MELVIN R. BLANTON AND MARK D. FRALEY, PETITIONERS V. CITY OF NORTH
LAS VEGAS, NEVADA

   No. 87-1437

   In the Supreme Court of the United States

   October Term, 1988

   On Writ of Certiorari to the Supreme Court of Nevada

   Brief for the United States as Amicus Curiae Supporting Respondent

            TABLE OF CONTENTS
   Question Presented
   Interest of the United States
   Statement
   Summary of argument
   Argument:
      Petitioners were not entitled to a jury trial on the charge that
      they were driving under the influence of alcohol
      A. An offense punishable by a maximum term of six months'
         imprisonment is a petty offense triable without a jury
      B. A DUI offense, punishable by a maximum term of six months'
         imprisonment, should be treated as a petty offense triable
         without a jury
   Conclusion

                          QUESTION PRESENTED

   Whether the Sixth Amendment, as applied to the States through the
Fourteenth Amendment, requires a jury trial for the offense of driving
under the influence of alcohol, where the maximum penalty is a term of
six months' imprisonment.

                     INTEREST OF THE UNITED STATES

   This case presents the question whether the Constitution requires a
jury trial for the offense of driving under the influence of alcohol
(DUI), where the maximum penalty for the offense is a term of six
months' imprisonment.  Under the Assimilative Crimes Act, 18 U.S.C.
13, the United States prosecutes DUI and other offenses in violation
of state law when those offenses are committed on federal enclaves.
The United States takes the position in such cases that a jury trial
is not required where, under applicable state law, the offense is
punishable by a maximum term of six months' imprisonment or less and
thus would be a "petty offense" as that term is used in the United
States Code.  See 18 U.S.C. 19;  18 U.S.C. (Supp. IV) 3581(b)(7), (8)
and (9);  Fed. R. Crim. P. 54(c);  see also Rule 2(b)(6) of the Rules
of Procedure for the Trial of Misdemeanors before United States
Magistrates.  In addition, the United States prosecutes a variety of
petty offenses committed on property subject to the jurisdiction of
the National Park Service.  See, e.g., 36 C.F.R. Pts. 1, 2, 3, 4, 5,
7, 12 and 13.  Those offenses, which include DUI (see 36 C.F.R.
4.23(a)) and other traffic violations, carry penalties of no more than
six months' imprisonment.  See 36 C.F.R. 1.3.

   The federal courts handle a huge number of petty offense cases each
year.  During the period June 30, 1986, to June 30, 1987, for example,
United States magistrates disposed of 83,092 petty offenses, 56,763 of
which were traffic offenses.  Administrative Office of the United
States Courts, Annual Report of the Director, Tables M-1A, M-2, at
393, 397 (1987).  To extend the right to a trial by jury in even a
small percentage of those cases would have a marked impact on the
administration of justice in the federal system.  Accordingly, the
United States has a direct and substantial interest in the Court's
resolution of the question presented in this case.

                               STATEMENT

   1. In Nevada, driving under the influence of alcohol (DUI) is a
misdemeanor punishable by a mandatory minimum term of two days'
imprisonment and a maximum term of six months' imprisonment.  Nev.
Rev. Stat. Ann. Section 484.3792.1(a)(2) (Michie Supp. 1988).  The
first offender must pay a mandatory minimum fine of $200 and may be
fined a maximum of $1,000;  the first offender must also attend, at
his own expense, an alcohol abuse educational course (id. Section
484.3792.1(a)(3) and (1)).  Upon conviction, the first offender
automatically loses his license for 90 days (id. Section
483.460.1(c)).  A state prosecutor may not dismiss a DUI charge in
exchange for a guilty plea to a lesser charge or for any other reason,
"unless he knows or it is obvious" that there is insufficient evidence
to prove the offense (id. Section 484.3792.3).  Courts may not suspend
sentences or impose probation for DUI convictions (ibid.).  /1/

   On June 29, 1986, in North Las Vegas, Nevada, a police officer
arrested petitioner Mark D. Fraley and charged him with a DUI offense
in violation of Nev. Rev. Stat. Ann. Section 484.379 (Michie 1986).
After the North Las Vegas Municipal Court denied Fraley's demand for a
jury trial, Fraley pleaded guilty.  The court sentenced Fraley to five
days' imprisonment and a $300 fine;  the court also ordered Fraley to
attend an alcohol abuse educational course.  J.A. 1.  On appeal, the
Eighth Judicial District Court concluded that Nev. Rev. Stat. Ann.
Section 266.550 (Michie 1986) unconstitutionally deprived the North
Las Vegas Municipal Court of the power to conduct a trial by jury
(J.A. 27).  The reviewing court therefore reversed Fraley's conviction
and remanded the case to the North Las Vegas Municipal Court for a
jury trial (J.A. 25-27).

   On July 18, 1986, also in North Las Vegas, a police officer
arrested petitioner Melvin R. Blanton and charged him with a DUI
offense.  The North Las Vegas Municipal Court denied Blanton's demand
for a jury trial.  J.A. 18, 56.  Blanton petitioned the Eighth
Judicial District Court for a writ of mandamus.  The court denied the
petition.  J.A. 20-21.

   2. Blanton appealed to the Nevada Supreme Court from the order
denying his petition for mandamus.  In Fraley's case, respondent City
of North Las Vegas filed an original petition for a writ of certiorari
with that court.  J.A. 21-23, 28-52.  The court consolidated the cases
along with several others that raised similar issues (J.A. 4-5).

   The Nevada Supreme Court held that the Sixth Amendment, as applied
to the States through the Fourteenth Amendment, does not require a
jury trial for a DUI offense where the maximum penalty is a term of
six months' imprisonment (Pet. App. 1-46).  /2/ Accordingly, the court
remanded Fraley's case with instructions to reinstate the conviction
and remanded Blanton's case with instructions to proceed without a
jury trial (id. at 45-46).

