State v. Poshka

• Decision Date: 01 April 2005
• Docket Number: No. 2 CA-CR 2003-0123.,2 CA-CR 2003-0123.
• Parties: The STATE of Arizona, Appellee, v. Tyla Naureen POSHKA, Appellant.
• Court: Arizona Court of Appeals

109 P.3d 113

210 Ariz. 218

The STATE of Arizona, Appellee, v. Tyla Naureen POSHKA, Appellant.

No. -0123.

Court of Appeals of Arizona, Division 2, Department B.

April 1, 2005.

Terry Goddard, Arizona Attorney General, By Randall M. Howe and Alan L. Amann, Tucson, for Appellee.

Isabel G. Garcia, Pima County Legal Defender, By Alex D. Heveri, Tucson, for Appellant.

OPINION

ESPINOSA, J.

¶ 1 Appellant Tyla Poshka was convicted after a jury trial of one count of aggravated driving under the influence of alcohol (DUI) with a suspended or revoked driver's license and one count of aggravated driving with a blood alcohol concentration (BAC) of .08 or more with a suspended or revoked driver's license. The trial court suspended the imposition of sentence and imposed concurrent, five-year terms of probation. Poshka contends the legislature's amendment to A.R.S. § 28-1381 is unconstitutionally vague and overbroad and violates her due process rights. Finding no constitutional infirmity to the statute, we affirm.

Factual and Procedural History

¶ 2 We view the facts in the light most favorable to sustaining the jury verdicts and resolve all reasonable inferences against the appellant. See State v. Riley, 196 Ariz. 40, 992 P.2d 1135 (App.1999)

. Tucson Police Officer Nielsen stopped Poshka late one evening in August 2002 after he observed her make an improper, wide right turn. He noticed that her eyes were bloodshot and watery, her face was flushed, and her speech was slurred. He also noticed the odor of alcohol on her breath. Poshka admitted she did not have a license and had been drinking. After she stepped out of the car, Nielsen noticed she swayed back and forth as she stood. She exhibited six out of a possible six cues on the horizontal gaze nystagmus test that Nielsen administered, and he then arrested her. The results from breath tests, taken minutes apart, indicated that her BAC was .099 and .094.

Constitutionality of A.R.S. § 28-1381

¶ 3 Poshka challenges the constitutionality of the statute under which she was convicted, § 28-1381, on the grounds that it is both vague and overbroad. We review de novo the constitutionality of a statute, State v. McMahon, 201 Ariz. 548, 38 P.3d 1213 (App.2002), and, if possible, construe the statute to give it a constitutional meaning. State v. Bonnewell, 196 Ariz. 592, 2 P.3d 682 (App.1999); see State v. Klausner, 194 Ariz. 169, 172, 978 P.2d 654, 657 (App.1998)

("We will uphold a statute if we can imagine any set of facts which rationally justifies it."). Subsection (A)(2) of § 28-1381 provides, in relevant part, that it is unlawful for a person to drive a vehicle if that person "has an alcohol concentration of .08 or more within two hours of driving ... and the alcohol concentration results from alcohol consumed either before or while driving."

Vagueness

¶ 4 Poshka first argues the statute fails to provide adequate notice of the conduct it prohibits and permits arbitrary and discriminatory enforcement, making the law unconstitutionally vague. Both arguments are grounded in the statute's alleged deficiency whereby, Poshka maintains, a person of ordinary intelligence is unable to know the precise moment when his or her BAC has reached the prohibited level of .08, because various factors affect the rate and time at which alcohol is absorbed into one's bloodstream.

¶ 5 A statute is unconstitutionally vague if it fails to provide "person[s] of ordinary intelligence a reasonable opportunity to know what is prohibited" and fails to contain explicit standards of application to prevent arbitrary and discriminatory enforcement. Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222, 227 (1972); State v. Brown, 207 Ariz. 231, 85 P.3d 109 (App.2004). As the state notes, in Fuenning v. Superior Court, 139 Ariz. 590, 680 P.2d 121 (1983), our supreme court addressed and rejected an argument virtually identical to the one Poshka poses here. In Fuenning, the defendant challenged the basic DUI statute in existence at the time of his arrest, former A.R.S. § 28-692, which proscribed driving "while there is .10 per cent or more ... of alcohol in the person's blood." Rejecting the concept that the statute inhibits any fundamental constitutional right, such as a right to ingest alcohol and then drive a vehicle, the court applied a traditional "vagueness" analysis and determined that, because the statute provided fair notice of what constituted a punishable BAC level, "it should not be declared void for vagueness simply because it may be difficult for the public to determine how far they can go before they are in actual violation" of the law. Fuenning, 139 Ariz. at 598, 680 P.2d at 129. The court further explained:

While [a] driver may not be able to determine that his BAC is .10%, rather than .099%, such precision is not required to prevent the statute from being declared vague. Due process requires neither perfect notice, absolute precision nor impossible standards. It requires only that the language of a statute convey a definite warning of the proscribed conduct.

