HANSON, Presiding Judge.
Petitioner, Roger Parham, is charged with the offense of driving while under the influence of intoxicating liquor in violation of Sioux Falls Municipal Ordinance 13.160. He entered a plea of not guilty in Municipal Court and requested trial by jury. His request was denied. His application for the allowance of an intermediate appeal from such order was denied by this court. Likewise, petitioner's application for a Writ of Prohibition to restrain the Municipal Court from proceeding to trial without a jury was denied by the Circuit Court. Petitioner now appeals from the order denying his application.
The appeal presents the important question of whether or not a person charged with Driving a Motor Vehicle While Under the Influence of Intoxicating Liquor in violation of a municipal ordinance is entitled to a jury trial.
The statutory offense of driving a vehicle while under the influence of intoxicating liquor is defined in and proscribed by SD-CL 32-23. In addition our legislature has expressly authorized every municipality in the state “to prohibit the operation or the attempt to operate a motor vehicle within the limits of the municipality while in an intoxicated condition, or while under the influence of liquor * * * and to provide for violation thereof penalties similar to and of the character of, but not to exceed, the penalties prescribed by Chapter 32-23, provided that the penalty against driving a motor vehicle shall extend only to prohibit the [534]*534defendant from driving a motor vehicle upon the public streets, alleys, avenues and highways within the municipality in which, the offense was committed." Pursuant to such authority the City of Sioux Falls enacted Ordinance 13.160 which closely parallels the statutory offense of driving while intoxicated as set forth in Chapter 32-23.
A third conviction of the state offense constitutes a felony. SDCL 32-23-4. Except for this enhanced punishment there is no substantial consequential difference between the state offense and a municipal ordinance violation. Both are subject to all the provisions of the Implied Consent Law, SDCL 32-23-9, and a conviction of either the state offense or a municipal ordinance results in the mandatory revocation of the convicted person's drivers license by the State Department of Motor Vehicles. See SDCL 32-12-54 and 32-12-52.
Violations of municipal ordinances continue to create confusion, inconsistency, and uncertainty with respect to the exact nature of the proceedings and the rights of the parties involved. They have been characterized as civil, quasi-civil, hybrids, criminal, quasi-criminal, and criminal in form with varying results to-meet the exigencies of a particular case. The term "sui generis" was recently added in the case of City of Brookings v. Thomsen, 84 S.D. 651, 176 N.W.2d 46, which involved a prosecution for the violation of a city ordinance prohibiting "Exhibition Driving." The maximum punishment provided by the ordinance was a fine of' $100 and 30 days in jail. The court concluded whether or not prosecutions for violations of municipal ordinances, be considered "civil or criminal or a hybrid form of either * * * defendant does not have a constitutional right to a jury trial for a violation of the municipal ordinance under which he was charged."
In arriving at its conclusion in the Brookings case the court recognized the validity and necessity of treating some violations of municipal ordinances as "civil" in nature and others as-"criminal" in form, depending upon the particular offense involved. In this respect the court quoted with approval from Wharton on Criminal Law and Procedure, Vol. 1, § 12 as follows: "IF [535]*535such violations are not made crimes by the general law, the proceedings to enforce or for a violation of such ordinances are civil in their nature. If such offenses are made crimes or misdemeanors by the general law of the state the proceedings must be considered as criminal in their nature. The distinction appears to be correct, for many of the offenses which are punishable under municipal ordinances are not offenses against the state, either by the common or the statute law, and are made so only by the ordinance in the particular case in question, and for this reason they have been termed 'quasi-criminal.' "
In the comparable case of State v. Hoben, 256 Minn. 436, 98 N.W.2d 813, the Minnesota Court held a person charged with driving an automobile while intoxicated in violation of a municipal ordinance was entitled to a jury trial as a matter of right. In doing so it conceded in numerous prior decisions it had denied the right to trial by jury in prosecutions for municipal ordinance violations for reasons of expediency; proof of guilt beyond a reasonable doubt was not necessary in such prosecutions; and a defendant could be convicted both under a statute and an ordinance covering the same subject without offending the constitutional prohibition against double jeopardy. The court then said it had "little difficulty in applying the foregoing authorities to prosecutions for violation of regulatory, licensing, zoning, and other ordinances which relate to matters of local concern. However, when ordinances carry more serious sanctions, adequate protection for the accused must become a significant concern of the court. Accordingly, a more difficult problem arises where ordinances denounce and punish acts which are the subject of state law and which reach beyond the limits of purely local problems. From an examination of our authorities, both statutory and decisional, it is apparent that we have not achieved a satisfactory accommodation between prosecutions under municipal ordinances and state prosecutions so as to assure to a defendant uniformity of treatment in terms of penalties and procedures and protection from subsequent punishment for the same offense." The Court concluded;
"It would be a strange anomaly for the legislature to define a crime, specify punishment therefor, provide that [536]*536its application shall be uniform throughout the state, and then permit a municipality to prosecute that crime as a civil offense. Basic civil rights of the defendant would then depend upon the arbitrary choice of the prosecutive authorities as to the court in which action against him would be instituted. When a municipality undertakes such prosecution, it must, therefore, to insure uniformity of treatment, do so in a criminal prosecution which affords the defendant all the protection of criminal procedure including the right of trial by jury and immunity from double punishment."