   The Nevada court noted that in District of Columbia v. Colts, 282
U.S. 63 (1930), this Court had looked to the nature of the offense as
a guidepost for determining whether a particular offense required a
jury trial.  Nonetheless, the Nevada court read this Court's more
recent decisions such as Baldwin v. New York, 399 U.S. 66 (1970), and
Duncan v. Louisiana, 391 U.S. 145 (1968), as "retreat(ing) from (that)
position * * * (toward) a more workable objective test based on the
severity of the maximum possible penalty alone" (Pet. App. 22).

   While acknowledging that its decision was in conflict with several
federal court decisions, /3/ the Nevada Supreme Court concluded that
those decisions represented "an unnecessary and unwarranted expansion
of the Supreme Court's holding in Baldwin," because "the collateral
consequences of a conviction have not been a criterion relied upon in
(its) recent decisions" (Pet. App. 31).  /4/ As the court explained
(id. at 31-32):

         (T)he (Supreme) Court's references to "line drawing" in
      Duncan and Baldwin, and its increasing reliance upon the maximum
      punishment as the sole criterion for characterizing offenses as
      "serious" or "petty," suggest that only the maximum punishment
      for an offense need be examined to determine whether a jury
      trial is constitutionally mandated.

                          SUMMARY OF ARGUMENT

   The Constitution provides a right to a jury trial for "all Crimes"
(Art. III, Section 2) and in "all criminal prosecutions" (Amend. VI).
Those provisions, however, do not require jury trials in all criminal
cases.  In accordance with the common law practice, this Court has
long recognized that the constitutional right to a jury trial does not
apply to petty offenses.  Although the Court in several early
decisions looked to the nature of a crime and its common law roots in
determining whether the crime was sufficiently serious to require a
trial by jury, the Court in more recent cases has focused on the
maximum penalty provided for the offense as the principal criterion in
determining whether the right to a jury trial attaches.  That
criterion remains the most reliable means of determining whether
society regards a particular offense as sufficiently serious to
trigger the right to a trial by jury.

   The historical practice, which is reflected in the federal
definition of a petty offense, 18 U.S.C. 19, 3581(b)(7)-(9), has been
to provide jury trials only for those offenses that are punishable by
more than six months' imprisonment.  The Court has recognized the
dividing line between serious and petty offenses, and we submit that
it is the proper constitutional test for determining when the right to
a jury trial attaches.  Only those offenses carrying maximum sentences
in excess of six months' imprisonment must be tried to juries.

   In Nevada, as in many States, a first DUI offense is punishable by
a maximum of six months' imprisonment.  In this case, the Nevada
Supreme Court properly focused on the maximum punishment for a first
DUI offense in concluding that the Constitution did not require that
petitioners be accorded a jury trial.  We agree that neither the
inherent "nature" of an offense nor the collateral consequences of a
conviction provide an accurate indicator of the seriousness of the
offense for purposes of the constitutional jury trial guarantee.  In
addition, contrary to petitioners' assertion (Br. 17-18), current
practices among the States in providing jury trials for DUI offenses
do not suggest the nature of DUI is such that the Constitution
requires that DUI defendants be accorded a jury trial regardless of
the maximum penalty provided for the offense under the applicable
state law.

                               ARGUMENT

 PETITIONERS WERE NOT ENTITLED TO A JURY TRIAL ON THE CHARGE THAT THEY
WERE DRIVING UNDER THE INFLUENCE OF ALCOHOL

 A. An Offense Punishable By A Maximum Term Of Six Months'
Imprisonment Is A Petty Offense Triable Without A Jury

   1. Article III, Section 2, of the Constitution provides that "(t)he
Trial of all Crimes * * * shall be by jury." The Sixth Amendment
similarly provides that "(i)n all criminal prosecutions, the accused
shall enjoy the right to a * * * trial, by an impartial jury * * *."
Although the language is unqualified, those provisions have not been
construed to require jury trials for all criminal offense.  Rather,
the constitutional language has been "interpreted in the light of the
principles which, at common law, determined whether the accused, in a
given class of cases, was entitled to be tried by a jury." Callan v.
Wilson, 127 U.S. 540, 549 (1888).

   The English common law practice permitted a wide range of minor or
petty criminal offenses to be resolved summarily before magistrates
and justices of the peace without a jury, and that practice was
generally followed in the American colonies.  See Frankfurter &
Corcoran, Petty Federal Offenses and the Constitutional Guaranty of
Trial by Jury, 39 Harv. L. Rev. 917 (1926).  As one 19th century
American commentator explained:  10It is evident that a jury trial
cannot be demanded in every

      case where a person is punished for a criminal offence.  Such
      was not the practice at any time in the common law, and before
      the adoption of our Constitutions.  * * * (T)here has always
      been a method for punishing offences of a minor grade, by
      inferior judicial officers * * * without a trial by jury;  and *
      * * our Constitutions giving the right of a trial by jury,
      either expressly or impliedly, refer to this antecedent practice
      * * *.

         * * * If there be any general rule in common to all it is
      this:  that in England, under the common law and various
      statutes, and here at the time of the adoption of our
      Constitutions, the trial of minor offences, such as * * * the
      punishment of intoxication, * * * and the punishment of the
      violation of laws and ordinances of local municipal bodies, was
      without a jury, before magistrates generally denominated
      justices of the peace.

