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State v. Stidham5/1/1990
influence while his license was revoked.
The instruction given here is a correct statement of the law as set forth in A.R.S. § 28-448(B). While § 28-448(B) is less than clear, we believe it says that a license remains revoked until renewed or restored. This conclusion is in accord with the language in Exhibit 1, page 2, that defendant's revocation was to last "for a minimum period of 1 year." Also, we note that A.R.S. § 28-454 states that the department shall not terminate a suspension or revocation until the person provides proof of financial responsibility. The instruction does not shift the burden of proving reissuance to the defendant. Assuming, arguendo, it did, because the duration of a license revocation is indefinite, we do not think it unfair to require defendant to bear the burden of proving that the revocation has ended by restoration of his license. If reapplication, for instance, is a defense, it is not the state's burden to show that the defendant has not reapplied. The state's only burden is to establish the substantive elements of the charged crime. Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977); State v. Fletcher, 149 Ariz. 187, 192, 717 P.2d 866, 871 (1986). Here the state established that defendant's license had been revoked.
We believe it was necessary to give the instruction so that the jury would know, as a matter of law, that the revocation did not just last for one year. The instruction left it open for the jury to find whether the license had been reissued as of December 25, 1987. It remained for the state to
prove that the license had not been reissued. If the court had instructed the jury to the effect that: "You are to presume from the fact that the defendant's license was revoked on June 26, 1985, that it had not been reissued as of December 25, 1987," that would have been an improper burden-shifting instruction. See, e.g., State v. Jensen, 153 Ariz. 171, 176, 735 P.2d 781, 786 (1987); Mincey, 130 Ariz. at 396-98, 636 P.2d at 644-47. Pursuant to A.R.S. § 13-4035, we have reviewed the record for fundamental error and we have found none. For the above reasons, the conviction and sentence are affirmed.
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