Richter v. Fairbanks, 89-2199

• Decision Date: 23 May 1990
• Docket Number: No. 89-2199,89-2199
• Citation: 903 F.2d 1202
• Parties: Herbert L. RICHTER, Appellant, v. Charles L. FAIRBANKS, Scotts Bluff County Sheriff, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1202

903 F.2d 1202

Herbert L. RICHTER, Appellant, v.Charles L. FAIRBANKS, Scotts BluffCounty Sheriff, Appellee.

No. 89-2199.

United States Court of Appeals Eighth Circuit.

Submitted Feb. 12, 1990.

Decided May 23, 1990.

Randall L. Lippstreu, Scottsbluff, Neb., for appellant.

Dave Eubanks, Gering, Neb., for appellee.

Before LAY, Chief Judge, and BEAM, Circuit Judge, and HANSON, ^*Senior District Judge.

LAY, Chief Judge.

Herbert L. Richter brought a petition for a writ of habeas corpus challenging the denial of his request for a jury trial arising from his conviction for driving while under the influence of alcohol (DWI), third offense, in violation of Scottsbluff, Nebraska, ordinances.The district court¹ denied him relief.We find he was entitled to a jury trial, and conditionally grant him a writ of habeas corpus.

BACKGROUND

Nebraska law specifically authorizes cities and villages to pass their own DWI ordinances.Neb.Rev.Stat. Sec. 39-699.07(Reissue of 1988).In the case of conviction on a third-offense DWI, the ordinance must include a 15-year revocation of the offender's driver's license, in addition to other penalties.Neb.Rev.Stat. Sec. 39-699.07.County courts have jurisdiction over prosecutions for violations of city and village ordinances, Neb.Rev.Stat. Sec. 24-533(Reissue of 1985), but jury trials are not permitted in such cases.Neb.Rev.Stat. Sec. 24-536(Reissue of 1985).

Richter was charged with third-offense DWI under Scottsbluff Ordinance 21-2140, and with refusing to take a breath test under Scottsbluff Ordinance 21-2143.After his case was set for trial in county court, Richter filed a written demand for a jury trial.The judge denied the motion, and after trial found him guilty on both charges.

Under Scottsbluff Ordinance 21-2140, the penalty for third-offense DWI is three to six months imprisonment, revocation of the offender's driver's license for 15 years, and a $500 fine.The penalty for refusing to take a breathalyzer test is seven days imprisonment, a $200 fine, and a six month suspension of driving privileges.The court imposed the maximum sentence for each violation, with the two sentences to run concurrently.

Richter appealed to the state district court for Scottsbluff County, and then to the Nebraska Supreme Court.His convictions were upheld.State v. Richter, 225 Neb. 871, 408 N.W.2d 324(1987).²Richter thereafter filed this petition in federal court.The magistrate recommended denying the petition, and the district court adopted the recommendation without comment.Richter appealed.

DISCUSSION

The Supreme Court in Duncan v. Louisiana, 391 U.S. 145, 156, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491(1968), emphasized the important safeguards derived from a trial by one's peers in serious cases:

The framers of the constitutions strove to create an independent judiciary but insisted upon further protection against arbitrary action.Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.If the defendant preferred the common-sense judgment of a jury to the more tutored but perhaps less sympathetic reaction of the single judge, he was to have it.

In Blanton v. City of North Las Vegas, 489 U.S. 538, 109 S.Ct. 1289, 103 L.Ed.2d 550(1989), however, the Court reaffirmed that "there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision."Id.109 S.Ct. at 1291(citation omitted).The court made clear the distinction between a petty and serious offense lies in the "objective indications of the seriousness with which society regards the offense," and that the most important objective indication is "the severity of the maximum authorized penalty."Id. at 1292(citations omitted).A maximum authorized prison term of more than six months implicates the right to a jury trial, while a term of six months or less creates a presumption of no jury trial right.Id. at 1293.A defendant facing a maximum possible term of six months or less may still be entitled to a jury trial "if he can demonstrate that any additional statutory penalties, viewed in conjunction with the maximum authorized period of incarceration, are so severe that they clearly reflect a legislative determination that the offense in question is a 'serious' one."Id. at 1293.

Richter argues, first, that he in fact faced a maximum possible prison term of six months and seven days, because the court could have required his terms to run consecutively instead of concurrently.Second, he argues that the penalty revoking his license for 15 years, when added to the maximum six month prison term, indicates a legislative determination that third-offense DWI constitutes a serious criminal offense, for which he should be entitled to a jury trial.

The Blanton Court did not indicate whether the sixth amendment requires aggregating the maximum possible term for each count of a multiple-count conviction to determine if the total exceeds six months even though none of the individual sentences does.We need not reach that issue in this case, however, because we conclude that the 15-year license revocation, considered together with the maximum six month prison term, is a severe enough penalty to indicate that the Nebraska legislature considers third-offense DWI a serious crime.

Revocation of a license to operate a motor vehicle very often can work a substantial hardship on its holder.SeeArgersinger v. Hamlin, 407 U.S. 25, 48, 92 S.Ct. 2006, 2018, 32 L.Ed.2d 530(1972)(Powell, J. concurring)(revocation of driver's license "is more serious for some individuals than a brief stay in jail");see alsoNote, The Federal Constitutional Right to Trial by Jury for the Offense of Driving While Intoxicated, 73 Minn.L.Rev. 122, 139-40 n 118(1988).The Nebraska Supreme Court has made clear its view that the long-term revocation of a driver's license for third-offense DWI "is a terrible burden (albeit deserved) on the offender."³State v. Peiffer, 212 Neb. 864, 326 N.W.2d 844, 845(1982).In view of the high degree to which individuals in a modern society depend upon their automobiles for the pursuit of their livelihood, we must concur with this assessment.By mandating the imposition of such a heavy burden on the third-time DWI offender, in addition to the prison term, the Nebraska legislature manifested the kind of strong disapproval associated with a serious crime.

We acknowledge we should not substitute our judgment for that of the legislature in determining what is deemed a serious crime.However, in applying the constitutional right to jury trial, Blanton specifically counsels us not to automatically consider a crime petty merely because the legislature sets the maximum sentence at six months or less.We must also consider the severity of the other attached penalties.109 S.Ct. at 1292.

The Supreme Court's analysis of the facts in Blanton supports our conclusion that adding the 15-year license revocation to the six month prison term resulted in a penalty severe enough to warrant a jury trial in this case.In Blanton a DWI conviction led to a penalty of up to six months imprisonment, a $1000 fine, a 90-day suspension of the offender's driver's license, and compelled attendance at an alcohol abuse education course.Because the maximum possible prison sentence did not exceed six months, the Court weighed the severity of the additional statutory penalties.The Court held that the $1000 fine was not "out of step" with a six month...