with whom JERRE S. WILLIAMS, Circuit Judge, joins dissenting:
I respectfully dissent.
Since I have no apologies for the original panel opinion which I authored in this case and not wanting to burden the law books, I hereby adopt the original panel opinion, 818 F.2d 1169, in toto as my dissent.
However, I want to make some additional comments. I am amused by the conclusion in the majority opinion that DWI was never an indictable offense at common law. The reason it was not indictable at common law is because the offense did not exist at common law. Although the closest thing to it was driving a horse-drawn carriage recklessly, the Supreme Court even considered it a serious offense to drive an automobile recklessly through the public streets, and thus a jury trial was mandated, even though the maximum penalty was 30 days in jail and a fine of $100.00. District of Columbia v, Colts, 282 U.S. 63, 51 S.Ct. 52, 75 L.Ed. 177 (1930).
Further, I do not intend to engage in a battle of statistics with the majority as to how many states provide for a jury trial under these facts. The statistics that I referred to in my original opinion came from the sources that I cited. My belief that driving while intoxicated is a serious offense, malum in se, and one which should be viewed as an indictable offense at common law, would still be my belief irrespective of whether one state or fifty states provided for a jury trial.
The majority in a somewhat apologetic manner states that it does not “minimize the gravity of the social problem presented by excessive drinking and dangerous driving.” On the other hand I see it as a grave problem now. Some of my colleagues have argued with me that if a person commits a more serious crime while driving while intoxicated, then he will be charged with a more serious offense and a jury trial right would attach. My response is thank God many people are apprehended while driving while intoxicated, before they kill or maim someone. It makes little sense to me to say that Louisiana need not provide a jury trial for a DWI defendant unless more serious consequences flow from the act of driving a vehicle without full control of one’s faculties.
The seriousness of the problem as I conceive it lies in the fact that in many state jurisdictions, DWI cases are handled as if in a mass production line where the offender pleads guilty and the state administers a slap on the wrist as a penalty. If driving while intoxicated was properly considered a malum in se offense, then the state could demand a trial by jury as a serious offense, which it is, and it would go a long way towards solving the present problem. Those persons accused of driving while intoxicated would soon learn that their conduct was reprehensible after being indicted by a grand jury and being subject to a trial by their peers if the state demands it. We have to treat this serious offense as we treat other serious crimes. An offender who believes that he was unlawfully charged with driving while intoxicated would have the protection of having to be indicted by a grand jury and having his case tried by a jury of his peers if indicted. *1221The states could provide that in the penalty-phase of a DWI prosecution a jury would set the punishment if the state so demanded, so as to avoid leniency in sentencing by certain judges.
I cannot perceive the members of our Supreme Court not declaring driving while intoxicated to be a serious offense. If it is a serious offense, it would have been indictable at common law and it should be seen as an indictable offense now, and as such it would be removed from the petty offense category regardless of the penalties provided for by the states.
I would therefore reverse the court below and hold that a jury trial is mandated in driving while intoxicated cases.