   J. Proffatt, A Treatise on Trial by Jury Section 95, at 135-136
(1877) & photo. reprint 1986) (footnote omitted).

   The initial draft of the jury trial guarantee in Article III used
the term "criminal offenses." In place of that term, the Committee of
Style substituted the term "crimes," which was understood at the time
to denote "such offenses as are of a deeper and more atrocious dye." 4
W. Blackstone, Commentaries on the Laws of England 5 (1st American ed.
1772).  /5/ As the Court noted in Schick v. United States, 195 U.S.
65, 69-70 (1904), the use of the term "crimes" appears to confirm the
Framers' intent to retain the practice of summary criminal
prosecutions for petty offenses.  /6/

   2. The Constitution thus creates "the essential if not wholly
satisfactory (task) * * * of determining the line between 'petty' and
'serious' (offenses) for purposes of the Sixth Amendment right to jury
trial." Baldwin v. New York, 399 U.S. 66, 68 (1970) (plurality)
opinion).  The Court's early decisions sought to resolve the question
of the applicability of the jury trial right by focusing on the
seriousness of the offense in question and whether that offense or an
analogous one was triable to a jury at common law.  The Court's more
recent decisions, however, have discarded the case-by-case effort to
assess the seriousness of an offense or its treatment at common law,
in favor of a simpler and more objective test focusing on the maximum
penalty that the offense carries.  The latter inquiry, we submit, is
the proper means of determining whether the Constitution requires that
an offense be tried to a jury.

   In Callan v. Wilson, supra, the defendant, a union musician, was
convicted after a bench trial of conspiring to prevent certain
nonunion musicians from working.  The defendant refused to pay a $25
fine and was sentenced to 30 days' imprisonment.  127 U.S. at 540-542.
 In determining whether the defendant was entitled to a jury trial,
the Court looked only to "the nature of the crime of conspiracy at
common law" (id. at 556).  Finding that conspiracy "is by no means a
petty or trivial offence" (id. at 555), but instead "is an offence of
a grave character" (id. at 556), the Court concluded that the offense
must be tried to a jury.

   In District of Columbia v. Colts, 282 U.S. 63 (1930), the Court
followed a similar line of analysis.  The defendant in the Colts case
was charged with the crime of driving recklessly so as to endanger
people, an offense that was punishable by a maximum of 30 days'
imprisonment.  Focusing "primarily upon the nature of the offense,"
the Court held that the defendant was entitled to a jury trial for two
reasons:  first, the offense "in its very nature is malum in se * * *
(and) was an indictable offense at common law";  and second, driving
recklessly so as to endanger people "is an act of such obvious
depravity that to characterize it as a petty offense would be to shock
the general moral sense" (id. at 73 (emphasis in original)).

   Since the decisions in Callan and Colts, the Court has moved away
from the approach used in those cases.  In light of the difficulty of
finding common law analogues for many modern day offenses, the Court
has abandoned the effort to determine whether a particular offense
would have been indictable at common law.  In addition, rather than
attempting to determine in the abstract whether a particular offense
was of sufficient "depravity" to be deemed serious, the Court has
looked to the penalty imposed for the offense.  Under that approach,
the Court has looked to the size of the penalty as the best measure of
the seriousness of the offense as the legislature viewed it, and thus
as the determining factor in deciding whether the offense carries with
it a right to trial by jury.

   The penalty-oriented approach had its origins as early as 1904 in
Schick v. United States, supra.  There, the defendant was convicted
summarily of selling unstamped oleomargarine in violation of a federal
revenue statute and was ordered to pay a $50 fine.  The Court
concluded that the crime charged was a petty offense because "(s)o
small a penalty * * * indicates * * * (i)t is not one necessarily
involving any moral delinquency" (195 U.S. at 67).  As the Court
explained, the nature of the offense, and in particular "the amount of
the punishment prescribed" determine "whether it is to be classed
among serious or petty offenses" (id. at 68).

   Subsequently, in District of Columbia v. Clawans, 300 U.S. 617, 625
(1937), the Court again refused to rely exclusively on the common law
treatment of the offense, but instead considered the severity of the
penalty in determining whether a statutory offense "must be deemed so
serious as to be comparable with common law crimes, and thus to
entitle the accused to the benefit of a jury trial." Such an inquiry,
the Court noted, involves an "objective standard()" that may be "taken
as a gauge of (the community's) social and ethical judgments" (id. at
628).

   The defendant in Clawans was convicted of unlawfully selling unused
portions of railway tickets, an offense punishable by a maximum
sentence of 90 days' imprisonment (300 U.S. at 623).  Reviewing
practices among the Colonies and the States in the late 18th century,
the Court found numerous examples of summary disposition of petty
offenses with punishments exceeding three months' imprisonment (id. at
625-630).  The Court then concluded that a penalty of that size, "when
attached to the offense of selling second-hand goods without a
license," did not give the crime "the character of * * * a major
offense" (id. at 630).

   By stating that the severity of the penalty was a principal factor
in the constitutional inquiry, the Clawans Court foreshadowed the
approach the Court has embraced during the past 20 years.  In keeping
with the trend toward an objective standard, the Court in Clawans
observed that the question of a defendant's right to jury trial "must
be resolved, not subjectively by recourse of the judge to his own
sympathy and emotions, but by objective standards such as may be
observed in the laws and practices of the community taken as a gauge
of its social and ethical judgments" (300 U.S. at 628).  /7/

   More recent decisions, following the approach used in Clawans, have
focused on the maximum penalty for an offense as the proper criterion
for determining whether the right to a jury trial attaches.  A series
of three cases decided in 1968 and 1969 have become the leading
authorities for that point.

   In Duncan v. Louisiana, 391 U.S. 145, 159 (1968), the Court made
clear that "the penalty authorized for a particular crime is of major
relevance in determining whether it is serious or not." The Court
noted that petty offenses were tried without juries in England and the
Colonies "and have always been held to be exempt from the otherwise
comprehensive language of the Sixth Amendment's jury trial provisions"
(id. at 160).  There is no evidence that the Framers intended to
depart from that practice, the Court observed.

   In determining whether a particular offense was "petty" or
"serious" for jury trial purposes, the Duncan Court emphasized that it
was important to use "objective criteria" (391 U.S. at 161) to make
the constitutional determination.  Furthermore, the court noted that
"(t)he penalty authorized by the law of the locality may be taken 'as
a gauge of its social and ethical judgments' * * * of the crime in
question" (id. at 160 (citation omitted)).  While not deciding
precisely where the line should be drawn between petty offenses and
serious crimes, the Court concluded that a crime carrying a potential
penalty of two years' imprisonment is a serious crime and not a petty
offense.

