State v. O'Brien

• Decision Date: 22 July 1985
• Docket Number: No. 9728,9728
• Citation: 68 Haw. 38,704 P.2d 883
• Court: Hawaii Supreme Court
• Parties: STATE of Hawaii, Petitioner-Appellee, v. Daniel R. O'BRIEN, Respondent-Appellant.

Page 883

704 P.2d 883

68 Haw. 38

STATE of Hawaii, Petitioner-Appellee, v. Daniel R. O'BRIEN, Respondent-Appellant.

No. 9728.

Supreme Court of Hawai'i.

July 22, 1985.

Syllabus by the Court

1. The United States Constitution, in article III, section 2 and the sixth amendment provides criminal defendants with the right to a jury trial.

2. The Constitution of the State of Hawaii provides for the right to a jury trial in criminal cases.

3. The guarantee of the right to a jury trial is not absolute. Only a criminal defendant charged with a serious offense must be accorded a trial by jury.

4. In determining whether a criminal offense is constitutionally serious for purposes of triggering the right to a jury trial, courts look to its treatment at common law, the authorized penalty and the gravity of the offense.

5. Driving under the influence of intoxicating liquor is a constitutionally serious offense, and a defendant charged with this offense has the right to a trial by jury.

Artemio C. Baxa, Dave S. Fukuoka, Richard Priest, Jr., Deputy Pros. Attys., Wailuku, for the writ and Artemio C. Baxa, Wailuku, on the brief for petitioner-appellee.

Richard L. Rost, Matthew N. Padgett, Timothy K. Chism, Jr., Wailuku, on the brief for respondent-appellant.

Brenda L. Carreira, Wayne Shimizu, Willard J. Peterson, Deputy Pros. Attys., on the brief for amicus curiae.

Before LUM, C.J., NAKAMURA, HAYASHI, WAKATSUKI, JJ., and DANIEL G. HEELY, Circuit Judge, in place of PADGETT, J., disqualified.

LUM, Chief Justice.

Petitioner State of Hawaii seeks review of the April 16, 1985 decision of the Intermediate Court of Appeals, 704 P.2d 905, which held that a defendant charged with driving under the influence of intoxicating liquor ("DUI") pursuant to Hawaii Revised Statutes ("HRS") § 291-4 is constitutionally entitled to a trial by jury. Because we are convinced that the ICA's decision is a correct application of our precedent and our State constitution, we affirm, and reverse and remand this case for retrial before a jury.

I.

Defendant Daniel R. O'Brien was issued a DUI citation on May 26, 1983. ¹ He refused to submit to breath or blood tests which would have determined the alcohol content of his blood. After the statutorily-mandated implied consent hearing ² was completed, O'Brien demanded a jury trial on the DUI charge. This demand was rejected by the trial court on October 7, 1983.

O'Brien was found guilty of the DUI charge. The trial court determined that the appropriate sentencing provision would be HRS § 291-4(b)(2), since O'Brien had previously been convicted of a DUI offense in 1980. He received a $500 fine and a one year driver's license suspension.

II.

The State of Hawaii attacks the ICA's ruling on the ground that the court erroneously held that DUI offenses are required to be tried to a jury. Principally, its argument is that the offense of driving under the influence of intoxicating liquor is not "by its nature serious" and that, therefore, the right to a jury trial is not triggered.

We disagree, and adopt the reasoning of the ICA's opinion below. Article III, section 2 of the United States Constitution guarantees that "[t]he trial of all Crimes, except in Cases of Impeachment, shall be by Jury," and the sixth amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." The due process clause of the fourteenth amendment makes the guarantee of a jury trial binding on the states. Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, reh'g denied, 392 U.S. 947, 88 S.Ct. 2270, 20 L.Ed.2d 1412 (1968).

The Constitution of the State of Hawaii provides, in part, "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy trial, by an impartial jury of the district wherein the crime shall have been committed...." ³ Art. I, § 14. We have previously indicated that our interpretation of this section would be guided by, although not dictated by, precedent of the United States Supreme Court interpreting the sixth amendment. State v. Shak, 51 Haw. 612, 615, 466 P.2d 422, 424, cert. denied, 400 U.S. 930, 91 S.Ct. 191, 27 L.Ed.2d 190 (1970).

