1998 Decisions

Opinions of the United

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Precedential or Non-Precedential: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
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, 108 F.3d 28, 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., 269 U.S. 385, 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, 407 U.S. 104, 110 (1972); 

Grayned v. City of Rockford, 408 U.S. 104, 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, 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 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, 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 statute 

prohibiting driving "under the influence of intoxicating 

liquor"); State v. Campbell, 681 P.2d 679 (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, 65 P.2d 652, 654 (Ariz. 1937); State v. Graham, 222 

N.W. 909, 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, 24 V.I. 244 (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 

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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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