   Frank v. United States, 395 U.S. 147 (1969), which was decided the
year after Duncan, made the same point.  As in Duncan, the Court in
Frank explained that in determining whether the jury trial right
attached in a prosecution for a particular crime, the Court sought
"objective indications of the seriousness with which society regards
(an) offense" and that "(t)he most relevant indication of the
seriousness of an offense is the severity of the penalty authorized
for its commission" (id. at 148).  Although Frank was a contempt case
in which there was no statutory maximum penalty, the Court noted that
in "ordinary criminal prosecutions, the severity of the penalty
authorized * * * is the relevant criterion" for distinguishing between
petty and serious offenses (id. at 149).  In such cases, the Court
explained, "the legislature has included within the definition of the
crime itself a judgment about the seriousness of the offense" (ibid.).

   Finally, in Baldwin v. New York, 399 U.S. 66 (1970), which was
decided the following year, a plurality of the Court announced a
standard that it distilled from prior precedents.  /8/ The Court
stated that it looked to "objective criteria reflecting the
seriousness with which society regards the offense * * * (and) found
the most relevant such criteria in the severity of the maximum
authorized penalty." /9/ Indeed, the Court referred to the maximum
penalty as "the only objective criterion by which a line could ever be
drawn * * * between offenses that are and that are not regarded as
'serious' for purposes of trial by jury." Id. at 68, 72-73 (footnote
omitted).  /10/

   3. At the same time that it was settling on the maximum penalty as
the sole criterion for determining whether a jury trial is required,
the Court established a "bright line" test to distinguish petty from
serious crimes for purposes of the jury trial guarantee.  The Court
has concluded that crimes "carrying a sentence of more than six months
are serious crimes and those carrying a sentence of six months or less
are petty offenses." Codispoti v. Pennsylvania, 418 U.S. 506, 512
(1974);  see id. at 519 (Marshall, J., concurring).  That
constitutional dividing line, although necessarily somewhat arbitrary
(see Baldwin, 399 U.S. at 73;  Duncan, 391 U.S. at 160-161) has a
sound historical basis and is consistent with contemporary standards.
As the Court has noted, "in the late 18th century in America crimes
triable without a jury were for the most part punishable by no more
than a six-month prison term." Duncan v. Louisiana, 391 U.S. at 161;
see Baldwin v. New York, 399 U.S. at 71;  District of Columbia v.
Clawans, 300 U.S. at 626-627.  At the time of Duncan, even in the
absence of any constitutional compulsion the States were nearly
unanimous in the view that offenses punishable by more than six
months' imprisonment should be tried to juries.  See Duncan v.
Louisiana, 391 U.S. at 161 & n.33;  Baldwin v. New York, 339 U.S. at
71-72.  And in the federal system, Congress has consistently defined
as petty any offense punishable by no more than six months'
imprisonment.  /11/ It is thus clear from this Court's precedents, as
well as historical and contemporary practice, that a defendant has a
right to a jury trial for any offense carrying a maximum penalty of
more than six months' imprisonment, but he does not have a right to a
jury trial for an offense carrying a maximum penalty of six months'
imprisonment or less.

 B. A DUI Offense, Punishable By A Maximum Term of Six Months'
Imprisonment, Should Be Treated As A Petty Offense Triable Without A
Jury

   The application of these principles to this case is
straightforward.  The Nevada DUI law provides for a maximum of six
months' imprisonment for first offenders such as petitioners.
Therefore, petitioners are not constitutionally entitled to a jury
trial.  If there were any doubt of the application of those principles
in the context of a DUI offense, the Court just two Terms ago
reaffirmed the vitality of the six-month constitutional dividing line
for purposes of the right to a jury trial, and it did so in the
context of a DUI prosecution.  In Bairnsfather v. Louisiana, No.
86-5656 (Apr. 6, 1987), the appellant challenged the Louisiana courts'
refusal to grant him a jury trial for a DUI offense.  Although the DUI
offense carried a maximum penalty of only six months' imprisonment,
the appellant argued that the crime was a serious offense for
constitutional purposes, because of the nature of the offense and the
collateral consequences that a defendant could suffer upon conviction.
 See 86-5656 J.S. 8-9.  The Court, however, dismissed the appeal in
that case for want of a substantial federal question.  That precedent
is directly applicable here and should be dispositive.  /12/

   Petitioners contend that the nature of the DUI offense (Br. 18-22),
as well as the collateral consequences of a conviction (Br. 9-16),
render the Nevada DUI offense sufficiently serious to require a jury
trial in spite of the six-month cap on the authorized penalty.
Moreover, petitioners suggest (Br. 17-18) that current state practices
regarding jury trials for DUI offenses confirm that DUI offenses
should be tried to a jury.  The Court's decisions, however, show that
neither the inherent nature of an offense nor its collateral
consequences are an accurate indicator of its seriousness for purposes
of the constitutional jury trial guarantee.  And, contrary to
petitioners' suggestion, most States treat DUI as a petty offense and
do not regard it as an offense that requires a trial by jury as a
constitutional matter.

