S. Ct. Crim. No. 2011-0062

The defendant's convictions under 20 V.I.C. § 493(a)(1) for driving while intoxicated, and 20 V.I.C. § 493(a)(2) for operating a motor vehicle while having 0.08 percent or more by weight of alcohol in his blood, are affirmed. The first count of the criminal complaint was not duplicitous in purportedly charging defendant with violating two distinct sections of the Virgin Islands Code, because § 493(b)(1) does not establish a separate offense, but only codifies the punishment for a violation of § 493(a)(1). Application of § 493(b)(1) did not violate the requirement set forth in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt, since this is precisely what the Superior Court did in this case, when it required the jury to issue a special verdict as to whether the defendant was involved in a traffic accident at the time he violated § 493(a)(1). Nor was the special verdict itself invalid. The constitutional challenge to the portion of § 493(b)(1) prescribing an enhanced penalty for defendants involved in an accident is rejected: this section does not, in any way, criminalize “inherently innocent activity,” since it only applies if the person was involved in an accident violating subsection (a), and no authority exists for holding § 493(b)(1) unconstitutional. Defendant's challenge to the sufficiency of the evidence on a second count is also without merit, since the People clearly introduced evidence sufficient for conviction on the charge of operating a motor vehicle while having 0.08 percent or more by weight of alcohol in his blood. The breathalyzer device was explained and the witness testified to its administration in this case. However, the People agree that imposition of separate sentences for the convictions under both § 493(a)(1) and § 493(a)(2) violates the “one crime, one punishment” rule of 14 V.I.C. § 104. This establishes plain error, since the acts of driving under the influence and operating a motor vehicle with a blood alcohol content of 0.08 percent or greater clearly arose from “an indivisible course of conduct” and were part of an indivisible state of mind or coincident error of judgment, given that both offenses arose from the single act of operating an automobile after having consumed an excessive amount of alcohol. Therefore, this matter is remanded to the Superior Court with instructions to sentence the defendant for only one offense, refund any excess fine that has been paid, and dismiss the remaining count.