dissenting.
More than a few of our citizens presume they have an unalienable right to quaff spirits and an unalienable right to drive automobiles. Society pays a high price when these perceived rights are exercised in concert, and our legislature and courts have done little to discourage this habit. Even the Warren Court did not make it as difficult to try an accused as the majority in this court has.
Neither the United States Constitution nor the Wyoming constitution, requiring jury trials in criminal cases, apply to petty offenses. The United States Supreme Court has explicitly said so in Frank v. United States, 395 U.S. 147, 89 S.Ct. 1503, 23 L.Ed.2d 162 (1969); and Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491, reh. denied 392 U.S. 947, 88 S.Ct. 2270, 20 L.Ed.2d 1412 (1968). In determining whether an offense is petty or not, the court stated in Codispoti v. Pennsylvania, 418 U.S. 506, 512, 94 S.Ct. 2687, 2691, 41 L.Ed.2d 912, 919 (1974), that “ * * * [0]ur 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. * * * ”
When the constitutionality of a statute is attacked, we begin with a presumption of constitutionality and we resolve any reasonable doubts by upholding the statute if possible. Armijo v. State, Wyo., 678 P.2d 864 (1984); and Sorenson v. State, Wyo., 604 P.2d 1031 (1979). To the extent that § 5-6-207, W.S.1977, may be construed to provide that petty offenses with a possible maximum jail sentence of six months shall be tried without a jury, I would uphold its constitutionality. I disagree with the majority’s holding that any crime punishable by a jail term is a serious one. To hold this is to abolish the category of petty offense as recognized by the United States Supreme Court. Arguably, the Wyoming Constitution contemplates greater jury trial rights than does the United States Constitution. However, I do not read the Wyoming Constitution to mandate a jury trial in order to provide for a day in jail.
As a practical matter, the lower courts are not going to try DWUI cases if a jail sentence is involved. It is difficult to justify a $500 to $1,000 jury so that a defendant *564can spend a day in jail. Economics will prevail over justice. If the legislature provided for a convicted defendant to pay the cost of a jury, his enthusiasm for a jury trial would diminish. Oft times in DWUI cases a short jail sentence has a salutary effect. The most successful sentence I imposed as a district judge was one hour in the county jail after a drunk driving conviction.
The common law did not require a jury trial for petty offenses. Duncan v. Louisiana, supra. Wyoming’s Constitution was adopted with that background, since Wyoming expressly adopted the common law as modified by judicial decisions. McClellan v. Tottenhoff, Wyo., 666 P.2d 408 (1983); and Choman v. Epperley, Wyo., 592 P.2d 714 (1979). Section 8-1-101, W.S.1977 (Aug. 1978 Replacement), reads:
“The common law of England as modified by judicial decisions, so far as the same is of a general nature and not inapplicable, and all declaratory or remedial acts or statutes made in aid of, or to supply the defects of the common law prior to the fourth year of James the First (Excepting the second section of the sixth chapter of forty-third Elizabeth, the eighth chapter of thirteenth Elizabeth and ninth chapter of thirty-seventh Henry Eighth) and which are of a general nature and not local to England, are the rule of decision in this state when not inconsistent with the laws thereof, and are considered as of full force until repealed by legislative authority.”
The majority opinion is well written and not illogical; however, it establishes a policy not required by the Wyoming Constitution. I would affirm the trial court.