if a policeman is driving along and sees a car swerving down the road, crossing the center line and otherwise failing to maintain control of his vehicle, you think the policeman's observation of the motorist's behavior is a "clear violation of the Fourth Amendment?"

Upon reflection, I realize that you might say that crossing the center line is, in itself, another violation. So throw that example out. Let's say a drunk driver passes out at a red light. A policeman, who is behind the driver, gets out to see why the motorist didn't proceed through the green light. The policeman looks in the window and sees the motorist passed out. Fourth Amendment violation?

[Alberta's Child]

That's all well and good about what you have to report, but the fact is that speed limits exist to ensure the safety of motorists, and, in many instances, pedestrians. If people drive faster, there is an increased risk of serious accidents. I don't want someone driving down my residential street at 75 miles an hour the same way I don't want someone who just drank 12 beers to be coming towards me on a two-lane highway.

There is already a motor vehicle violation that applies to situations like this . . . it's called reckless driving, and it's far more serious than simply "speeding."

I plan and design transportation systems for a living (including highways), and I can assure you that there is no truly legitimate legal basis for a jurisdiction to impose a statutory speed limit of 55 or 65 miles per hour on a highway that has been designed to safely accommodate vehicles moving at 75-85 miles per hour (under wet conditions, mind you). Sure -- a vehicle that travels at 85 miles per hour is more "dangerous" by any objective measure than one traveling at 65. But a vehicle traveling at 65 is more dangerous than one traveling at 45, 35, etc. For that matter, a vehicle traveling at 5 miles per hour represents an infinitely greater threat to public safety than one that is stationary. So let's just outlaw motor vehicles altogether, eh?

[Alberta's Child]

Let's say a drunk driver passes out at a red light. A policeman, who is behind the driver, gets out to see why the motorist didn't proceed through the green light. The policeman looks in the window and sees the motorist passed out. Fourth Amendment violation?

Absolutely not. Check out the motor vehicle statutes in your state . . . I can almost guarantee you that there is an "obstruction of traffic" offense listed in there that covers this situation. The police officer has every reason to engage in a "stop/search" process because the driver is breaking the law regardless of whether the driver is sober or drunk.

[Publius Valerius]

it's called reckless driving, and it's far more serious than simply "speeding."

Hmm. So you're saying that if I'm just "speeding," then it's not a danger to others. But if I'm speeding a lot, then it's a danger to others such that I can be arrested or ticketed? Huh. That seems pretty similar to the concept behind DWI laws.

Sure -- a vehicle that travels at 85 miles per hour is more "dangerous" by any objective measure than one traveling at 65. But a vehicle traveling at 65 is more dangerous than one traveling at 45, 35, etc. For that matter, a vehicle traveling at 5 miles per hour represents an infinitely greater threat to public safety than one that is stationary. So let's just outlaw motor vehicles altogether, eh?

I never said that, but because the cost of determining risk in every single instance is far too high, we line draw. For the most part, our legislatures have chosen to draw the line at 65 or 70. If they choose to draw the line at 55 or 45 or even, as you suggest, 5, that is the decision of the legislature. But, in the same way that we choose to draw lines in terms of speed limits, we also choose to draw lines in terms of operating a vehicle while intoxicated--.07 sends you on your way home. .08 puts you in the pokey.

And by the way, since you want to nit pick on the violations, try this one: policeman sitting in a bar/grill having dinner. Over the course of his meal, which takes an hour, he observes a patron consume several mixed drinks; say, half a dozen. Policeman leaves and sees patron walk to his car, get in, and drive off. Fourth Amendment violation to stop the driver?

[Alberta's Child]

Policeman sitting in a bar/grill having dinner. Over the course of his meal, which takes an hour, he observes a patron consume several mixed drinks; say, half a dozen. Policeman leaves and sees patron walk to his car, get in, and drive off. Fourth Amendment violation to stop the driver?

Under my standards, YES. Under yours (and the ones in place right now), NO.

Keep in mind that the primary objection to laws against drunk driving is that they are completely arbitrary and subjective -- not in even in the way that a speed limit is arbitrary and subjective, but because the level of blood-alcohol content at which a person becomes impaired will vary widely. One person at 0.04% may be far more impaired than another at 0.12%, and yet the latter person is considered "legally drunk" but the former is not.

