Benitez v. Dunevant

plication of the section 8-341 classification warning to the facts of this case is

permissible peti- because its effect as to the procedural.

tioner is

Disposition judgment appeals 17 The of the court of affirmed, opinion and the of the court of

appeals is modified accordance with this

opinion. ZLAKET,

CONCURRING: THOMAS A. Justice, FELDMAN,

Chief STANLEY G.

Justice, MARTONE, FREDERICK J.

Justice, McGREGOR, and RUTH V. Justice. BENITEZ, Petitioner,

Daniel Paul III,

The Honorable Thomas DUNEVANT

Judge Court of the State Arizona, County in and for the

Maricopa, Respondent Judge, Office,

The Phoenix Prosecutor’s Party in

Real Interest.

No. CV-98-0540-PR. Arizona,

Supreme Court of

En Banc.

July

conviction, a driver’s license period” mandatory. an “additional like was jail, Benitez’ actual sentence was 48 hours in fine, 90-day suspension and a of his $1010 license, driver’s tacked on to his initial DUI suspension.

¶ 2 appealed Maricopa Benitez to the County Superior asserting right a to jury superior trial. The court ruled the of- ineligible by jury fense for trial and held that eligible, even had the offense found been untimely Benitez waived the issue as raised. brought special Benitez then action in the appeals, again arguing court that the of- jury eligible fense was and that it had not city been waived court. The court of court, appeals superior ruling reversed the the offense and remanded to city court for a on waiver. decision petitions State now this Court for review of jury question. granted We review and VI, jurisdiction pursuant have to article sec- 5(3) Constitution, tion of the Arizona Rule 23 Neal W. Bassett and Mariscal Weeks Appellate of the Arizona Rules of Pro- Civil McIntyre by PA Friedlander Dominica Mi- cedure, and A.R.S. section 12-120.24. Bassett, Phoenix, Attorneys nore Peti- charge 3 We hold that a trial on the tioner. 28-3473(B) violating (driving section on a McDougall, City Roderick G. Phoenix At- license) jury DUI driver’s is not Hanchett, torney by Gregory Tyler L. F. eligible. Accordingly, we vacate the court of Rich, Prosecutors, Phoenix, City Assistant decision, appeals’ affirm the decision of the Attorneys Party in for Real Interest. court, superior Benitez’ convic reinstate city tion and sentence in the Phoenix court. OPINION Applying Rothweiler/Dolny jury test for eligibility, the offense is not linked to a crime JONES, Vice Chief Justice: right jury associated with a common law History Facts and Procedural trial, evidencing is not a crime serious moral charged, 1 Daniel Paul Benitez was in- deficiency, nor is it one which carries such alia, violating ter with Arizona Revised Stat- compel jury severe as would trial. (A.R.S.) 28-3473(B) utes Annotated section Dolny, State ex rel. Dean v. (1998)1 driving a motor vehicle on a license (1989); Rothweiler — suspended for an earlier DUI violation. He Court, Ariz. was tried Phoenix Court without a violation,

jury guilty and found a class Discussion one Pursuant to misdemeanor. relevant sen- Rothweiler/Dolny I. The Test statutes, tencing the maximum sentence incarceration, jury eligibility available was six months’ The test for 13-707(A)(1) (1989), § requires inquiry and a fine of this state an into the seri A.R.S. 13-802(A) (1989). $2500, § offenses see A.R.S. Addi- ousness of the offense. “Serious” 28-3473(D)(l), jury eligible “petty” § tionally, upon under have been found while A.R.S. revoked, disqualified, person canceled or refused for a "A who drives a motor vehicle on public highway person’s privilege § statute] violation of 28-1381 ... is [the when the ” restricted, suspended, guilty .... drive a motor vehicle is of a class 1 misdemeanor 1195-96, See, ineligible. alone are vested with e.g., found courts offenses have been at 1195. authority to determine eli- constitutional dichotomy in the This is rooted Arizona Con gibility. II,