   1. As even petitioners concede (Br. 21), the Court has all but
explicitly abandoned its inquiry, last announced in District of
Columbia v. Colts, supra, into an offense's common law pedigree.  That
inquiry would be fruitless in the case of modern statutory offenses
that were unknown to the common law, and even if a common law analogue
could be found, the treatment of the analogous offense at common law
would not necessarily shed light on whether society now considers the
offense sufficiently serious to warrant a trial by jury.  /13/

   Any inquiry into the "nature of an offense," without regard to the
maximum penalty attached, would be equally uninformative, as it would
inevitably call for subjective evaluations by the courts as to the
culpability of particular conduct.  To attempt to divine the "nature
of the offense" would thus violate this Court's instruction that the
constitutional inquiry should be based on objective criteria.  E.g.,
Baldwin v. New York, 399 U.S. at 68;  Frank v. United States, 395 U.S.
at 148;  Duncan v. Louisiana, 391 U.S. at 161;  District of Columbia
v. Clawans, 300 U.S. at 628.  In addition, it would disregard the
"most relevant indication of the seriousness of an offense" (Frank v.
United States, 395 U.S. at 148) -- the legislature's assignment of a
particular penalty to the crime.

   We do not doubt that DUI may be "an act repugnant to the moral
sense of the community" (Br. 22);  See Welsh v. Wisconsin, 466 U.S. at
755 (Blackmun, J., concurring).  Indeed, the same judgment should hold
true for any criminal offense that is punishable by imprisonment, even
for a relatively short term.  If the repugnancy of the conduct were
the test, however, any criminal act more serious than a minor
infraction would give rise to a jury trial right.  And, in any event,
if a court's sense of moral repugnance were the test, there would be
no hope of obtaining certainty and predictability in determining what
offenses must be tried to a jury.  The open-ended and subjective
standard advocated by petitioners would ignore the legislature's
choice and could convert almost any criminal offense into one
requiring a jury trial, a result the Court long ago held the
Constitution did not require.

   Looking to the collateral consequences from a conviction to
determine the offense's seriousness, as petitioners suggest (Br.
9-16), would run a similar risk of permitting subjective
determinations to control the right to a jury trial.  Conviction for
any crime has collateral consequences, yet the Court has never stated
that those consequences define the seriousness of an offense.
Instead, the Court in Duncan v. Louisiana, 391 U.S. at 160, has made
clear that

         the possible consequences to defendants from convictions for
      petty offenses have been thought insufficient to outweigh the
      benefits to efficient law enforcement and simplified judicial
      administration resulting from the availability of speedy and
      inexpensive nonjury adjudications.

   Accord Baldwin v. New York, 339 U.S. at 73.  There is simply no
ascertainable standard by which a court could reasonably distinguish
the collateral consequences resulting from a DUI conviction from those
resulting from other petty offenses to the extent necessary to justify
a constitutional difference for purposes of the jury trial guarantee.
See Landry v. Hoepfner, 840 F.2d 1201, 1216 (5th Cir. 1988) (en banc),
petition for cert. pending, No. 88-5043.  Many traffic violations can
result in the suspension or loss of a driver's license or compulsory
attendance at safe driving schools.  Moreover, the opprobrium attached
to driving while intoxicated would be difficult to distinguish, for
constitutional purposes, from the opprobrium attached to other petty
offenses such as public intoxication or engaging in various forms of
disorderly conduct.

   2. Most state and federal courts that have addressed the issue have
held that an offense such as DUI, when it carries a penalty of no more
than six months' imprisonment, does not require a jury trial.  For
example, the en banc Fifth Circuit recently held that a DUI offense
under Louisiana law was a petty offense, triable without a jury,
because the maximum potential penalty was six months' imprisonment.
Landry v. Hoepfner, supra.  The court, thoroughly analyzing this
Court's decisions, explicity rejected arguments that the nature of the
DUI offense itself or the collateral consequences resulting from a
conviction elevated the offense to a "serious crime" for purposes of
the Sixth and Fourteenth Amendments (840 F.2d at 1210-1217).  See also
United States v. Jenkins, 780 F.2d 474, 474 (4th Cir.), cert. denied,
476 U.S. 1161 (1986);  United States v. Fletcher, 505 F. Supp. 1053,
1054 (W.D. Va. 1981);  Matos v. Rodriguez, 440 F. Supp. 673, 676-677
(D.P.R. 1976);  Thomas v. State, 331 A.2d 147 (Del. 1975);  State v.
Henderson, 491 So. 2d 647, 650 (La. 1986);  State v. Smith, 99 Nev.
806, 910, 672 P.2d 631, 634 (1983);  State v. Morrill, 123 N.H. 707,
709-713, 465 A.2d 882, 884-886 (1983);  State v. Linnehan, 197 N.J.
Super. 41, 43-44, 484 A.2d 34, 35 (App. Div. 1984), cert. denied, 99
N.J. 236, 491 A.2d 723 (1985);  State v. Sweat, 78 N.M. 512, 513-514,
433 P.2d 229, 230-231 (1967);  Commonwealth v. Fischl, 363 Pa. Super.
173, 177-180, 525 A.2d 775, 777-778 (1987);  State v. Holliday, 109
R.I. 93, 280 A.2d 333 (1971).

   Four federal courts and three state courts have concluded that the
Constitution requires that DUI defendants be accorded a trial by jury
even where the offense carries a maximum penalty of six months or
less.  See United States v. Craner, 652 F.2d 23 (9th Cir. 1981);
Bronson v. Swinney, 648 F. Supp. 1094 (D. Nev. 1986);  United States
v. Woods, 450 F. Supp. 1335 (D. Md. 1978);  Brady v. Blair, 427 F.
Supp. 5 (S.D. Ohio 1976);  Rothweiler v. Superior Court, 100 Ariz. 37,
410 P.2d 479 (1966);  State v. O'Brien, 68 Haw. 39, 704 P.2d 883
(1985);  City of Casper v. Cheatham, 739 P.2d 1222 (Wyo. 1987).  Those
courts have generally relied on the collateral consequences of a DUI
conviction as the reason for holding the jury trial right applicable.
That approach to the constitutional issue, however, is inconsistent
with the analysis in this Court's decisions, as we have discussed
above.

