Updated 6:05 p.m.
In an opinion (PDF) released this morning, the District of Columbia Court of Appeals found that while the penalties for two drunk driving charges in D.C. are different, the standard for proving those charges is the same.
A conviction for Driving Under the Influence (DUI) carries a 90-day maximum prison term for a first offense, while Operating a Vehicle While Intoxicated (OWI) carries a 30-day maximum sentence for a first offense. But the three-judge appellate panel found that contrary to a trial judge's jury instructions in the underlying case, the difference in penalties doesn't mean OWI is a "lesser" offense.
While the three-judge panel unanimously agreed that the trial judge gave wrong jury instructions, they ruled 2-1 to uphold the OWI conviction of appellant Larry Taylor. The majority found that Superior Court Judge Russell Canan correctly explained the standard for an OWI even if he gave the wrong explanation about its relationship with a DUI. The jury hung on whether to convict Taylor of a DUI.
Judge Phyllis Thompson, writing for the majority, said that the OWI charge was created to give prosecutors a lower-penalty option for plea bargaining. But she said that there was no record that the D.C. Council meant for the OWI charge to be "reserved" for cases where a defendant was less severely impaired than for a DUI charge.
The standard for both charges, the court found, is that defendants have to be impaired to the point where they're "appreciably" less able to exercise the type of judgment and physical skills needed to drive a car.
Thompson and Senior Judge Inez Smith Reid found that Taylor wasn't hurt by Canan's error because he still ended up giving the proper instruction for an OWI offense. Canan told the jury that Taylor had to be impaired "in any way or at some level" to be guilty of OWI, which Thompson and Reid said was basically the same as being "appreciably" impaired. They then found that Canan set the bar higher than he should have for a DUI, which likely explained the hung jury.
Judge Corinne Beckwith, the third judge on the panel, agreed that the standard for OWI and DUI should be the same, but wrote a dissenting opinion about whether the error was harmless. Beckwith said that it's possible that if the jury had doubts about the government's case – there was no evidence besides the arresting officer's report – they may have found Taylor guilty of the OWI because they thought the standard was much lower.
Beckwith wrote that given the jury's clear confusion, it was too speculative to say for sure that they understood the nuances between the words Canan was using to explain the DUI standard – "appreciable" impairment versus "considerable "impairment," for instance – to mean he was "ratcheting" it up.
Taylor's attorney, solo practitioner Dennis Hart, and a representative of the city's Office of the Attorney General could not be reached for comment this morning.
It's not clear what the ruling might mean in practice, but it comes as drunk driving convictions are going up in the District, both for DUI and OWI arrests, according to data from the attorney general's office.
A previous version of this article incorrectly listed the trial judge.