State v. MartinState v. Martin
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- Before:
- Toci
OPINION
TOCI, Judge.A jury convicted defendant in Phoenix Municipal Court of driving a motor vehicle while under the influence of intoxicating liquor. Two principal issues are presented on appeal: (1) whether Ariz.Rev.Stat.Ann. (“A.R.S.”) section 28-692(A)(l) (driving under the influence) 1 and section 28-692(A)(2) (having a blood alcohol concentration (“BAC”) of 0.10 within two hours of driving) 2 are unconstitutionally vague; and (2) whether section 28-692(A)(2) is unconstitutionally overbroad.
We hold that because A.R.S. sections 28-692(A)(1) and (A)(2) provide a person of normal intelligence a reasonable opportunity to know what is prohibited and thus establish an objective standard of enforcement, neither is unconstitutionally vague. Further, we hold that because the defendant does not allege that the statute substantially infringes upon protected First Amendment freedoms or that he is a member of a class of “innocent defendants,” he has no standing to raise, on behalf of others, an overbreadth challenge to section 28-692(A)(2).
FACTUAL AND PROCEDURAL HISTORY
The Phoenix City Police arrested defendant and charged him with driving while under the influence of alcohol and having a blood alcohol level of 0.10 within two hours of driving a vehicle, in violation of A.R.S. sections 28-692(A)(l) and (A)(2). Defense counsel filed a motion to dismiss the section 28-692(A)(l) charge for vagueness and the 28-692(A)(2) charge for both vagueness and overbreadth. The court denied the motion.
As a result of defendant’s arrest, the arresting officer filed an affidavit with the Arizona Motor Vehicle Department seeking suspension of defendant’s driver’s license under A.R.S. section 28-694. After a hearing, the hearing officer ordered defendant’s license suspended. Defendant then filed a motion asking the municipal court to dismiss the charges on double jeopardy grounds. The defendant contended that suspension of his license, although a civil penalty, was punishment, and the criminal charges against him constituted double punishment for the same offense. The trial court denied the motion.
After a trial in which the state introduced the results of a breathalyzer test establishing defendant’s BAC at 0.14, the jury found defendant guilty of violating both A.R.S. sections 28-692(A)(l) and (A)(2).
Defendant filed a timely notice of appeal to superior court. Following briefing, the superior court judge affirmed the municipal court judgment and remanded the matter to municipal court for further proceedings. Defendant then filed a timely notice •of appeal to this court.
DISCUSSION
A. Appellate Jurisdiction is Limited to the Facial Validity of the Statute
Our jurisdiction over this appeal is restricted. Because this action originated in municipal court and was appealed to the superior court, any additional appeal is limited by Rule 13(b), Superior Court Rules of
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Appellate Procedure — Criminal. The Rule provides: “No further appeal may be taken from a final decision or order under these rules, except as provided by
A. An appeal may be taken by the defendant . . . from a final judgment of the superior court in an action appealed from a justice of the peace or police court, if the action involves the validity of a tax, . . . or statute.
B. Except as provided in this section, there shall be no appeal from the judgment of the superior court given in an action appealed from a justice of the peace or a police court.
We have interpreted this language to limit our appellate review solely to the facial validity of a challenged statute. State v. Irving, 165 Ariz. 219, 221, 797 P.2d 1237, 1239 (App.1990); State v. Wolfe, 137 Ariz. 133, 134, 669 P.2d 111, 112 (App.1983). Our jurisdiction does not extend to examining the application of the statute to an individual defendant. Irving, 165 Ariz. at 221, 797 P.2d at 1239. Therefore, if we find the statute constitutional, our inquiry is at an end. Wolfe, 137 Ariz. at 134, 669 P.2d at 112.
B.
We see no reason to overturn the time-honored holding of our courts that “impaired to the slightest degree” provides sufficient notice to the public of the forbidden conduct. We bold that the phrase provides a person of normal intelligence a reasonable opportunity to know what is prohibited and provides an objective standard for those charged with enforcing the statute.
An unconstitutionally vague statute is one that defines the prohibited conduct in such indefinite terms that a person of common intelligence must guess at its meaning. In Re Pima County Juvenile Appeal No. 74802-2, 164 Ariz. 25, 28, 790 P.2d 723, 726 (1990). The vice of such statutes is that ordinary people cannot determine whether their conduct fits within the boundaries of the law or whether they unwittingly may subject themselves to either a criminal or civil sanction by their actions.
