Weston v. State

• Decision Date: 01 March 1937
• Docket Number: Criminal 851
• Citation: Weston v. State, 65 P.2d 652, 49 Ariz. 183 (Ariz. 1937)
• Parties: ED WESTON, Appellant, v. STATE OF ARIZONA, Respondent
• Court: Arizona Supreme Court

65 P.2d 652

49 Ariz. 183

ED WESTON, Appellant, v. STATE OF ARIZONA, Respondent

Criminal No. 851

Supreme Court of Arizona

March 1, 1937

APPEAL from a judgment of the Superior Court of the County of Yavapai. Richard Lamson, Judge. Judgment affirmed.

Mr. A L. Hammond, for Appellant.

Mr. Joe Conway, Attorney General, Mr. W. E. Polley, Assistant Attorney General, and Mr. Charles L. Ewing, County Attorney for Respondent.

OPINION

McALISTER, C.J.

Ed Weston was convicted in the justice court of Prescott precinct on a complaint charging him with the crime of driving a motor vehicle on the public highways of the State of Arizona while under the influence of intoxicating liquor and from the judgment and sentence there imposed he appealed to the superior court of Yavapai county, where he was again found guilty and sentenced to a term of thirty days in the county jail. This last judgment and sentence he has brought here for review.

Under the provisions of section 5137, Revised Code 1928, a defendant may appeal from a final judgment of the superior court in a cause which has been appealed from a justice, police or recorder's court when the action involves the "validity of a tax, impost, assessment, toll, municipal fine or statute," and the appeal in this instance challenges the validity of the statute upon which this prosecution is based, chapter 33, Session Laws of 1935, reading as follows:

"Driving While Under Influence of Liquor or Drugs; Penalty. Any person under the influence of intoxicating liquor or narcotic drugs, or who is a habitual user of narcotic drugs, who shall drive any vehicle upon any highway within this state, shall be guilty of a misdemeanor, and punished by imprisonment in the county jail for not less than thirty nor more than ninety days. No judge may suspend imposition of sentence for a violation of this section, and if upon the conviction for three such offenses, the party convicted shall forfeit his driver's license." (Section 1.)

The contention of appellant is that the expression, "under the influence of intoxicating liquor," is so "vague, uncertain, incomprehensible and not defined" that it cannot form the basis of a criminal complaint because it does not meet the requirements of article 2, section 24, of the state Constitution, which provides that "In criminal prosecutions, the accused shall have the right to appear and defend in person, and by counsel, to demand the nature and cause of the accusation against him," etc. He claims that this language does not inform him of "the nature and cause" of the charge against him, because the word, "influence," may include imperceptible as well as perceptible influence, and that the legislature used it here in this broad sense. To satisfy this constitutional provision, however, it is necessary that the offense be defined in such a way that any person of ordinary intelligence may know to what extent or in what degree one must be under the influence of intoxicating liquor when driving a motor vehicle before his act may be held to constitute an offense. The contention is not that the many varying degrees in which a person may be influenced by intoxicating liquor should be set up, but that the definition of the offense should provide that such influence must be in at least a perceptible degree, and that since the word as here used makes no distinction between perceptible and imperceptible influence the law permits the penalizing of a person for using intoxicating liquor in a degree that does not perceptibly influence him and, therefore, constitutes an infringement of an inherent right and is void. The legislature probably never contemplated, he claims, that it was authorizing the conviction of a person who has indulged, for instance, to the extent of one drink only, yet, since it is universally understood and accepted by writers on the subject of intoxicating liquor that even that small quantity does influence a person in some degree, the loose way in which the statute is worded has this result, and this is true even though that one drink does not affect him perceptibly or cause him to act in any manner differently from the way he would have acted had he not taken it.

This statute is a police regulation and the purpose of the legislature in passing it was undoubtedly to make it an offense for anyone to drive a motor vehicle while under the influence of intoxicating liquor and, due to the fact that driving an automobile under these circumstances is such a menace to public safety, it intended to penalize anyone guilty of doing so regardless of how slight that influence might be. In Hasten v. State, 35 Ariz. 427, 280 P. 670, 671, the following language was used:

"It is a truism that a person who is even to the slightest extent 'under the influence of liquor,' in the common and well-understood acceptation of the term, is to some degree at least less able, either mentally or physically or both, to exercise the clear judgment and steady hand necessary to handle as powerful and dangerous a mechanism as a modern automobile with safety to himself and the public. With the increasing number and speed of automobiles on our highways and the appalling number of accidents resulting therefrom, it is not strange that the law-making power determined that any person, who of his own free will voluntarily lessened in the slightest degree his ability to handle such vehicles by the use of intoxicating liquor, should, while in such condition, be debarred from their use. The Legislature has placed no limitation on the extent of the influence required, nor can we add to...