stitution. Article sections 28 and guarantee jury rights to all criminal defen Thus, do not attach a dants, respectively, right stating “[t]he merely legisla right felony, because the by jury trial “[i]n shall remain inviolate” and such, rather, ture has it as classified prosecutions, the accused criminal shall have test, because, right applying our own public speedy ... to have trial sufficiently attaches an offense II, impartial jury.....” an art. Const. protected serious or have at com would been guarantee §§ 23-24. The constitutional Similarly, law. mon we do not decline find grant, trial not a but a reservation simply jury eligibility a misdemeanor be See, pre-statehood right. of a e.g., United legislatively cause it has classified a been State, Fidelity States & Guar. Co. v. 65 Ariz. Rather, the misdemeanor. we look to conse 212, 823, 217, (1947); 177 P.2d 826 In re including penal quences of a the Davis, 312, 313, 715, 236 28 Ariz. P. 716 public as the impact, ties and their as well (1925). Thus, those offenses to linked act, condemnation to determine of the wheth trial law at the time at common the constitu any given er warrants a constitution offense protected by adopted tion was are the consti ally protected jury right. guarantee. petty tutional It is of because fenses were not triable at common ¶ 7 The three factors formulated in distinguish law that we continue to between jury eligibility Rothweiler to determine are: petty in and offenses the serious determina (a) relationship the of the offense to common of jury eligibility. tion crimes; (b) severity potential the law the of pre-Rothweiler In jury eligibility 5 statute; (e) by made available and cases, primarily we focused on common the quality the moral the offense. See of Roth right, law rather than on the of “seriousness” weiler, 47, 100 Ariz. at 410 P.2d at 486. Cousins, the offense. See State 105, 107-08, Davis, (1964); 397 P.2d 218 ¶8 application of these factors 716; 28 Ariz. at 236 P. at Bowden v. However, does follow a set formula. we 485, 486-87, Nugent, Ariz. 26 226 P. McDougall in held State ex rel. v. Strohson (1924). Rothweiler, 549-50 in recogniz But factor, severity the second the ing offenses, that some at com non-existent potential penalty maximum authorized law, comparable mon are nonetheless in both statute, significant. is 190 the most severity consequence jury eligible and to 1251, 1255(1997); see also crimes, three-part we formulated a test to 272-73, State, Bruce inquiry establish a more flexible into the (1980). such, 814-15 As once that question eligibility. 100 Ariz. established, right by jury is trial factor P.2d at 483. The test which of determines is conclusive. fenses approximate penalties, the conse quences, stigmas that and the would have ¶ Moreover, if an offense is jury right at common secured a law. We law, jury eligibility traceable to at common “petty” have used the term refer to non- firmly then the is also established may eligible The term crimes. cause confu even in the the other two absence of factors. sion, however, inconsistency due to the be The final factor —moral more judicial legis tween the term use of and the —is analysis requires careful flexible thus “petty,” lative of offenses classification However, application. its even the ab “misdemeanor,” “felony.” or A.R.S. See - factors, jury right of the sence other §§ (Supp.1999), (Supp.1999), 13-105 -701 involving turpitude present for crimes Although and -803 we accord grave potential or for crimes with for such designations legislative in deter deference they offense, see, consequences are considered mining e.g., seri the seriousness of an 299-300, eyes society. in the Ariz. at P.2d at ous Dolny 10 Rothweiler and jury eligible adhere to our cedent and is therefore not as a approach allowing jury protection flexible common law criminal offense. penalties, stigmas, crimes associated with which, consequences terms, in relative were Severity Penalty B. equivalent jury eligible crimes ac