   Nor are those courts' other justifications for requiring jury
trials in DUI cases convincing.  The district court in Bronson v.
Swinney, supra, which required that Nevada provide a jury trial in DUI
cases, based its ruling in part on the fact that the Nevada DUI
statute has a mandatory minimum two-day jail sentence.  See 648 F.
Supp. at 1098-1100.  The presence of a minimum sentence, however, does
not suffice to convert DUI into a "serious" offense for constitutional
purposes.  This Court has never looked to the minimum sentence as a
factor in determining whether the right to a jury trial attaches.
Indeed, even in contempt cases, where the actual sentence imposed
determines whether the accused must have a jury trial, the Court has
emphasized that a sentence of no more than six months' imprisonment
does not require a trial by jury.  E.g., Muniz v. Hoffman, 422 U.S.
454, 475-476 (1975);  Codispoti v. Pennsylvania, 418 U.S. 506, 511-512
(1974).  Consequently, a mandatory two-day jail sentence cannot
transform an otherwise petty offense into one that must be tried to a
jury.  /14/

   A review of current practices among the States, including the
District of Columbia, regarding the right to jury trial for a DUI
offense shows that 30 jurisdictions have penalties of no more than six
months' imprisonment for a first DUI offense.  /15/ Twenty-two of
those States provide for a jury trial in DUI cases, but only two do so
solely because they view DUI as a "serious" offense for constitutional
purposes despite its petty offense penalty.  See Rothweiler v.
Superior Court, 100 Ariz. 37, 41-47, 410 P.2d 479, 483-486 (1966);
State v. O'Brien, 68 Haw. 39, 41-43, 704 P.2d 883, 885-887 (1985).
/16/ The other 20 States grant a jury trial in all criminal cases or
in all cases that carry a potential penalty of imprisonment.  /17/
Eight jurisdictions, including Nevada, with punishments for DUI not
exceeding six months' imprisonment, do not provide for a jury trial.
/18/

   In the remaining 21 States, the maximum penalty for DUI exceeds six
months' imprisonment.  /19/ Hence, coupled with Arizona, Hawaii, and
Wyoming, a total of 24 states consider DUI to be a "serious" offense,
for constitutional purposes, while 27 jurisdictions deem DUI to be a
petty offense.  See App., infra, 1a, 5a, 20a;  see also 840 F.2d at
1219.  As the Fifth Circuit observed (ibid.), that ratio "reflects
that a clear majority of the jurisdictions * * * classifies (DUI) in a
manner which entirely meets the standards of the Supreme Court's
definition of 'petty.'" Accordingly, the practice among the States
does not support a conclusion that a DUI charge warrants a jury trial
when the maximum sentence is six months' imprisonment.

   3. Finally, we submit that the constitutional dividing line that
the Court has established has the virtues of predictability and ease
of application for the parties.  When the jury trial right is
conditioned on the length of the potential sentence for an offense,
the trial court and the parties know in advance whether a jury trial
is required.  On the other hand, if a trial court must determine the
seriousness of minor offenses on a case-by-case basis, the
administration of justice obviously will suffer.  The confusion
wrought by such a test, requiring either an examination of the nature
of the offense or its collateral consequences, will no doubt be
immense.  The burden is particularly great because it is imposed in a
class of cases in which the need for easily applied rules and
simplified handling is the greatest.  The Court's "fixed dividing line
between petty and serious offenses" (Codispoti v. Pennsylvania, 418
U.S. at 512) remains historically sound, easy to apply, and consistent
with contemporary standards.  The Court should therefore reaffirm the
vitality of that standard for determining whether an offense requires
a jury trial.

                              CONCLUSION

   The judgment of the Supreme Court of Nevada should be affirmed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   EDWARD S.G. DENNIS, JR.

      Acting Assistant Attorney General

   WILLIAM C. BRYSON

      Deputy Solicitor General

   MICHAEL R. LAZERWITZ

      Assistant to the Solicitor General

   LOUIS M. FISCHER

      Attorney

   SEPTEMBER 1988

   /1/ If the court does not impose a mandatory prison term, the court
must order the first offender "to perform 48 hours of work for the
community while dressed in distinctive garb which identifies him as
having (committed a DUI offense)." Nev. Rev. Stat. Ann. Section
484.3792.1(a)(2) (Michie Supp. 1988).

   A second DUI offense, also a misdemeanor, is punishable by a
mandatory minimum term of ten days' imprisonment and a maximum term of
six months' imprisonment.  The second offender must also pay a
mandatory minimum fine of $500 and may be fined a maximum of $1,000.
Nev. Rev. Stat. Ann. Section 484.3792.1(b) (Michie Supp. 1988).  The
second offender may also lose his license for one year (id. Section
483.460.1(b)(5)).  A third DUI offense is punishable by a mandatory
minimum term of one year in prison and a maximum term of six years'
imprisonment;  the third offender must pay a mandatory minimum fine of
$2,000 and may be fined a maximum of $5,000 (id. Section
484.3792.1(c)).  The third offender also loses his license for three
years (id. Section 483.460.1(a)(2)).

   /2/ The court found no state constitutional requirement for a jury
trial, because "the right to a trial by jury under the Nevada
Constitution is coextensive with that guaranteed by the federal
constitution" (Pet. App. 16).  The court also disposed of the state
law issue raised in Fraley's case by concluding that the North Las
Vegas Municipal Court has the authority, despite Nev. Rev. Stat. Ann.
Section 266.550 (Michie 1986), to conduct jury trials in DUI cases
(Pet. App. 12-15).

   /3/ In United States v. Craner, 652 F.2d 23 (9th Cir. 1981), and
Bronson v. Swinney, 648 F. Supp. 1094 (D. Nev. 1986), the courts held
that the nature of a DUI offense, together with the collateral
consequences from a conviction, render that offense "serious" for
purposes of the constitutional right to jury trial.  In Bronson, the
district court specifically held that the Nevada DUI offense must be
tried to a jury (648 F. Supp. at 1098-1101).

