Cacavas v. Bowen, 2

• Decision Date: 19 March 1991
• Docket Number: No. 2,CA-SA,2
• Citation: 811 P.2d 366,168 Ariz. 114
• Parties: Dorian CACAVAS, Mark Calaluca, Claudio Guevara, Shannon Harris, Rafael Lopez, Manuel Morales, Linda Oldham, Timothy Riley, Nate Rostance, Patrick Shelby, Rod Silverman, Gregory Withey, Alta Grover, Kartina Montano, Petitioners, v. The Honorable Ann BOWEN, a Magistrate for the City Court of Tucson, In the State of Arizona, County of Pima, Respondent, and The STATE of Arizona, Real Party in Interest. 91-0020.
• Court: Arizona Court of Appeals

Page 366

811 P.2d 366

168 Ariz. 114

Dorian CACAVAS, Mark Calaluca, Claudio Guevara, Shannon Harris, Rafael Lopez, Manuel Morales, Linda Oldham, Timothy Riley, Nate Rostance, Patrick Shelby, Rod Silverman, Gregory Withey, Alta Grover, Kartina Montano, Petitioners, v. The Honorable Ann BOWEN, a Magistrate for the City Court of Tucson, In the State of Arizona, County of Pima, Respondent and The STATE of Arizona, Real Party in Interest.

No. 2 CA-SA 91-0020.

Court of Appeals of Arizona Division 2, Department A.

March 19, 1991.

Review Denied May 21, 1991.

[168 Ariz. 115] City of Tucson Public Defender by Frances T. Lynch, Tucson, for petitioners.

Frederick S. Dean, Tucson City Atty. by R. William Call, and Catherine K. Weidman, Tucson, for respondent.

OPINION

HATHAWAY, Judge.

Petitioners, criminal defendants in underlying proceedings before the City Court of Tucson, seek special action relief from the orders of the respondent magistrate denying their motions to dismiss on the grounds that A.R.S. § 28-692(A)(2) is unconstitutional. Because this is a matter of statewide importance and because the issues relate to legal questions as opposed to controverted issues of fact, we accept jurisdiction. University of Arizona Health Sciences Center v. Superior Court, 136 Ariz. 579, 667 P.2d 1294 (1983). Additionally, a "speedy decision will serve the public interest." Fuenning v. Superior Court, 139 Ariz. 590, 593, 680 P.2d 121, 124 (1983). For the reasons stated below, however, we find the statute withstands constitutional scrutiny and, therefore, deny relief.

The petitioners were arrested for allegedly driving under the influence of alcohol, in violation of A.R.S. § 28-692(A)(1). After tests were administered to determine their blood alcohol content (BAC), they were charged with violating A.R.S. § 28-692(A)(2). Effective June 28, 1990, the statute provides as follows:

A. It is unlawful and punishable as provided in § 28-692.01 for any person to drive or be in actual physical control of any vehicle within this state under any of the following circumstances;

* * * * * *

2. If the person has an alcohol concentration of 0.10 or more within two hours of driving or being in actual physical control of the vehicle.

Subsection B of the statute provides as an affirmative defense to the charge that "the person did not have an alcohol concentration of 0.10 or more at the time of driving."

Petitioners contend the statute is unconstitutional for the following reasons: (1) it reallocates the burden of proof by labeling as an affirmative defense a fact formerly defined as an element of the crime and which is a traditional or logical element of the offense; (2) the affirmative defense negates an essential element of the crime and shifts to the defendant the burden of disproving a fact which the state is required to prove and which the state has a greater opportunity to prove; (3) the statute raises an impermissable presumption that a person with a BAC of .10 percent or more within two hours of driving had that level at the time he or she was driving; and, (4) the provision is overly broad.

To withstand constitutional scrutiny, a criminal statute may not establish an essential element of the crime and then place the burden of disproving that defined element on the accused. Patterson v. New York, 432 U.S. 197, 210, 97 S.Ct. 2319, 2327, 53 L.Ed.2d 281, 292 (1977). In this regard petitioners first argue that, because of the affirmative defense provided in the statute, the accused must disprove what the state formerly had to prove beyond a reasonable doubt: that petitioners' BAC at the time of driving was .10 percent or greater. Petitioners contend that in this regard, "[t]he trial court's order appears to be an abuse of discretion as it disregards case law which has been set as mandatory precedent," citing Desmond v. Superior Court, 161 Ariz. 522, 779 P.2d 1261 (1989). Desmond, however, is entirely inapplicable, as it relates to the prior statute under which it was a crime to operate or control a motor vehicle with a blood alcohol level of .10 percent or greater. The court there held that the state was required to establish the latter element by relating the results of a subsequent blood alcohol test back to the time of driving or controlling the motor vehicle. Because the statute has created a new crime, having a blood alcohol level of .10 percent or greater within two hours of driving or controlling a motor vehicle, the elements of the prior provision are irrelevant.

For similar reasons, we reject petitioners' argument that the statute is unconstitutional because it reallocates the burden of proof by labeling as an affirmative defense a fact which is a traditional or logical element of the offense and the related argument that, although operating or controlling a motor vehicle with a BAC of .10 percent or greater is not an essential element of the new statute, it is "implied and presumed." These arguments are based in part on the contention that it is the operating or controlling of a motor vehicle with a BAC of .10 percent or greater that poses the danger to the public, in which case it is presumed that the accused was impaired. A.R.S. § 28-692(E).

As we have pointed out, the statute has created a new crime and it is not unconstitutional simply because it does not contain the same elements of the statute it replaced. Moreover, as driving while under the influence of alcohol was not a crime at common law, there are no historical elements. It is the prerogative of the legislature to determine what acts will constitute crimes and to set the punishment for those acts. State v. McClarity, 27 Ariz.App. 571, 557 P.2d 170 (1976). Clearly, the legislature concluded that a person with a BAC of .10 percent or greater within the two-hour period poses a sufficient danger to the public to justify broadening the statutorily proscribed conduct. The legislature intended to include but not limit the purview of the statute to those drivers with a BAC of .10 percent or greater at the time of operating or controlling the motor vehicle in an effort to keep impaired drivers off the road and curtail the number of highway injuries and deaths. In rejecting a constitutional challenge to a Minnesota statute similar to A.R.S. § 28-692(A)(2), the Minnesota Court of Appeals held in State v. Chirpich, 392 N.W.2d 34, 37 (Minn.App.1986), cert. denied, 481 U.S. 1015, 107 S.Ct 1891, 95 L.Ed.2d 498 (1987), that "[t]he legislature has the authority to define the elements of the crime of driving while intoxicated." The court noted that it was not its duty to question whether the provision making it a crime to have a blood alcohol level of .10 percent or greater within two hours of operating or controlling a motor vehicle was necessary. See also State v. Marble, 396 N.W.2d 708 (Minn.App.1986) (where court adopted reasoning in Chirpich ).

Petitioners assert that courts are "predisposed against new definitions of existing crimes," citing Patterson v. New York, supra. That case, however, does not support that contention. While the Court in Patterson did uphold the Pennsylvania statute because it did not redefine an existing offense, there is nothing in that case which precludes the legislature from enacting a statute creating a new offense, as it did here.

We also reject petitioners' argument that the statute raises the impermissible presumption that one who has a BAC of .10 percent or greater within two hours of operating or controlling a motor vehicle also had a BAC of .10 percent or greater at the time he or she operated or controlled a...