Case Information
*1 FILED BY CLERK JAN 31 2013 IN THE COURT OF APPEALS STATE OF ARIZONA COURT OF APPEALS DIVISION TWO DIVISION TWO THE STATE OF ARIZONA, )
) 2 CA-CR 2012-0099 Appellant, ) DEPARTMENT B )
v. ) O P I N I O N )
SCOTT ALAN COLVIN, )
)
Appellee. )
) APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cаuse No. CR20103857001 Honorable Clark W. Munger, Judge REVERSED AND REMANDED Barbara LaWall, Pima County Attorney
By Nicolette Kneup Tucson
Attorneys for Appellant Vernon E. Peltz Tucson
Attorney for Appellee
E S P I N O S A, Judge. Appellee Scott Colvin was charged with two counts of aggravated driving
under the influence of an intoxicant (DUI), two counts of aggravated driving with a blood alcohol concentration (BAC) оf .08 or greater, and aggravated assault on a peace officer. *2 The trial court dismissed the DUI- and BAC-related charges that were aggravated based on Colvin having had two or more prior DUI violations, concluding his California DUI convictions could not support aggravated DUI- and BAC-related charges in Arizona. The state appeals, arguing the counts should not have been dismissed because Colvin’s California convictions constituted “acts in another jurisdiction that if committed in this state” would be a violation of Arizona’s DUI lаws. A.R.S. § 28-1383(A)(2). We agree and accordingly reverse.
Factual and Procedural History
¶2
We view the facts in the light most favorable to sustaining the trial court’s
ruling.
State v. Chavez
,
untimely and counts three and four of the indictment dismissed because California’s DUI statute allows for a conviction under circumstances that would not constitute DUI in Arizona. In a “Memorandum to the Court Re: Remedies,” the state pointed out it could *3 have waitеd until trial to ask for an evidentiary ruling, the trial court had discretion to hear the untimely motion before trial rather than hear piecemeal objections during trial, and the indictment had provided Colvin with adequate notice the state would introduce the California convictions. The state also had filed an “Allegation of Prior DUI Conviction.”
¶4
At the subsequent status conference, the trial court dismissed counts three
and four, concluding the mere fact of the California convictions was insufficient to find
that the underlying acts satisfied the elеments of the relevant Arizona DUI statutes. The
court found the two states’ statutes were not identical because the Arizona statute
requires proof of impairment whereas the California statute has no such requirement on
its face. Citing
People v. Canty
,
Discussion
The state cоntends the trial court erred in finding that California DUI
convictions do not qualify as prior convictions under § 28-1383(A)(2). We review an
order dismissing criminal charges for an abuse of discretion.
State v. Galvez
, 214 Ariz.
154, ¶ 16,
¶6 We first address Colvin’s contention that the trial court was required to preclude the state’s Motion for Legal Determination of Prior DUI Convictions, regardless of the merits, because it was untimely filed, based on Rule 16.1, Ariz. R. Crim. P. That rule provides, in part, “All motions shall be made no later than 20 days prior to trial, or at such time as the court may direct.” Ariz. R. Crim. P. 16.1(b). If a motion is untimely, Rule 16.1(c) prescribes that it “shall be precluded” unless subject to certain exceptions not applicable here. Colvin contends, as he did below, that the state’s motion, filed the day before trial, was untimely and Rule 16.1(c) mandated that the court preclude it. He further maintains that with the evidence of the California priors excluded, dismissal of counts three and four was requirеd. Trial courts have discretion to extend the time for filing motions and,
implicitly, to hear untimely motions.
State v. Vincent
, 147 Ariz. 6, 8, 708 P.2d 97, 99
(App. 1985);
see also State v. Cramer
, 174 Ariz. 522, 523, 851 P.2d 147, 148 (App.
1992) (finding no abuse of discretion where court considered untimely motion because
state could have objected to defense evidence at trial and because court has pоwer to
extend filing time);
State v. Zimmerman
,
consider whether the court correctly concluded Colvin’s California convictions did not support counts three and four of the indictment. Section 28-1383 provides, in relevant part:
A. A person is guilty of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs if the person does any of the following: . . . .
2. Within a period of eighty-four months commits a third or subsequent violation of [A.R.S.] § 28-1381, § 28-1382 or this section or is cоnvicted of a violation of § 28-1381, § 28-1382 or this section and has previously been convicted of any combination of convictions of § 28-1381, § 28-1382 or this section or acts in another jurisdiction that if committed in this state would be a violation of § 28-1381, § 28-1382 or this section.
