State ex rel. Wangberg v. Smith, 1 CA-SA 05-0082.

• Court: Supreme Court of Arizona
• Citation: 118 P.3d 49,211 Ariz. 101
• Docket Number: No. 1 CA-SA 05-0082.,1 CA-SA 05-0082.
• Parties: STATE of Arizona ex rel. Kerry G. WANGBERG, Phoenix City Prosecutor, Petitioner, v. The Honorable Richard M. SMITH, Judge of the Phoenix Municipal Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge, Judd M. Levinson, Real Party in Interest.
• Decision Date: 25 August 2005

118 P.3d 49 211 Ariz. 101 STATE of Arizona ex rel. Kerry G. WANGBERG, Phoenix City Prosecutor, Petitioner,
v.
The Honorable Richard M. SMITH, Judge of the Phoenix Municipal Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge,
Judd M. Levinson, Real Party in Interest. No. 1 CA-SA 05-0082. Court of Appeals of Arizona, Division 1, Department C. August 25, 2005.

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Kerry G. Wangberg, Phoenix City Prosecutor By B. Don Taylor, Assistant City Prosecutor, Phoenix, Attorney for Petitioner.

William S. Chick, Phoenix, Attorney for Respondent, Real Party in Interest.

Derickson Law Offices By David G. Derickson, Pamela Nicholson, Phoenix, Attorneys for Amicus Curie.

OPINION

OROZCO, Judge.

¶ 1 The Phoenix City Prosecutor's Office (State) brought this special action requesting reversal of the municipal court's order granting Judd Levinson (Real Party in Interest), a jury trial for misdemeanor driving under the influence (DUI). For the reasons that follow, we accept jurisdiction but deny relief.

BACKGROUND

¶ 2 Levinson was arrested and charged with violating three separate misdemeanor DUI statutes: (1) DUI while impaired to the slightest degree;¹ (2) driving with a blood alcohol content of .08 or more;² and (3) driving with a BAC of.15 or more (Extreme DUI).³

¶ 3 The State filed the charges in the City of Phoenix Municipal Court and later amended its complaint to include a prior DUI conviction. The trial court set the matter for a jury trial and on February 14, 2005, the State filed a motion opposing the jury trial. On March 2, 2005, the trial court denied the State's motion and ruled:

After review of the new jury eligibility test announced in Derendal v. Griffith ... and the pleadings and arguments of counsel herein, this court concludes that misdemeanor DUI offenses are no longer jury eligible. However, in light of the ruling in Myers v. Reeb, 190 Ariz. 341, 947 P.2d 915 (App.1997), this court feels compelled to grant jury trials in DUI cases until instructed not to do so by an appellate court.

¶ 4 The State argues that under Derendal v. Griffith, 209 Ariz. 416, 104 P.3d 147 (2005), defendants charged with misdemeanor offenses, including misdemeanor DUI offenses, are no longer jury trial eligible. Levinson contends he is entitled to a jury trial because he meets the test under Derendal, and more importantly, the legislature specifically provided for the right to a jury trial in A.R.S. §§ 28-1381(F), -1382(C).

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SPECIAL ACTION JURISDICTION

¶ 5 Special action jurisdiction is discretionary. State ex rel. Romley v. Martin, 203 Ariz. 46, 47, ¶ 4, 49 P.3d 1142, 1143 (App.2002)(citing State ex rel. Romley v. Hutt, 195 Ariz. 256, 259, ¶ 5, 987 P.2d 218, 221 (App.1999)). Special action jurisdiction may be accepted when there is no other means of obtaining justice, King v. Super. Ct., 138 Ariz. 147, 149, 673 P.2d 787, 789 (1983)(citing Nataros v. Super. Ct. of Maricopa County, 113 Ariz. 498, 557 P.2d 1055 (1976)), or where the issue is one of statewide importance. Citizens Clean Elections Comm'n v. Myers, 196 Ariz. 516, 518, ¶ 1, 1 P.3d 706, 708 (2000). Special action jurisdiction is proper when the party has no plain, adequate or speedy remedy by appeal. Luis A. v. Bayham-Lesselyong, 197 Ariz. 451, 453, ¶ 2, 4 P.3d 994, 996 (App.2000) (citation omitted). Whether a defendant has the right to a jury trial is an appropriate issue for special action jurisdiction. Campbell v. Super. Ct., 186 Ariz. 526, 527, 924 P.2d 1045, 1046 (App.1996) (citing Mungarro v. Riley, 170 Ariz. 589, 590, 826 P.2d 1215, 1216 (App.1991)). Moreover, the State has no remedy by appeal. See A.R.S. § 13-4032 (2001). For the above-mentioned reasons, we accept jurisdiction.

DISCUSSION

¶ 6 In 1966, the Arizona Supreme Court in Rothweiler v. Super. Ct., 100 Ariz. 37, 410 P.2d 479 (1966), adopted "a three-prong test to decide whether, with regard to a particular criminal offense, the federal or Arizona Constitution guarantee[d] the right to a jury trial." Derendal, 209 Ariz. at 419, ¶ 5, 104 P.3d at 149. The test required courts to analyze: "(1) the relationship of the offense to the common law crimes; (2) the severity of the statutory penalties that apply; and (3) the moral quality of the act," to determine whether a defendant is jury trial eligible. Id. (citing Rothweiler, 100 Ariz. at 42, 410 P.2d at 483).

¶ 7 Recently, in Derendal, the Arizona Supreme Court re-examined and modified that test. Derendal, 209 Ariz. 416, 104 P.3d 147. Based on the new test set forth in Derendal, the State requests we determine that the Arizona Constitution provides no right to a jury trial for charges of misdemeanor DUI. However, because Levinson has a statutory right to a jury trial we need not apply the constitutional analysis contained in Derendal.⁴

¶ 8 The statutes under which Levinson was charged plainly provide a right to a jury trial for the offenses if requested. They both state "the court shall inform ... [and] the defendant may request a trial by jury and that request, if made, shall be granted." See A.R.S. §§ 28-1381(F), -1382(C).

¶ 9 Despite this plain language, the State argues that, Goldman v. Kautz, 111 Ariz. 431, 432, 531 P.2d 1138, 1139 (1975), demonstrates that the legislature did not intend to grant a jury trial right to persons charged with misdemeanor DUI unless the right otherwise exists. We disagree.

¶ 10 In Goldman, the defendant was charged with a misdemeanor assault and battery in a criminal justice court proceeding. He alleged that he was entitled...