Sereika v. State
| Decision Date | 26 February 1998 |
| Docket Number | No. 28826,28826 |
| Parties | Gregory Ben SEREIKA, Appellant, v. The STATE of Nevada, Respondent. |
| Court | Nevada Supreme Court |
Gregory Ben Sereika was convicted of driving under the influence of intoxicating liquor pursuant to NRS 484.379(1)(c), which prohibits blood alcohol levels of .10 or more within two hours after driving a motor vehicle. 1 Sereika appeals his conviction, arguing that NRS 484.379(1)(c) is unconstitutionally vague and overbroad. We conclude that his arguments lack merit, and affirm the conviction.
Sereika drove his motorcycle to the Carson Nugget on the night of June 2, 1995, where he consumed four alcoholic drinks. Sereika was involved in an accident on his way home, failed a series of field sobriety tests shortly thereafter, and was arrested for driving under the influence of intoxicating liquor. Sereika was given two breath tests at the police station, and his blood alcohol level was measured at .15 and .16, respectively.
Sereika stood trial for driving under the influence of intoxicating liquor in violation of NRS 484.379. The State's DUI expert conceded on cross-examination that alcohol in the stomach is usually absorbed into the system within a half-hour to an hour period following ingestion. Sereika did not object to the jury instruction on the requirements for conviction under NRS 484.379. The jury returned a guilty verdict; however, it based its verdict solely on the theory that Sereika had a blood alcohol level of .10 or higher within two hours after driving a vehicle, which is a sufficient basis for conviction under NRS 484.379(1)(c). A judgment of conviction was entered on May 28, 1996, from which Sereika now appeals.
Sereika challenges the provision of NRS 484.379 that allows conviction based on a finding that the defendant's blood alcohol level was .10 or higher within two hours after driving a vehicle, arguing that the provision is unconstitutionally vague and overbroad. The State urges this court to deny Sereika's appeal because he did not object to the jury instruction on NRS 484.379, which included the challenged provision. This court may consider constitutional challenges on appeal despite an appellant's failure to make timely objections at trial, and has often elected to consider such appeals. See, e.g., Geary v. State, 112 Nev. 1434, 930 P.2d 719 (1996); Lord v. State, 107 Nev. 28, 806 P.2d 548 (1991); Jones v. State, 101 Nev. 573, 707 P.2d 1128 (1985); McCullough v. State, 99 Nev. 72, 657 P.2d 1157 (1983); Dias v. State, 95 Nev. 710, 601 P.2d 706 (1979).
Consideration of Sereika's appeal comports with precedent, as "[w]e have previously recognized the futility of objecting to an instruction whose validity has been consistently upheld." Jones, 101 Nev. at 576, 707 P.2d at 1130. The reasoning in Jones stems from our earlier reliance on federal authority to excuse failure to request jury instructions "which, at the time of ... trial, would have been inconsistent with the law as it then existed." St. Pierre v. State, 96 Nev. 887, 892, 620 P.2d 1240, 1243 (1980) (quoting United States v. Wanger, 426 F.2d 1360 (9th Cir.1970)). We conclude that this reasoning is directly applicable in the instant case, as it would have been futile for Sereika to object to an instruction that merely recited the requirements for conviction under the applicable statute.
Sereika's challenge to NRS 484.379(1)(c) relates to the textual provisions of the statute rather than to the manner in which it has been enforced, limiting the issue before us to whether the statute is facially unconstitutional due to vagueness or overbreadth. We will only consider the specific arguments raised by Sereika, as "statutes are presumed to be valid, and the burden is on the challenger to make a clear showing of their unconstitutionality." Childs v. State, 107 Nev. 584, 587, 816 P.2d 1079, 1081 (1991). To meet this burden, there must be a "clear showing of invalidity." Sheriff v. Martin, 99 Nev. 336, 340, 662 P.2d 634, 637 (1983). When ambiguities arise, "statutes should be construed, if reasonably possible, so as to be in harmony with the Constitution." State v. Glusman, 98 Nev. 412, 419, 651 P.2d 639, 644 (1982).
