In re Appeals11/6/1990
FACTS
These juvenile cases have been consolidated for purposes of this appeal. Both juveniles were arrested and charged with driving while intoxicated and driving with a blood alcohol content in excess of .10 percent, both commonly referred to as DUI. A.R.S. § 28-692. Relying upon Hinson v. Coulter, 150 Ariz. 306, 723 P.2d 655 (1986), the juvenile court judge in each case dismissed the respective charges with prejudice due to the state's failure to try the juveniles within one hundred fifty days of arrest. The state claims that Hinson ought not apply to juvenile DUI proceedings. We agree.
The procedural facts of each case are set forth separately.
JV 119590
In this case, the juvenile was arrested at the scene of a one-car accident on June 18, 1989. He was referred to the Juvenile Court Probation Department on July 25, 1989, which, on August 7, 1989, recommended court intervention. Formal charges were filed against the juvenile on August 29, 1989, and a DUI petition was filed on October 26, 1989. Without the state's knowledge, the advisory hearing scheduled for November 17, 1989, was vacated and reset to December 1, 1989. On December 1, 1989, a public defender was appointed to represent the juvenile. Prior to that time, the juvenile was unrepresented by counsel. Trial date of January 25, 1990, was set and a preadjudication conference, set for January 11, 1990, was vacated. Defense counsel filed a motion to dismiss on December 21, 1990, for not adjudicating the juvenile within one hundred fifty days of arrest as required by Hinson. The court dismissed the state's case, ruling that the time limits set by Rule 8, Arizona Rules of Criminal Procedure, as interpreted by Hinson, should apply to juvenile DUI cases. We note that one hundred sixty six days elapsed from the date of the arrest to December 1, 1989, the date of the advisory hearing and appointment of counsel. Even excluding the thirteen days due to the diversion process at the juvenile probation department, more than one hundred fifty days had elapsed from the date of arrest.
JV 118201
The juvenile in this case was arrested on May 27, 1989, after being involved in a hit-and-run accident. A DUI petition was filed against the juvenile on August 8, 1989. A pre-adjudication hearing was held on September 22, 1989, one hundred nineteen days after arrest, and his trial was scheduled for November 20, 1989, more than one hundred fifty days after the arrest. It was later continued to January 27, 1990. The juvenile's defense attorney, who was appointed on July 25, 1989, after the public defender's office withdrew, never informed the court of the possible Hinson problem.
On October 31, 1989, the juvenile filed a motion to dismiss based on the failure to try him within one hundred fifty days of arrest under Rule 8.2(a) and Hinson. The juvenile court judge dismissed the case with prejudice, citing the juvenile's right to a speedy trial under the sixth and fourteenth amendments to the United States Constitution, and the juvenile's right to equal protection of the law, indirectly applying Hinson.
WAIVER
We first consider the issue of waiver. The state urges that counsel for the juvenile in JV118201 intentionally waited until one hundred fifty days had passed after arrest and then moved for dismissal under Hinson. The state deems such conduct to waive the motion to dismiss, thus also waiving the right to adjudication within one hundred fifty days of arrest.
A waiver is a voluntary relinquishment of a known right and, without knowledge o
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