Benitez v. Dunevant

• Decision Date: 27 October 1998
• Docket Number: No. 1,CA-SA,1
• Parties: 281 Ariz. Adv. Rep. 14 Daniel Paul BENITEZ, Petitioner, v. The Honorable Thomas DUNEVANT III, Judge of the Superior Court Of The State Of Arizona, in and for the County of Maricopa, Respondent Judge, The Phoenix City Prosecutor's Office, Real Party in Interest. 98-0126.
• Court: Arizona Court of Appeals

Page 1017

979 P.2d 1017

281 Ariz. Adv. Rep. 14

Daniel Paul BENITEZ, Petitioner, v. The Honorable Thomas DUNEVANT III, Judge of the Superior Court Of The State Of Arizona, in and for the County of Maricopa, Respondent Judge, The Phoenix City Prosecutor's Office, Real Party in Interest.

No. 1 CA-SA 98-0126.

Court of Appeals of Arizona,

Division 1, Department D.

Oct. 27, 1998.

Review Granted May 25, 1999.

Neal W. Bassett, Phoenix, for Petitioner.

Roderick G. McDougall, City Attorney by Rebecca M. Gore, Assistant City Prosecutor, Phoenix, for Real Party in Interest.

OPINION

NOYES, Judge.

¶1 We hold that driving on a DUI-suspended license is a jury-eligible offense and that Arizona Revised Statutes Annotated ("A.R.S.") section 22-320(A) (1990) is constitutional.

¶2 Petitioner was charged with driving when his license was suspended for conviction of Driving while Under the Influence of Intoxicating Liquor ("DUI"). The offense is in violation of A.R.S. section 28-3473(B) (1998) (formerly section 28-473(B) (Supp.1997)). Petitioner was also charged with other, more minor, violations that are not relevant here.

¶3 After a bench trial, Petitioner was found guilty and was sentenced to 48 hours in jail, a $1010 fine, and a 90-day suspension of his driver's license. Petitioner then appealed to superior court and argued for the first time that he had the right to a jury trial on the 28-3473(B) charge. The superior court held that Petitioner had no such right, and that if he had such a right, he waived it by not demanding a jury five days prior to trial, as required by A.R.S. section 22-320(A). Petitioner then filed a petition for special action in this court. We have jurisdiction pursuant to A.R.S. section 12-120.21(A)(4) (1992) and Arizona Rules of Procedure for Special Actions, Rule 3.

¶4 We accept jurisdiction because special action is a proper method for determining the existence of the right to a jury trial. See State ex rel. McDougall v. Strohson (Cantrell), 190 Ariz. 120, 121, 945 P.2d 1251, 1252 (1997); Rothweiler v. Superior Ct., 100 Ariz. 37, 39-40, 410 P.2d 479, 481 (1966).

Right to a Jury

¶5 The Arizona Constitution, article 2, sections 23 and 24, guarantees all criminal defendants the right of trial by jury. The right applies to serious offenses; it does not apply to petty offenses. See State ex rel. Dean v. Dolny, 161 Ariz. 297, 299, 778 P.2d 1193, 1195 (1989). "In determining whether a crime is a petty offense that constitutionally may be tried without a jury the severity of the penalty inflictable, as well as the moral quality of the act and its relation to common law crimes, must be considered." Rothweiler, 100 Ariz. at 42, 410 P.2d at 483.

¶6 "Arizona has long provided its citizens with greater access to jury trials than is required by the federal constitution." Strohson, 190 Ariz. at 121-22, 945 P.2d at 1252-53. Other jurisdictions have taken a more restrictive approach to the right to jury trial, but we do not discuss cases from other jurisdictions, for we are bound by the opinions of our supreme court. See Myers v. Reeb, 190 Ariz. 341, 342, 947 P.2d 915, 916 (App.1997) ("The magistrate's failure to follow Rothweiler was a misfeasance for which special action relief was appropriate.").

¶7 Rothweiler held that a person charged with DUI has the right to a jury. Id. at 47, 410 P.2d at 486. When Rothweiler was decided, the potential consequences for conviction of DUI were six months in jail, a $300 fine, and a 90-day license suspension. Id. at 39, 410 P.2d at 480. The potential consequences for conviction of driving on a DUI-suspended license are greater; they are six months in jail, a $2500 fine, and a one-year license suspension. See A.R.S. §§ 13-707(A) (1989), 13-802(A) (1989), 28-3473(D).

¶8 When we apply the Rothweiler analysis and follow its holding, as all courts inferior to the supreme court must do, we conclude that a person charged with driving on a DUI-suspended license is entitled to a jury in Arizona for the same reasons that a person charged with DUI is entitled to a jury in Arizona.

