dissenting:
I respectfully dissent.
So far as I am able to discern, the majority opinion is the first by an appellate court to squarely hold that the Sixth Amendment requires a jury trial for the offense of driving while intoxicated (DWI) even though the maximum possible punishment does not exceed that for petty offenses and is substantially less than the legislature might have imposed.1 This holding, it seems to me, amounts to an invasion of the legislative prerogative to determine the seriousness of offenses not indictable at common law by the extent of the penalty provided, and unnecessarily imposes a national uniformity in this respect which is fundamentally at odds with the federal nature of our Constitution. Under this approach, the “seriousness” of offenses becomes a matter for essentially subjective judicial judgment, binding throughout the entire nation. The implication of the majority opinion is that because alcohol-related driving accidents have become a major national problem, therefore DWI is a serious, and not a petty, offense for Sixth Amendment purposes, notwithstanding that the Louisiana legislature may have differently evaluated the problem in Louisiana or, more to the point, its relationship to the level of seriousness appropriate to the Louisiana DWI offense. Moreover, I believe the majority opinion misapprehends the relevant jurisprudence in the states and runs counter both to the Supreme Court’s general approach respecting the classification of offenses for this purpose and to its repeated recognition that DWI is a petty offense where its maximum potential penalty does not exceed six months’ confinement and a $500 fine.
Unquestionably, “[t]he most relevant indication of the seriousness of an offense is the severity of the penalty authorized for its commission.” Frank v. United States, 395 U.S. 147, 89 S.Ct. 1503, 1505, 23 L.Ed.2d 162 (1969). See also Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 1888, 26 L.Ed.2d 437 (1970) (“the most relevant such criteria is the severity of the maximum authorized penalty”). Time and time again the Supreme Court has looked to Congress’ definition of petty offenses in 18 U.S.C. § 1(3) for this purpose. See Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 1453-54, 20 L.Ed.2d 1491 (1968); Baldwin, 90 S.Ct. at 1889. More recently, the Court has spoken exclusively in terms of the penalty. Thus, in Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 2008, 32 L.Ed.2d 530 (1972), the Court observed:
“The right to trial by jury, also guaranteed by the Sixth Amendment by reason of the Fourteenth, was limited by Duncan v. Louisiana, supra, to trials *1180where the potential punishment was for six months or more.”2
Similarly, in Codispoti v. Pennsylvania, 418 U.S. 506, 94 S.Ct. 2687, 2691, 41 L.Ed.2d 912 (1974), the Court, referring to Duncan and Bloom v. Illinois, 391 U.S. 194, 88 S.Ct. 1477, 20 L.Ed.2d 522 (1968), stated:
“Since that time, our decisions have established a fixed dividing line between petty and serious offenses: those crimes carrying a sentence of more than six months are serious crimes and those carrying a sentence of six months or less are petty crimes.”
In the ten to fifteen years since Argersinger and Codispoti, no opinion of the Supreme Court has retreated from the above-quoted language of those decisions giving controlling significance to the maximum authorized punishment.3 At the very least, this suggests that some extremely compelling reason or precedent must be advanced to support a holding that an offense whose maximum possible punishment is concededly “petty” under Baldwin is nevertheless not a petty offense for purposes of entitlement to trial by jury under the Sixth Amendment.
Decisions of the Supreme Court prior to Duncan were not as clear in their emphasis on the possible maximum penalty as the crucial factor in determining whether a jury trial was constitutionally required. These decisions were each grounded in the proposition that the meaning of the right to trial by jury, under Article 3, Section 2, clause 3 and the Sixth Amendment of the Constitution, was to be derived essentially from the common law. Thus, in Callan v. Wilson, 127 U.S. 540, 8 S.Ct. 1301, 32 L.Ed. 223 (1888), the Court noted that the Constitution’s jury trial provision “is to be interpreted in the light of the principles which, at common law, determined whether the accused, in a given class of cases, was entitled to be tried by a jury.” Id., 8 S.Ct. at 1303. Callan concerned a conspiracy prosecution, and the Court proceeded to review in detail the authorities reflecting that that crime was an indictable offense at common law; hence a jury was required even though the case was tried in municipal court. Id. at 1306-07.4 In Schick v. United States, 195 U.S. 65, 24 S.Ct. 826, 49 L.Ed. 99 (1904), the Court, in holding that a petty offense did not require trial by jury, relied on Callan and again emphasized that the constitutional provisions in this respect “must be read in the light of the common law.” Id., 24 S.Ct. at 827. The issue was next considered in District of Columbia v. Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177 (1930), which held that the accused, charged with a crime which “was an indictable offense at common law,” was entitled to a jury although the maximum punishment did not exceed thirty days in jail and a $100 fine. Id., 51 S.Ct. at 53. Again, the Court stressed that in this respect the Constitution’s jury trial “provision is to be interpreted in the light of the common law.” Id.
