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State v. Johnston1/8/1987
Appellee was charged by information with driving a motor vehicle while under the influence of intoxicating liquor while his operator's or chauffeur's license was suspended, cancelled, rejected, or refused, a class 5 felony, in violation of A.R.S. § 28-692.02. Although appellee had a valid Montana driver's license at the time he was stopped, the prosecution under A.R.S. § 28-692.02 was based on a prior license revocation in Colorado.
Because he held a valid Montana license, appellee moved to dismiss the charges. The state argued that if appellee had any license that was suspended, revoked, or refused, he was subject to prosecution under A.R.S. § 28-692.02, even though he also had in his possession a valid driver's license from another state.
The state also suggested that because Montana and Colorado were members of the Interstate Driver's License Compact (Compact), A.R.S. §§ 28-1601 to -1605, Montana should have suspended appellee's license. The state admitted that it was unknown why the Montana license was allowed to remain in force after the Colorado revocation. In any event, the state argued, Montana's failure to adhere to the driver's license compact did not prevent appellee's prosecution because his Colorado license had been revoked.
The trial court found that appellee had a valid Montana driver's license and there was no evidence of the grounds of revocation in Colorado or whether appellee had notice of that revocation. The trial court concluded that "in any event at the time of this offense [appellee] was complying with A.R.S. § 28-411, i.e., he was operating [a
vehicle with] a valid and unrevoked Montana license."
The state first argues that the reference to "license" in A.R.S. § 28-692.02 is broad enough to include appellee's revoked Colorado license. The statute makes it illegal to drive under the influence of alcohol "while the person's operator's or chauffeur's license is suspended, cancelled, revoked, or refused in violation of a restriction placed on a operator's or chauffeur's license as a result of violating § 28-692." A.R.S. § 28-692.02(A)(1) (Supp.1986). The word "license" in A.R.S. § 28-692.02 has been interpreted to include the privilege afforded by the State of Arizona to nonresidents allowing them to drive on Arizona highways with valid out-of-state licenses. State v. Mitchell, 136 Ariz. 386, 666 P.2d 486 (App.1982), aff'd, 136 Ariz. 364, 666 P.2d 464 (1983). This court has previously held that A.R.S. § 28-692.02 applies to persons whose out-of-state licenses have been suspended, cancelled, or revoked by the issuing state. State v. Kozlowski, 143 Ariz. 137, 692 P.2d 316 (App.1984).
The difference between this case and the situations addressed in Mitchell and Kozlowski, however, is that here appellee had a valid Montana license at the time he was stopped. Under A.R.S. § 28-412(A)(4), a nonresident who possesses a valid out-of-state operator's license is authorized to drive on Arizona highways. In this case, therefore, appellee was "licensed" within the meaning of A.R.S. § 28-692.02 at the time he was stopped. See State v. Mitchell.
A requisite element of a violation of A.R.S. § 28-692.02 is driving without a valid license. Furthermore, in order to prove this
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