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. e du/thir dc ir c uit_1998/6Filed 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 Island s (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 APPELLANTJulio 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 Appellat e 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 49 3(a)(1) is constitutional, we will affirm the district court's order.

I.

On October 19, 1995, police officers on routine pat rol 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 we re glassy. The officer advised Steven of his Miranda r ights, and Steven then admitted that he had been drinking earl ier 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 Pla te in violation of Title 20 V.I.C. S 331(3).

By order dated April 17, 1996, the Territorial Cour t of the Virgin Islands denied Steven's motion to dismiss th e Title

220 V.I.C. S 493(a)(1) charge on the basis of uncons titutional

vagueness. Steven was found guilty of both charges on May 16, 1996. Steven appealed the Territorial Court's j udgment to the District Court of the Virgin Islands, assert ing that Title 20 V.I.C. S 493(a)(1) is unconstitutionally v ague. The district court affirmed the Territorial Court's jud gment by opinion entered on April 23, 1997. This timely appe al followed. We exercise plenary review over the distr ict court's determination as to the constitutionality of the ch allenged statute. United States v. Parker, 108 F.3d 28, 29 ( 3d Cir. 1997).

II.

Pursuant to the Due Process Clause of the Fourteent h Amendment to the United States Constitution, a crim inal
statute is unconstitutional if it "either forbids o r requires the doing of an act in terms so vague that men of c ommon intelligence must necessarily guess at its meaning .. . ." Connally v. General Constr. Co., 269 U.S. 385, 391 (1926). The concept of unconstitutional vagueness is derive d from a basic notion of fairness; citizens must be given fair warning before being held culpable for conduct deem ed to be criminal. Colten v. Kentucky, 407 U.S. 104, 110 (1972); Grayned v. City of Rockford, 408 U.S. 104, 108 (197 2). A
statute therefore meets the constitutional standard of certainty if its language conveys a sufficiently de finite warning as to the proscribed conduct when measured by common understanding and practices. United States v

. Wise, 550 F.2d 1180, 1186 (9th Cir.), cert. denied, 434 U.S. 929 (1977).

Title 20 V.I.C. S 493(a)(1) provides, in relevant p art, that "[i]t is unlawful for any person who is under the i nfluence of an intoxicating liquor . . . to drive, operate, or be in actual physical control of, any motor vehicle withi n the Territory." Steven contends that the term "under th e 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 ter m "under the influence." See, e.g., Government of the Virgin

3Islands v. Tonge, 1996 WL 255710 (Terr. V.I. August 17,

1996)(rejecting constitutional vagueness challenge to Title 20 V.I.C. S 493(a)(1)); People v. Seefeldt, 445 N.E .2d 427 (Ill. App. Ct. 1983)(upholding constitutionality of a sta tute prohibiting driving "under the influence of intoxic ating liquor"); State v. Campbell, 681 P.2d 679 (Kan. Ct. App. 1984)(finding that the term "driving under the infl uence" does not render a statute void for vagueness). In a ddition, courts have recognized for over half a century that driving "under the influence" is commonly understood to mea n driving in a state of intoxication that lessens a p erson's normal ability for clarity and control. See, e.g, W eston v. State, 65 P.2d 652, 654 (Ariz. 1937); State v. Grah am, 222 N.W. 909, 911 (Minn. 1929). This common understandi ng is consistent with the obvious purpose of drunk dri ving statutes; i.e., to prevent people from driving unsa fely due to an alcohol-induced diminished capacity. Because dri ving "under the influence" is commonly understood, it th erefore 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 Virgi n Islands v. Zachry, 24 V.I. 244 (Terr. Ct. 1989). In Zachry, the territorial court specifically upheld the constitut ionality of the "driving under the influence" statute and noted that "driving under the influence must be construed unde r a bare minimum analysis; any consumption, however min ute, of alcohol violates S 493(a)(1)." Zachry, 24 V.I. a t 247. The Zachry court distinguished the "driving while intox icated" offense under S 493(a)(2), which requires a specifi c percentage of blood alcohol content, from the "driv ing under the influence" offense under S 493(a)(1), which doe s not require a minimum blood alcohol content. Id. at 246 -47. We read Zachry, therefore, to hold that because the to uchstone 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 blo od alcohol level is required for a conviction underS 4 93(a)(1) so long as the driver's capacity to operate the motor vehicle

4safely is impaired. Zachry is consistent with and s upports

our view of the statute.1

Steven further contends that the statute fails to p ass constitutional muster because it permits subjective pretextual interpretation by law enforcement offici als. This argument is without merit. The fact that the office rs exercised independent judgment in assessing whether
Steven was intoxicated at the time of his arrest do es not bear upon the constitutionality of the otherwise cl ear drunk driving statute.

III.

Accordingly, because we conclude that Title 20 V.I. C. S 493(a)(1) is sufficiently definite to survive con stitutional scrutiny, we will affirm the order of the Appellate Division of the District Court affirming the judgment entere d 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 Zac hry 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 i nconsistent with our view, we have no need to overrule Zachry here.

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