The last of the Court’s presently significant pre-Duncan decisions is District of Columbia v. Clawans, 300 U.S. 617, 57 S.Ct. 660, 81 L.Ed. 843 (1937). There the defendant was charged with selling second*1181hand property without the required license, an offense punishable by ninety days’ imprisonment. Noting that the offense “was not indictable at common law,” Clawans nevertheless considered whether “the severity of the penalty” might be “sufficient to bring it within the class of major offenses, for the trial of which a jury may be demanded.” Id., 57 S.Ct. at 662. The Court observed that at the time of the American Revolution there were petty offenses, triable without a jury “under English statutes, which carried possible sentences of imprisonment for periods from three to twelve months,” and that of the statutes in that time of the “Colonies” or the “newly-created states” some sixteen authorized imprisonment for three months or more, and eight others for as much as six months, without a jury trial. Id. at 662-63. Obviously concerned with the prospect of imprisonment for as long as nine months or a year, or possibly more, being imposed without the safeguard of a jury’s availability, the Court remarked that “commonly accepted views of the severity of punishment by imprisonment may become so modified that a penalty once thought to be mild may come to be regarded as so harsh as to call for the jury trial, which the Constitution prescribes, in some cases which were triable without a jury when the Constitution was adopted.” Id. at 663. Then, in words that presaged Baldwin and its progeny, Clawans continued:
“But we may doubt whether summary trial with punishment of more than six months’ imprisonment, prescribed by some pre-Revolutionary statutes, is admissible, without concluding that a penalty of ninety days is too much.” Id. at 663 (footnote omitted).5
Within that framework, however, the maximum permissible penalty for this purpose is not to be resolved “subjectively” but rather “by objective standards,” principally the greatest penalties which Congress and at least some of the states allow to be imposed without entitlement to trial by jury. Id. at 663-64. It is to be noted that this analysis was not a head counting exercise to determine the consensus practice around the nation, but rather simply reflected statutes or decisions or both in thirteen different states. Id. at 663 n. 6, 664 n. 7. When this issue was revisited in Baldwin, Justice White’s opinion referred to the federal standard of six months and a $500 fine, and observed that “[i]n the entire Nation, New York City alone denies an accused the right to interpose between himself and a possible prison term of over six months, the commonsense judgment of a jury of his peers.” 90 S.Ct. at 1889-90 (footnote omitted; emphasis added).6
It seems clear then that the Court originally followed strictly common law precedent, but not without some developing concern that this might allow severe penalties without the protection of a jury. This possibility — and doubtless the related danger posed by burgeoning statutory offenses without common law antecedents — in effect opened the prospect of a potentially troublesome gap in the protection which the Constitution’s jury trial provisions were intended to afford. Ultimately, the Court chose to close that gap by employing Baldwin’s objective, bright-line test grounded in the historical practice of the colonies and the original states.
This is not to suggest that the Court has to any extent overruled Callan or Colts, sub silentio. The point, rather, is that the Court has never held that an offense, not indictable at common law, nevertheless *1182must be tried by a jury notwithstanding that the maximum authorized penalty does not exceed that generally recognized for petty offenses. Frank and Baldwin, and their progeny, strongly counsel against an expansive reading of Callan and Colts which divorces those decisions from their common law grounding. Respecting any given offense not indictable at common law, once the legislature has determined that it is not serious, by fixing a concededly “petty” maximum penalty under the bright-line rule of Baldwin, there is simply no good reason, in history, precedent, or policy, for the federal judiciary to second-guess that determination by engaging in its own essentially subjective evaluation of the seriousness of that particular offense and of community attitudes toward it. Moreover, the application of the Sixth Amendment’s jury trial requirement to the states has rendered any such attempt even more dubious.7 Though the states may not try without a jury what was indictable at common law, nor transgress Baldwin, surely a state legislature has the power to determine that a given type problem has a different dimension in its state than in others, or to evaluate differently from other states the seriousness of even an essentially similar problem, or to arrive at its own conclusions concerning how serious an offense under that state’s law should be made in light of the problem as it manifests itself there.8
Turning now to the specific offenses of DWI, the majority concedes the absence of “authority for the proposition that DWI constituted an indictable offense at common law.” Indeed, the authorities hold that it was not such an offense. State v. Rodgers, 91 N.J.L. 212, 102 A. 433 (1917); Whirley v. State, 450 So.2d 836, 838 (Fla. 1984); State ex rel. Sellers v. Parker, 87 Fla. 181, 100 So. 260 (1924); State v. Morrill, 123 N.H. 707, 465 A.2d 882, 885 (1983); Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479, 16 A.L.R.3d 1362, 1368 (1966) (“the offense of driving while under the influence of intoxicating liquor was not a common law offense”).
