 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Superior Court10/31/1989
I. JURISDICTION
This petition for review, filed by the state, challenges the trial court's dismissal of a driving under the influence of intoxicating liquor (DUI) charge (A.R.S. §§ 28-692(A), 28-692.02) against the defendant, Bert Michael Clewell, and the court of appeal's failure to accept jurisdiction of the state's petition for special action. We granted review and have jurisdiction pursuant to Ariz.Const. art. 6, § 5(3) and Rule 8, Arizona Rules of Procedure for Special Actions, 17B A.R.S.
II. ISSUES
We must answer the following questions on appeal:
A. Do Rule 8.2(b), Rules of Criminal Procedure, 17 A.R.S., and Hinson v. Coulter, 150 Ariz. 306, 723 P.2d 655 (1986), which require that trial for a defendant in custody be set within 120 days from date of arrest, apply to a DUI defendant who is not in custody pursuant to the current DUI charge, but is in custody on another matter?
B. Did the state exercise due diligence in bringing the defendant to trial?
III. FACTS
Defendant Clewell was arrested on 10 August 1988 for driving while intoxicated (DUI) and for attempting to elude a police officer. A.R.S. §§ 28-622.01, 28-444, 28-445, 13-701, 13-702, 13-801 and 13-812. No DUI charges were filed against the defendant at that time and he was released from custody. He was, however, retained in custody for violating the conditions of his parole in another matter. An indictment and summons for the DUI charges were issued 1 September requiring that defendant appear for arraignment on 16 September. Defendant was still in the custody of the Arizona Department of Corrections (DOC) but did not receive the summons until 13 September. Defendant was released from DOC on 8 December and appeared for arraignment on 16 December. A trial date for 5 January 1989 was proposed, which was 148 days after defendant's arrest on the DUI charge. Except for a few hours at the time of arrest, defendant was never in custody on the DUI charge, but was in custody for violating the conditions of his parole.
On 23 December defendant filed a motion to dismiss claiming that he was in custody from 10 August to 8 December and that the 120 day time limit for bringing him to trial had expired. The prosecution stated that it was ready for trial within the 150 day time limit for defendants not in custody. The Honorable Patrick O'Neil, Judge Pro Tempore of the Superior Court of Maricopa County, ruled in favor of defendant's motion on the grounds that the 120 day "in custody" time limit under Hinson applied, even though defendant was not in custody under the DUI charge.
The state filed a Petition for Special Action and Application for Stay in the Arizona Court of Appeals, Division One. The Court of Appeals declined to accept jurisdiction of the state's Petition. We granted the state's Petition for Review because we believe the trial court erred in its interpretation of Hinson.
IV. DISCUSSION
A. Was the Defendant in Custody?
We have held that because of the unique nature of the offense of driving under the influence of intoxicants or with a blood alcohol reading of more than .10 the accused must be tried within 150 days of arrest regardless of whether the offense had been "scratched" or "dismissed" before indictment, information or complaint. Hinson v. Coulter
Page 1 2 3 4 5 Arizona DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|