Philip Landry v. Judge J. Robert Hoepfner and William Guste, Jr., Attorney General, State of Louisiana

GARZA, Circuit Judge:

In this habeas petition, Philip Landry seeks to challenge his 1984 conviction in the State of Louisiana for driving while intoxicated (DWI). He argues that he was denied his constitutional right to a trial by jury, that the trial judge failed to advise him of his right to trial by jury, and that Article I, Section 17 of the Louisiana Constitution and Article 779 of the Louisiana Code of Criminal Procedure are unconstitutional as applied to a defendant charged with DWI. Finding merit in his sixth amendment claim, we hold that the charge of DWI constitutes a “serious” offense under the United States Constitution and federal case law. Petitioner’s conduct in driving on a public road in an intoxicated condition must be considered malum in se. Additionally, the collateral consequences attendant upon conviction can be devasting to one’s livelihood and reputation in the community. Therefore, a trial in front of a jury of his peers is mandated constitutionally, and we must reverse the conviction as violative of the sixth amendment as made applicable to the states through the fourteenth amendment.

While driving on a highway in Louisiana, Landry was stopped by a police officer who had observed that Landry’s automobile kept swerving from lane to lane. The officer was suspicious that Landry was intoxicated, and asked him to take a field sobriety test. Landry refused to be tested. Consequently, he was arrested and charged with DWI and reckless driving. While at the police lockup, Landry was asked to submit to a breathalyzer test. Landry refused to be tested in this manner also. Landry later testified that he refused to be tested because he had consumed two alcoholic beverages, and that, although he was not drunk, he feared that the breathalyzer test would register positively.

At the bench trial, Landry acted in his own behalf, having waived his right to counsel. The First Parish Court for the Parish of Jefferson found Landry guilty of DWI pursuant to La.Rev.Stat.Ann. § 14:98 (West 1984). As a first offender, Landry was sentenced to pay a fine of $300 and to serve six months in the Jefferson Parish Correctional Center. The execution of incarceration was suspended, and Landry was placed on two years active probation subject to certain conditions. The reckless driving charge was dismissed upon Landry being found guilty of DWI.

On December 5, 1984, after having retained counsel, Landry argued before the Fifth Circuit Court of Appeals for the State of Louisiana that he was constitutionally entitled to a jury at the trial. That court disagreed and, subsequently, Landry petitioned for certiorari to the Supreme Court of Louisiana. On March 15, 1985, Landry’s writ application was denied without opinion. State v. Landry, 463 So.2d 761 (La. Ct.App. 5th Cir.), writ denied, 464 So.2d 1373 (La.1985).

On May 8, 1985, Landry filed a writ of habeas corpus with the United States District Court for the Eastern District of Louisiana. Once again, Landry asserted the unconstitutionality of the Louisiana statutes which provide for jury trials only if the penalty for an offense exceeds six months in jail and/or exceeds a $500 fine. The district court denied Landry’s claim on the basis that DWI is not a “serious” offense. Landry’s timely filing of appeal carries this constitutional question to our Court.

The essence of Landry’s challenge is that the authority of District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177 (1930), mandates that a defendant charged in a Louisiana court with DWI is entitled to a trial by jury. Landry contemplates that the Sixth and Fourteenth Amendments to the United States Constitution guarantee a trial by jury in this case. 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 of the State and district wherein the crime shall have been committed____” U.S. Const. Amend. VI. Article III guarantees that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed____” U.S. Const, art. Ill, § 2, cl. 3.

Clearly, the right to a trial by jury does not extend to every criminal proceeding. In a plurality opinion in Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970), the Supreme Court established a bright-line threshold test for the right to a trial by jury. The Baldwin Court stated that only “serious” offenses require jury trials, while “petty” ¹ offenses can be tried to the bench. The Court determined that “no offense can be deemed ‘petty’ for purposes of the right to trial by jury where imprisonment for more than six months is authorized.” Id. at 69, 90 S.Ct. at 1888. Moreover, “a possible six-month penalty is short enough to permit classification of the offense as ‘petty’____” Id. Louisiana’s maximum penalty for a first-time DWI offender is a fine of up to $500 and/or a sentence of not more than six months. La.Rev.Stat.Ann. § 14:98 (West 1984). It would seem to follow, therefore, that because the State’s DWI statutory penalty prescribes a sentence of six months or less, Baldwin would dictate that a trial by jury is not a constitutional requirement. However, Landry relies on Colts and other cases to illustrate that the Supreme Court has recognized certain offenses which need not prescribe sentences in excess of six months in order to be considered “serious,” and therefore require a jury determination.