Whether DWI in particular is such an offense as constitutionally requires a jury trial despite carrying only a “petty” maximum penalty has also been indirectly addressed on two occasions by the Supreme Court. In Colts, the Court considered a charge of driving over the speed limit and recklessly so as to endanger others. The statute prohibited, in separate clauses, speeding, reckless driving, and driving so as to endanger persons or property. Al*1183though the maximum imprisonment was only thirty days, the Court held a jury was required. It stressed that the accused was “not charged merely with ... exceeding the ... limit of speed ... or merely with driving recklessly ... but with ... having driven at the forbidden rate of speed and recklessly, ‘so as to endanger property and individuals.’ ” 51 S.Ct. at 53. Again, the Court made clear that the charge was not merely reckless driving, but rathet driving “so recklessly ‘as to endanger property and individuals.’ ” Id. (emphasis added). This, it was held, “was an indictable offense at common law” for which a jury was required. Id. Colts cited State v. Rodgers for the proposition that in petty offenses a jury was not required, and then went on to particularly rely on that case, stating:
“The New Jersey Court of Errors and Appeals, in State v. Rodgers, supra, has discussed the distinction between traffic offenses of a petty character, subject to summary proceedings without indictment and trial by jury, and those of a serious character, amounting to public nuisances indictable at common law; and its examination of the subject makes clear that the offense now under review is of the latter character.” 51 S.Ct. at 53.
It thus behoves us to see what State v. Rodgers had to say on the subject. There it was held that DWI, which carried a six-month maximum sentence, was not a public nuisance or otherwise an offense indictable at common law, and that accordingly there was no entitlement to trial by jury. Clearly Colts gave its approval to the holding of State v. Rodgers that DWI was, as Colts characterized it, one of those “traffic offenses of a petty character subject to summary proceedings without indictment and trial by jury.” 51 S.Ct. at 53. Further, what the New Jersey Supreme Court in State v. Rodgers said of DWI is as true today of the Louisiana offense as it was in 1917 of the New Jersey offense, namely, “that it is not essential to the existence of the statutory offense that the driver ... be so intoxicated that he cannot safely drive,” that it suffices that as a result of alcohol consumption the driver is under “an abnormal mental or physical condition ... which tends to deprive him of that clearness of intellect and control of himself which he would otherwise possess,” and that conviction is possible “even though he drives so slowly and so skillfully and carefully that the public is not annoyed or endangered.” State v. Rodgers, 102 A. at 435.9
Also relevant in this connection is (then) Justice Stone’s opinion for the Court in Clawans where, in upholding nonjury conviction for an offense punishable by three months’ imprisonment he relied on the fact that:
“A number of states have continued in force statutes providing for trial, without a jury, of violations of municipal ordinances, and sundry statutory offenses, punishable by commitment for three months or more.” 57 S.Ct. at 663 (footnote omitted).
The first specific offense statute (as opposed to statutes embracing violations of municipal ordinances generally) cited by Justice Stone in support of the above-quoted statement is:
“N.J.Comp.Laws (1924 Supp.), §§ 135-63(3), 135-76 (operating motor vehicle under influence of liquor; six months; see Klinges v. Court of Common Pleas, 130 A. 601, 3 N.J.Misc. 1084, 4 N.J.Misc. 7).” 57 S.Ct. at 663 n. 6.
The cited Klinges case holds that the New Jersey DWI statute, which authorizes confinement of up to six months, is not unconstitutional because a jury trial is not authorized. 3 N.J.Misc. 1084, 4 N.J.Misc. 7, 130 *1184A. 601, 602 (1925).10 In the Clawans text, Justice Stone continued by stating, “Convictions under such legislation have been upheld many times in the state courts, despite objections to the denial of a jury trial.” 57 S.Ct. at 664 (footnote omitted). Among the cases cited by Justice Stone in support of this statement is State v. Parker, 87 Fla. 181, 100 So. 260 (1924), a DWI prosecution. See 57 S.Ct. at 664 n. 7. Surely, then, Clawans is another example of the Supreme Court’s recognition that DWI may constitutionally be prosecuted without a jury where the maximum penalty does not exceed that applicable to petty offenses generally. The Nebraska Supreme Court, among others, has read Clawans as categorizing DWI as a petty offense. State v. Amick, 173 Neb. 770, 114 N.W.2d 893, 895 (1962). See also City of Albuquerque v. Arias, 64 N.M. 337, 328 P.2d 593, 594 (1958) (same).11
Finally, it may be noted that the only other circuit court opinion directly addressing this question has unanimously held that the Sixth Amendment does not require a jury in DWI prosecutions where the maximum penalty is less than the Baldwin standard. United States v. Jenkins, 780 F.2d 472 (4th Cir.), cert. denied, — U.S.-, 106 S.Ct. 2283, 90 L.Ed.2d 724 (1986). Federal district court decisions holding that DWI does not require a jury trial where the maximum punishment does not exceed the Baldwin standard include United States v. Fletcher, 505 F.Supp. 1053 (W.D. Va.1981), and Matos v. Rodriguez, 440 F.Supp. 673 (D.Puerto Rico 1976). The same holding was made by the district courts in Craner, Jenkins, and in this case.
