State v. Rivera
| Citation | 177 Ariz. 476,868 P.2d 1059 |
| Decision Date | 20 January 1994 |
| Docket Number | CA-CR,No. 1,1 |
| Parties | STATE of Arizona, Appellee, v. Louie Ortiz RIVERA, Appellant. 92-1762. |
| Court | Court of Appeals of Arizona |
Louie Ortiz Rivera (defendant) was found guilty by a jury of aggravated driving while under the influence of intoxicating liquor ("DUI"), a class five felony. The trial court imposed a seven-month term of unsupervised probation, and as a condition of probation, defendant was ordered incarcerated for not less than six months with the Department of Corrections with credit for six days time served. Timely notice of appeal was filed.
On the evening of September 18, 1991, the defendant was at the Hungry Hunter Restaurant in Yuma, Arizona, where he had a few beers at the bar. At some point in the evening, he was refused service because he was staggering when he walked, his speech was slurred, and his eyes were red and glassy. The assistant manager advised the defendant to get something to eat and not to drive, offering to call him a cab. The defendant told the manager that someone was picking him up in the parking lot, and he left the restaurant.
Thereafter, the defendant got into his car, backed into a parked vehicle, then into some landscaping, and then pulled forward, striking another parked vehicle as he drove away. A description of the vehicle and the direction of travel were given to the police by another restaurant patron who had witnessed the incident. A short time later, the defendant rear-ended another vehicle that was stopped at a red light at a nearby intersection. After both men exited their vehicles, the driver of the stopped vehicle noticed that the defendant was weaving when he walked, his speech was very slurred, and he generally appeared to have been drinking. After the two men pulled off the road, they exchanged information and then the other driver took the defendant's car keys and told him to walk home.
The police officer who had responded to investigate the hit-and-run incident at the Hungry Hunter was also called to the scene of the later rear-end collision. The defendant was approached by the police as he stood next to a parked and damaged vehicle which matched the description of the earlier hit-and-run vehicle. The defendant initially identified himself as Fred Sanchez, but later produced a temporary driver's license in the name of Louie Ortiz Rivera. The officer detected a strong odor of alcohol on the defendant and noticed that he was unstable on his feet, his eyes were watery, and his speech was slurred. After the defendant unsatisfactorily performed several field sobriety tests, he was placed under arrest for DUI.
A motor vehicle department investigator testified at trial to lay the foundation for the admission in evidence of several certified motor vehicle records, including: (1) defendant's first application for a driver's license under his legally changed name, Daniel Ortiz Rivera, dated August 26, 1981, (2) two orders of revocation of the driver's license for Daniel Ortiz Rivera, the last of which was dated January 21, 1987, and (3) defendant's second application for a driver's license under his birth certificate name, Louie Ortiz Rivera, Jr., dated December 20, 1988, which demonstrated defendant's failure to list the name under which he was previously licensed and also his denial of the revocation of that license.
The defendant testified at trial about the circumstances surrounding his application for a driver's license in his birth name, admitting that he had lied about his previous license revocation for insurance purposes. He testified that he did not inform the license examiner that he had a revoked license under the name of Danny Rivera, because he The defendant admitted that he had received the revocation notices contained in State's Exhibit # 5 and that he knew his license had been revoked. He also admitted that he was intoxicated on September 18, 1991, and that he had been driving the vehicle involved in the collisions that night. The jury found the defendant guilty as charged.
Defendant raises two issues for this court's review:
1) Did the trial court err in denying the motion for directed verdict on the element of defendant's license revocation since defendant had a valid license on the date of the offense?
2) Did the trial court err in denying defendant's requested jury instruction on the legal effect of a driver's license obtained upon a deliberate false statement by the applicant?
The focus of the defendant's argument on appeal is that his conviction for aggravated DUI is defective since he was driving on a valid, unrevoked driver's license on the date of his DUI offense. Defendant maintains that the license was valid, notwithstanding the false statement he made within the application filed to obtain that license. In support of his argument, defendant relies entirely upon the opinion in McDowell v. Davis, 8 Ariz.App. 33, 39, 442 P.2d 856, 862 (1968), a decision by this court in the context of a personal injury action. The holding in McDowell is inapplicable to this case and will not support a reversal of a DUI conviction.
In McDowell v. Davis, the court was presented with a negligence cause of action for injuries sustained in an automobile accident. Id. at 35, 442 P.2d at 858. The defendant driver was a minor who had lied about his age on his driver's license application, with his father's knowledge. At the time of the collision, the minor was driving his father's company car. Id. The injured plaintiff sought to recover damages from the father's company and vehicle owner under Ariz.Rev.Stat.Ann. ("A.R.S.") section 28-420 (1989), which imposes joint and several liability for damages in negligence upon a motor vehicle owner who knowingly permits an unlicensed minor to drive his car. (Emphasis added.)
In deciding whether the trial court had correctly directed a verdict on behalf of the company, the McDowell court found that the minor's wrongfully obtained license was not void, but was subject to cancellation by the Department of Motor Vehicles. Id. at 39, 442 P.2d at 864. More importantly, however, the court found no evidence to demonstrate that the company had any knowledge of the minor's wrongfully obtained license, and therefore, the directed verdict was proper. Id. at 40, 442 P.2d at 865.
The McDowell holding does not suggest that fraudulently obtained licenses are valid for all purposes. Such a reading would be particularly ludicrous in an action, such as this one, involving fraud upon the very entity from which the license was obtained.
Contrary to defendant's contention on appeal, civil law principles are not always applicable in the context of a criminal case. See State v. Reynolds, 171 Ariz. 678, 682, 832 P.2d 695, 699 (App.1992) (). Even if the holding in McDowell were not so narrow, the court would not have to look beyond the body of criminal case law for a resolution of the issue in this case.
As correctly pointed out by the state, the "license" itself is simply a piece of paper that represents some evidence of the privilege to drive a motor vehicle granted by the Arizona statutes. State v. Mitchell, 136 Ariz. 386, 388, 666 P.2d 486, 488 (App.1982), aff'd, 136 Ariz. 364, 666 P.2d 464 (1983). Thus, it is the suspension or revocation of the privilege to drive, and not the physical cancellation of the license, which is at the core of the offense of aggravated DUI. Id.
The license and accompanying privilege to drive when revoked by the state remains revoked indefinitely and will not be renewed or restored until the cause of the revocation has been removed by the application and issuance of a new license as provided by law. A.R.S. §§ 28-402(5); 28-448(B) (1989); State v. Stidham, 164 Ariz. 145, 147, 791 P.2d 671, 673 (App.1990). 1 The renewed application by the defendant, which contained an admittedly false representation, does not satisfy the statute's requirements and did nothing to restore the defendant's privilege to drive or remove the cause of his license revocation.
At trial, the state was required to prove that the defendant drove a motor vehicle under the...
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