Raye v. Jones, No. 1 CA-SA 03-0001.

• Court: Court of Appeals of Arizona
• Writing for the Court: GEMMILL.
• Citation: 76 P.3d 863,206 Ariz. 189
• Parties: Leander D. RAYE, Petitioner, v. The Honorable Michael JONES, 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.
• Decision Date: 23 September 2003
• Docket Number: No. 1 CA-SA 03-0001.

76 P.3d 863
206 Ariz. 189

Leander D. RAYE, Petitioner,
v.
The Honorable Michael JONES, 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. -0001.

Court of Appeals of Arizona, Division 1, Department E.

September 23, 2003.

Laurie A. Herman, Scottsdale, and Neal W. Bassett, Phoenix, Attorneys for Petitioner.

Gary L. Shupe, Phoenix, Assistant City Prosecutor, Attorney for Real Party in Interest.

OPINION

GEMMILL, Judge.

¶ 1 The question presented is whether a person charged with violating Arizona Revised Statutes ("A.R.S.") section 4-244(33) (2002) is entitled to a trial by jury. We hold that this offense, often called "underage

76 P.3d 864

drinking and driving," is not a jury-eligible offense

¶ 2 Leander D. Raye was twenty years old when cited for violating A.R.S § 4-244(33), which makes it unlawful for "a person under the age of twenty-one years to drive or be in physical control of a motor vehicle while there is any spirituous liquor in the person's body."¹ The municipal court denied Raye's motion for a jury trial and found him guilty. Raye appealed to the superior court, which affirmed the judgment of the municipal court. Raye seeks special action relief and argues that he should be entitled to a jury trial on the offense of underage drinking and driving. We accept jurisdiction but deny relief.

JURISDICTION

¶ 3 We accept jurisdiction because Raye presents a pure legal question of first impression and has no further remedy by appeal. See Guthrie v. Jones, 202 Ariz. 273, 274, ¶ 4, 43 P.3d 601, 602 (App.2002); A.R.S. § 22-375 (2002) (No appeal may be taken from the judgment of the superior court acting as an appellate court unless the action involves the "validity of a tax, impost, assessment, toll, municipal fine or statute."). Also, we have previously held that "[s]pecial action review is an appropriate means to determine whether there is a right to a jury trial." Campbell v. Superior Court, 186 Ariz. 526, 527, 924 P.2d 1045, 1046 (App.1996).

ANALYSIS

¶ 4 Raye contends that underage drinking and driving is a jury eligible offense because it is a "no tolerance DUI statute" for persons under the age of twenty-one and as such carries the same moral quality as driving under the influence of intoxicating liquor ("DUI"), an offense that is jury eligible under Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479 (1966). The State argues in response that under Rothweiler, State ex rel. Dean v. Dolny, 161 Ariz. 297, 778 P.2d 1193 (1989), and Benitez v. Dunevant, 198 Ariz. 90, 7 P.3d 99 (2000), the offense of underage drinking and driving does not meet the test for jury eligibility.

¶ 5 The right to a jury trial for "serious" offenses has been preserved for criminal defendants by both our federal and state constitutions. See Duncan v. Louisiana, 391 U.S. 145, 155-58, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968) (holding that the Sixth Amendment, as applied to the states through the Fourteenth Amendment, requires that defendants accused of serious crimes be afforded the right to a jury); Benitez, 198 Ariz. at 93-94, ¶ 4, 7 P.3d at 101-02 (stating that the right to a jury trial enumerated in Article 2, Sections 23 and 24 of the Arizona Constitution, preserves the right to a jury trial in non-petty offenses). Thus, "serious" offenses are jury eligible while "petty" offenses are not. Id.

¶ 6 In distinguishing between "serious" and "petty" offenses, our supreme court in Benitez discussed and applied the test for determining whether an offense was jury eligible under Rothweiler. The three factors to be considered in deciding jury eligibility are:

(1) the relationship of the offense to common law crimes;

(2) the severity of the potential penalties made available by statute; and

(3) the moral quality of the offense.

Benitez, 198 Ariz. at 93, ¶ 7, 7 P.3d at 102 (citing Rothweiler, 100 Ariz. at 47, 410 P.2d at 486). The court stated that the most significant factor among the three is the maximum potential penalty authorized by the statute, and that the "moral quality" factor is more flexible, requiring careful analysis in its application. Id. at 93, ¶ 9, 7 P.3d at 102.

Relationship To Common Law Offenses

¶ 7 Because the constitutional right of trial by jury in our state is a reservation rather than a grant of a right, "those offenses linked to jury trial at common law at the time the constitution was adopted are protected by the constitutional guarantee." Benitez, 198

76 P.3d 865

Ariz. at 93, ¶ 4, 7 P.3d at 102. Raye does not argue, however, that driving with liquor in the body is comparable to any common law offense that was traditionally triable to a jury. Therefore this part of the test does not trigger jury eligibility. See Rothweiler, 100 Ariz. at 42, 410 P.2d at 483 ("It is conceded that the offense of driving while under the influence of intoxicating liquor was not a common law offense.")

Severity Of Penalty

¶ 8 A violation of A.R.S. § 4-244(33) is a class one misdemeanor, A.R.S. § 4-246(B) (2002), for which the maximum punishment is a $2500 fine, A.R.S. § 13-802(A) (2001), and six months in jail. A.R.S. § 13-707(A)(1) (2001). Generally, the penalties for misdemeanors are not sufficiently severe to trigger jury eligibility. Benitez, 198 Ariz. at 94, ¶ 13, 7 P.3d at 103. For example, misdemeanors such as driving on a suspended license, disorderly conduct, and selling liquor to a minor are not jury-eligible offenses. Id. (listing supreme court cases holding these offenses not jury eligible). See also Mungarro v. Riley, 170 Ariz. 589, 590, 826 P.2d 1215, 1216 (App.1991) (holding that penalty of six months in jail and $2500 fine for false reporting to a law officer did not trigger jury eligibility, but the moral turpitude of the offense did).

¶ 9 In Benitez, our supreme court decided that the maximum penalties of six months incarceration and a $2500 fine were not severe enough to justify a right to a jury trial for the offense of driving a motor vehicle on a license suspended for an earlier DUI violation. 198 Ariz. at 94, ¶ 13, 7 P.3d at 103. Based on the analysis and guidance of our supreme court in Benitez,...