In Colts, the defendant was charged with reckless operation of a motor vehicle in the District of Columbia. 282 U.S. at 70, 51 S.Ct. at 52. District of Columbia law provided for a jury trial if the possible fine exceeded $300 and/or imprisonment exceeded ninety days. The reckless driving statute in that jurisdiction prescribed a maximum penalty of thirty days imprisonment or a $100 fine. The Supreme Court reversed the trial court’s denial of a trial by jury» holding that the offense of reckless driving was, by its nature, a “serious” crime. Id. at 73, 51 S.Ct. at 53. Accordingly, the defendant was constitutionally entitled to a trial by jury, notwithstanding the limited duration of possible incarceration:

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 brought 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, [citations omitted]. 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.

Id. at 73-74, 51 S.Ct. at 53.

Landry contends that the offense of DWI is, by its nature, a malum in se or “serious” crime. He states that a DWI offender is subject not only to a jail term and a fine, but also to public opprobrium, serious economic repercussions, and possible suspension of his driver’s license. Therefore, the bright-line rule enunciated in Baldwin is not apposite in this case due to the grave nature of the offense.

Contrary to Landry’s assertions, the State claims that DWI has never been recognized by the Supreme Court or this Court as a “serious” crime requiring a jury trial. Article I, section 17, of the Louisiana Constitution provides for trial by jury in all cases in which the punishment may be confinement in prison for more than six months. La. Const, art. I, § 17. Louisiana Code of Criminal Procedure Article 779 states that a person charged with a misdemeanor in which the punishment may be a fine in excess of $500 or imprisonment for more than six months shall be tried by a jury of six persons, but that a person charged with any other misdemeanor shall be tried by the court without a jury. La. Code Crim.Proc.Ann. art. 779. The State argues that because a person convicted for the first time of driving while intoxicated may be fined not more than $500 and imprisoned for not more than six months, the charge was properly tried to the court without a jury under Louisiana Law.

In further support of its position the State relies upon Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). The Duncan Court stressed that the penalty authorized for a particular crime is of major relevance in determining whether it is “serious.” Id. at 159, 88 S.Ct. at 1453. Further, the Court ruled that an offense imposing a penalty of up to six months imprisonment does not require a jury trial if it otherwise qualifies as a petty offense. Id.

However, “the boundaries of the petty offense category have always been ill-defined, if not ambulatory.” Id. at 160, 88 S.Ct. at 1453. Moreover, the State apparently ignores the Baldwin Court’s reaffirmation of Colts. Reviewing the nature of the right to a trial by jury, the Supreme Court stated:

Decisions of this Court have looked to both the nature of the offense itself, District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177 (1930), as well as the maximum potential sentence, Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), in determining whether a particular offense was so serious as to require a jury trial. In this case, we decide only that a potential sentence in excess of six months’ imprisonment is sufficiently severe by itself to take the offense out of the category of “petty.”

Baldwin, 399 U.S. at 69, n. 6, 90 S.Ct. at 1888 n. 6. The Baldwin Court chose not to overrule Colts, but rather it considered the element of the nature of the offense relevant, as articulated in Colts. Recently, the Supreme Court reviewed a State of Wisconsin conviction which revoked a defendant’s driver’s license for sixty days because of his refusal to submit to a breathalyzer test. Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984). Although the majority opinion relied upon the fourth amendment in vacating the conviction, a dissenting opinion stressed the dual considerations first articulated in Colts and Baldwin:

Although the seriousness of the prescribed sanctions is a valuable objective indication of the general normative judgment of the seriousness of the offense, Baldwin v. New York, 399 U.S. 66, 68, 90 S.Ct. 1886, 1887, 26 L.Ed.2d 437 (1970) (plurality opinion), other evidence is available and should not be ignored. United States v. Craner, 652 F.2d 23, 24-27 (CA 9 1981); United States v. Woods, 450 F.Supp. 1335, 1340 (Md.1978); Brady v. Blair, 427 F.Supp. 5, 9 (SD Ohio 1976).