Id.¹

¶ 6 We can discern no meaningful difference between the argument Poshka now makes and the one addressed in Fuenning. And Division One of this court has likewise rejected a vagueness challenge to former § 28-692(A)(2). State v. Martin, 174 Ariz. 118, 122, 847 P.2d 619, 623 (App.1992) (proscription against driving with a BAC of .10 or greater within two hours of driving, "when read as a whole, precisely defines the conduct that subjects a person to imposition of a criminal sanction"). We, therefore, reject Poshka's contention that § 28-1381 provides inadequate notice of the conduct it proscribes.

¶ 7 Poshka also claims the statute permits arbitrary and discriminatory enforcement because an individual's BAC result can vary depending on the time the test is performed, investing in police officers "unfettered discretion" in determining when to perform the test to maximize the likelihood of a higher BAC result. See Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 1858, 75 L.Ed.2d 903, 909 (1983)

(statute is impermissibly vague if it delegates to law enforcement officers "virtually complete discretion" in determining whether statutory violation occurred). In response to a similar argument, the court in Fuenning acknowledged that "results from a test administered after a significant period of time... or which are subject to other factors creating scientific inaccuracy" may inject evidentiary problems, but the court determined that those are matters for the fact-finder to resolve, and rejected the contention. That reasoning is applicable here.

¶ 8 Moreover, as the state observes, the statute proscribes driving with a BAC of .08 or greater "within two hours of driving." § 28-1381(A)(2). Rather than being susceptible to arbitrary enforcement, the statute's terms are unambiguous and precise in identifying the prohibited conduct — having a BAC of .08 or higher within two hours of driving a vehicle. Far from being vague, the two-hour provision satisfies due process by advising that criminal penalties exist for those who risk getting behind the wheel of a car after consuming a substantial amount of alcohol. Martin. We therefore disagree with Poshka that the statute's terms are so inexplicit as to grant law enforcement officers an undue measure of discretion. Cf. Kolender, 461 U.S. at 353,

103 S.Ct. at 1856,

75 L.Ed.2d at 906 (statute allowing officers to arrest loiterers who fail to provide "credible and reliable" identification deemed unconstitutionally vague due to officers' unbridled discretion in assessing identification's sufficiency). Accordingly, we reject Poshka's challenges on vagueness grounds to § 28-1381.

Overbreadth

¶ 9 Poshka also contends § 28-1381 is unconstitutionally overbroad, insisting that, because "driving with a BAC under.08 is not expressly illegal, the legislature cannot make it so by testing the defendant two hours later," and that to do so casts "too wide a net" that includes both illegal and legal conduct. See Brown (overbroad statutes are ones designed to punish activities that are not constitutionally protected, but include within their scope activities that are constitutionally protected). As the state correctly observes, however, Poshka lacks standing to bring an overbreadth claim here because she has not alleged that § 28-1381(A)(2) "substantially infringes upon protected First Amendment freedoms or that [s]he is a member of a class of `innocent defendants.'" Martin, 174 Ariz. at 123, 847 P.2d at 624; see Brown. In response to an identical argument made in Cacavas v. Bowen, 168 Ariz. 114, 811 P.2d 366 (App.1991), we held that, because the petitioners' challenge to the DUI statute did not implicate First Amendment rights, they were without standing to challenge the statute as unconstitutional when applied to parties who were not before the court. See Cacavas, 168 Ariz. at 118,

811 P.2d at 370 ("We do not believe that either drinking or driving are fundamental rights."). Therefore, we do not address this argument further.

Elimination of Affirmative Defense in § 28-1381(C)

¶ 10 Until recently, § 28-1381 contained, in relevant part, the following additional provision:

It is an affirmative defense to a charge of a violation of subsection A, paragraph 2 of this section if the person did not have an alcohol concentration of 0.10 or more at the time of driving.... If a defendant produces some credible evidence that the defendant's alcohol concentration at the time of driving ... was below 0.10, the state must prove beyond a reasonable doubt that the defendant's alcohol concentration was 0.10 or more at the time of driving....

See 2000 Ariz. Sess. Laws, ch. 153, § 1. The legislature had removed that portion of the statute by the time Poshka committed her offenses. See 2001 Ariz. Sess. Laws, ch. 95, § 5. Poshka argues, as she did below in a motion to dismiss the...