State v. Gonzales
| Decision Date | 02 December 2003 |
| Docket Number | No. 1 CA-CR 02-0971.,1 CA-CR 02-0971. |
| Citation | 206 Ariz. 469,80 P.3d 276 |
| Parties | STATE of Arizona, Appellee, v. Christopher Leroy GONZALES, Appellant. |
| Court | Arizona Court of Appeals |
Terry Goddard, Attorney General By Randall M. Howe, Chief Counsel, Criminal Appeals Section and Jon G. Anderson, Assistant Attorney General, Phoenix, Attorneys for Appellee.
James J. Haas, Maricopa County Public Defender By Anna M. Unterberger, Deputy Public Defender, Phoenix, Attorneys for Appellant.
¶ 1 Pursuant to the express language of Arizona Revised Statutes (A.R.S.) section 28-3318(D) (1998), We hold that the rebuttable presumption of receipt of notice authorized in A.R.S. § 28-3318(D) that applies in the case of the "suspension" or "revocation" of a driver's license also applies in the case of the "cancellation" of a driver's license. The trial court did not err by instructing the jury to that effect. We affirm the defendant Christopher Leroy Gonzales' convictions and sentences for two counts of aggravated driving under the influence of intoxicating liquor (DUI).
¶ 2 The defendant was charged with two counts of aggravated DUI, class 4 felonies, stemming from an incident that occurred on February 3, 2002. The charges were aggravated pursuant to A.R.S. § 28-1383 (Supp. 2002) because the defendant was driving on a cancelled driver's license at the time he was arrested for DUI. In relevant part, A.R.S. § 28-1383(A)(1) provides that DUI charges are aggravated if committed "while the person's driver license or privilege to drive is suspended, cancelled, revoked or refused or while a restriction is placed on the person's driver license or privilege to drive as a result of violating § 28-1381...." Arizona Revised Statutes section 28-1383(C) provides that "[t]he notice to a person of the suspension, cancellation, revocation or refusal of a driver license or privilege to drive is effective as provided in § 28-3318...."
¶ 3 At trial, Jerald Ploium, an investigator and deputy custodian of records for the Motor Vehicle Division of the Arizona Department of Transportation (MVD), testified for the State that the MVD cancelled the defendant's driver's license on May 12, 1999. According to Ploium, the MVD had determined that problems with the defendant's driver's license status in a sister state made him ineligible for the Arizona license that he had applied for a few days prior to the cancellation. Ploium also disclosed that at no time after the defendant's driver's license was cancelled did the defendant take steps to obtain a new license. He then testified that the MVD's records revealed that the cancellation notice had been sent by first-class mail to the defendant at the address he had given on his application. This is the same address where the defendant was living at the time of his arrest.
¶ 4 The defendant's testimony was that he did not receive the notice and had no knowledge of the cancellation. Ploium conceded that the MVD's records do not show whether the defendant had actually received the cancellation notice.
¶ 5 While discussing jury instructions, defense counsel asked the trial court for an instruction that would inform the jury that in order to prove aggravated DUI based on a driver's license cancellation, the addressee must have actually received notice of the cancellation or have actual knowledge of the cancellation. The trial court rejected the requested instruction and instead instructed the jury that service of the notice of the cancellation was complete upon mailing it to the address provided by the defendant on his application for the license. If the State is able to prove that notice was mailed to the defendant, it is presumed that it was received and that the defendant has knowledge of the cancellation. The court also instructed the jury that the presumption could be rebutted by the defendant.
¶ 6 The jury convicted the defendant of both counts as charged. The trial court suspended the imposition of the sentences and placed the defendant on seven years' intensive probation, on the condition that he serve a four-month term of imprisonment for each count, to be served concurrently. The defendant filed a timely notice of appeal with this Court.