104 S.Ct. at 2104 (White, J., dissenting). Therefore, a strict adherence to the six month threshold does not control the disposition of this case, and we are required to make a judgment as to the seriousness of the offense of DWI.

Federal courts are in agreement that Baldwin did not hold that the maximum potential sentence is the sole criterion by which to determine if an offense is petty.² Baldwin, 399 U.S. at 69, 90 S.Ct. at 1888 n. 6; District of Columbia v. Clawans, 300 U.S. 617, 627, 57 S.Ct. 660, 663, 81 L.Ed. 843 (1937); United States v. Craner, 652 F.2d 23, 25 (9th Cir.1981); United States v. Sanchez-Meza, 547 F.2d 461, 464 (9th Cir. 1976); United States v. Thomas, 574 F.Supp. 197, 198 (D.D.C.1983); United States v. Woods, 450 F.Supp. 1335, 1340 (D.Md.1978); Brady v. Blair, 427 F.Supp. 5, 10 (S.D.Ohio 1976). Just as relevant in the determination is the factor of the nature of the offense. Colts, 282 U.S. at 73, 51 S.Ct. at 53. For instance, in United States v. Craner, 652 F.2d 23, 24 (9th Cir.1981), the defendant was convicted at a bench trial of DWI in Yosemite National Park. The offense carried a maximum penalty of six months imprisonment and/or a $500 fine. Craner was sentenced to probation with stipulated conditions. Id. On appeal, Craner contended that the district court erred in denying his motion for a trial by jury because DWI was a “serious” offense for which the Federal Constitution guaranteed a trial by jury. The Ninth Circuit agreed and reversed Craner’s conviction. Id. at 27. The, court held that although the sanctions of six months imprisonment or $500 in fines is generally the bright-line between “serious” and “petty” offenses, a conviction for DWI carried collateral consequences, such as suspension of one’s driver’s license. Id. at 25.

The extent of possible punishment does not, however, alone determine whether an offense is serious or petty. Although Congress has established the sanctions of six months’ imprisonment or $500 in fines as the bright line between serious and petty offenses, see 18 U.S.C. § 1(3), the Supreme Court has not found “talismanic significance” in this formula when determining whether a constitutional right to a jury trial exists.

Id. Therefore, under the authority of Colts, Craner was charged with a “serious” offense and his request for a jury trial should have been granted. Id.

A special concurrence in Craner merits consideration. One of the judges treated as pivotal the lack of considered legislative judgment in setting the penalty. That judge wrote that the severity of sentence is the primary indicator of the seriousness of a crime. Id. at 27-28. Moreover, if the offense was not indictable at common law or perceived as malum in se, a sub -Baldwin sentence created after considered legislative judgment does not cause jury trial rights to attach even if significant collateral consequences flow from the conviction. Id. We find that analysis faulty in the respect that it fails to give deference to the impact that such a conviction has on an individual’s livelihood, it fails to consider the moral opprobrium associated with the offense of DWI, and it reads too restrictive of an interpretation of the Constitution of the United States.

Notwithstanding the considerations raised in the Craner special concurrence, many cases involving potential sentences of less than six months have been classified as offenses “serious” enough to require a trial by jury. These cases have utilized three tests to decide the appropriateness of a trial by jury. Justice Douglas, dissenting from the Court’s opinion in Cheff v. Schnackenberg, approached the issue by inquiring into the character and gravity of the offense: “Was it an indictable offense at common law? Is it malum in se or malum prohibitum? What stigma attaches to those convicted of committing the offense?” 384 U.S. 373, 390, 86 S.Ct. 1523, 1529, 16 L.Ed.2d 629 (1966) (Douglas, J., dissenting). Our task is to decide whether the offense of DWI 1) was indictable at common law, 2) is considered a malum in se offense, and 3) carries with it significant collateral consequences sufficient to merit a jury trial. See 2 C. Wright, Federal Practice and Procedure: Criminal, § 371, at 295-96 n. 14 (1982 and Supp.1986).