We have articulated a clear standard for vagueness challenges. The test for vagueness is whether the terms of the statute are "so vague that people of common intelligence must necessarily guess as to [their] meaning." Cunningham v. State, 109 Nev. 569, 570, 855 P.2d 125, 125 (1993). This rule comports with the federal standard that a statute is unconstitutionally vague if it fails "to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute." United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 812, 98 L.Ed. 989 (1954).
We conclude that NRS 484.379(1)(c) is not unconstitutionally vague. The challenged section provides that it is unlawful for any person who
[i]s found by measurement within 2 hours after driving or being in actual physical control of a vehicle to have 0.10 or more by weight of alcohol in his blood[] to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has access.
This statutory language is very specific, and Sereika does not suggest any alternative interpretations as evidence of vagueness. Sereika contends that ordinary persons will be unable to anticipate their blood alcohol level two hours after driving; however, he provides no evidence that such forecasting is any more difficult than knowing if their blood alcohol level has crossed the .10 threshold at the time of driving. Sereika's conclusory assertion that the clear language of NRS 484.379(1)(c) is vague is not sufficient to meet the burden for a constitutional challenge.
Sereika's overbreadth challenge is based on two distinct arguments; however, each argument concerns circumstances under which a defendant could be guilty under the law without having driven with a blood alcohol level at or exceeding .10. The first such circumstance involves what Sereika refers to as "the rising blood alcohol defense." This defense employs the argument that, although the defendant exceeded the legal blood alcohol limit at the time of the test, the alcohol was still in the defendant's stomach at the time of the alleged infraction. The second circumstance arises when the defendant does not ingest the alcohol until after driving, but reaches the prohibited level of blood alcohol within the critical two-hour period.
Sereika's rising blood alcohol defense is clearly his strongest basis for asserting that NRS 484.379(1)(c) is overinclusive. However his argument fails to address the effects of recent amendments to NRS 484.379(1) following the Ninth Circuit Court of Appeal's opinion in McLean v. Moran, 963 F.2d 1306 (9th Cir.1992). In McLean, the Ninth Circuit addressed an overbreadth challenge to NRS 484.379(1) 2 and NRS 484.381(1) 3 as they were formulated at that time. NRS 484.379(1)(c) was not then in effect; however, NRS 484.381(1) created a presumption that the defendant's blood alcohol level at the time of driving was the same as at the time of testing. The McLean court found that the district court treated the presumption as mandatory and conclusive, and that it was, therefore, unconstitutional as applied. Id. at 1310. The court concluded that "McLean's constitutional right to have the State prove every element of the crime beyond a reasonable doubt was violated by the conclusive presumption applied by the judge." Id.
In response to McLean, the Nevada Legislature amended its statutory scheme to remove the contested presumption, repealing NRS 484.381 and adopting NRS 484.379(1)(c). 4 Although the effect of the new scheme is similar, the legal implications are very different. Instead of using the defendant's blood alcohol level at the time of testing to infer the level at the time of driving, NRS 484.379(1)(c) simply makes it per se unlawful to have a blood alcohol level of .10 or more within two hours after driving. Because this change removed the presumption of an element that the State would otherwise be required to prove, it remedied the defect condemned in McLean.
Sereika misapprehends the critical issues involved in his appeal. His principle contention is that the "statute sweeps unnecessarily broadly into activity which has not been declared unlawful in this state, that is, operating a motor vehicle with a blood alcohol level below .10 percent." This logic is predicated on the misconception that the prohibition against a blood alcohol level of .10 or more within two hours after driving is based on an inference that the defendant must have had a blood alcohol level of .10 or more at the time of driving. Because such an inference would presumably be faulty in cases where the defendant had ingested but not yet absorbed the alcohol at the time of driving, Sereika contends that the statute is overbroad. Indeed, Sereika would be correct under the rule of McLean if the statutory scheme at issue had not been amended pursuant to that ruling. 5
Because the new statutory scheme does not utilize a presumption to impose liability, Sereika's argument misses the present constitutional issue. Under the current scheme, a defendant's blood alcohol level at the time of driving is simply irrelevant to his violation of NRS 484.379(1)(c). Accordingly, the critical question is not the possible overbreadth of a presumption that anyone with a blood alcohol level of .10 or more within two hours after driving also had a similar level at the time of driving. Rather, the issue is whether the United States and Nevada Constitutions prevent direct legislative prohibition of a blood alcohol...
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