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Cacavas v. Bowen3/19/1991
Petitioners, criminal defendants in underlying proceedings before the City Court of Tucson, seek special action relief from the orders of the respondent magistrate denying their motions to dismiss on the grounds that A.R.S. § 28-692(A)(2) is unconstitutional. Because this is a matter of statewide importance and because the issues relate to legal questions as opposed to controverted issues of fact, we accept jurisdiction. University of Arizona Health Sciences Center v. Superior Court, 136 Ariz. 579, 667 P.2d 1294 (1983). Additionally, a "speedy decision will serve the public interest." Fuenning v. Superior Court, 139 Ariz. 590, 593, 680 P.2d 121, 124 (1983). For the reasons stated below, however, we find the statute withstands constitutional scrutiny and, therefore, deny relief.
The petitioners were arrested for allegedly driving under the influence of alcohol, in violation of A.R.S. § 28-692(A)(1). After tests were administered to determine their
blood alcohol content (BAC), they were charged with violating A.R.S. § 28-692(A)(2). Effective June 28, 1990, the statute provides as follows:
A. It is unlawful and punishable as provided in § 28-692.01 for any person to drive or be in actual physical control of any vehicle within this state under any of the following circumstances;
2. If the person has an alcohol concentration of 0.10 or more within two hours of driving or being in actual physical control of the vehicle.
Subsection B of the statute provides as an affirmative defense to the charge that "the person did not have an alcohol concentration of 0.10 or more at the time of driving."
Petitioners contend the statute is unconstitutional for the following reasons: (1) it reallocates the burden of proof by labeling as an affirmative defense a fact formerly defined as an element of the crime and which is a traditional or logical element of the offense; (2) the affirmative defense negates an essential element of the crime and shifts to the defendant the burden of disproving a fact which the state is required to prove and which the state has a greater opportunity to prove; (3) the statute raises an impermissible presumption that a person with a BAC of .10 percent or more within two hours of driving had that level at the time he or she was driving; and, (4) the provision is overly broad.
To withstand constitutional scrutiny, a criminal statute may not establish an essential element of the crime and then place the burden of disproving that defined element on the accused. Patterson v. New York, 432 U.S. 197, 210, 97 S. Ct. 2319, 2327, 53 L. Ed. 2d 281, 292 (1977). In this regard petitioners first argue that, because of the affirmative defense provided in the statute, the accused must disprove what the state formerly had to prove beyond a reasonable doubt: that petitioners' BAC at the time of driving was .10 percent or greater. Petitioners contend that in this regard, "the trial court's order appears to be an abuse of discretion as it disregards case law which has been set as mandatory precedent," citing Desmond v. Superior Court, 161 Ariz. 522, 779 P.2d 1261 (1989). Desmond, however, is entirely inapplicable, as it relates to the prior statute under which it was a crime to operate or control a motor vehicle with a blood alcohol level of .10 percent or greater. The court there held that the state was required to establish the latter element by relating the results of a subse
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