LawyersUSA

A recent U.S. Supreme Court ruling addressing the definition of driving while intoxicated for purposes of federal sentencing is expected to have a broad impact on criminal cases, but also leaves open many questions, criminal lawyers tell Lawyers USA.

The Court held that a DUI is not a "violent felony" for purposes of enhanced mandatory sentencing under the Armed Career Criminal Act.

"It's an important ruling because there are so many people with DUI convictions who may fall into this situation, but it's also important because it will affect other crimes, said winning attorney Margaret Katze, an assistant public defender in Albuquerque, N.M. "What was falling under the Act has been getting more and more broad."

But some experts complained that the ruling does not establish a bright-line test for future cases.

"I don't have much hair to tear out, but if the goal of the Court was to straighten things out, this is not going to make it any easier for defense counsel and prosecutors needing sensible guidance," said Douglas Berman, a criminal law professor at Ohio State University Moritz College of Law. Berman authors the Sentencing Law and Policy Blog (http://sentencing.typepad.com).

A few thousand cases per year could be implicated, he estimated.

Lower courts are split over how to treat a number of other crimes under the Act.

Less than a week after the ruling, the Supreme Court agreed to decide whether a defendant's failure to report to prison can be the basis for enhanced sentencing under the Act. (Chambers v. U.S., No. 06-11206.)

That case will be decided next term.

Repeat DUIs

Defendant Larry Begay pleaded guilty to felony gun possession for threatening family members with a rifle. His record revealed 12 prior DUI convictions.

Under New Mexico law, drunken driving becomes a felony the fourth time it is committed. Under the Armed Career Criminal Act, a mandatory 15-year sentence is imposed for an unlawful gun felony where the defendant also has three or more prior "violent felony" convictions or certain drug crimes.

The sentencing judge concluded that the defendant's string of DUI convictions qualified as "violent felonies" under the Act, and sentenced him to an enhanced 15-year sentence.

The Act defines "violent felony" as any crime punishable by more than one year's imprisonment that has an element of attempted or threatened use of force or is "burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." (18 U.S.C. §924(e)(2)(B)(ii).)

In a 6-3 ruling, the Supreme Court held that drunken driving does not qualify as a violent felony under the Act.

Justice John Paul Stevens, writing for the majority, said that the Act does not cover every crime that presents a risk of serious injury to another, only crimes "roughly similar, in kind as well as in degree of risk posed" to the other crimes listed in the statute.

"In our view, DUI differs from the example crimes – burglary, arson, extortion, and crimes involving the use of explosives – in at least one pertinent, and important, respect. The listed crimes all typically involve purposeful, 'violent,' and 'aggressive' conduct," the Court said.

In contrast, DUI is an offense normally defined by state statutes as a strict liability crime that typically doesn't require a showing of criminal intent, the Court noted.

"In this respect – namely, a prior crime's relevance to the possibility of future danger with a gun – crimes involving intentional or purposeful conduct (as in burglary and arson) are different than DUI, a strict liability crime. In both instances, the offender's prior crimes reveal a degree of callousness toward risk, but in the former instance they also show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the trigger," the Court said.

Justice Antonin Scalia concurred in the result but rejected the majority's test, favoring instead the "rule of lenity," which resolves doubts about a statute in favor of the defendant.

In a dissenting opinion, Justice Samuel Alito, joined by Justices David Souter and Clarence Thomas, said that repeat drunken driving offenses "present a greatly enhanced danger that [offenders] and others will be injured as a result" and therefore falls squarely within the statute.

Not the end

The practical result of the ruling is that lawyers should look to how state law defines a crime, not to what actually happened, said Daniel Broderick, Federal Defender for the Eastern District of California in Sacramento.

"You look at the statute under which the person was convicted and the elements of the crime, as opposed to reading the police report," said Tova Indritz, a criminal defense attorney in Albuquerque, N.M. "If something was a purposeful, aggressive, violent act, it would qualify as predicate. If it's just a crime of recklessness, it won't."

However, such a rule still leaves many crimes in the gray zone, said Berman.

"The majority created more language lower courts can look to, but it's not clear to me this is going to make it simple for lawyers to put together a plea deal," he said, suggesting that the rule of lenity proposed by the concurring justices would have been a cleaner rule.

For example, whether DUI with negligent homicide is covered is unclear, said Broderick.

Other crimes such as statutory rape, where the act was consensual but qualifies as a strict liability crime based on age, and manslaughter, which in some cases may include an element of intent, are also subject to question.

Even mere possession of a gun could fall outside the definition of a "violent felony."

"The irony is it sounds like exactly what the statute is talking about, but technically it is not a violent offense," Berman said.

The fact that the Supreme Court took another case to further clarify what constitutes a violent felony "suggests that the justices realize that their work in [this case] does not solve all the interpretive difficulties that the Act creates," he added.

U.S. Supreme Court. Begay v. U.S., No. 06-11543. April 16, 2008. Lawyers USA No. 9939713. Click here to read the full text of the opinion.