The majority contends that “[rjecent statistics indicate that nearly one of every two people in this country will be involved in an alcohol-related automobile collision. The loss of life, impairment of body and destruction of property present a devastating social problem in America today.” I am not inclined to disagree.12 But the problem in Louisiana may not be, or may not appear to its legislature to be, so serious. Or, the Louisiana legislature may feel that in any event the problem is not best addressed in Louisiana by making DWI a serious, as opposed to a petty, offense under Louisiana law. Moreover, how can we with confidence gauge the public opprobrium which attaches to DWI in Louisiana, or elsewhere, or be confident that it exceeds that for, say, public drunkenness? Compare Compton v. Jay, 389 S.W.2d 639 (Tex. 1965) (DWI not an offense of moral turpitude). Surely those are decisions for Louisiana to make. It is surprising that the majority considers that Welsh v. Wisconsin, 466 U.S. 740, 104 S.Ct. 2091, 80 L.Ed.2d 732 (1984), supports its position in this respect. To the contrary, in Welsh, the Court stated:
“Nor do we mean to suggest that the prevention of drunken driving is not properly of major concern to the States. The State of Wisconsin, however, along with several other States, ... has chosen to limit severely the penalties that may *1185be imposed after a first conviction for driving while intoxicated. Given that the classification of state crimes differs widely among the States, the penalty that may attach to any particular offense seems to provide the clearest and most consistent indication of the State’s interest in arresting individuals suspected of committing that offense.” Id., 104 S.Ct. at 2100 n. 14 (emphasis added).13
Certainly these remarks, joined in by six justices, are to be given greater weight than those in the dissenting opinion in Welsh.14
I turn now to the majority’s analysis of the law in the several states. The majority asserts that only six states deny the right to jury trial on DWI charges and that at least twenty-four states guarantee a jury trial in such cases, citing the Annotation in 16 A.L.R.3d 1373 (1967 and Supp.1986), Jenkins, 780 F.2d at 474 & n. 4, and Craner, 652 F.2d at 27 n. 5. There are several fundamental flaws in this approach.
To begin with, neither the referenced authorities nor any other compilation I have found purports to say that only six states deny a jury trial for DWI. The referenced A.L.R.3d Annotation covers only some nineteen states in all; Jenkins refers generally to twenty-four states; Craner only to the Ninth Circuit states. In other words, these sources indicate that about a fourth or a fifth of the states studied do not authorize a jury for DWI. But, even if forty-four states allow a jury,15 and do so because they regard DWI as serious, while only six do not, that would not be decisive. Baldwin considered it decisive that New York City, alone in the entire nation, did not authorize a jury where more than six months’ imprisonment could be imposed. Clawans obviously did not feel free to disregard the practices of thirteen states, even where considerations of federalism were not implicated. More recently, the Court has refused to condemn a practice as unconstitutional notwithstanding that it is rejected by forty-eight states and followed only by two. Martin v. Ohio, — U.S. -, 107 S.Ct. 1098, 1103, 94 L.Ed.2d 267 (1987). It appears that at least in Florida, Louisiana, Nevada, New Hampshire, New Mexico, New Jersey, and Puerto Rico,16 and perhaps in other states as well, a jury trial is not required for DWI. I see no warrant for our requiring these seven jurisdictions to conform their practice to that of other states, even all the others.
