Same Standard, Different Penalties for Drinking-and-Driving in DC

D.C. Superior Court judges, prosecutors, and defense attorneys have traditionally treated the criminal offense of Operating While Impaired (OWI) as if it were a lesser-included offense of Driving Under The Influence (DUI). 

Although a specific standard for OWI cannot be found in either the statute or case law, judges have repeatedly stated that in order to secure a conviction for OWI, the government must show that the defendant’s driving ability had been impaired “to the slightest degree.”  This has been in contrast to a DUI in which the government must prove “appreciable” impairment.

There is a certain logic to this distinction. From the prosecutor’s standpoint, the government can settle for a conviction on a less serious offense if it is unable to meet its burden on the main charge. Defense attorneys like it when it allows them to mitigate harm to the client from a case that is not outright winnable. And who would ever think that the legislature would create two separate offenses arising from the same conduct and requiring the same standard of proof but with different penalties?

According to the D.C. Court of Appeals in Taylor v. District of Columbia, 49 A.3d 1259 (D.C. 2012), that would be City Council.

With the defendant in Taylor charged with both OWI and DUI, the trial court had given the jury different instructions on the respective standards of proof.  Although the last instruction given to the jury was consistent with existing practice in D.C. (namely, that OWI required impairment to any degree and DUI to an appreciable degree), it complicated this instruction by expanding on the definition of “appreciable” in response to multiple questions from a jury that was obviously confused.  The judge pointed out, for example, that “appreciable” means the same thing as “enough to be perceived,” “estimated,” “noticeable” or “considerable.”  It also noted that OWI is a “lesser offense” than DUI.

Based on these instructions, the jury convicted of the defendant of OWI after being unable to reach a verdict on the DUI, and the defendant appealed.  The defendant argued that OWI and DUI are “alternative offenses for the same conduct.”  He also claimed that the trial court committed reversible error when it instructed the jury that OWI is a “lesser offense” than DUI and when it instructed the jury on separate standards of proof.

The defendant’s argument on appeal is hardly surprising. After all, if the jury failed to find that the defendant’s impairment had been sufficient to convict him of the DUI, it could not have found him guilty of OWI either if in fact OWI had the exact same standard.  What is surprising is that the Court of Appeals also bought into this argument, albeit for very different reasons.

That OWI is not a lesser-included offense of DUI is not a new finding by the Court. That holding goes back to a 1988 decision in which the Court pointed out that it is not “impossible to commit [DUI} without first having committed [OWI].”  At the same time, the Court’s holding in Scott v. District of Columbia, 539 A.2d 1085 (D.C. 1988), was directed at a different issue (namely, whether or not a defendant could be convicted of OWI after only being charged with DUI). And its holding could be viewed as nothing more than a truism.  For example, because DUI also encompasses driving under the influence of drugs and OWI is limited to alcohol, a person operating a car while under the influence of drugs could be convicted of DUI without necessarily also being convicted of OWI.

What is new with the decision in Taylor is the finding that “to the slightest degree” means the exact same thing as “appreciable degree” which, as it turns out, means the exact same thing as “enough to be perceived,” “estimated,” “noticeable” or “considerable.”

The English language has more words than just about any other language.  One of the benefits of this diversity in language is the ability to be precise.  Gut instinct based on a basic familiarity with the language would suggest that “to the slightest degree” and “appreciable degree” do not mean the same thing.

The decision itself lays out the rationale for distinguishing between the two terms. It notes, for example, that “to the slightest degree” suggests that “the impairment must be capable of being perceived by the naked senses,” whereas “appreciable degree” implies “a primary focus on a level of impairment that can be discerned only through measurement of the amount of alcohol in the breath or blood.”  But the Court brushes this distinction aside, and concludes that “appreciably” is the preferable standard and applies to both offenses.

The fiction that the law has always been thus precludes the Court from opining on whether this holding raises the standard for OWI or lowers it for DUI. This is the notion of courts discovering the law, not determining it.  At the same time, the outcome of the case provides the answer.  The jury was unable to convict the defendant of the DUI charge based on the trial court’s initial (and supposedly mistaken) instructions.  If DUI and OWI do in fact have the exact same standard of proof, the Court of Appeals could not have left the OWI conviction in tact without also concluding that there is a lesser standard of proof for both offenses.

This is bad news for anyone arrested on suspicion of drinking-and-driving in D.C.  The government’s burden in a DUI case – the offense with the more serious penalty – has just been lowered substantially.  We are also left with the odd situation in which there are two separate offenses based on the exact same conduct with the same standard of proof.  The only difference is the level of punishment.