¶9 A potential penalty of six months in jail and a $2500 fine does not, by itself, warrant a jury trial. See State v. Superior Ct. (Tibshraeny), 189 Ariz. 573, 574, 944 P.2d 515, 516 (App.1997). In deciding whether an offense is jury eligible, Arizona considers the potential consequences of conviction, in addition to the potential jail term and fine. See Dolny, 161 Ariz. at 300, 778 P.2d at 1196. The Rothweiler court concluded that "[i]n addition to the penal provisions the sanction relating to revocation of an individual's driver's license may have grave consequences." 100 Ariz. at 44, 410 P.2d at 484. Similarly, the Dolny court concluded that "a conviction for possession of marijuana results in consequences sufficiently grave to warrant a jury trial." 161 Ariz. at 300, 778 P.2d at 1196. The grave consequences in Dolny were "decreased employment opportunities," employer-required "drug counselling, treatment, or testing," and the fact that a drug conviction would preclude a person from obtaining certain occupational and professional licenses. Id. ¹

¶10 A person charged with driving on a DUI-suspended license faces a license suspension equivalent to the length of the suspension in the underlying DUI, "but not more than one year from the date the person would otherwise be entitled to apply for a new license...." ² A.R.S. § 28-3473(D). In other words, the "grave consequences" in this case exceed those in Rothweiler by a factor of four; Rothweiler involved a three-month suspension and this case involves a one-year suspension. That Petitioner himself may not have been exposed to a one-year suspension is irrelevant. See Strohson, 190 Ariz. at 125, 945 P.2d at 1256 ("[W]e have never determined jury eligibility based upon an analysis of the individual defendant before the court."). If jury eligibility turned on a case-by-case analysis, "we would have the anomalous situation where some persons would be entitled to a jury trial and others would not, although charged with exactly the same substantive Arizona crime." Id.

¶11 The City argues that a potential one-year license suspension is not a "grave consequence" warranting a jury trial, and it relies mainly on State v. Harrison, 164 Ariz. 316, 317, 792 P.2d 779, 780 (App.1990), cert. denied, 498 U.S. 1093, 111 S.Ct. 979, 112 L.Ed.2d 1064 (1991). There, this court found that a three-month license suspension for running a red light and having no proof of insurance did not make those offenses jury eligible because "driving is a privilege, not a right," "suspension is a civil sanction, not criminal," and "a three-month suspension of driving privileges is not so onerous." Id. at 318, 792 P.2d at 781. To the extent that Harrison minimizes a three-month license suspension, it conflicts with Rothweiler, which found that the consequences flowing from said suspension were grave enough to make DUI a jury-eligible offense. We think that passages like the following one from Rothweiler can be read only one way in connection with DUI and DUI-based charges:

The power to imprison, fine and suspend the right to use the public highways must be considered today as the ability to impose grave criminal sanctions not comparable to petty crimes at common law which were tried summarily. In view of the foregoing considerations, we find the [DUI] offense in question to be a serious crime which must be triable before a jury when properly demanded.

100 Ariz. at 44, 410 P.2d at 485.

¶12 We agree with the result in Harrison, and we do not find its result to be illogically inconsistent with Rothweiler. DUI and DUI-based offenses have a worse "stigma" and a more odious "moral quality" than offenses such as those at issue in Harrison, running a red light or having no proof of insurance. Having said that, however, we must note that Dolny requires that we give only secondary emphasis to the "stigma" and "moral quality" factors:

Although the Rothweiler opinion referred to the "grave consequences" as implicating the moral quality of the crime, this suggests too narrow an inquiry. The Rothweiler court was undoubtedly concerned with the stigma associated with certain crimes, but it was primarily concerned with the nature of the consequences resulting from a conviction, such as the impact that losing one's driver's license could have on the defendant's ability to earn a living.

Dolny, 161 Ariz. at 300, 778 P.2d at 1196.

¶13 Although driving on a DUI-suspended license is not as dangerous to the public as DUI, or as odious an offense, the latter offense necessarily precedes the former, and the consequences of both are equally "grave" under the Rothweiler-Dolny test. We doubt that many defendants will demand a jury when charged with driving on a DUI-suspended license, for the status of a driver's license and the existence of a prior DUI conviction will generally be easily proved facts. But the right to a jury trial in Arizona does not depend on the presumed factual complexity of the charge; it depends on the seriousness of the charge, as measured by the Rothweiler-Dolny test. The dissent makes some good arguments that driving on a DUI-suspended license should not be a jury-eligible offense. Those same arguments can be, and were, made regarding DUI, and they were soundly rejected by the supreme court in Rothweiler. Whether the dissent's arguments warrant a revision of the Rothweiler-Dolny test, or an exception to it, is not for the court of appeals to decide.

Constitutionality of A.R.S. Section 22-320

¶14 A.R.S. section 22-320 provides as follows:

A. A trial by jury shall be had if demanded by either the state or defendant. Unless the demand is made at least five days before commencement of the trial, a trial by jury shall be deemed waived.

Petitioner did not demand a jury in municipal court. The State argues that, if driving on a DUI-suspended license is a jury-eligible offense, Petitioner...