Our research provides no authority for the proposition that DWI constituted an indictable offense at common law. In fact, some cases have concluded that DWI was not a crime indictable at common law. See Woods, 450 F.Supp. at 1345 (insufficient authority available to make the determination); Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479 (1966) (not indictable at common law) (en bane). In State v. Rodgers, 91 N.J.L. 212, 214, 102 A. 433, 435 (1917), the New Jersey Court of Errors and Appeals not only held that DWI was not indictable at common law, it also held that a person charged with DWI did not have a right to trial by jury. Moreover, the Supreme Court in Colts made a favorable reference to Rodgers for the proposition that a jury trial can be dispensed with in cases charging petty offenses. Colts, 282 U.S. at 73, 51 S.Ct. at 53.

Rodgers is distinguishable from the present appeal. In Rodgers, the court treated the offense of DWI as charging the driver with no more than disorderly conduct. Rodgers, 102 A. at 434. Thus, the offense was not indictable at common law because it was merely characterized as disorderly conduct, and did not rise to the level of a public nuisance, which was indictable at common law. Id. at 435. As the district court did in Woods and the Ninth Circuit did in Craner, we find it proper to distinguish Rodgers from the present appeal on two grounds. First, the offense of disorderly conduct, as it was characterized in Rodgers, and the offense presented herein differ fundamentally in character. It is our opinion, and that of the Craner and Woods courts, that the New Jersey court treated the offense as one of disorderly conduct rather than DWI. Craner, 652 F.2d at 26 n. 3; Woods, 450 F.Supp. at 1343. Second, as the Woods court pointed out, “this Court fundamentally disagrees with the rationale for decision in Rodgers and rejects it as entirely too rigid and narrow in its scope.” Woods, 450 F.Supp. at 1343.

Returning to the Colts opinion, this Court believes that it is rather ironic that, even as the Supreme Court was citing Rodgers favorably, it was employing a method of analysis eschewed by the New Jersey court. The focus in Colts was solely on the “nature of the offense,” i.e., whether it should be considered to be “petty” or a “serious” crime. Although the Court treated the common law background as a valid factor for consideration, the basis for the final decision was the reprehensible nature of the violation. The Court’s holding in this regard is best summarized by its treatment of the offense as one which “in its very nature” was “malum in se,” as opposed to “merely malum prohibitum.”

Id. at 1344.

In Woods, the defendant was charged and convicted of DWI on national park land. The maximum sentence consisted of a fine of not more than $500, imprisonment not to exceed six months, or both. Id. at 1336. Like the Ninth Circuit in Craner, the Woods court found a lack of considered legislative judgment as to the seriousness of the crime and the severity of the sentence. Thus, the court could not give much weight to the severity of the statutory penalty. Id. at 1345. However, in addition to focusing on the severity of the statutory penalty, the Woods court looked to the collateral consequences of a conviction for the offense. Id. at 1346. See also Brady, 427 F.Supp. at 10. Because the State of Maryland may revoke driving privileges of an individual convicted of DWI, the Woods court found that DWI is indeed a very serious crime. Woods, 450 F.Supp. at 1346-47. Further, the Woods court addressed the question whether DWI is a malum in se or malum prohibitum offense. Based on the precedents of Colts and Rothweiler, the court viewed DWI as a malum in se offense. Id. at 1348-49. See also United States v. Barner, 195 F.Supp. 103, 108 (N.D.Cal.1961) (DWI is “an innately reprehensible act, which every reasonable person would decry”).

Likewise, the district court in Brady found DWI to be a serious offense, one in which the accused deserved a trial by jury by virtue of the Federal Constitution. 427 F.Supp. at 10. The Brady defendant, like the defendant herein, petitioned for habeas relief challenging his state conviction for DWI. Conviction under the municipal ordinance carried a maximum penalty of a $500 fine, six months incarceration and a mandatory three day sentence. Further, as in the present appeal, the accused’s license was subject to suspension or revocation. The federal district court, in interpreting Ohio law, held:

[Cjonviction in Ohio on a charge of operating a motor vehicle under the influence of alcohol may have a substantial impact not only upon the defendant’s liberty, but upon his financial resources, travel and occupation as well. Because of the consequences of conviction, the offense cannot be said to be petty from the perspective of either the convicted defendant or the public. The crime is a serious offense and one in which this petitioner had a federal constitutional right to trial by jury.