In arriving at its decision the Minnesota Court gave consideration to their statute which indicated the offense of driving a motor vehicle while under the influence of alcoholic beverage should be uniformly applied throughout the state and its political subdivisions. The same legislative intent is implicit in the statutes of our state. This is in recognition of the fact that driving while intoxicated is a matter of grave statewide concern requiring serious sanctions and uniform statewide application.
Free access — add to your briefcase to read the full text and ask questions with AI
HANSON, Presiding Judge.
Petitioner, Roger Parham, is charged with the offense of driving while under the influence of intoxicating liquor in violation of Sioux Falls Municipal Ordinance 13.160. He entered a plea of not guilty in Municipal Court and requested trial by jury. His request was denied. His application for the allowance of an intermediate appeal from such order was denied by this court. Likewise, petitioner's application for a Writ of Prohibition to restrain the Municipal Court from proceeding to trial without a jury was denied by the Circuit Court. Petitioner now appeals from the order denying his application.
The appeal presents the important question of whether or not a person charged with Driving a Motor Vehicle While Under the Influence of Intoxicating Liquor in violation of a municipal ordinance is entitled to a jury trial.
The statutory offense of driving a vehicle while under the influence of intoxicating liquor is defined in and proscribed by SD-CL 32-23. In addition our legislature has expressly authorized every municipality in the state “to prohibit the operation or the attempt to operate a motor vehicle within the limits of the municipality while in an intoxicated condition, or while under the influence of liquor * * * and to provide for violation thereof penalties similar to and of the character of, but not to exceed, the penalties prescribed by Chapter 32-23, provided that the penalty against driving a motor vehicle shall extend only to prohibit the [534]*534defendant from driving a motor vehicle upon the public streets, alleys, avenues and highways within the municipality in which, the offense was committed." Pursuant to such authority the City of Sioux Falls enacted Ordinance 13.160 which closely parallels the statutory offense of driving while intoxicated as set forth in Chapter 32-23.
A third conviction of the state offense constitutes a felony. SDCL 32-23-4. Except for this enhanced punishment there is no substantial consequential difference between the state offense and a municipal ordinance violation. Both are subject to all the provisions of the Implied Consent Law, SDCL 32-23-9, and a conviction of either the state offense or a municipal ordinance results in the mandatory revocation of the convicted person's drivers license by the State Department of Motor Vehicles. See SDCL 32-12-54 and 32-12-52.
Violations of municipal ordinances continue to create confusion, inconsistency, and uncertainty with respect to the exact nature of the proceedings and the rights of the parties involved. They have been characterized as civil, quasi-civil, hybrids, criminal, quasi-criminal, and criminal in form with varying results to-meet the exigencies of a particular case. The term "sui generis" was recently added in the case of City of Brookings v. Thomsen, 84 S.D. 651, 176 N.W.2d 46, which involved a prosecution for the violation of a city ordinance prohibiting "Exhibition Driving." The maximum punishment provided by the ordinance was a fine of' $100 and 30 days in jail. The court concluded whether or not prosecutions for violations of municipal ordinances, be considered "civil or criminal or a hybrid form of either * * * defendant does not have a constitutional right to a jury trial for a violation of the municipal ordinance under which he was charged."
