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State v. Superior Court10/31/1989
to permit so many DUI cases and, sadly, even related manslaughter cases to fall through the Hinson -created cracks, a result which is demonstrably occurring. Hinson litigation is itself a substantial cause of delay in DUI prosecutions, as witness the present case.
Doubtless the decision by this court in Hinson to try to speed up DUI cases was well-intentioned. Nothing in the legislation or in the speedy trials rules of this court, however, suggest an intent to treat DUI cases differently than all other criminal cases. The decision to do so should perhaps now be recognized as a noble experiment meriting reconsideration.
The court has recently agreed to create a committee of knowledgeable individuals to study problems inherent in DUI cases, including the Hinson case and its impact. That committee will provide the court with information enabling it to consider whether rules or procedures in DUI cases should be changed. That committee provides an appropriate forum through which to first revisit and reconsider Hinson. Pending the result of its work and this court's action based on that work, I concur in the result reached in this case.
CORCORAN, Justice, dissenting:
I agree with the remarks made by Justice Moeller regarding Hinson in his special concurrence. I respectfully dissent from the majority opinion.
The state asks us to review by special action the court of appeals' order declining to accept jurisdiction and the superior court's order dismissing a felony DUI charge. An order dismissing a count of an indictment is an appealable order, pursuant to A.R.S. § 13-4032(1). Our special action rules provide, in pertinent part, that " xcept as authorized by statute, the special action shall not be available where there is an equally plain, speedy, and adequate remedy by appeal . . . ." Rule 1(a), Arizona Rules of Procedure for Special Actions, 17B A.R.S. Although the court of appeals did not indicate the reason for declining jurisdiction in its order, the fact that the state had available review of the dismissal through the normal appellate process conceivably was a factor in declining discretionary jurisdiction.
Furthermore, I do not believe the state has shown any reason for us to grant extraordinary relief in this case. In its petition for special action, the state concedes the appealability of the dismissal order but argues that "Petitioner has no plain, speedy and adequate remedy by way of appeal for the reason that the two counts in the Indictment [Unlawful Flight From a Law Enforcement Vehicle and DUI] should be tried together since the same evidence applied to both charges." I do not believe that the extraordinary remedy of special
action is warranted on this basis alone; the state's remedy by appeal does not become inadequate simply because it takes longer. See, e.g., Neary v. Frantz, 141 Ariz. 171, 685 P.2d 1323 (App.1984). The state almost certainly could have obtained a ruling on an appeal on the merits by written decision from the court of appeals in the same amount of time it took to pursue this special action through two appellate courts.
I would have denied review in this case.
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