Id. Therefore, not only did the court consider the collateral consequences flowing from a DWI conviction, it also examined the degree of ethical condemnation with which the community viewed the offense. Id. at 9. See Baldwin, 399 U.S. at 69, n. 6, 90 S.Ct. at 1888 n. 6.

Having looked first at the maximum statutory penalty for the offense of DWI in Louisiana, we are bound to conclude that DWI is classified as a petty offense according to Louisiana’s statutory scheme. Yet, even though the penalty may reflect a considered legislative judgment, we are not persuaded that DWI should not be classified as a “serious” offense triable to a jury. The Baldwin court found the maximum authorized sentence a most relevant criteria, but not the sole determinative criteria. A study of authorities has indicated that other factors may be relevant in deciding whether DWI can be regarded as a “serious” offense sufficient to enlist the aid of a jury.

Because insufficient resources exist to study whether DWI constituted an offense indictable at common law, that factor, as articulated by many courts, including the Supreme Court, cannot assist us in our decision. However, we find that factor immaterial in view of the foregoing. An inquiry into the gravity and nature of the offense has been undertaken. We hold, as many courts have held, that the offense of DWI is a “serious” crime as viewed by society and in terms of the impact on the accused, and, more importantly, as defined in the Federal Constitution. The offense is truly malum in se. Recent statistics indicate that nearly one of every two people in this country will be involved in an alcohol-related automobile collision. The loss of life, impairment of body and destruction of property present a devastating social problem in America today. The Supreme Court has stated recently that drunk driving is a major concern because of the unquestionable hazards presented to society. Welsh, 104 S.Ct. at 2100 n. 14. It is abundantly clear that the act of DWI is evil in itself. Because society and earlier decisions view this offense as malum in se, and thus “serious,” we hold that to try the accused summarily violates his sixth amendment protection to an impartial jury.³

We have also learned that it is appropriate for a court to examine the attendant collateral consequences in determining whether an offense is “serious.” Like other courts, we find it important to gauge “the social and ethical judgments” of the people. Clearly, the collateral consequences which can be imposed upon the petitioner constitute additional penalties sufficient to require the assistance of a jury-

A person convicted in Louisiana for the first time of DWI is potentially subject to: 1) a six month jail term, 2) a fine of up to $500, 3) serious economic repercussions, such as an increase in insurance premiums, 4) public opprobrium, and 5) a sixty day suspension of his driver’s license. La.Rev. StatAnn. § 32:414 (West 1984). Additionally, a first offender may be ordered, as Landry was, to attend driver’s education classes, to attend a substance abuse clinic and to perform community service work.

While before the First Parish Court for the Parish of Jefferson, both Judge Hoepfner and Landry signed a document which read:

Furthermore, I fully understand that if a verdict of guilty is rendered by the Judge after trial, this may result in a substantial fine, and/or a jail sentence, and/or probation; or a suspension of my driving privilege, and/or my loss of employment or employability, and/or other effects on my private, social or public life.

It is apparent that these potential penalties, particularly the suspension of driving privileges, constitute significant collateral consequences. As the Ninth Circuit reasoned, “the threat of loss of a license as important as a driver’s license, a deprivation added to penal sanctions, is another sign that the [DWI] defendant’s community does not view [DWI] as a petty offense.” Craner, 652 F.2d at 26. Two members of the Supreme Court also have considered collateral consequences important in gauging the seriousness of a crime. Welsh, 104 S.Ct. at 2104 (White, J., dissenting). Louisiana has the power to suspend one’s license upon conviction for DWI. We hold that this constitutes a significant collateral consequence, and therefore a trial by jury is necessitated.

The final question which needs to be addressed is whether petitioner waived his right to a trial by jury. The Fifth Circuit Court of Appeals for the State of Louisiana held that petitioner’s failure to raise his sixth amendment right to a jury trial prior to trial constituted a waiver of that right. Landry, 463 So.2d at 764. The state appellate court ruled that, even though he was neither represented by counsel nor advised of his right to a trial by jury, petitioner voluntarily, knowingly and intelligently waived his right. Id.

Petitioner contends that his uncounselled, uninformed failure to raise the question at his arraignment and trial cannot suffice as a waiver of his right to challenge the conviction. Petitioner’s primary reference of authority is State v. McCarroll, 337 So.2d 475 (La.1976), which petitioner offers is directly on point. The State completely failed to address this issue in its brief.