In arriving at its conclusion in the Brookings case the court recognized the validity and necessity of treating some violations of municipal ordinances as "civil" in nature and others as-"criminal" in form, depending upon the particular offense involved. In this respect the court quoted with approval from Wharton on Criminal Law and Procedure, Vol. 1, § 12 as follows: "IF [535]*535such violations are not made crimes by the general law, the proceedings to enforce or for a violation of such ordinances are civil in their nature. If such offenses are made crimes or misdemeanors by the general law of the state the proceedings must be considered as criminal in their nature. The distinction appears to be correct, for many of the offenses which are punishable under municipal ordinances are not offenses against the state, either by the common or the statute law, and are made so only by the ordinance in the particular case in question, and for this reason they have been termed 'quasi-criminal.' "
In the comparable case of State v. Hoben, 256 Minn. 436, 98 N.W.2d 813, the Minnesota Court held a person charged with driving an automobile while intoxicated in violation of a municipal ordinance was entitled to a jury trial as a matter of right. In doing so it conceded in numerous prior decisions it had denied the right to trial by jury in prosecutions for municipal ordinance violations for reasons of expediency; proof of guilt beyond a reasonable doubt was not necessary in such prosecutions; and a defendant could be convicted both under a statute and an ordinance covering the same subject without offending the constitutional prohibition against double jeopardy. The court then said it had "little difficulty in applying the foregoing authorities to prosecutions for violation of regulatory, licensing, zoning, and other ordinances which relate to matters of local concern. However, when ordinances carry more serious sanctions, adequate protection for the accused must become a significant concern of the court. Accordingly, a more difficult problem arises where ordinances denounce and punish acts which are the subject of state law and which reach beyond the limits of purely local problems. From an examination of our authorities, both statutory and decisional, it is apparent that we have not achieved a satisfactory accommodation between prosecutions under municipal ordinances and state prosecutions so as to assure to a defendant uniformity of treatment in terms of penalties and procedures and protection from subsequent punishment for the same offense." The Court concluded;
"It would be a strange anomaly for the legislature to define a crime, specify punishment therefor, provide that [536]*536its application shall be uniform throughout the state, and then permit a municipality to prosecute that crime as a civil offense. Basic civil rights of the defendant would then depend upon the arbitrary choice of the prosecutive authorities as to the court in which action against him would be instituted. When a municipality undertakes such prosecution, it must, therefore, to insure uniformity of treatment, do so in a criminal prosecution which affords the defendant all the protection of criminal procedure including the right of trial by jury and immunity from double punishment."
In arriving at its decision the Minnesota Court gave consideration to their statute which indicated the offense of driving a motor vehicle while under the influence of alcoholic beverage should be uniformly applied throughout the state and its political subdivisions. The same legislative intent is implicit in the statutes of our state. This is in recognition of the fact that driving while intoxicated is a matter of grave statewide concern requiring serious sanctions and uniform statewide application.
As the "dual sovereignty" theory is an anachronism with reference to the relationship of a state and its political subdivisions, such as counties and cities, the bar of double jeopardy applies to successive prosecutions for the same offense prohibited by municipal ordinance and state statute. Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435. Consequently, the conviction or acquittal of a person for driving while intoxicated in violation of a municipal ordinance now constitutes a bar to the prosecution by the state for the same offense. Expressions to the contrary appearing in such cases as Webster v. Knewel, 47 S.D. 142, 196 N.W. 549, City of Aberdeen v. Forkel, 72 S.D. 536, 37 N.W.2d 407, and City of Brookings v. Thomsen, 84 S.D. 651, 176 N.W.2d 46, have been overruled by the holding in Waller v. Florida, supra.
The United States Supreme Court in Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, imposed upon the states, through the Fourteenth Amendment, the Sixth Amendment right to jury trial in all criminal cases except "petty offenses". Petty of[537]*537fenses are defined by federal law as those punishable by no more than six months in prison and a $500 fine. The boundaries of the petty offense category were not otherwise fixed and the definitional task of doing so was left for court decision by reference to "objective criteria".
In Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437, the court refused to draw the line between "petty" and "serious" crimes to coincide with misdemeanors and felonies because some misdemeanors are also "serious" offenses " 'the punishment of which involves or may involve the deprivation of the liberty of the citizen,' Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 1303, 32 L.Ed. 223". The court indicated the following objective criteria should be considered in determining whether an offense is "petty" or "serious":
1. The seriousness with which society regards the offense, and the most relevant factor in this regard is the severity of the maximum authorized punishment;
2. The collateral consequences attached to a conviction of the offense.
In District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177, the Supreme Court held a defendant charged in the Police Court of the District of Columbia with driving a motor vehicle in a reckless manner in violation of the District of Columbia Traffic Act was entitled to trial by jury. In explanation the Court said:
"Whether a given offense is to be classed as a crime, so as to require a jury trial, or as a petty offense, triable summarily without a jury, depends primarily upon the nature of the offense. The offense here charged is not merely malum prohibitum, but in its very nature is malum in se. It was an indictable offense at common law ¥ * *
An automobile is, potentially, a dangerous instrumentality, as the appalling number of fatalities [538]*538brought about every day by its operation bear distressing witness. To drive such an instrumentality through the public streets of a city so recklessly 'as to endanger property and individuals' is an act of such obvious depravity that to characterize it as a petty offense would be to shock the general moral sense. If the act of the respondent described in the information had culminated in the death of a human being, respondent would have been subject to indictment for some degree of felonious homicide. * * * Such an act properly cannot be described otherwise than as a grave offense — a crime within the meaning of the third article of the Constitution — and as such within the constitutional guarantee of trial by jury."
Today the drinking driver is a major cause of death, loss of limb, and the destruction of property on the highway. Because of the consequences the offense of driving a motor vehicle while intoxicated must be considered mala in se and cannot reasonably be characterized as minor, trivial, or petty. Society regards the offense as serious. A conviction authorizes the imposition of "grave criminal sanctions not comparable to petty crimes at common law which were tried summarily", Rothweiler v. Superior Court of Pima County, 100 Ariz. 37, 410 P.2d 479. In extending the right to jury trial in certain criminal prosecutions the Alaska Supreme Court specifically included "offenses which may result in the loss of a valuable license, such as a driver's license or a license to pursue a common calling, occupation, or business", Baker v. City of Fairbanks, Alaska, 471 P.2d 386.
We regard the offense of driving while intoxicated as a serious offense entitling the accused to a trial by a jury. Because the offense is prohibited by ordinance and trial is conducted in Municipal Court does not purge the charge of its criminal character. It remains a serious rather than a petty offense which requires the uniform application of fundamental constitutional rights to every accused in every prosecution.
The city challenges the jurisdiction of the Circuit Court to issue a Writ of Prohibition to restrain the Municipal Court of Sioux Falls, and its Presiding Judge, from proceeding to trial [539]*539without a jury. As the Circuit Court is not vested with any supervisory or appellate control over the Municipal Court, the city contends the Municipal Court is not an "inferior tribunal" within the contemplation of SDCL 21-30-2. To avoid any question of jurisdiction we have elected to consider petitioner's application as an original one addressed to this Court. A person's right to trial by jury in offenses of this nature involves a fundamental right which demands resolution by this Court. In retrospect petitioner's application for an intermediate appeal should have been granted. Other attempts in the past to obtain a determination of this question have been frustrated on procedural grounds. It should not be avoided now on a procedural basis.
The Writ of Prohibition is a proper means of testing a person's right to trial by jury. As the Arizona Court stated in Rothweiler v. Superior Court of Pima County, 100 Ariz. 37, 410 P.2d 479, "Courts favoring this remedy reason that an appeal from the final judgment is not adequate because an appeal will subject the party to the expense and harassment of a trial which may be futile if the appellate court subsequently determines that a jury trial was improperly denied."
Accordingly, a Writ of Prohibition shall issue by this Court as prayed for by petitioner.
WINANS and DOYLE, JJ., concur.
BIEGELMEIER and WOLLMAN, JJ., concur in part and dissent in part.