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State v. Superior Court of Pima County12/15/1987
m voluntary in the sense of intelligent and knowing has no relevancy to the matter. This does not mean, however, that a defendant is precluded from showing that she did not understand what was being requested. Such evidence would be relevant and would be a matter to be decided by the trier of fact. It appears that Hays' main contention is that the trial court should determine the issue instead of the jury. Although A.R.S. § 28-692(K), provides
that the refusal to take an intoxilyzer test is admissible in evidence, and the issue of refusal is a question of fact to be determined by the trier of fact, we do not read the statute as intending to preclude the trial judge from deciding preliminary questions concerning the admissibility of evidence or its sufficiency to go to the jury. See Rule 104(a) and (b), Rules of Evidence. When evidence is admissible or an issue is submitted to the jury both the statute and the rules of evidence leave to the jury the decision on the weight and effect of such evidence. Rule 104(e), Rules of Evidence.
The trier of fact is often called upon to determine the reason for a defendant's acts or course of action. One of the more frequent instances is that of a defendant leaving the vicinity of a crime. Was the defendant's departure an attempt to escape detection or capture for a crime, or was the departure for a reason wholly innocent and unconnected with any guilty knowledge? See State v. Celaya, 135 Ariz. 248, 660 P.2d 849 (1983). The evidence may be viewed in various ways, but the trier of fact is left with the responsibility to resolve the issue.
The evidence of refusal to take an intoxilyzer test is somewhat analogous in that the defendant's conduct (i.e., refusal) may occur for various reasons. The statute, A.R.S. § 28-692(K), does not direct how the trier of fact should consider the evidence; it only requires that the question be left to the trier of fact. The same evidence on the mental condition of Hays offered at the administrative hearing could be offered at the criminal trial to support the defense position that the refusal to take the test was not due to consciousness of guilt. The defense is free to argue that the acts of the defendant were the product of a mentally troubled person who did not understand the events as they were occurring.
The trier of fact is free to resolve the matter from the evidence presented at trial.
Not every claim of mental incapacity is entitled to be treated as an excuse of refusal to take an intoxilyzer test. There is an exception to the lack-of-understanding defense when such condition occurs by reason of voluntary intoxication. It is no excuse or defense for a defendant to maintain that the refusal to take an intoxilyzer test was due to mental incapacity caused by voluntary intoxication. Regardless of the degree of voluntary intoxication, a motorist is not excused from the penalty provided for refusal to submit to the test. Gaunt v. Motor Vehicle Div., Dept. of Transp., 136 Ariz. 424, 666 P.2d 524 (App.1983); Hering v. State, Department of Motor Vehicles, 13 Wash.App.190, 534 P.2d 143 (1975); Hoban v. Rice, 25 Ohio St.2d 111, 267 N.E.2d 311 (1971). If the exception were not recognized, the purpose of the statute would be defeated by allowing the most severely intoxicated motorists to avoid accountability under the statute.
The Court of Appeals was correct in its ruling that Hays was not entitled to a voluntariness hearing. We agree with the Court of Appeals that Hays should be entitled to present evidence a
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