The state appellate court did not discuss the reasoning of McCarroll in its opinion. In McCarroll, the defendants argued that because each of their cumulated sentences exceeded six months confinement, they were entitled to a jury trial. Further, because they were not apprised of their right to a jury trial, a guilty plea did not constitute a valid waiver of that right. McCarroll is analogous to the present appeal. In both cases, the trial court failed to advise them of their sixth amendment right to a jury trial because of the court’s reliance on existing law. Existing law in both cases at the time of arraignment and trial held that jury trial rights did not attach. The accused in both cases, nonetheless, pursued the matter on appeal even though it was not raised at the trial level. The Louisiana Supreme Court reversed and remanded the McCarroll convictions, reasoning that a change in the law had precipitated a jury trial and that the defendants’ failure to raise the issue at trial did not constitute a waiver of the right. Id. at 479.

Although the right to a jury trial may be waived in a non-capital case, Art. I, § 17 requires that the waiver be “knowingly and intelligently” made. Therefore, we must indulge every reasonable presumption against waiver of this fundamental right. Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019 [1023], 82 L.Ed. 1461 (1938); Carnley v. Cochran, 369 U.S. 506, 82 S.Ct. 884, 8 L.Ed.2d 70 (1962). The record in this case reveals that defendants were not informed of their right to a jury trial at the time of the arraignment nor at any other time. Indeed, according to our latest expressions on the subject at the time of the guilty plea and the trial herein, it was not apparent to the trial judge or counsel that defendants were entitled to a jury trial in this case, [citations omitted]. Under the circumstances of this case, therefore, we find that there was no “knowing and intelligent” waiver of the right to a jury trial by any of the defendants.

Id. We find McCarroll on point with the present appeal, and therefore hold that petitioner did not knowingly and intelligently waive his constitutional right to a trial by jury.

There must be an express and affirmative waiver of a jury trial by the accused. Merely failing to request a jury and mere acquiescence in proceeding without a jury is not sufficient. 2 C. Wright, Federal Practice and Procedure: Criminal § 372, at 300-01 (1982 and Supp.1986). The trial transcript is devoid of any discussion between the court and petitioner concerning his express and intelligent waiver of a jury trial as established in Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 263, 74 L.Ed. 854 (1930). See also McCranie v. United States, 333 F.2d 307, 307 (5th Cir.1964). Petitioner cannot be justly deemed to have waived his fundamental constitutional right to a jury trial.

Accordingly, Article I, Section 17 of the Louisiana Constitution of 1974 and Louisiana Code of Criminal Procedure, Article 779, are unconstitutional in a DWI case insofar as they deny petitioner the fundamental constitutional right to a trial by jury.

The Great Writ is thereby GRANTED to petitioner. His conviction is set aside, and the DWI charge against petitioner is remanded to the State of Louisiana for further proceedings in accordance with this opinion.

1 . By statute, a petty offense is classified as "[a]ny misdemeanor, the penalty for which, as set forth in the provision defining the offense, does not exceed imprisonment for a period of six months or a fine of not more than $5000 for an individual and $10,000 for a person other than an individual, or both____” 18 U.S.C. § 1. In addition, because the penalty prescribed by the Louisiana legislature for DWI does not exceed imprisonment for a period of six months and/or a fine of $500, it falls within the definition of a "petty" offense as set forth in Codispoti v. Pennsylvania, 418 U.S. 506, 512, 94 S.Ct. 2687, 2691, 41 L.Ed.2d 912 (1974).

2 . Several state supreme courts have held that a person charged with DWI has a sixth amendment right to a jury trial. The Supreme Court of Arizona held that, although a crime with a maximum term of incarceration of six months normally would be considered a petty offense, the total penalty was "so harsh" as to take the crime out of the petty offense category. Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479, 484 (1966) (en banc). Further, the court found that driving while intoxicated was a serious offense because the act was repugnant to the moral sense of the community. Id. The Supreme Court of South Dakota held in Parham v. Municipal Court, 86 S.D. 531, 199 N.W.2d 501, 504-05 (1972), that driving while intoxicated was a “serious" offense. Thus, the defendant was entitled to a jury trial as provided in the sixth amendment. See Lima v. Rambo, 113 Ohio App. 158, 177 N.E.2d 554 (1960).

