Dec 302013

Owen Courreges

With New Year’s Eve a scant day away, it is only fitting that I commit this column to a particularly relevant topic: Driving Under the Influence (DUI).

First, I’d like to preface this piece by observing that nobody actually supports drunk driving.  It’s a contributing cause to innumerable auto accidents and fatalities.  It frustrates law enforcement and makes mothers M.A.D.D.

However, in spite of popular efforts to present a DUI as the moral equivalent of nun beating, activists and local governments are committed participants in a conspiracy to presenting driving drunk as a mere peccadillo – a “petty offense” that does not merit significant concern.

Why the incongruity?  It’s simple, really.  Louisiana, like other states, refuses to provide jury trials to DUI first offenders.  When push comes to shove, we’d rather downplay the significance of a DUI than provide constitutional minimums.

The situation finds its nexus with the Sixth Amendment of the U.S. Constitution, which provides unequivocally that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury[.]”  Note that this amendment does not include the caveat “unless accused of driving drunk.”

However, there was a bit of a “gloss” on this amendment.  By the late 1700’s, it was commonplace for courts to use summary proceedings (i.e., bench trials, those judge without a jury) for, quote, “petty offenses.”  So if Joe Blow (a good boy) came into court for being too rowdy at a local bar, they judge could fine him $10 and save the taxpayers the time and expense of bringing in a jury.

Although this historical exception was not included in the Sixth Amendment, the courts generally accepted it as a valid exception to the general rule that persons accused of crime must be tried by a jury.

The “petty offense” exception is integral to our modern system of justice.  Anybody who has ever received a traffic ticket understands that if they stand their ground and take the matter to trial, their case will be heard before a judge.  The same goes for municipal court; we understand that for very minor crimes, we should not allow defendants to game the system by demanding expensive jury trials for very trivial offenses.

The problem with this exception (like most exceptions) is that it has gradually consumed the rule.  Any crime that has serious, lasting implications for the convicted, is not “petty.”  Any crime calculated to result in severe social opprobrium is not “petty.”  Any crime where the accused cannot simply pay a fine and go about his business is not “petty.”

A DUI, dear readers, is not “petty.”

Nevertheless, in Landry v. Hoepfner, 840 F.2d 1201, 1202 (5th Cir. La. 1988), the Eastern District for the State of Louisiana decided the opposite.   In Landry, the Court held that Louisiana’s denial of jury trials in DUI cases comported with the constitution because the maximum sentence for a first-offense DUI was, and remains, a mere six months imprisonment.

The Landry court was forced to engage in some highly dubious reasoning.  The Supreme Court had ruled in a previous case, District of Columbia v. Colts, 282 U.S. 63, 72 (1930), that the offense of reckless driving was not a “petty offense” because it was an indictable offense at common law, and also because “to characterize it as a petty offense would be to shock the general moral sense.”  Id.

Nevertheless, the maximum amount of jail time for reckless operation in Louisiana is 90 days in jail, half the maximum for a first offense DUI.  The decision in Landry was therefore premised on the ridiculous fiction that the State of Louisiana regards a DUI as a petty matter on par with other minor traffic offenses  (except for reckless driving, which is a major offense that simply happens to have much less severe penalties).

Indeed, NOPD Chief Serpas is on record as using DUI and reckless driving interchangeably.  In 2011, responding to a Facebook page publicizing DUI checkpoints, Serpas raged that “[a]nyone who would be so irresponsible as to try to help drunk drivers avoid DWI checkpoints is not only encouraging reckless driving, but is also putting those drivers, their passengers and the general public at risk.”

Serpas failed to note that unlike persons accused of driving drunk, persons accuse of “reckless driving” are actually entitled to a jury trial.

The reality is that nobody accused of a DUI considers the matter “minor.”  As an attorney who has practiced frequently in traffic court, I know the practical differences between a DUI and virtually any other traffic offense.  Traffic court employs separate clerks for DUIs, and instead of simply speaking with an Assistant City Attorney to negotiate a plea bargain for a simple fine, DUI defendants must discuss terms of probation (with a bona fide probation officer) and pay comparatively massive fines.  There is a clear dividing line.