knowledged prior adoption of the state ¶ 13 In accordance with Stroh Conversely, constitution the state son, severity penalty by assess urges adopt rigid us to the more federal test looking jail potential to the time and fines set making eligibility legislative, a function of legislature. judicial, rather than determination. offense, driving at 1255. Because the on a sector, any potential federal offense with a license, designated driver’s jail presumed term of six months or less is misdemeanor, class one we refer to the maxi petty, ineligible, thus unless the defendant imprisonment mum for a class one misde statutory can penal demonstrate additional meanor, months, 13-707, § six see A.R.S. that, incarceration, ties when combined with fine, $2500, § the maximum see A.R.S. 13- they legislative are so severe that reflect a 802(A).2 Whether a defendant in fact re determination that the offense is serious. immaterial; ceives the maximum sentences is Vegas, See Blanton v. North Las potential penalties. general we look to As a 538, 542-43, 109 1289, 1292-93, 103 U.S. S.Ct. rule, attendant to misdemeanor (1989). contrast, L.Ed.2d 550 we ex are, themselves, in offenses this state of not plained recently in Strohson that Arizona enough jury to secure a trial. See State ex operates jury eligibility awith broader stan rel. Baumert v. 127 Ariz. dard, providing greater its citizens with ac 155, (1980) (maxi 152, 1078, 618 P.2d 1081 cess to trials than the federal constitu mum six-month sentence and fine in 121-22, $1000 tion mandates. 190 Ariz. at 945 P.2d penalty 1980 did not establish severe at 1252-53. For the reasons in stated Stroh son, conduct); again reject disorderly Spitz Municipal the narrow federal v. test and reaffirm Rothweiler/Dolny Phoenix, 405, Arizona’s 408, Court 621 defer, prudence, test. As a matter of we will (1980) 911, (liquor suspen 914 license appropriate, legislative where standards selling liquor sion for eligi to minor not severity of an offense but the ulti reserve penalty ble where the was less than six jury eligibility mate determination of exclu months and the maximum fine was in $300 sively to the courts. 1980); 484, Mangum, O’Neill v. 485, (1968) (maximum 843, pen 844 Applying II. the Rothweiler Test alty of six months and fine for drunk $300 ¶ disorderly and conduct in Jury 1968 insufficient eligibility 11 focuses on the offense, Strohson, jury eligibility); Mungarro not the defendant. See see also 125, 190 1215, 1216 Ariz. at 945 P.2d at 1256. On the Riley, 170 Ariz. us, record before we look to our Rothweiler (App.1991) (possible prison six-month sen application three-part decision for the tence and fine did not make false $2500 test. reporting to a law officer though in turpitude moral inherent the of Relationship A. to Common Law Of- trial). justified jury fense the record On fenses us, applying precedent, before our own penalties imposed ¶ on Benitez are insufficient argue driving 12 Benitez does not by jury. to warrant trial The maximum fine suspended comparable on a DUI license is and incarceration in a ease of this nature crimes triable to a at common law. Clearly, simply no offense has common law ante- do not rise to that level. consequences implications 2. We treat of the driver’s li- cussion of the of a driver’s license factor, quality suspension stemming cense under the moral a DUI from severity penalty quality not the factor. We did the should be treated as a moral factor. Dol- 300, Dolny, declaring ny, same in that Rothweiler's dis- 161 Ariz. at 778 P.2d at 1196.