   /4/ The court also identified certain "policy considerations" to
support its ruling, such as the added expense of conducting jury
trials in misdemeanor DUI cases and the fact that some municipal
courts are staffed by nonlawyer judges (Pet. App. 33-42).

   /5/ Available records of the Constitutional Convention of 1787 shed
little light on the decision by the Committee of Style to substitute
the term "criminal offences" for the word "crimes" in the final
version of Article III.  See 1 J. Elliot, The Debates in the Several
State Conventions, on the Adoption of the Federal Constitution 149,
229, 270, 304 (2d ed. 1854) (Elliot's Debates);  2 M. Farrand, The
Records of the Federal Convention of 1787, at 144, 173, 187, 433, 438,
576 (rev. ed. 1966);  2 J. Madison, The Debates in the Federal
Convention of 1787, at 344, 477 (G. Hunt & J. Scott eds. photo.
reprint 1987).  Addressing the Virginia Ratifying Convention in 1788,
however, James Madison did state (3 Elliot's Debates 537 (emphasis in
original)) that

         (t)he trial by jury is held as sacred in England as in
      America.  There are deviations from it in England;  yet greater
      deviations have happened here, since we established our
      independence, than have taken place there for a long time * * *.
       It is a misfortune in any case that this trial should be
      departed from;  yet in some cases it is necessary.

   /6/ The Court has consistently read the jury trial provisions of
Article III and the Sixth Amendment as equivalent.  E.g., Callan v.
Wilson, 127 U.S. at 549-550.  The Sixth Amendment right to jury trial
for serious criminal offenses applies to the States through the
Fourteenth Amendment.  Duncan v. Louisiana, 391 U.S. 145, 157-158
(1968).

   The Court has addressed the apparent inconsistency between its
treatment of the constitutional jury trial guarantee and other
constitutional protections applicable to criminal prosecutions.  In
Argersinger v. Hamlin, 407 U.S. 25, 30, 31 (1972) (footnote omitted),
the Court, on the basis of the "historical support for limiting the
'deep commitment' to trial by jury to 'serious criminal cases,'"
rejected the argument "that since prosecutions for crimes punishable
by imprisonment for less than six months may be tried without a jury,
they may also be tried without a lawyer." The Court also made clear
that other Sixth Amendment protections, such as the right to a public
trial and the right to confront witnesses, have historically not been
limited to felonies or serious offenses (id. at 28).

   /7/ In a statement further anticipating the six-month penalty that
the Court ultimately settled on as the appropriate dividing line
between serious and petty offenses, the Court observed in Clawans (300
U.S. at 627-628 (footnote omitted)) that

         we may doubt whether summary trial with punishment of more
      than six months' imprisonment, prescribed by some
      pre-Revolutionary statutes, is admissible without concluding
      that a penalty of ninety days is too much.

   /8/ Three Justices joined the plurality opinion.  Justices Black
and Douglas concurred in the judgment but did not agree that the
Constitution permits petty offenses to be tried without a jury.  Chief
Justice Burger and Justices Harlan and Stewart dissented on the ground
that the incorporation doctrine should not be invoked to apply the
jury trial requirements of the Constitution in full force to the
States.  See 399 U.S. at 76-77 (Burger, C.J., dissenting);  id. at
117-143 (Harlan, J., dissenting);  id. at 143-145 (Stewart, J.,
dissenting).  Justice Harlan and apparently Justice Stewart agreed
with the plurality, however, that for federal purposes the six-month
period of imprisonment was the appropriate dividing line between
serious and petty crimes.  See 399 U.S. at 120-121 (Harlan, J.,
dissenting);  id. at 143 (Stewart, J., dissenting).  Accordingly, five
Members of the Court agreed on the six-month period of imprisonment as
the correct point at which the constitutional right to a jury trial
should attach.  For that reason, we refer to the plurality's reasoning
on that point as setting forth the view of the Court.

   /9/ Cf. Welsh v. Wisconsin, 466 U.S. 740, 754 n.14 (1984) ("Given
that the classification of state crimes differs widely among the
States, the penalty that may attach to any particular offense seems to
provide the clearest and most consistent indication of the State's
interest in arresting individuals suspected of committing that
offense.").

   /10/ The Court has followed a roughly similar line of analysis in
cases involving contempts of court.  In United States v. Barnett, 376
U.S. 681, 682-683 (1964), which was decided several years before
Duncan, the Court held that criminal contempt is a petty offense that
need not be tried to a jury.  In dictum, the Court noted that "our
cases have indicated that, irrespective of the severity of the
offense, the severity of the penalty imposed * * * might entitle a
defendant to the benefit of a jury trial" (id. at 695 n.12 (citing
District of Columbia v. Clawans, supra)).  Justice Clark, writing for
the Court, added (ibid.) that "(s)ome members of the Court are of the
view that, without regard to the seriousness of the offense,
punishment by summary trial without a jury would be constitutionally
limited to that penalty provided for petty offenses." Two years later,
in Cheff v. Schnackenberg, 384 U.S. 373, 379 (1966), a plurality of
the Court followed Barnett to hold that an individual who received a
six-month sentence for criminal contempt was not entitled to a jury
trial.  The plurality reasoned that a jury trial was not required
because the sentence fell within the range Congress prescribed for
petty offenses and the nature of a criminal contempt offense did not
call for different treatment (id. at 379-380).  The Court subsequently
held that a jury trial was required in contempt cases in which
penalties of more than six months' imprisonment were imposed.  See
Bloom v. Illinois, 391 U.S. 194 (1968);  Dyke v. Taylor Implement Co.,
391 U.S. 216, 220 (1968).

   /11/ See, e.g., 18 U.S.C. (1982 ed.) 1(3);  18 U.S.C. 19;  18
U.S.C. (Supp. IV) 3581(b)(7), (8) and (9).