I am also familiar with the practical importance of having the option of a jury trial.  Research have shown that juries are significantly less likely to convict in DUI cases than judges.  Jurors are anonymous and therefore insulated from political pressures.  No judge wants to be voted out the next election cycle vis-a-vis the concerted effort of a gaggle of M.A.D.D. mothers.

Put more glibly, juries tend not to view traffic cases as an assembly line where the product is a conviction.  Judges, on the other hand, are more likely to have other less noble considerations.

Even proponents of jury-less DUI proceedings acknowledge this as a factor.  Adam Gershowitz, a professor at the University of Houston Law School, wrote a law review article in 2011 in which he presented judicial bias in DUI cases as a feature rather than a bug. “[A]n opposition campaign by MADD,” Gershowitz blithy observed, “could be extremely detrimental to a sitting judge.”  If a judge sees a M.A.D.D. observer in the courtroom, posits Gershowtiz, she may well “adjust her behavior to be less favorable to DWI defendants.”

Is that the system we want?

Drunk driving is a problem, but our solution to that problem has been to throw constitutional protections out the window.  It’s a cure that’s far worse than the disease.  It’s a sacrifice of essential liberty of some vague perception of safety.

This New Year’s Eve, I’d prefer people to remember that more than anything.

Owen Courrèges, a New Orleans attorney and resident of the Garden District, offers his opinions for on Mondays. He has previously written for the Reason Public Policy Foundation.

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  • jexni

    Why not lengthen the maximum sentence allowed substantially, and then allow juries? If a defendant doesn’t choose to go with a jury (or has no attorney) the maximum penalty could be capped at the current 6 months for a first offense on conviction.

    • Owen Courrèges


      You couldn’t do that. You can’t increase a criminal defendant’s potential maximum sentence based on their demand for a jury. This really shows the problem here; the right to a jury is just that, a right, and shouldn’t be regarded by the state as some kind of bargaining chip.

      If the state regards the crime as serious, it must provide a jury, period. We’ve been indulging the fiction that so long as the state caps the maximum sentence at six months, irrespective of whether it considers the crime serious as a matter of policy and tacks on other onerous penalties, the crime remains “petty.” It’s ridiculous.

      • jexni

        Sure you could. The military does something similar with the Summary Court Martial. You don’t get a panel (jury) at a Summary Court and if charged with an offense that could get a higher punishment if taken to a Special Court, your potential punishment is capped much lower at a summary court. There is also a cap on punishment if you are not provided an attorney. Same offense, same penalty, just different circumstances if you have a different forum with les protection. Some people may want an attorney before a jury and run greater risk, some may prefer to waive the jury for less risk. The choice is with the defendant. The state has an option and the defendant is protected if the state chooses not to provide a jury. This isn’t a question of natural law there is nothing at all ridiculous or unconstitutional about the state also being given a choice in the application of resources if the defendant is protected.

        • Owen Courrèges


          No, I mean that I’m pretty sure you can’t do that constitutionally. The moment the state says “this crime is serious enough to where a person can theoretically be imprisoned for more than six months,” the Sixth Amendment kicks in. It isn’t an issue of resources; it’s a matter of the seriousness of the offense. Different rules apply to the military.

          Irrespectively, I think the notion of allowing the defendant a “choice” by limiting his penalty if he forfeits his right to a jury is crass. Except where crimes are truly petty, a defendant is supposed to be entitled to a jury. The use of six months as a blanket cut off for “petty” crimes is ahistorical and constitutes simple laziness by the courts. When the state makes serious criminal accusations against a defendant, they owe him or her a jury. If the state doesn’t want to spend the resources, they shouldn’t be bringing the charges.

          • jexni

            The US military is under the Constitution. The 6th amendment kicks in if the defendant has the actual possibility of getting more than six months not a theoretical possibility if the situation were different. Crass? Is that a legal concept? I think it is crass for attorneys to try to change the system to try to get greater legal fees in traffic court.

          • Owen Courrèges


            You’re wrong. Military courts do not have the same constitutional protections as civilian courts, particularly relative to the Sixth Amendment.

            And now you’re not only being ignorant, but insulting.

  • AhContraire

    I noticed my comment in regards to “impartial jury” isn’t here…seems like censoring to me…or, just can’t handle the truth.

  • pawn3d

    Everyone should get a trail. You can’t pick and chose.