State v. Bayardi

• Decision Date: 09 August 2012
• Docket Number: No. 1 CA–CV 11–0615.,1 CA–CV 11–0615.
• Parties: STATE of Arizona, Plaintiff/Appellee, v. The Honorable Marianne T. BAYARDI, Judge of the Phoenix Municipal Court, Respondent Judge, Joseph W. Fannin, Real Party in Interest/Appellant.
• Court: Arizona Court of Appeals

230 Ariz. 195

281 P.3d 1063

640 Ariz. Adv. Rep. 33

STATE of Arizona, Plaintiff/Appellee,

v.The Honorable Marianne T. BAYARDI, Judge of the Phoenix Municipal Court, Respondent Judge,Joseph W. Fannin, Real Party in Interest/Appellant.

No. 1 CA–CV 11–0615.

Court of Appeals of Arizona,

Division 1, Department B.

Aug. 9, 2012.

Aaron J. Carreon–Ainsa, Phoenix City Prosecutor by Samuel K. Lesley, Assistant City Prosecutor, Phoenix, Attorneys for Plaintiff/Appellee.

Gallagher & Kennedy PA by Barry D. Mitchell, Flynn Patrick Carey, Phoenix, Attorneys for Real Party in Interest/Appellant.

City of Phoenix Public Defender's Office by Laurie A. Herman, Phoenix, Attorney for Amicus Curiae.

OPINION

THUMMA, Judge.

¶ 1 Defendant Joseph W. Fannin is charged in municipal court with driving with an impermissible drug in his body in violation of Arizona Revised Statutes (“A.R.S.”) section 28–1381(A)(3) (West 2012).¹ Fannin challenges the superior court's holding that A.R.S. § 28–1381(D) creates an affirmative defense requiring him to prove by a preponderance of the evidence that he was using the drug as prescribed by a medical practitioner. For the following reasons, we accept jurisdiction and deny relief.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 The State has charged Fannin with two counts of driving under the influence. Count I, which is not at issue here, alleges Fannin drove while impaired to the slightest degree in violation of A.R.S. § 28–1381(A)(1). Count II, which is at issue here, alleges Fannin drove with an impermissible drug or its metabolite in his body in violation of A.R.S. § 28–1381(A)(3).

¶ 3 Under 28–1381(D), a defendant “is not guilty” of a 28–1381(A)(3) charge if the defendant was “using a drug, as prescribed by a medical practitioner.” ² Before the municipal court, Fannin argued 28–1381(D) establishes a justification defense requiring the State to prove beyond a reasonable doubt that he was not using prescription drugs as prescribed by a medical practitioner. Fannin submitted a jury instruction for Count II requiring the State to prove that “[t]he defendant was not taking the Methadone, Klonopin or Ritalin as prescribed by a licensed medical practitioner.” The State objected, arguing 28–1381(D) is an affirmative defense requiring Fannin to prove by a preponderance of the evidence that he was using prescription drugs as prescribed.

¶ 4 The municipal court found 28–1381(D) is a justification defense and not an affirmative defense. The court found Fannin has the burden to make a prima facie showing that he was using prescription drugs as prescribed and, if such a showing is made, the State would have “the burden of proving beyond a reasonable doubt that [Fannin] did not take the medication in accordance with a valid prescription.”

¶ 5 The State challenged the municipal court's ruling by filing a special action petition with the superior court. The superior court accepted jurisdiction and granted relief, holding 28–1381(D) is an affirmative defense. Fannin appeals from the superior court's decision.

DISCUSSION

I. Jurisdiction

¶ 6 Our appellate jurisdiction is purely statutory. Ariz. Const. Art. VI § 9; Hall Family Props., Ltd. v. Gosnell Dev. Corp., 185 Ariz. 382, 386, 916 P.2d 1098, 1102 (App.1995). If we decide a case beyond our statutory jurisdiction, the decision is of no force and effect. State v. Avila, 147 Ariz. 330, 334, 710 P.2d 440, 444 (1985). We have an independent duty to determine whether we have jurisdiction. Sorensen v. Farmers Ins. Co. of Ariz., 191 Ariz. 464, 465, 957 P.2d 1007, 1008 (App.1997).

¶ 7 Both parties summarily state that appellate jurisdiction is proper pursuant to A.R.S. §§ 12–2101(A)(1) & (4).³ It is not clear, however, that we have appellate jurisdiction over the superior court's minute entry.⁴ Without deciding that issue, we elect to exercise special action jurisdiction. It does not appear that either party has “an equally plain, speedy, and adequate remedy by appeal.” Ariz. R.P. Spec. Act. 1(a). Moreover, the issue presented is of statewide importanceand has yet to be resolved in any appellate decision. See State ex rel. Romley v. Martin, 203 Ariz. 46, 47, ¶ 4, 49 P.3d 1142, 1143 (App.2002); see also Danielson v. Evans, 201 Ariz. 401, 411, ¶ 35, 36 P.3d 749, 759 (App.2001) (after finding appellate jurisdiction lacking, court sua sponte accepted special action jurisdiction).⁵ Accordingly, in our discretion, we exercise special action jurisdiction. SeeA.R.S. § 12–120.21(A)(4); Ariz. R.P. Spec. Act. 1(a).