Although the right to a jury trial is of great importance to our system of justice, that right is not absolute. State v. Kasprzycki, 64 Haw. 374, 375, 641 P.2d 978, 978 (1982). In State v. Shak, supra, we held that a defendant charged with a "petty" crime does not have a constitutional right to a jury trial. We also used that occasion to adopt the analysis used by the Supreme Court in determining whether an offense is petty or serious. As we stated there:

Under the Federal Constitution, the United States Supreme Court has held that two criteria are relevant in determining whether an offense is petty or serious. The first is whether the offense is by its nature serious. If so, the size of the penalty that may be imposed is only of minor relevance, and the right of trial by jury attaches. See Callan v. Wilson, 127 U.S. 540 [8 S.Ct. 1301, 32 L.Ed. 223] (1888). If the offense is not by its nature serious, however, the magnitude of the potential penalty set for its punishment becomes important since it is an indication of the ethical judgments and standards of the community. District of Columbia v. Colts, 282 U.S. 63 [51 S.Ct. 52, 75 L.Ed. 177] (1930).

51 Haw. at 614-15, 466 P.2d at 424.

In Shak, we classified a traffic violation with a maximum potential penalty of a fine and/or license suspension or revocation as petty. In Kasprzycki, supra, we determined that an offense punishable by a fine of not more than $500 or imprisonment not exceeding 30 days was petty. Noting that the Supreme Court in Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 41 L.Ed.2d 912 (1974) generally deemed a sentence of six months as the benchmark of a serious offense, we nevertheless declined in Kasprzycki to fix a firm dividing line under our own precedents. Kasprzycki, 64 Haw. at 376, 641 P.2d at 979.

As the ICA outlined in its opinion below, several approaches have traditionally been used to determine whether an offense is petty or serious. The reported cases have looked first to the traditional treatment of the offense at issue, and ask whether the particular violation of the law is one which was "indictable at common law" or "tried summarily without a jury." District of Columbia v. Clawans, 300 U.S. 617, 624-625, 57 S.Ct. 660, 661-662, 81 L.Ed. 843 (1937). In addition, the authorities look to the gravity of an alleged offense, asking whether it affects the public at large, Callan v. Wilson, 127 U.S. at 556, 8 S.Ct. at 1307 (1888), reflects moral delinquency, Schick v. United States, 195 U.S. 65, 69, 24 S.Ct. 826, 827, 49 L.Ed. 99 (1904), or carries sufficient opprobium to require its being labeled a serious violation of the law. Baker v. City of Fairbanks, 471 P.2d 386, 389 (Alaska 1970).

Applying the above factors to the facts of the instant case, and to DUI cases in general, we are convinced that the ICA correctly concluded that a DUI charge is a serious offense which must be tried to a jury. As the ICA concluded, in the present day, the offense of driving while intoxicated is most akin to a charge of reckless driving, which was indictable at common law and which entitled the defendant to a jury trial. District of Columbia v. Colts, supra 282 U.S. at 73, 51 S.Ct. at 53. The destructive capacity of the modern automobile would make attempted analogies to intoxication offenses involving vehicles at the time of adoption of the United States Constitution inapt. It also means that a court, when called upon to evaluate the gravity of a DUI charge, cannot reason from statements made in cases considering alcohol-related offenses which did not involve motor vehicles. See, e.g., Ex Parte Higashi, 17 Haw. 428 (1906), Territory v. Taketa, 27 Haw. 844, 852 (1924).

Turning to an assessment of the gravity of DUI, we note first the legislative pronouncements on the statutes governing such charges. The legislature's commentary reflects its unequivocal acknowledgment that drunk driving presents a social problem of vast and potentially devastating proportions. In connection with 1982 amendments which mandated minimum penalties for second- and third-time offenders, the legislature noted:

It is frightening to realize that one of every two Americans will be involved in an alcohol-related auto crash in his or her lifetime. In our own state the dimensions of the drunk-driving problem can be highlighted by recent statistics. In 1981, almost two-thirds of Hawaii's traffic deaths were alcohol-related; drinking drivers involved in all accidents here numbered 2,465 in 1980.

The problem is already of major proportions, yet it is growing, and will continue to increase unless and until this Legislature provides meaningful sanctions that will deter drunken driving.

Sen.Stand.Comm.Rep. No. 176-82, in 1982 Senate Journal at 1011.

This belief was echoed in 1982 Commentary to additional amendments. The legislature found that "drunken driving is one of the State's most serious and tragic problems," and undertook to revise the DUI statute "to establish more effective sanctions" for DUI offenses. Sen.Stand.Comm.Rep. No. 999 in 1983 Senate Journal at 1477-78.

While these 1982 and 1983 amendments reduced the maximum term of imprisonment applicable to a DUI charge to 180 days, ⁴ specified mandatory penalties which include community service and suspension or revocation of driver's license were added. Our assessment of this statutory scheme leads us to the conclusion that this framework of punishment reflects the societal belief that drunk driving is a grave and therefore constitutionally serious offense.

As noted above, for a first DUI offense, the convicted offender may receive a sentence of "[n]ot less than forty-eight hours of imprisonment" pursuant to HRS § 291-4(b)(1)(C)(ii), along with required terms of...