Further, the majority does not analyze why the states that provide jury trials do so. Certainly some of them appear to do so because they consider DWI intrinsically serious, regardless of the penalty. See, e.g., Parham v. Municipal Court, 86 S.D. 531, 199 N.W.2d 501 (1972). Such states, *1186however, do not appear to be as numerous as those which deny a jury in DWI. Other states appear to require a jury simply because the maximum penalty exceeds the Baldwin level. See, e.g., State v. Dickson, 9 Kan.App.2d 425, 680 P.2d 313, 315 (1984). A substantial number of states may fall in this category. See Jenkins, 780 F.2d at 474 n. 4. There is a significant number of states, however, which grant a jury in DWI cases simply because they do not recognize the “petty” offense doctrine, and so grant a jury trial in all criminal cases, “petty” or not. Obviously, the jury trial practice in these states tells us absolutely nothing about how seriously they regard DWI. Such states include Texas 17 and apparently Mississippi.18 California, Indiana, Maine, Oregon, South Carolina, and Vermont also appear to be in this category.19 There are doubtless other states which fit this pattern. Alaska for all practical purposes does, as there the “petty” offense doctrine is limited to fine only cases. Baker v. City of Fairbanks, 471 P.2d 386, 401-02 (Alaska 1970).20 Several other states appear to follow the same rule as Alaska, treating as nonpetty any offense for which any incarceration may be imposed. See Whirley v. State, 450 So.2d 836, 841 (Fla.1984) (dissenting opinion of Boyd, J., citing cases).
*1187In sum, contrary to the assertion of the majority, a review of the state cases discloses no overwhelming consensus that DWI is intrinsically so serious that it cannot be classified as a “petty” offense even where its maximum penalty is below the Baldwin threshold.
The majority also relies on what it perceives to be seriously adverse “collateral consequences.” Mention is made of increase in insurance premiums. But that will also often result from a couple of trivial “fender-benders” or minor traffic tickets. Public opprobrium is alluded to. That, of course, may well significantly vary from state to state, as do attitudes toward such activities as gambling and, indeed, drinking. Though we are rather poorly placed to gauge that sort of thing, I strongly suspect there is more public opprobrium attached to public drunkenness or disorderly conduct than there is to first offense DWI.
Finally, the majority calls attention to the sixty-day driver’s license suspension. However, the sixty-day suspension period commences upon notification of conviction or guilty plea, La.Rev.Stat. § 32:414(A)(1), and hence is meaningless to one confined for, say, five months, a period well within the Baldwin criteria. The license suspension in such a case will be long over by the time the defendant is out of jail and free to drive. It is wholly without significance to an individual that during the time he is in jail his driver’s license is not operative. License suspension is hence of any meaning only to the extent the defendant serves less than sixty days in prison. The question then becomes whether a sentence under which the defendant will serve, say, twenty days in jail, and also be unable to drive for forty days thereafter because his license is suspended, is more severe than one under which the defendant will serve, say, ninety days in jail (during all of which time he is for that reason unable to drive). If common sense does not supply the answer to this question, then surely Frank does. There, three years’ probation, though a significant infringement of freedom, was deemed not sufficiently onerous to make an otherwise “petty” offense serious. As Frank stated (89 S.Ct. at 1506-07 & n. 6):
“Probation is, of course, a significant infringement of personal freedom, but it is certainly less onerous a restraint than jail itself.6 In noncontempt cases, Congress has not viewed the possibility of five years’ probation as onerous enough to make an otherwise petty offense ‘serious.’
Moreover, it seems wholly incongruous to now hold that possible license suspension tips the scale to jury trial entitlement, when we have already held “that a defendant need not be informed, before pleading guilty to a charge of driving while intoxicated, that as a collateral consequence of his conviction, his driver’s license will be suspended.” Moore v. Hinton, 513 F.2d 781, 782-83 (5th Cir.1975). Further, several courts have held that license suspension does not suffice to take DWI out of the “petty” offense category. See, e.g., Jenkins, 780 F.2d at 474 (six-month automatic suspension); Fletcher, 505 F.Supp. at 1054; Amick, 114 N.W.2d at 895; Morrill, 465 A.2d at 886 (sixty-day to two-year suspension). I also note that license suspension is often incident to multiple minor moving traffic violations.
Ultimately, the majority’s “collateral consequences” argument is a make-weight. The practical truth of the matter is that one who serves six months in jail and pays a $500 fine for Louisiana DWI suffers no more meaningful collateral consequences than one who serves the same time and pays the same fine for any other offense. Each suffers “collateral consequences” of loss of ability to earn a livelihood, loss of ability to drive, and public opprobrium. These are the inevitable consequences of serving such a sentence.
For these reasons, I dissent from the majority’s holding that the Sixth Amend*1188ment required Louisiana to afford Landry a jury trial for DWI, notwithstanding that its maximum sentence was “petty” under Baldwin.