In State v. O’Brien, the Supreme Court of Hawaii held that a defendant accused of violating the state’s DWI laws was constitutionally entitled to a trial by jury. 68 Haw. 39, 704 P.2d 883 (1985). That court also utilized an approach wherein the nature of the offense and the magnitude of the potential penalty were of prime consideration. The court held that a DWI charge is viewed as a grave and serious offense in the public eye which must be tried to a jury. Moreover, "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.” Id.

At least 24 states guarantee a DWI defendant the right to a jury trial for reasons related to the seriousness of the offense. See United States v. Jenkins, 780 F.2d 472 n. 4 (4th Cir. 1986); United States v. Craner, 652 F.2d 23, 27 n. 5 (1981); Annotation, Right to Trial by Jury in Criminal Prosecution for Driving While Intoxicated or Similar Offense, 16 A.L.R.3d 1373 (1967 and Supp.1986). A study of the authorities indicates that only six states deny defendants the right to a trial by jury on DWI charges. Id. It should be noted that, other than Louisiana, the states in this Circuit have utilized a jury where an accused is prosecuted for DWI. Turner v. State, 725 S.W.2d 409 (Tex.Ct.App. 1st Dist.1987); Scarborough v. State, 261 So.2d 475 (Miss.1972), cert. denied, 410 U.S. 946, 93 S.Ct. 1353, 35 L.Ed.2d 613 (1973).

3 . As we read Judge Garwood’s dissenting opinion we question his perception of the offense of DWI. With approximately two million arrests each year in the United States, DWI ranks as one of the largest crime categories in the nation. Further, emerging organizations such as Mothers Against Drunk Driving (MADD) and Students Against Drunk Driving (SADD), mirror society’s sensitive view of this offense. Public opinion on this subject is growing as MADD now claims 600,000 members and supporters, grouped into approximately 400 local chapters nationally. MADD Update: 1987 Targets, Drunk Driving Law Reporter, Mar. 1987, at 12. Therefore, we cannot comprehend the dissent’s suggestion that “there is more public opprobrium attached to public drunkenness or disorderly conduct than there is to first offense DWI.”

In addition, we must comment on the dissent’s protrayal of United States v. Jenkins, 780 F.2d 472 (4th Cir.), cert. denied, — U.S.-, 106 S.Ct. 2283, 90 L.Ed.2d 724 (1986), and examine its reasoning as it pertains to this litigation. Because the Supreme Court determined that only defendants accused of "serious” crimes are given an absolute right to trial by jury, it adopted a bright-line test for determining whether a crime is "serious.” The Baldwin Court only held that an offense carrying a maximum penalty in excess of six months’ imprisonment is sufficiently severe to be automatically categorized as “serious.” The Court has made no per se rule regarding penalties prescribed for offenses of less than six months. The Supreme Court also held that, although a lower court should consider the intrinsic nature of the offense itself, the most relevant indication of the seriousness of an offense is the severity of the maximum authorized penalty.

The Louisiana statute recites that the offense of DWI is punishable by a fine of up to $500.00 and/or six months in jail. If the legislature had prescribed a penalty of six months and a day in jail, Landry automatically would be entitled to a jury trial. However, that is not the case here. We only point out this fact to distinguish this case from Jenkins. In Jenkins, the maximum penalty for a first offense DWI was thirty days in jail and a $200.00 fine. Significantly, the potential length of sentence in the present appeal, although not exceeding the Baldwin threshold, still is six times as severe as that in Jenkins. The Fourth Circuit even stated:

The potential sentence of thirty days imprisonment and a $200.00 fine, the most important factor to be considered, is extremely lenient, thereby indicating a societal view that a D.U.I. first offense is not "serious." The other factors [collateral consequences, national public mood] are not sufficiently compelling to outweigh the clear implication arising from the mild maximum penalty.

Jenkins, 780 F.2d at 475. Had the Fourth Circuit confronted this issue with state law prescribing a maximum penalty of six months incarceration, we believe the court would have had a closer call. However, this is only conjecture. We find that the maximum authorized penalties between the two cases are substantially different, and for that reason we feel compelled to distinguish this appeal from Jenkins.