¶ 7 On appeal, the defendant contends that the trial court erred by refusing to instruct the jury that the State needed to prove that the defendant actually received the notice of cancellation or had actual knowledge of the status of his license. The defendant contends that the trial court improperly interpreted the language found in A.R.S. § 28-3318(D). Our review of the issue is de novo. See State v. Orendain, 188 Ariz. 54, 56, 932 P.2d 1325, 1327 (1997) (); Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996) ().
¶ 8 The statute in question is A.R.S. § 28-3318 (1998), which is contained in Article 6 of Title 28 of Arizona's statutes. Article 6, comprised of §§ 28-3301 to -3320 (1998 & Supp.2002), provides for the regulation of drivers' licenses by the MVD. Within Article 6, A.R.S. § 28-3301 (Supp.2002) deals with license cancellation. The topic of disqualification of commercial drivers' licenses is handled in A.R.S. § 28-3312 (Supp.2002). Provisions for suspension and/or revocation of licenses on various grounds are contained in several of the other sections including §§ 28-3302 to -3311. As the latter sections reveal, revocations are mandatory under certain circumstances and discretionary under others.
¶ 9 According to A.R.S. § 28-3318, notice is provided when the MVD institutes an action affecting the status of a driver's license. Section 28-3318(A)(1) broadly provides that written notice shall be provided for "[a] suspension, revocation, cancellation, or disqualification of the license or privilege to operate a motor vehicle." Subsection (B) specifies that the notice is to be sent "by mail to the address provided to the department on the licensee's application or provided to the department pursuant to § 28-448." Subsection (C) provides that "[s]ervice of the notice provided by this section is complete on mailing." It also provides that no other service of notice is required unless the MVD has been notified of a change of address. A.R.S. § 28-3318(C).
¶ 11 The defendant argues that when interpreting subsection (D), we should conclude that the legislature intended to relieve the state of the burden of proving actual receipt or notice with respect to suspension or revocation, but not with respect to cancellation or disqualification. The defendant urges this Court to use the rule of expressio unius est exclusio alterius, which is a rule of statutory construction meaning the expression of one thing is the exclusion of another. State v. Roscoe, 185 Ariz. 68, 72, 912 P.2d 1297, 1299 (1996). We also consider the application of another rule of statutory construction, which states that "[w]hen the legislature has specifically included a term in some places within a statute and excluded it in other places, courts will not read that term into the sections from which it was excluded." Luchanski v. Congrove, 193 Ariz. 176, 177, ¶ 14, 971 P.2d 636, 639 (App.1998) (citing Ariz. Bd. of Regents ex rel. Univ. of Ariz. v. Ariz. Pub. Safety Ret. Fund Manager Adm'r, 160 Ariz. 150, 157, 771 P.2d 880, 887 (App.1989)).
¶ 12 Despite the foregoing, we must bear in mind that canons of statutory construction should never be applied "when the general context of the statute and the public policy of the state contradict it." Forsythe v. Paschal, 34 Ariz. 380, 383, 271 P. 865, 866 (1928). Indeed, "[t]he cardinal rule of statutory interpretation is to determine and give effect to the intent of the legislature." Luchanski, 193 Ariz. at 178, ¶ 9, 971 P.2d at 638. In addition, we are guided by the rule that "[s]tatutes must be given a sensible construction that accomplishes the legislative intent and which avoids absurd results." Ariz. Health Care Cost Containment Sys. v. Bentley, 187 Ariz. 229, 233, 928 P.2d 653, 657 (App.1996). Although we look first to the language in question to determine its meaning, "[w]hen the statute's language is not clear, we determine legislative intent by reading the statute as a whole, giving meaningful operation to all of its provisions, and by considering factors such as the statute's context, subject matter, historical background, effects and consequences, and spirit and purpose." Zamora, 185 Ariz. at 275,915 P.2d at 1230.
¶ 13 When reading subsection (D) of A.R.S. § 28-3318 in context with (1) the other provisions of the statute, (2) the other statutes making up Title 28, Article 6, and...
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