95 Quality Moral Benitez claims his violation involves least C. equivalent think he an moral infraction. We quality 14 Moral as an element of mischaracterizes Frederickson’s act. Leav the test is satisfied where the offense either ing the scene of an accident is a serious turpitude involves moral or causes such an injured jeop places which victims in offense impact liberty on the defendant’s life or as to ardy of further harm and evidences an intent sufficiently grave consequences constitute consequences to hide and evade the of one’s a matter of law. turpitude, act. moral Frederickson found accident, dishonesty Turpitude 1. Moral attempt which followed—his to conceal iden turpitude” 15 Acts of “moral tity prosecution, flee neither which “depraved constitute behavior which is Bautista, present People here. 217 See O’Neill, base,” 485, inherently 103 Ariz. at Cal.App.3d Cal.Rptr. 664-65 “adversely 445 P.2d at or actions which Horton, (1990); State v. S.C. honesty, integrity, person reflect on one’s 263, 263-64 S.E.2d al values.” n. offense, sense, 19 Benitez’ in one turpitude P.2d at 1196 n. 3. Crimes of moral question honesty does his because did he necessarily jury eligible are because the something expressly required by he was law “[d]amage humiliation, reputation, and loss virtually not to do. But this is true of all dignity beyond that associated with all offenses, criminal serious or minor. Accord brings turpitude crimes moral ... crimes ingly, offenses similar on into the realm of serious cases.” Id. at lacking license have been found 778 P.2d at 1196. turpitude. Such offenses include reck expo- 16 Such crimes include indecent driving, City less see State ex rel. Dean v. sure, Lee, Court Tucson v. Tucson, 687 P.2d 369 (1972), Ariz.App. solicitation minor, selling (App.1984), liquor to a see prostitution, Koch, 352, see In re 181 Ariz. Spitz, 405, 911, operating 127 Ariz. (1995), perjury, 890 P.2d 1137 see Harris v. license, without a contractor’s v. see State State, 311, (1933), 41 Ariz. 17 P.2d 1098 for- Miller, 294, 172 Ariz. (App. 836 P.2d 1004 id., fraud, Wines, gery, see see In re Kautz, 1992), assault, simple see Goldman 203, (1983), Ariz. 660 P.2d 454 misappro- 431, (1975), simple 111 Ariz. 531 P.2d 1138 priation funds, Couser, In see re 122 Ariz. violence, designated assault as domestic see 596 P.2d 26 Strohson, 945 P.2d at ¶ recognize To a verdict Baumert, conduct, disorderly see logically on such crimes is consistent with a 1078; O’Neill, 618 P.2d moral misconduct label. A must reflect may 445 P.2d 843. It be said that each bar, morality. societal The offense at sub- implicates crime the enumerated offender’s serious, stantially less does not offend socie- personal values, necessarily not moral his morality in perjury, prosti- tal the manner of turpitude implicated deficiencies. Moral tution, fraud, forgery. or morally repugnant when behavior is to soci ety. implicated It is not when the offense ¶ 18 Benitez nevertheless frames merely poor judgment, involves lack of self- turpitude, his one arguing offense as of moral control, disrespect involving or for the law that someone who “has been convicted of less crimes. serious intoxicated, driving while and while a under conduct, suspension intentionally ig for though driving suspended that 20 Even on a nores the law and continues drive” invites license for DUI does not reach the level of support, trial, moral deficiency required condemnation. he cites moral the appeals Frederickson v. court of reasoned that because DUI (App.1996). jury eligible, But Freder other DUI-based offenses proposition fleeing eligible. ickson stands for turpitude, that should also be But moral DUI, the scene of an accident is an offense of inherent in is absent from the offense turpitude. moral Id. at 928 P.2d at 698. before us. The Benitez’ suspended con- in Hawaii for a DUI license drunk-driving does not ex- original license than those available under subsequent violation of the viction are less tend to a statute, license sus- penalty. potential An offense meets suspension the Arizona jury eligibility on its requirements fails the pension period is the same. Confronted with own, with an- jury eligible, not because of its association precedent holding Hawaii O’Brien, other offense. 704 P.2d 68 Haw. State (1985), Supreme deter- the Hawaii Consequences 2. Grave suspended li- driving on a DUI mined that “grave and therefore cense differed from the turpi 21 An offense not of moral constitutionally offense” of drunk serious may be as tude nevertheless Wilson, (quoting driving. at 1244 depending explained Dolny, on the severi 887). O’Brien, 704 P.2d at The court did ty consequences to the defendant’s life. of the suspen- argues driving sus “condone the actions of DUI-license Benitez that on DUI grave conse to abide their pended license involves such sion violators who refuse Rely say jury right must attach. could their quences punishment, [but not] that a Rothweiler, is, itself, ing repeats he the contention in and of as seri- on continued jury eligible, then driv simple tragic problem if DUI is as those who drive ous and car ing a DUI license which the influence on or continue to drive while under fine, Wilson, prison potential and intoxicating liquor.” ries the same longer suspen potentially license applied well as test and 1244. The court its O’Brien sion, jury eligible. certainly be He must warrant trial that the offense did not held car potential license reasons, claims his reach a jury. same For the or, year, maximum of one four times ried a similar conclusion. 90-day suspension possible length argues grave Benitez further conse- in Rothweiler. quences by impact on his em- reason argu- this 22 The statute contradicts ability of one’s ployment. He claims the loss suspended license ment. A violation of the by deny- impact employment would to drive suspension for an “addi- requires statute to and from work. ing transportation 28-3473(D)(l), § period,” tional like A.R.S. argument, it leads Though an understandable longer peri- in a and thus could never result it the reason nowhere because renders Nonetheless, though suspension. od of apply to suspension immaterial. It would by a un- suspension faced defendant license any suspension, whether result license 28-3473(D)(l) may the same der be section any other vehicular a conviction or of Rothweiler, there are length as that faced offense. that differences between the factors clear suspend- a jury eligible and DUI make DUI ¶ recognize does not 26 This court ineligible. violation ed license right. Instead view it as a driving as a we ¶23 Rothweiler, we were concerned Harrison, 164 privilege. See State consequences the license just the of not with (“The (App.1990) 781 implications suspension, but with the moral nearly so serious or privilege a is not loss of Simply put, driving the influence. of under recognized of a as the loss burdensome suspended license driving a sober on DUI suspen recognize license right”). that We nor repugnancy moral does not reach the job of those who functions sion limits consequences of a conviction for deserve the living, cannot base a but we must drive for actually under the driving a vehicle while jury eligibility on the effects analysis of our influence of alcohol. occupation upon particular a of a eligibility ¶ determinable on Jury is Hawaii or field. Supreme 24 The offense, not the defendant. of the in v. Wil- the basis conclusion State reached the same (1993). consequences to the em with son, Ha- faced When 75 Haw. function, the courts must decide charge ployment a and between DUI waii’s distinction sufficiently wide the effects are instruc- whether violation is suspended a DUI license jury grave offense with spread to create a jail fine available Though the term and tive. /Dolny three-part I there ar- right. potential we not view the weiler test. Because do gued adopt clear and that we should driving privilege grave loss of the approach distinct established Blanton v. consequence, today we hold that the serious Vegas, North Las 489 U.S. inability get to to and from work created 103 L.Ed.2d 550 S.Ct. sup- of one’s license does not rationally The federal Blanton test can be port right by jury. to trial applied. only penalty to if the One looks and less, right is term is six months or there no III. Waiver jury trial unless there are additional se- ¶ 27 Because we conclude the offense of statutory penalties. vere driving with a license under sec- ¶ contrast, 32 In the standard articulated question tion not 28-1381 is in Rothweiler v. right the defendant waived the is whether (1966), expanded by and State moot. ex rel. Dean v. (1989) subjective impossible Conclusion apply on a consistent basis. The “moral jury eligibili- 28 The to determine quality component act” the Roth- of the ty is vested in the Arizona and courts of test, weiler/Dolny requires judges which law, continues to be based on the common predict culpability public at- the moral severity legislative act, penalty, guarantees of the applica- taches to an that its quality question. tion will have irrational results. Because the the moral the crime eye “moral of the act” is in the Applying this test to the violation of beholder, many there will be as diverse re- 28-3473(B) (driving section on a license sus- judges. sults as there are statute), pended for violation of the DUI defendant, 33 This means any hold that the offense is linked counsel, and the court will never know jury eligible which would have been at com- beginning jury sure at the of trial whether a law, mon available for the of- inconsistency must be convened. And the fense do not rise to the level of seriousness stop Each does not there. member of this trial, as would mandate a and that the Compare, court lens. wears different implicate offense does not the moral element Rothweiler, example, in which this court held turpi- because it is neither a moral crime of charge driving that the under the influ- may grave tude a crime nor which result trial, to a ence entitles one with Stroh- consequences. son, charge in which this court held that a appeals’ opinion court is va- domestic violence assault does not entitle one cated, superior the decision of the court is say trial. Who is to that domestic affirmed, and the conviction and sentence morally culpable violence less than imposed by people, through Municipal the Phoenix Court are under the influence? The representatives, their elected should decide reinstated. why questions. grada- such That is we leave conduct, ZLAKET, judgments, tions of criminal CONCURRING: THOMAS A. legislature. and sanctions to the When Justice, Chief and STANLEY G. role, judges majority assume this as the does FELDMAN, Justice. ¶23 here, ante, (“driving at sober on a MARTONE, Justice, concurring in the license does not reach the judgment, dissenting opinion. from the repugnancy nor deserve the conse- ¶31 quences of a conviction for a vehicle agree I that Benitez is not entitled actually while under the influence of alco- misdemeanor, to a trial for this hol”), always unpredict- results will be majority. reasons stated able. Strohson, McDougall ex rel. State (1997) P.2d, 1251, Today’s prime example decision is (Martone, concurring judgment), I Blanton, then, J. rejects of that. The court length my had analysis stated at view that time after a detailed of the Rothweiler test, subjective ultimately concludes that no trial is come for us to abandon the Roth- yet, you opinion required. if look at the And appeals, court of 1017, applying the same Rothweiler