The court concluded that a person may be convicted of DUI in California without necessarily having committed acts that would support a DUI conviction in Arizona and that Colvin’s California convictions therefore could not be the basis of the aggravated- DUI convictions in this casе. We therefore must compare California’s and Arizona’s respective DUI laws to determine whether a conviction in California necessarily would mean the defendant had committed “acts . . . that if committed in this state would be a violation of § 28-1381.” § 28-1383(A)(2). Section 23152(a) оf California’s Vehicle Code provides, in relevant part:
It is unlawful for any person who is under the influence of any alcoholic beverage or drug, or under the combined influence of any alcoholic beverage and drug, to drive a vehicle.
Arizona’s genеral DUI statute, § 28-1381(A)(1), provides in relevant part as follows:
A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:
1. While under the influence of intoxicating liquor, any drug, a vapor releasing substаnce containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree.
Colvin correctly points out that “[t]he California statute does not require that a driver under the influence be impaired to any degree, while the Arizona statute has th[at] additional element.” Nevertheless, that the Arizona statute contains an additional element does not end our inquiry. As noted above, the question under § 28-1383(A)(2) is whether Colvin committed “acts” in California that, if committеd in Arizona, would be a violation of § 28-1381. Thus, although we do not examine the underlying factual basis, we must determine whether there is any scenario under which it would have been legally possible for Colvin to have been convicted of a violation of § 23152 but not of § 28-1381. Cf. State v. Crawford , 214 Ariz. 129, ¶ 7, 149 P.3d 753, 755 (2007) (“Before using a foreign conviction for sentencing enhancement purposes under [A.R.S.] § 13-604, the superior court must first conclude that the foreign conviction includes ‘every element that would be required to prove an enumerated Arizona offense.’”), quoting State v. Ault , 157 Ariz. 516, 521, 759 P.2d 1320, 1325 (1988). This inquiry requires us to examine California’s DUI law as a whole, not merely its statutes in isolation. See State v. Henry , 176 Ariz. 569, 587, 863 P.2d 861, 879 (1993) (citing California case law to show physical violence not required under California’s involuntary manslaughter statute, in contrast to analogous Arizona statute). Consequently, we will not, as Colvin suggests, ignore casе law that is germane to the determination of whether his California convictions were based on acts that would have violated Arizona’s DUI laws. Although California’s § 23152(a) would allow conviction of any person
driving a vehicle “under the influence of any alcoholic beverage or drug,” the California
Court of Appeal held in
People v. Weathington
,
for driving with an alcohol concentration of .08 or above would necessarily constitute а violation of § 28-1381(A)(2). California’s § 23152(b) provides:
It is unlawful for any person who has 0.08 percent or more, by weight, of alcohol in his or her blood to drive a vehicle.
Section 28-1381(A)(2) provides:
A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances:
. . . .
2. If the person has an alcohol concentration of 0.08 or more within two hours of driving or being in actual physical control of the vehicle and the alcohol concentration results from alcohol consumed either befоre or while driving or being in actual physical control of the vehicle.
California’s statute prohibits having a BAC of .08 at the time of driving. Arizona’s statute prohibits having a BAC of .08 within two hours of driving or being in actual physical control, which includes at the time of driving. Our statute therefore includеs all conduct prohibited by the California statute because, if a person has a BAC of .08 at the time of driving as required in California, he necessarily has a BAC of .08 within two hours of driving, as required in Arizona. Thus, the conduct that was the basis for Colvin’s California conviction also would сonstitute a violation of § 28-1381(A)(2). Colvin’s assertion that “a person could have a BAC of 0.08 within two hours of driving, but not a BAC of 0.08 at the time of driving,” is not persuasive because the question here is whether the conduct that gave rise to the California conviction would constitute a DUI оffense in Arizona, not the converse. [1] Consequently, Colvin’s argument is without merit, and the trial court abused its discretion in dismissing the charges.
Disposition Because Colvin’s convictions in California punished “acts . . . that if committed in this state would be a violation of § 28-1381,” the dismissal of counts three and four оf the indictment was erroneous. See § 28-1383(A)(2). Accordingly, the order of dismissal is reversed, and this matter is remanded for reinstatement of those counts.
/s/ Philip G. Espinosa PHILIP G. ESPINOSA, Judge CONCURRING:
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge
however, does not change the relevant element of the offense, which requires the finder of fact to сonclude the person’s BAC was .08 or more at the time of driving. Id. ; see State v. Martinez , 202 Ariz. 507, ¶ 11, 47 P.3d 1145, 1147 (App. 2002) (presumption does not constitute element of offense).
Notes
[1] Although not raised by either party, we note the California statute creates a rebuttable presumption that a person’s BAC was .08 or above at the time of driving if his BAC was at least .08 within three hours after driving. § 23152(b). This presumption,