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State v. Sheehan3/5/1991
FACTS
Appellant James Michael Sheehan ("defendant") was convicted of possession of drug paraphernalia on August 21, 1988, and placed on probation for three years. On August 25, 1989, a petition to revoke probation was filed alleging six violations. On August 28th, defendant pled guilty in Tempe City Court to two civil traffic offenses committed five days earlier. The citations alleged driving left of center, in violation of A.R.S. § 28-721(A), and driving without proper registration, in violation of A.R.S. § 28-302(A). On September 19, 1989, defendant entered admissions in Superior Court to amended allegations of probation violations based upon these civil traffic offenses. On motion of the prosecutor, the other violation allegations were dismissed. At the disposition proceedings, the trial court reinstated defendant on probation for three years, but modified the conditions to require three months incarceration. Defendant filed a timely notice of appeal.
Discussion
The single issue on appeal is whether the civil traffic offenses admitted by defendant violated a standard term of his probation order that generally required him to "obey all laws and contact the probation officer within 72 hours if questioned or arrested by any law enforcement officer." A trial court's finding of probation violation will be upheld on review unless it is arbitrary or unsupported by any theory of evidence. State v. Moore, 125 Ariz. 305, 306, 609 P.2d 575, 576 (1980).
The issue raised is a question of law as to the meaning to be given to the phrase "obey all laws." The state argues that breach of any law, civil or criminal , violates this term. Defendant, without citing to any authority, urges us to confine its scope to criminal offenses in order to avoid what he perceives to be unfair and absurd results.
The convictions in Tempe City Court were for civil traffic offenses and not criminal offenses. A.R.S. § 28-181(B) states that:
Any violation of . . . any act or thing required by chapter 3 . . . or chapter 6 . . . of this title constitutes a civil traffic offense unless the statute defining the violation provides for a different classification . . . .
Neither A.R.S. § 28-721(A) nor § 28-302(A) (the statutes defining the traffic offenses) provides for a different classification. The state does not dispute this classification.
In the absence of Arizona cases on point, we turn to other jurisdictions and
authoritative sources for assistance. In their treatise on probation and parole, Cohen and Gilbert discuss the common probation provision that a probationer not violate the law, and note that:
A few of the broader provisions proscribe violations of local, state, or federal laws, arguably referring to both criminal and civil laws. The typical statute, however, refers to violations of the criminal laws, usually specifically including infractions of the criminal laws of the federal government and all states . . . . While we might expect that a statute which was silent on the point would be interpreted to include all criminal law violations, the scant authority suggests that minor offenses, like traffic violations, are probably not included in the probation or parole order . . . .
Cohen and Gilbert at 220-221. Likewise, a similar "good behavior" term "only obligates the probationer . . . to obey the criminal law." Id. at 221-222. See State v. Cunningham, 63 N.
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