. In United States v. Craner, 652 F.2d 23 (9th Cir.1981), the holding that DWI committed in a national park was not a "petty" offense, although the maximum possible punishment did not exceed six months’ imprisonment and a $500 fine, was expressly based in part on the fact that the Secretary of the Interior, who set the maximum penalty, fixed it at the highest level authorized. The Craner majority observed that ”[w]e cannot hazard that the Secretary's indiscriminate authorization of this penalty for varied offenses, or Congress’s general limitation on the sentences the Secretary may authorize, represents a considered legislative judgment of the gravity of the offense of DUI.” Id. at 25. Judge Sneed in his Craner special concurrence would have relied exclusively on this ground; absent that special factor, he was "inclined to treat the DUI offense as ‘petty.’” Id. at 28. Here, by contrast, the maximum penalty fixed by the Louisiana legislature does, of course, represent its "considered legislative judgment of the gravity of the offense.”
United States v. Woods, 450 F.Supp. 1335 (D.Md.1978), is, like Craner, a DWI in violation of a national park regulation, and thus is distinguishable for the same reasons. 450 F.Supp. at 1345. Additionally, the Woods court relied on the law of Maryland, the state of defendant’s residence and apparently that in which the park was located, which provided penalties of up to one year’s confinement for first offense DWI, and for prosecution of which a jury would have been required under Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970). 450 F.Supp. at 1345. No such special circumstances are applicable here. Brady v. Blair, 427 F.Supp. 5 (S.D.Ohio 1976), does support the majority, but in my view it is simply wrong.
. The Argersinger Court went on to say:
“We reject ... the premise that since prosecutions for crimes punishable by imprisonment for less than six months may be tried without a jury, they may also be tried without a lawyer." Id., 92 S.Ct. at 2009.
. In Muniz v. Hoffman, 422 U.S. 454, 95 S.Ct. 2178, 45 L.Ed.2d 319 (1975), the Court held that a $10,000 contempt fine of a labor union did not make the offense serious, as opposed to petty, rejecting the contention "that a contempt must be considered a serious crime under all circumstances where the punishment is a fine of more than $500, unaccompanied by imprisonment." Id. 95 S.Ct. at 2190-91. Muniz suggests, as does the quoted language of Argersinger and Codispoti, that the focus of the petty offense test is on the maximum authorized confinement.
. Callan quoted an early Massachusetts decision to the effect that, under " ‘[t]he general rule of the common law,’” conspiracy ‘“is a criminal and indictable offense,’ ” and, after reviewing other decisions and texts also indicating the seriousness with which the common law viewed conspiracy, observed, "These authorities are sufficient to show the nature of the crime of conspiracy at common law.” 8 S.Ct. at 1306, 1307. Callan then proceeded to hold that accordingly conspiracy could not be regarded as a "petty" offense, and hence a jury was required.
. The Court’s mention here of "pre-Revoluntionary statutes” authorizing summary trial for offenses with more than six months’ imprisonment was footnoted to refer to the English statutes, some of which had penalties as long as a year. Id. at 662 n. 2, 663 n. 5. No reference was made in this connection to the early state or colonial statues which the opinion had not described as authorizing more than six months in nonjury cases. Id. at 662-63 nn. 3 & 4.
. Baldwin likewise noted that “with a few exceptions, crimes triable without a jury in the American States since the late 18th century were also generally punishable by no more than a six-month prison term." Id. at 1889. And, Baldwin again emphasized the search for “objective criteria,” observing that “the most relevant such criteria” is "the severity of the maximum authorized penalty.” Id. at 1888.
. I observe that since Duncan the Court has authorized less than twelve-person juries, and less than unanimous verdicts, in criminal cases, despite the long-standing traditions to the contrary under the Sixth Amendment and Article 3, Section 2, clause 3, as they had previously always been understood. Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970); Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972). One cannot but suppose that the specter of diminished state flexibility posed by Duncan likely had substantial influence on these results. Further, Justice Powell, whose concurrence was necessary to the affirmance in Apodaca, rejected the principle that the requirements of the Sixth Amendment, as applied to the federal government, were the same as those applied to the states through the Fourteenth Amendment. Id., 92 S.Ct. at 1635, 1637. Similarly, in Ludwig v. Massachusetts, 427 U.S. 618, 96 S.Ct. 2781, 49 L.Ed.2d 732 (1976), four justices voted to reverse on the basis that Callan's Sixth Amendment trial de novo rule was applicable to the states and had been violated; Justice Powell provided the crucial vote for affirmance on the basis that this aspect of Callan did not apply to the states. Ludwig, 96 S.Ct. at 2789 ("[Tjhe right to a jury trial afforded by the Fourteenth Amendment is not identical to that guaranteed by the Sixth Amendment."). Although Justice Powell’s view in this respect is clearly a minority one on the Court, it has been decisive on at least those two occasions and doubtless is the reason that the juries required in federal criminal cases must still be of twelve persons and reach unanimous verdicts.