test, you plausible approach that will see a Then opposite

reaches the exact conclusion. appeals,

turn to the dissent in the court of yet to see approach under Rothweiler. The re-

another an ultimate determi-

sult is that until there is court, by majority of this one can

nation jury.

never know whether one is entitled quilt defies rea- patchwork

The we create analysis.

soned

¶35 would, therefore, I for the reasons greater length my concurring

stated at Strohson,

opinion in inter the Rothweiler adopt Blan

/Dolny three factor test and test, our that Beni

ton test as own. Under by jury trial

tez is not entitled to a because period

the maximum of incarceration for his months,

offense cannot exceed six and there statutory penalties” no

are “additional clearly they reflect a

are “so severe”

legislative determination that the offense Blanton,

question is a ‘serious one’.” 543, 109 at 1293.

U.S. at S.Ct. McGREGOR,

CONCURRING: RUTH Y.

Justice. DOE, on Behalf of and for the

Jane DOE, her Benefit of John minor

child, Plaintiffs-Appellants, District,

Gilbert Unified School entity; governmental

Defendant-Appellant, Arizona, governmental STATE

entity, Defendant-Appellee.

No. 1 99-0453. CA-CV Arizona, Appeals 1, department D. Division 8, 2000.

June Dec.

Review Granted

Case Details

Case Name: Benitez v. Dunevant

Court Name: Arizona Supreme Court

Date Published: Jul 31, 2000

Citation: 7 P.3d 99

Docket Number: CV-98-0540-PR

Court Abbreviation: Ariz.