U.S. Supreme Court rules drunken driving is not violent felony.

• Author: Ziemer, David

Byline: David Ziemer

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...