DUI not a Violent Felony
Yet another sentence enhancer case, but this time, the defendant won!
The Armed Career Criminal Act adds another 15 year sentence to where a felon possessing a firearm had three or more prior convictions for “violent felonies.” Violent felony was defined as a crime punishable by more than one year “that is burglary, arson, extortion, involves use of explosives, or otherwise involves conduct that presents a serious risk of physical injury to another.”
Burgess, who apparently likes to drink and drive, had 12 convictions for DUI in New Mexico, where, after a third such conviction, the offense becomes a felony. Apparently noting the risk posed by those who drive while intoxicate, found Burgess has the requisite three or more violent felony offenses to qualify for the additional 15 years. (It’s not clear from the opinion, but apparently these were also the felonies that made him a felon unable to possess a gun. )
The Court found DUI was not within the intended scope of the sentence enhancer. Instead, the enhancer applies only to crimes similar to those offenses listed, rather than all risky crimes. The Court noted that the listed crimes generally involves purposeful, violent, and aggressive conduct whereas DUI does not.
We’ve all seen the videos of the happy drunks who speed merrily down the highways, so I guess this is true that DUI is not necessarily violent or aggressive (purposeful, of course, is also debatable, but the drinking part usually is Personally, I think the selected examples are a bit odd – no robbery, no sexual assault, no murder – crimes I tend to think of as violent. ). While arson, using explosives ,and extortion pretty much fit, I am not so sure that burglary is necessarily, or even usually, violent or “aggressive.”
Breyer wrote the majority opinion; Roberts, Stevens, Kennedy, and Ginsberg joined.
Scalia concurred in a separate opinion. He disagreed with the majority’s conclusion that the statute did not intend to encompass all felonies that have the potential for risk of harm to others. He just doesn’t buy that DUI encompasses such a risk. In fact, he does not think that drunk driving poses as least a serious risk of injury to another as burglary.
Alito dissented with Souter and Thomas joining.
