Raye v. Jones9/23/2003
A crime of moral turpitude is one that involves behavior that is "depraved and inherently base," O'Neill v. Mangum, 103 Ariz. 484, 485, 445 P.2d 843, 844 (1968), or that involves actions that "adversely reflect on one's honesty, integrity, or personal values." Dolny, 161 Ariz. at 300 n.3, 778 P.2d at 1196 n.3. Moral turpitude is more than poor judgment, lack of self-control, or disrespect for the law involving less serious crimes. Benitez, 198 Ariz. at 95, 19, 7 P.3d at 104.
Examples of crimes that have been found to involve moral turpitude include indecent exposure, see City Court of Tucson v. Lee, 16 Ariz.App. 449, 494 P.2d 54 (1972), solicitation of prostitution, see In re Koch, 181 Ariz. 352, 890 P.2d 1137 (1995), perjury, see Harris v. State, 41 Ariz. 311, 17 P.2d 1098 (1933), forgery, see id., fraud, see In re Wines, 135 Ariz. 203, 660 P.2d 454 (1983), false reporting, see Mungarro v. Riley, 170 Ariz. 589, 826 P.2d 1215,(App. 1991), and misappropriation of funds. See In re Couser, 122 Ariz. 500, 596 P.2d 26 (1979).
In Rothweiler, the court determined that driving an automobile while under the influence of intoxicating liquor represented a "moral quality" that had "become offensive to the public as demonstrated by the severity of the punishment." 100 Ariz. at 44, 410 P.2d at 485. Raye argues that underage drinking and driving is an offense that carries with it the same moral quality and societal disapproval as DUI and that this similarity justifies jury eligibility.
In support of his position, Raye cites several cases from other jurisdictions that refer to statutes similar to § 4-244(33) as "zero tolerance" or "juvenile DUI" laws. See Collins v. State, 991 P.2d 557, 560 (Okla. Ct. App. 1999); Commonwealth v. Howard, 969 S.W.2d 700, 702 (Ky. 1998); Barnett v. State, 510 S.E.2d 527, 528 (Ga. 1999). These cases, however, do not address whether the "zero tolerance" or "juvenile DUI" offenses are jury eligible or involve moral turpitude. Instead, these cases involve equal protection challenges and whether a rational basis exists for the classifications created by the challenged statutes. Raye has not cited, nor have we found, any case addressing the jury eligibility or moral depravity of an offense similar to underage drinking and driving.
Simply because an offense may be somewhat similar to DUI does not mean that the offense is automatically jury eligible. See Benitez, 198 Ariz. at 95-96, 20, 7 P.3d at 104-05 ("An offense meets or fails the requirements of jury eligibility on its own, not because of its association with another offense."). The question is whether the moral turpitude inherent in DUI is present in the offense before us. See id. at 95, 20, 7 P.3d at 104.
Driving with a blood alcohol content ("BAC") of.01 or greater is not necessarily the same as impaired driving or driving with a BAC of.08 or higher. The offense of underage drinking and driving may be committed without any evidence or presumption of impaired driving. In contrast, the offense of DUI is based on the danger created by impaired drivers and requires evidence of impairment or evidence supporting a presumption of impairment. See A.R.S. § 28-1381(A)(1) (Supp. 2002) ("impaired to the slightest degree"); A.R.S. § 28-1381(A)(2), (G)(3) (presumption of impairment at.08 BAC or greater).
Because a person may commit the offense of underage drinking and driving without being impaired, the degree of moral turpitude associated with DUI is not present. And if an eighteen, nineteen, or twenty year-old driver is actually impaired or has a BAC sufficient to support the presumption of impairment, that driver may be charged with DUI as well as under
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