State v. Smith, 263 P.3d 675

Smith was convicted by a jury of two counts of aggravated DUI arising from the same incident.
The trial court suspended imposition of sentence, placed Smith on three-year probation, and imposed four months’ imprisonment under A.R.S. § 28-1383(D)(1).
The state appeals the probation eligibility ruling; Smith cross-appeals the denial of a juror-for-cause strike and a jury instruction.
During voir dire, Juror T. indicated hearing difficulties but was seated and participated in verdicts.
The court treated Smith as a category of offender potentially ineligible for probation under § 13-703(A).
The court ultimately held Smith eligible for probation and remanded for resentencing; on appeal the court vacated probation and affirmed convictions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Was Juror T properly retained for service?	Smith contends for-cause strike was warranted due to hearing issues.	State contends Rubio waiver applies; no reversible error.	Waiver applies; no reversal on juror.
Did the jury instruction accurately state the law on under the influence and impairment?	Instruction merged under influence with impairment, misleading the standard.	No reversible error; instruction adequate and followed.	No basis to disturb conviction; no fundamental error.
Is Smith eligible for probation under § 13-703(A)?	Two felonies not both before the present offense but count as qualifying for enhancement.	Smith is a category one repetitive offender and ineligible for probation.	Smith ineligible for probation; remand for resentencing.

State v. Rubio, 219 Ariz. 177 (App. 2008) (waiver of juror challenges by not using peremptory strikes)
State v. Diaz, 223 Ariz. 358 (2010) (juror-capacity review; standard of review for supposed errors)
State v. Hauser, 209 Ariz. 539 (2005) (interpretation of historical prior felony convictions for enhancements)
State v. Alvarez, 205 Ariz. 110 (App. 2003) (structure of sentencing statutes and enhancements)
State v. Sepahi, 206 Ariz. 321 (2003) (statutory construction guidance for criminal penalties)
State v. Viramontes, 204 Ariz. 360 (2003) (plain-language interpretation of criminal statutes)