Tenth Circuit Holds Drunk Driving Is a Violent Felony under Armed Career Criminal Act

In a decision that has already received coverage elsewhere, the Tenth Circuit held in a decision  yesterday that felony driving while intoxicated (DWI) is a "violent felony" under the Armed Career Criminal Act (ACCA), thus subjecting the defendant, Larry Begay, to a mandatory minimum sentence of 15 years.  United States v. Begay, No. 05-2253. Judge Hartz (joined by Judge Lucero) summed up his reasoning nicely:

One may disagree with the choice, but it seems perfectly reasonable to include within the definition [of violent felony] those who have a confirmed history of displaying contempt for human life or safety -- those who, in the statutory language, have repeatedly committed felonies "involv[ing] conduct that presents a serious potential risk of physical injury to another." From this perspective, there is nothing remarkable about including DWI as a "violent felony."

Judge McConnell filed an 18-page dissent, arguing that treating drunk driving convictions as "violent felonies" is unwarranted by the language of the statute and contrary to Congress's intent. He acknowledged his reluctance, however, to part with the majority and the two other circuits (the Seventh and the Eighth) to have arrived at the same conclusion as the majority.

Nothing about Judge Hartz's majority opinion suggests that it was anything other than a straightforward analysis of the statutory language and past precedent. However, Judge Hartz's chambers are in New Mexico where he has lived for more than 30 years. Drunk driving is an enormous problem in New Mexico (although some progress has been made in recent years) and as a New Mexico native myself who agrees wholeheartedly with the policy embodied by the Begay opinion, I cannot help but wonder whether Judge Hartz's views in this case are shaped by his experience.

On a somewhat related note, both of Albuquerque's major newspapers reported today that Governor Richardson announced an increase in spending aimed at deterring drunk driving on New Mexico highways.