. I do not find it necessary to speculate whether there might conceivably be some offense of such unquestionable and particularly aggravated moral heinousness — reflecting a moral depravity equivalent to, say, that of murder or rape — that it would require a jury trial notwithstanding the absence of any indictable common law antecedent and a legislatively fixed maximum sentence not exceeding the Baldwin threshold. Of course, the chances of a legislature fixing that kind of penalty for such an offense are slim to none. In any event, it is abundantly clear — as reflected subsequently in this opinion — that DWI does not even remotely approach that level of moral heinousness.
. Of course, one can say that driving while intoxicated should be considered serious because of its significant potential to endanger others, even though in a particular instance — such as driving slowly on a straight rural road void for miles in all directions of traffic and pedestrians — it may not do so. But, as Colts plainly infers, the same thing can be said of reckless driving simpliciter or speeding without those offenses being thereby necessarily made nonpetty-
I also observe that one can be guilty of DWI even though he did not intend to become under the influence or realize that he was. Further, DWI is not generally considered an offense of moral turpitude. See Compton v. Jay, 389 S.W.2d 639 (Tex. 1965).
. New Jersey still follows this rule. See, e.g., State v. Roth, 154 N.J.Super. 363, 381 A.2d 406, 408 (1977).
. While not authoritative under the circumstances, it may also be noted that the Supreme Court has declined to review state decisions holding that DWI is not an intrinsically serious offense for which a jury trial is required, where the maximum permissible punishment does not exceed that for "petty" offenses. See City of Monroe v. Wilhite, 255 La. 838, 233 So.2d 535 (1970), cert. denied, 400 U.S. 910, 91 S.Ct. 136, 27 L.Ed.2d 150 (1970); City of Gainesville v. Hilliard, 207 So.2d 520 (Fla.App.), approved, 213 So.2d 689 (Fla. 1968), appeal dism'd for want of a substantial federal question, 393 U.S. 321, 89 S.Ct. 556, 20 L.Ed.2d 1308 (1969) (per curiam). Hilliard’s force, however, is undermined by the fact that it was tried prior to the decision in Duncan, which was held not retroactive in DeStefano v. Woods, 392 U.S. 631, 88 S.Ct. 2093, 20 L.Ed.2d 1308 (1968).
. One could as well say that high speed highway driving is a devastating social problem — as there is strong evidence that the fifty-five m.p.h. limit saved thousands of lives each year. Or that cigarette smoking, which is so addictive and is responsible for so much death and disability, is a devastating social problem. Are we to conclude that highway driving over eighty miles an hour, or selling cigarettes to a minor, must, if prosecuted criminally, entitle the accused to a jury trial, even where the maximum sentence possible does not exceed ninety days’ confinement?
. Justice Blackmun, concurring in Welsh, added the observation that Wisconsin, in its leniency to those guilty of DWI, was like an overly "indulgent parent." He then noted, "But if Wisconsin and other States choose by legislation thus to regulate their penalty structure, there is, unfortunately, nothing in the United States Constitution that says they may not do so.” Id., 104 S.Ct. at 2100, 2101.
. Moreover, it is clear that the Welsh dissent was not advocating that the federal judiciary "trump” Wisconsin’s characterization of DWI, but rather that Wisconsin was free both to treat that offense as one of civil forfeiture and abo to authorize arrest therefor without a warrant (as did the Wisconsin statute), which might be made in-home in exigent circumstances. Id. at 2101, 2104 (dissenting opinion of Justice White).
. There is, however, nothing that I am aware of which indicates that as many as even forty states allow a jury in all DWI prosecutions.
. See e.g., State v. Parker, 87 Fla. 181, 100 So. 260 (1924); City of Gainesville v. Hilliard, 207 So.2d 520 (Fla.App.), approved, 213 So.2d 689 (Fla.1968), appeal dism'd for want of a substantial federal question, 393 U.S. 321, 89 S.Ct. 556, 21 L.Ed.2d 517 (1969) (per curiam); Whirley v. State, 450 So.2d 836 (Fla.1984); City of Monroe v. Wilhite, 255 La. 838, 233 So.2d 535 (1970), cert. denied, 400 U.S. 910, 91 S.Ct. 136, 27 L.Ed.2d 150 (1970); State v. Smith, 99 Nev. 806, 672 P.2d 631 (1983); State v. Morrill, 123 N.H. 707, 465 A.2d 882 (1983); City of Albuquerque v. Arias, 64 N.M. 337, 328 P.2d 593 (1958); Hamilton v. Walker, 65 N.M. 470, 340 P.2d 407 (1959); State v. Sweat, 78 N.M. 512, 433 P.2d 229 (App. 1967); State v. Rodgers, 91 N.J.L. 212, 102 A. 433 (1917); Klinges v. Court of Common Pleas, 3 N.J.Misc. 1084, 4 N.J.Misc. 7, 130 A. 601 (1925); State v. Roth, 154 N.J.Super. 363, 381 A.2d 406 (1977); Matos v. Rodriguez, 440 F.Supp. 673 (D.Puerto Rico 1976).