II. Statutory Constructiona. Statutory Overview

¶ 8 It a misdemeanor “for a person to drive or be in actual physical control of a vehicle ... [w]hile there is any drug defined in [A.R.S.] § 13–3401 or its metabolite in the person's body.” A.R.S. § 28–1381(A)(3). Actual impairment is not required; driving with any detectible amount of any prohibited drug or its metabolite in the driver's body is a violation. Id.; see also State v. Hammonds, 192 Ariz. 528, 530–32, 968 P.2d 601, 603–05 (App.1998) (describing scope and purpose of statutory predecessor); State v. Phillips, 178 Ariz. 368, 370–72, 873 P.2d 706, 708–10 (App.1994) (same).

¶ 9 “Any drug” includes dozens of substances in three categories, ranging from methamphetamine to prescription drugs. SeeA.R.S. §§ 13–3401(6) (“Dangerous drug[s]”); (20) (“Narcotic drugs”) and (28) (“Prescription-only drug[s]”). The State need not show use of illegal drugs or abuse of prescription drugs to prove a violation. SeeA.R.S. § 28–1381(A)(3). Guilt may be established by proving “any drug” listed in 13–3401 or its metabolite was in a driver's body.

¶ 10 Section 28–1381(D) provides a narrow safe harbor for a defendant charged with violating 28–1381(A)(3). “A person using a drug as prescribed by a medical practitioner licensed pursuant to [A.R.S. T]itle 32, [C]hapter 7 [podiatrist], 11 [dentist], 13 [medical doctor] or 17 [osteopath] is not guilty of violating” 28–1381(A)(3). A.R.S. § 28–1381(D). We are asked to decide whether 28–1381(D) is an affirmative defense, a justification defense or a defense that denies an element of the charge or responsibility.

¶ 11 Fannin argues 28–1381(D) is a defense denying an element of the charge or responsibility as well as a justification defense or “akin to a justification” defense. Accordingly, Fannin claims the State has the burden to prove “beyond a reasonable doubt that the defendant did not act with justification.” A.R.S. § 13–205(A). The State argues 28–1381(D) is an affirmative defense, meaning Fannin has the burden to prove “by a preponderance of the evidence” that he did not abuse prescription drugs. Id. Applying a de novo standard of review, we hold the superior court properly found 28–1381(D) is an affirmative defense requiring a defendant to prove by a preponderance of the evidence that he or she did not abuse prescription drugs.

b. Statutory Construction Principles

¶ 12 “Our primary goal in construing a statute is to determine and give effect to the intent of the legislature.” State v. Barraza, 209 Ariz. 441, 444, ¶ 10, 104 P.3d 172, 175 (App.2005). We look first and foremost to the language of the statute as the best evidence of the legislature's intent, and we will ascribe the plain meaning to that language unless the context suggests otherwise. See Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996). “If ambiguity exists, we apply secondary principles of statutory construction and consider other relevant information, including the history, context, and spirit and purpose of the law, to glean legislative intent.” Vicari v. Lake Havasu City, 222 Ariz. 218, 222, ¶ 13, 213 P.3d 367, 371 (App.2009) (citations omitted).

c. Statutory Defenses Applicable to Criminal Charges

¶ 13 Defenses to criminal charges under Arizona law are statutory. A.R.S. § 13–103(A); State v. Cotton, 197 Ariz. 584, 587 n. 1, 5 P.3d 918, 921 n. 1 (App.2000) (noting 13–103 “abolish[ed] common law defenses”). Arizona's Criminal Code (A.R.S. Title 13) contains three types of defenses: (1) affirmative defenses (defenses “that attempt[ ] to excuse the criminal actions of the accused”); (2) justification defenses (“conduct that, if not justified, would constitute an offense but, if justified, does not constitute criminal or wrongful conduct”); and (3) defenses that deny an element of the charge or responsibility (“any defense that either denies an element of the offense charged or denies responsibility, including alibi, misidentification or lack of intent”). A.R.S. §§ 13–103(B), 205(A). ⁶ These three types of defenses are mutually exclusive. A.R.S. §§ 13–103(B) ( “Affirmative defense does not include any justification defense ... or any defense that either denies an element of the offense charged or denies responsibility[.]”), 205(A) (“Justification defenses ... are not affirmative defenses.”). Accordingly, if a defense does not deny an element or responsibility and is not a justification defense, it is an affirmative defense. A.R.S. § 13–103(B). Analysis of these defenses shows that 28–1381(D) is an affirmative defense.

i. Defenses Denying an Element or Responsibility

¶ 14 A defense “that either denies an element of the offense charged or denies responsibility, including alibi, misidentification or lack of intent,” A.R.S. § 13–103(B), asserts the State has failed to prove an element of a charged offense by proof beyond a reasonable doubt. See, e.g., State v. Rodriguez, 192 Ariz. 58, 63, ¶ 25, 961 P.2d 1006, 1011 (1998) (“A defendant is not required to prove an alibi; rather, the jury must acquit a defendant if the alibi evidence raises a reasonable doubt about whether the defendant committed the crime.”); State v. Rutledge, 205 Ariz. 7, 10, ¶ 11, 66 P.3d 50, 53 (2003) (similar for misidentification).⁷ Fannin does not argue here that 28–1381(D) constitutes an element of an offense under 28–1381(A)(3). Nor does the language of 28–1381(D) negate an element of such a charged offense. See Recommended Arizona Jury...