The question of whether a statute is vague arises most often in the context of the First Amendment. “[WJhere a vague statute ‘abut[s] upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the exercise of [those] freedoms’.” Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972) (footnotes omitted). See also Berenter v. Gallinger, 173 Ariz. 75, 839 P.2d 1120 (App.1992). In this case, however, the defendant does not allege an infringement of First Amendment rights.
Defendant contends that the words “impaired to the slightest degree” are not defined in the statute nor do they contain a standard by which an ordinary person can know what is prohibited and act accordingly. On the contrary, many years ago our supreme court interpreted the words “under the influence” to mean “in the slightest degree.”
Hasten v. State,
35 Ariz. 427, 280 P. 670 (1929). Moreover, in
State v. Parker,
136 Ariz. 474, 666 P.2d 1083 (App. 1983), we held that neither the words “under the influence” nor “in the slightest degree” in A.R.S.
Furthermore, although it may be difficult for an individual driver to know when he has become “impaired to the slightest degree” and should not drive, that language does not necessarily render the statute vague. “A statute that gives fair notice of conduct to be avoided is not void for vagueness simply because it may be difficult to determine how far one can go before the statute is violated.” Berenter v. Gallinger, 173 Ariz. at 81, 839 P.2d at 1126 (emphasis supplied; citations omitted). Thus, we conclude that the stringency of the standard “to the slightest degree” effectively puts the public on notice that one who drinks and drives does so at his peril.
C.
Defendant next argues that A.R.S.
In considering an attack upon the constitutionality of the predecessor to A.R.S.
Although
Similarly, the phrase “within two hours of driving or being in actual physical control of the vehicle” provides specific and objective guidelines to the potential offender and to those charged with enforcing the law. The principal difference between former
Defendant argues that, under the statute’s language, a “person could be guilty of violation of A.R.S.
D.
Defendant also claims the statute is overly broad. Defendant argues that one *123 who drinks after driving or who drives after his blood alcohol level may have peaked and fallen below 0.10 might still be convicted. Because the defendant, however, does not allege either that the statute substantially infringes upon protected First Amendment freedoms or that he is a member of a class of “innocent” defendants, he lacks standing to assert an overbreadth challenge on behalf of others. See Caca-vas v. Bowen, 168 Ariz. at 117-18, 811 P.2d at 369-70; State v. Carruth, 132 Ariz. 368, 370, 645 P.2d 1282, 1284 (App.1982).
E.
Finally, the defendant argues that the affirmative defense in
F. We Have no Jurisdiction to Consider Defendant’s Double Jeopardy and Privilege Against Self-Incrimination Arguments
1. Double Jeopardy
Defendant next raises two arguments that exceed our limited jurisdiction. First, he argues that the combined application of A.R.S. section 28-694 (license suspension statute) and A.R.S.
2. Self-Incrimination
Defendant also asserts that to raise the affirmative defense in A.R.S.
CONCLUSION
Statutory enactments come to this court with a presumption of constitutional validity. Chevron Chemical Co. v. Superior Ct, 131 Ariz. 431, 438, 641 P.2d 1275, 1282 (1982). The defendant has not overcome that presumption. Therefore, we affirm the superior court’s order remanding this case to the municipal court for disposition.
GERBER, P.J., and KLEINSCHMIDT, J., concur.
Notes
.
.
. It is unlawful and punishable . . . for any person to drive or be in actual physical control of any vehicle within this state . . . while there is 0.10% or more by weight of alcohol in the person’s blood at the time of the alleged offense.
. The defendant may still violate
.
It is an affirmative defense to a charge of a violation of subsection A, paragraph 2 of this section if the person did not have an alcohol concentration of 0.10 or more at the time of driving or of being in actual physical control of a vehicle. If a defendant produces some credible evidence that his blood alcohol concentration at the time of driving or being in actual physical control of a vehicle was below 0.10, the state must prove beyond a reasonable doubt that the defendant’s blood alcohol content was 0.10 or more at the time of driving or being in actual physical control of a vehicle. It is not a defense to a charge of a violation of subsection A, paragraph 1 of this section that the person is or has been entitled to use the drug under the laws of this state. A person using a drug prescribed by a medical practitioner licensed pursuant to title 32, chapter 7, 11, 13 or 17 is not guilty of violating subsection A, paragraph 3 of this section. (Footnote omitted.)