. In Texas, it has always been the rule that any criminal prosecution entitles the defendant to a jury. See Burns v. La Grange, 17 Tex. 415 (1856) (offense authorizing maximum of $30 fine and no imprisonment); Smith v. San Antonio, 17 Tex. 644 (1856) (permitting gambling on premises, maximum penalty $100 fine, in default of payment of which up to sixty days' confinement). This early practice has been carried forward and the "petty" offense doctrine is not recognized. See 21 Tex.Jur. III Criminal Law § 1485. The accused is entitled to a jury trial in all criminal prosecutions, even those in the justice court and corporation court. Tex. Code Crim.Proc. arts. 45.24, 45.25. Neither court can sentence to prison, they can only fine, and in the justice court the fine is limited to $200, as it was in the corporation court until 1983 when it was raised to $1,000 for certain purely local offenses, being limited to $200 in all other cases. Tex.Code Crim.Proc. arts. 4.11, 4.14; Ex parte Morris, 168 Tex.Cr.R. 281, 325 S.W.2d 386 (1959).
. In Mississippi, it appears that the accused is entitled to a jury in any criminal proceeding in the justice court, which is apparently the lowest level of state court. Miss.Code Ann. § 99-33-9.
. See Baker v. City of Fairbanks, 471 P.2d 386, 403 (Alaska 1970) (referring to "jurisdictions such as California which provide jury trial for all offenses, regardless of type"); Gillespie v. Gilmore, 159 Ind.App. 449, 307 N.E.2d 480, 482 (1974); State v. Morrill, 123 N.H. 707, 465 A.2d 882, 885 (1983) ("[ujnlike our neighboring states of Maine and Vermont, we do not require as a matter of constitutional right that a jury trial be available even for petty criminal offenses”); Brown v. Multnomah County District Court, 29 Or.App. 917, 566 P.2d 522, 526 & n. 5 (1977) (concluding "it is probable that” the Oregon constitution, modeled in this respect on that of Indiana, "extends the right to a jury trial in petty offense criminal prosecutions"), rev'd on other grounds Brown v. Multnomah County District Court, 280 Or. 95, 570 P.2d 52, 55 (1977) (holding that Oregon constitution does so extend jury trial right); United States v. Jenkins, 780 F.2d 472, 474-75 (4th Cir.1986) (South Carolina grants jury trial "to all offenses within a magistrate's jurisdiction”).
It is true that Oregon and Maine have held that statutes purporting to authorize "civil” prosecution of DWI, without a jury, are invalid under their constitutions. See Brown v. Multnomah County District Court, 280 Or. 95, 570 P.2d 52 (1977); State v. Freeman, 487 A.2d 1175 (Me. 1985). But, given that these states do not recognize “petty” criminal offenses, but require a jury in alt criminal prosecutions, the issue necessarily was whether DWI was any kind of criminal offense, not whether it was a “petty" criminal offense. To hold that DWI is a criminal offense, despite being labeled civil, is not (unless we, too, reject the "petty” offense doctrine) the same as holding that it is not a "petty" criminal offense. See, e.g., Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).
. Similarly, in still other states, DWI may be tried before a jury because of statutory provisions that tell us next to nothing about how intrinsically serious that particular offense is regarded. See Evans v. Lambert, 418 P.2d 217 (Okl.Cr.App.1966) (law denying jury trial invalid only as a local act, so statewide law that jury is allowed in all cases is applied); Miller v. Winstead, 75 Idaho 262, 270 P.2d 1010 (1954) (generally applicable state statutory provisions). Similarly, in Nebraska, the statutes have been construed to authorize a jury trial in DWI cases, as those are within the general statutory definition of misdemeanors (as opposed to traffic offenses). State v. Karel, 204 Neb. 573, 284 N.W.2d 12 (1979). But, DWI is regarded as a petty offense, as to which there is no constitutional entitlement to a jury. State v. Amick, 173 Neb. 770, 114 N.W.2d 893, 895-96 (1962). In Washington, a jury is allowed because of the statute providing for such in any case in which a license may be suspended. Artis v. Rowland, 64 Wash.2d 576, 392 P.2d 815 (1964).
"6 Petitioner is required to make monthly reports to his probation officer, associate only with law-abiding persons, maintain reasonable hours, work regularly, report all job changes to his probation officer, and not leave the probation district without the permission of his probation officer."