Opinions of the United
1998 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-9-1998

Virgin Islands v. Steven
Precedential or Non-Precedential:

Docket 97-7299




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Recommended Citation
"Virgin Islands v. Steven" (1998). 1998 Decisions. Paper 6.
http://digitalcommons.law.villanova.edu/thirdcircuit_1998/6


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Filed January 9, 1998

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 97-7299

GOVERNMENT OF THE VIRGIN ISLANDS,

v.

EDWARD STEVEN,

       Appellant

Appeal from the District Court of the Virgin Islands
(Division of St. Croix)
Criminal No. 96-cr-0043

Argued December 11, 1997

Before: SLOVITER, Chief Judge, and STAPLETON,
and MANSMANN, Circuit Judges

(Filed January 9, 1998)

       Harold W.L. Willocks (ARGUED)
       Chief, Territorial Public Defender
       1-B Clifton Hill - 2nd Floor
       Kingshill, St. Croix
       U.S. Virgin Islands 00850

        COUNSEL FOR APPELLANT
       Julio A. Brady
        Attorney General
       Paul L. Gimenez
        Solicitor General
       Irma Industrious (ARGUED)
        Assistant Attorney General
       Department of Justice
       48B-50C Kronprindsens Gade
       GERS Bldg., 2nd Floor
       St. Thomas, USVI 00802

        COUNSEL FOR APPELLEE

OPINION OF THE COURT

MANSMANN, Circuit Judge.

Edward Steven appeals from an order of the Appellate
Division of the District Court affirming a judgment entered
against him for Driving Under the Influence of an
Intoxicating Liquor in violation of Title 20 V.I.C.S 493(a)(1)
and rejecting Steven's constitutional challenge to that
statute. Because we agree that Title 20 V.I.C. S 493(a)(1) is
constitutional, we will affirm the district court's order.

I.

On October 19, 1995, police officers on routine patrol
stopped Steven when they observed that his car did not
have a license plate or taillights. In questioning Steven, one
of the officers smelled alcohol on Steven's breath and
noticed that his speech was slurred and his eyes were
glassy. The officer advised Steven of his Miranda rights, and
Steven then admitted that he had been drinking earlier that
day. After then failing a series of sobriety tests, Steven was
arrested on charges of Driving Under the Influence of an
Intoxicating Liquor, in violation of Title 20 V.I.C.S 493(a)(1)
and Operating a Motor Vehicle Without a License Plate in
violation of Title 20 V.I.C. S 331(3).

By order dated April 17, 1996, the Territorial Court of the
Virgin Islands denied Steven's motion to dismiss the Title

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20 V.I.C. S 493(a)(1) charge on the basis of unconstitutional
vagueness. Steven was found guilty of both charges on May
16, 1996. Steven appealed the Territorial Court's judgment
to the District Court of the Virgin Islands, asserting that
Title 20 V.I.C. S 493(a)(1) is unconstitutionally vague. The
district court affirmed the Territorial Court's judgment by
opinion entered on April 23, 1997. This timely appeal
followed. We exercise plenary review over the district court's
determination as to the constitutionality of the challenged
statute. United States v. Parker, 

, 29 (3d Cir.
1997).

II.

Pursuant to the Due Process Clause of the Fourteenth
Amendment to the United States Constitution, a criminal
statute is unconstitutional if it "either forbids or requires
the doing of an act in terms so vague that men of common
intelligence must necessarily guess at its meaning .. . ."
Connally v. General Constr. Co., 

, 391 (1926).
The concept of unconstitutional vagueness is derived from
a basic notion of fairness; citizens must be given fair
warning before being held culpable for conduct deemed to
be criminal. Colten v. Kentucky, 

, 110 (1972);
Grayned v. City of Rockford, 

, 108 (1972). A
statute therefore meets the constitutional standard of
certainty if its language conveys a sufficiently definite
warning as to the proscribed conduct when measured by
common understanding and practices. United States v.
Wise, 

, 1186 (9th Cir.), cert. denied, 

 (1977).

Title 20 V.I.C. S 493(a)(1) provides, in relevant part, that
"[i]t is unlawful for any person who is under the influence
of an intoxicating liquor . . . to drive, operate, or be in
actual physical control of, any motor vehicle within the
Territory." Steven contends that the term "under the
influence" as used in the statute is so vague as to render
the statute unconstitutional. We disagree.

Courts have consistently rejected constitutional
vagueness challenges to statutes containing the term
"under the influence." See, e.g., Government of the Virgin

                                3
Islands v. Tonge, 

 (Terr. V.I. August 17,
1996)(rejecting constitutional vagueness challenge to Title
20 V.I.C. S 493(a)(1)); People v. Seefeldt, 

 (Ill.
App. Ct. 1983)(upholding constitutionality of a statute
prohibiting driving "under the influence of intoxicating
liquor"); State v. Campbell, 

 (Kan. Ct. App.
1984)(finding that the term "driving under the influence"
does not render a statute void for vagueness). In addition,
courts have recognized for over half a century that driving
"under the influence" is commonly understood to mean
driving in a state of intoxication that lessens a person's
normal ability for clarity and control. See, e.g, Weston v.
State, 

, 654 (Ariz. 1937); State v. Graham, 

, 911 (Minn. 1929). This common understanding
is consistent with the obvious purpose of drunk driving
statutes; i.e., to prevent people from driving unsafely due to
an alcohol-induced diminished capacity. Because driving
"under the influence" is commonly understood, it therefore
puts citizens on fair notice of proscribed conduct.
Accordingly, we find that Title 20 V.I.C. S 493(a)(1) is not
void for vagueness.

At oral argument, Steven suggested that S 493(a)(1) is
unconstitutionally vague unless some proof of blood alcohol
level is offered to prove intoxication. We disagree. This issue
was definitively decided in Government of the Virgin Islands
v. Zachry, 

 (Terr. Ct. 1989). In Zachry, the
territorial court specifically upheld the constitutionality of
the "driving under the influence" statute and noted that
"driving under the influence must be construed under a
bare minimum analysis; any consumption, however minute,
of alcohol violates S 493(a)(1)." Zachry, 24 V.I. at 247. The
Zachry court distinguished the "driving while intoxicated"
offense under S 493(a)(2), which requires a specific
percentage of blood alcohol content, from the "driving under
the influence" offense under S 493(a)(1), which does not
require a minimum blood alcohol content. Id. at 246-47. We
read Zachry, therefore, to hold that because the touchstone
of the "driving under the influence" statute is the effect the
alcohol creates, i.e. the inability to drive safely, as opposed
to the quantity of alcohol consumed, no minimum blood
alcohol level is required for a conviction underS 493(a)(1) so
long as the driver's capacity to operate the motor vehicle

                               4
safely is impaired. Zachry is consistent with and supports
our view of the statute.1

Steven further contends that the statute fails to pass
constitutional muster because it permits subjective
pretextual interpretation by law enforcement officials. This
argument is without merit. The fact that the officers
exercised independent judgment in assessing whether
Steven was intoxicated at the time of his arrest does not
bear upon the constitutionality of the otherwise clear drunk
driving statute.

III.

Accordingly, because we conclude that Title 20 V.I.C.
S 493(a)(1) is sufficiently definite to survive constitutional
scrutiny, we will affirm the order of the Appellate Division
of the District Court affirming the judgment entered by the
Territorial Court against Steven.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
__________________________________________________________________

1. The district court questioned the holding in Zachry by stating "to the
extent that Zachry conflicts with this opinion, it is expressly
overruled."
Op. at 12-13. Because we do not read Zachry to be inconsistent with our
view, we have no need to overrule Zachry here.

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