This was really borne out to me in my driver's ed class in high school, when they showed a video that illustrated the effect of alcohol on a driver's motor skills, judgment, etc. They had four drivers drive through a course laid out in a big parking area, marked off by traffic cones. Each driver was given a score that was based on how many cones they knocked over on the course. First they drove through it completely sober, then after two beers, after four beers, etc.

The video told a compelling story about the impact of alcohol on a driver's abilities. By the time they drove through the course for the last time, every driver was knocking over cones all over the place. But one of the drivers actually got a better score after two beers than he did when he was completely sober.

[TChris]

But one of the drivers actually got a better score after two beers than he did when he was completely sober.

By golly, you're absolutely right! We should make or break national laws based on the anecdotal evidence of a single driver in a single experiment as recorded by a single movie.

Forget the dozens of studies and all the drunk-driver-killed bodies on the pavement.

Forget the clear correlation between lower accident and death rates and enforcement of 0.08% BAC laws.

None of that really matters, because one guy drove better in one experiment after he'd downed two beers.

LOL...

[Alberta's Child]

I'm always amazed at how groups like MADD will roll out all these horror stories about drunk-driving accidents involving multiple fatalities, etc. -- and they use these horror stories to support some kind of campaign to reduce BAC limits to 0.06%, 0.04%, etc.

And yet when you look closely at the details of the accident you always find that the driver in question usually had a blood-alcohol level of 0.25% (if not higher).

I've never had anyone explain to me how reducing the legal drinking/driving limit from 0.10% to 0.08%, or 0.08% to 0.06%, would do a damn thing to prevent an accident involving one or more drivers whose blood-alcohol level exceeds 0.25%.

Forget the clear correlation between lower accident and death rates and enforcement of 0.08% BAC laws.

There is no clear correlation. Accident and accident death rates change over time for a whole host of factors -- and drunk driving laws are probably among the least effective measures of all of them. Heck -- you'd probably be shocked to find out what actually constitutes an "alcohol-related accident."

[Publius Valerius]

they are completely arbitrary and subjective

But isn't your example of reckless driving basically a subjective standard, too?

One person at 0.04% may be far more impaired than another at 0.12%, and yet the latter person is considered "legally drunk" but the former is not.

Maybe so, but when making policy, we have to draw lines. It is far too costly to determine, on a case-by-case basis, whether a person's actions have presented a risk of danger to others. Some people are going to get a raw deal based on where that line is drawn, but we can't exist any other way. For instance, AJ Foyt may be perfectly capable of driving his car 125 miles per hour down the expressway without being a danger to others, but the law applies to him just like it does everyone else.

For driving drunk, we've chosen, for better or for worse, .08. There might be some people who are perfectly capable of driving a car without impairment when they have blood alcohol levels above .08. But those people have to accept that regardless of their abilities, society has made a policy choice based on the characteristics of society as a whole.

[DungeonMaster]

I hate MADD!!!

[Alberta's Child]

All valid points.

Now combine the subjectivity of the legal standard with the "stop/search" aspect (i.e., random checkpoints, with no basis for a police officer to suspect that a violation has occurred) through which it is often enforced. And then tell me how this isn't a textbook example of a police state in action.

[elkfersupper]

Thanks for the ping.

Moot point, though. With gasoline appraoching $4.00 per gallon and diesel already there, not many of us will be driving anyway.

The folks that want us living in high-rise housing next to a light rail station are celebrating today, and that includes MADD.

[elkfersupper]

Maybe so, but when making policy, we have to draw lines.

Just who is "we" there, Kemo Sabe?

[elkfersupper]

Forget the dozens of studies and all the drunk-driver-killed bodies on the pavement.

Statistically, there are so few innocent victims killed by "drunk" drivers that the premises behind these hysterical laws are laughable.

[elkfersupper]

I don’t think DUI should itself be illegal. Breaking a traffic law or getting in an accident is all that should be charged. If the drunk kills someone, then charge them with manslaughter.

I agree. Without damage to people or property, there should be no crime.

(but that would open the door to re-examining the war on "some" drugs, gambling, prostitution, refusing to replace your paper or plastic grocery bags with a reusable burlap bag and all sorts of other things that the control freaks in our society find offensive).

[elkfersupper]

The Constitution guarantees a right to a jury trial for all offenses punishable by more than six months in prison.

Except DUI. That disappeared a long time ago.