   In the Judiciary Act of 1789, ch. 20, Section 9, 1 Stat. 76-77,
Congress vested district courts with exclusive jurisdiction over "all
crimes and offences * * * cognizable under the authority of the United
States, * * * where no other punishment than whipping * * * a fine not
exceeding one hundred dollars, or a term of imprisonment not exceeding
six months, is to be inflicted." Congress specifically provided (id.
at 77) that "the trial of issues in fact, in the district courts, in
all causes except civil causes of admiralty and maritime jurisdiction,
shall be by jury." Congress enacted no such provision for the trial of
"crimes and offences" in which the maximum penalty was six months or
less and which were tried in the district courts.

   /12/ The Court's dismissal for want of a substantial federal
question represents a decision on the merits and therefore has
precedential value, albeit less value than an opinion of the Court
after full briefing and argument.  See, e.g., Southern Railway Co. v.
Seaboard Allied Milling Corp., 442 U.S. 444, 462 (1979);  Hicks v.
Miranda, 422 U.S. 332, 343-345 (1975).

   /13/ This case demonstrates the difficulty (and ultimate futility)
of looking to the treatment of a given offense at common law.  The
closest common law analogue to DUI presumably would have been driving
a wagon or horsecart while drunk.  Available authority suggests that
that offense, as opposed to reckless driving so as to endanger others,
the offense that was at issue in Colts, was not an indictable offense
at common law.  See, e.g., State v. Rodgers, 91 N.J.L. 212, 102 A. 433
(1917).  Yet the historical analogy obviously does not speak very
clearly to the question whether the offense of DUI is sufficiently
serious to warrant trial by jury.  Instead, as we set out above, it is
the legislature's assignment of a penalty that is the most accurate
gauge of the seriousness of an offense.

   /14/ We also disagree with the Ninth Circuit's decision in Craner,
in which that court based its ruling in part on the fact that the
penalty for DUI on national park lands was set by the Secretary of the
Interior rather than by Congress.  From the fact that the offense and
its penalty were defined by regulation rather than by statute, the
court concluded that the size of the penalty is less important because
it does not reflect a legislative judgment that DUI offense on
national park grounds is a petty offense.  The regulations themselves,
however, demonstrate the flaw in that approach.  Congress has
authorized penalties of up to six months' imprisonment and a $500 fine
for regulatory violations in the national parks, 16 U.S.C. 3, three
months' imprisonment and a $100 fine for regulatory violations in
national military parks and battlefields, 16 U.S.C. 9a, and no
imprisonment but a $500 fine for regulatory violations in national
historic sites, 16 U.S.C. 462(k).  If the Craner court is correct, the
fact that Congress did not define the crime would require a DUI
offense on a national historic site to be tried to a jury even though
the offense carried no risk of punishment and a maximum fine of only
$500.  By extrapolation, the Craner court would apparently require a
trial by jury even if the maximum penalty were a $15 fine.

   /15/ The Fifth Circuit, in Landry v. Hoepfner, supra, recently
conducted such a review.  See 840 F.2d at 1218-1220.  The Fifth
Circuit included Puerto Rico in its analysis, but we have chosen to
include only the 50 States and the District of Columbia.  Petitioners
have attached to their brief an appendix that assertedly contains a
list of the States that provide jury trials for a DUI offense (Br.
App. 1-9).  That list is deceptive, however, because it does not show
the number of jurisdictions that provide for a jury trial for all
criminal offenses, and we disagree with petitioners' analysis with
respect to several States.  We are attaching as an appendix to this
brief a list of how each State, including the District of Columbia,
treats DUI offenses.

   The Landry court's categorization rested on an appendix that we had
submitted.  See 840 F.2d at 1218 & n.32.  We provided incorrect
information with respect to Connecticut and Pennsylvania, so the
actual breakdown of the States varies slightly from that in Landry.

   /16/ The Wyoming Supreme Court recently held that DUI was a
"serious" offense, for constitutional purposes, and that it therefore
required a jury trial in a municipal court, even though the applicable
local ordinance provided for no penalty of imprisonment.  City of
Casper v. Cheatham, 739 P.2d 1222, 1223-1224 (Wyo. 1987).  That court,
however, already had held that under Wyoming law a defendant had a
right to jury trial in any cases where the penalty involved a
potential term of imprisonment.  Brenner v. City of Casper, 723 P.2d
558, 561 (Wyo. 1986).  Courts in Maryland and South Dakota also have
held that a DUI offense is serious.  In both States, however, the
penalty for DUI is one year in prison.  Thus, a defendant would have a
right to a jury trial irrespective of those decisions.  See Fisher v.
State, 305 Md. 357, 504 A.2d 626 (1986);  Parham v. Municipal Court,
86 S.D. 531, 199 N.W.2d 501 (1972);  see also App., infra, 8a, 17a.
By contrast, courts in Florida and Nebraska, States that provide for a
jury trial in virtually all criminal cases, have held that a DUI
offense does not intrinsically require a jury trial.  See Whirley v.
State, 450 So.2d 836 (Fla. 1984);  State v. Amick, 173 Neb. 770, 114
N.W.2d 893 (1962).

   /17/ California, Connecticut, Florida, Idaho, Kansas, Kentucky,
Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, North
Carolina, Ohio, Oregon, South Carolina, Utah, West Virginia,
Wisconsin, and Wyoming all provide either by state constitution or
statute for a jury trial in all criminal cases or in all prosecutions
involving potential imprisonment.  See App., infra, 2a-20a.

   /18/ Those jurisdictions are Delaware, the District of Columbia,
Louisiana, Nevada, New Hampshire, New Jersey, New Mexico, and North
Dakota.  See App., infra, 3a-4a, 7a, 11a-14a.

   /19/ Eleven of those States also provide for jury trial in all
criminal cases.  Those States include Alaska, Colorado, Illinois,
Indiana, Iowa, Maine, Oklahoma, Tennessee, Texas, Vermont, and
Washington.  See App., infra, 1a-2a, 6a, 8a, 15a, 17a-19a.

   APPENDIX