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Lewis v. Warner9/4/1990
This special action was taken from the trial court's order denying petitioner's motion to dismiss. The double jeopardy issue presented arises out of the application of the United States Supreme Court's recent decision in Grady v. Corbin, U.S. , 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). Because this is a matter of statewide concern and turns entirely upon legal principles rather than controverted issues of fact, we accept jurisdiction. University of Arizona Health Sciences Center v. Superior Court, 136 Ariz. 579, 667 P.2d 1294 (1983). For the reasons set forth below, however, we deny relief.
The essential facts are undisputed. On March 20, 1990, Department of Public Safety Officer Hernandez observed petitioner driving his vehicle and weaving from lane to lane. After pulling petitioner over to the side of the road, Officer Hernandez noticed that petitioner exhibited signs of intoxication. A subsequent intoxilyzer test indicated a blood alcohol content of .224 percent. The officer also learned that petitioner's license had been suspended on March 17, 1988.
Petitioner was arrested and charged with driving while under the influence of intoxicating liquor while his license was suspended, a class 5 felony, in violation of A.R.S. § 28-692.02. He was also issued citations for 1) driving on a suspended license (A.R.S. § 28-473, a class 1 misdemeanor), 2) making an unsafe lane change (A.R.S. § 28-729, a civil traffic offense), 3) use of fictitious plates (A.R.S. § 28-326(B)(1), a class 2 misdemeanor), and 4) noncurrent registration (A.R.S. § 28-326(C), a civil traffic offense). On March 30, pursuant to a plea agreement, petitioner entered a guilty plea in justice court to driving on a suspended license in violation of A.R.S. § 28-1203, a class 2 misdemeanor. Pursuant to the prosecutor's recommendation in the agreement, petitioner was ordered to pay a $110 fine and the remaining charges, not including the felony, were dismissed. Also on March 30, the grand jury indicted petitioner on the charge of driving while under the influence of intoxicating liquor while his license was suspended. A.R.S. § 28-692.02.
On July 3, petitioner filed a motion to dismiss the felony charge on two grounds. First, petitioner argued that the felony should be dismissed because he had previously pled guilty to the misdemeanor charge of driving on a suspended license, relying on Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). Second, petitioner argued that, under Grady v. Corbin, supra, the state was precluded from introducing evidence of the unsafe lane change in any prosecution of the lesser-included offense of driving while under the influence of intoxicating liquor because petitioner had already been "prosecuted" for that conduct in the justice court proceedings. The trial court granted the motion as to the first contention, finding that prosecution for the felony charge was barred by the guilty plea to the lesser-included offense. The court denied the motion, however, as to the Grady issue, apparently concluding that jeopardy did not attach to the dismissed charge of unsafe lane change because it is denominated a civil rather than a criminal offense and because dismissal pursuant to a plea agreement did not constitute a formal prosecution within the meaning of the double jeopardy clause. This special action followed.
Although the parties have advanced a number of different grounds for resolving this matter, we find that only one question need be addressed: is a defendant placed in
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