Drunken driving is not violent felony

Listen to this article

Drunken driving is not a violent felony.

That April 16 holding by the U.S. Supreme Court reverses the governing law in the Seventh Circuit. U.S. v. Sperberg, 432 F.3d 706 (7th Cir. 2005), which held that it was, at least for purposes of the Armed Career Criminal Act (ACCA).

It also casts doubt on a host of other Seventh Circuit decisions that hold various crimes to be violent felonies under the ACCA.

The ACCA radically raises the penalty for being a felon in possession of a firearm. Instead of a 10-year maximum, defendants face a 15-year minimum, if they have three prior convictions for a “violent felony.”

A “violent felony” is a crime punishable by imprisonment for more than one year that either: (i) “has as an element the use, attempted use, or threatened use of physical force against the person of another” or “(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. 924(e)(2)(B).

The only issue was whether drunken driving “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

In an opinion by Justice Stephen Breyer, the court held it did not.

Breyer wrote, “It is simply too unlike the provision’s listed examples for us to believe that Congress intended the provision to cover it.”

The Supreme Court found that legislative history supported its interpretation, as well.

Originally, the statute included only robbery or burglary. When Congress expanded the definition of violent felony, it rejected a proposal that would have covered every offense involving a substantial risk of physical force against another.

In addition, the Supreme Court noted that each of the enumerated crimes involves purposeful, violent, or aggressive conduct.

Drunken driving, in contrast, is a strict liability crime, with no intent element at all.

Breyer concluded, “Were we to read the statute without this distinction, its 15-year mandatory minimum sentence would apply to a host of crimes which, though dangerous, are not typically committed by those whom one normally labels ‘armed career criminals.’”

Justice Antonin Scalia wrote a lone dissent, maintaining that the rule of lenity requires that any offense that poses less risk of physical injury than burglary does cannot be counted as a predicate offense.

He also criticized the majority approach as “piecemeal, suspenseful, [and] Scrabble-like.”

Justice Samuel Alito dissented, in an opinion joined by Justices David H. Souter and Clarence Thomas, concluding that drunken driving does involve purposeful and aggressive conduct.

Analysis

As noted, the decision reverses the governing law in the Seventh Circuit, which held that drunken driving is a violent felony under the ACCA.

However, the ramifications go far beyond that.

For example, in U.S. v. Golden, 466 F.3d 612 (7th Cir. 2006), the Seventh Circuit held that previous Wisconsin convictions for failure to report to a county jail qualify as a violent felony.

Golden produced three opinions, and both the dissent and the concurring opinion questioned the result.

In the wake of the U.S. Supreme Court’s decision, the Seventh Circuit has good reason to change its position on this issue. The concurrence observed, “I doubt that the failure to report for incarceration by its nature presents the same danger that escape from custody does.” Golden, at 615 (Rovner, J., concurring).

However, the Seventh Circuit, at this time, has little reason to reconsider. On April 21, just five days after the U.S. Supreme Court decided Begay, it granted certiorari in Chambers v. U.S. (06-11206), to decide that very issue.

The Supreme Court’s decision also raises signficant issues about the defendant’s state of mind.

The opinion could be construed as very limited: non-violent, strict liability crimes cannot be considered “violent felonies” under the statute.

However, the court’s opinion could also be read to hold that negligence, and even recklessness, are insufficient mental states to qualify a crime as a violent felony.

The court stated that, if it were to read the statute to include drunken driving, it would also include other crimes that, though dangerous, are not typically committed by armed career criminals.

The court cited felony statutes concerning pollution, recklessly tampering with consumer products, and negligent seamen. If the court’s holding were limited to strict liability crimes, the court would not have included a crime that requires recklessness in this list.

Furthermore, the court cited, with approval, a passage from Judge McConnell’s dissent in this case in the Tenth Circuit.

Judge McConnell wrote in dissent, “drunk driving is a crime of negligence or recklessness, rather than violence or aggression.”

The concurrence by Justice Scalia also reads the lead opinion broadly: “the Court’s approach eliminates from the residual clause all negligence crimes, even those that entail a 100% risk of physical injury such as negligent homicide.”
The Court’s opinion could, therefore, be read as holding that a crime that requires only a reckless mental state, rather than specific intent, cannot qualify as a violent felony.

Two more prior Seventh Circuit cases are thus suspect: U.S. v. Newbern, 479 F.3d 506 (7th Cir. 2007)(reckless discharge of a firearm is a crime of violence); and U.S. v. Ledcke, 231 Fed.Appx. 507 (7th Cir. 2007)(reckless homicide is a crime of violence).

However, while the Supreme Court decision casts some doubt on these holdings, common sense would dictate that recklessly discharging a firearm should still be considered a violent felony.

The lead opinion notes that drunk drivers are not generally considered “armed career criminals”; those who recklessly discharge firearms, on the other hand, generally are.

Thus, both interpretations posited above are too sweeping.

The opinion is definitely not limited to strict liability crimes; but it probably does not extend to all crimes that lack specific intent, either.

Instead, the following criticism of Justice Scalia may best describe the scope of the opinion: “this latest made-for-the-case improvisation does not … provide a complete framework that will embrace all future case.”