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State v. Gonzales12/2/2003
Pursuant to the express language of Arizona Revised Statutes (A.R.S.) section 28-3318(D) (1998), " compliance with the mailing provisions of this section constitutes notice of the suspension or revocation for purposes of prosecution under § 28-1383.... The state is not required to prove actual receipt of the notice or actual knowledge of the suspension or revocation [of a driver's license]." We hold that the rebuttable presumption of receipt of notice authorized in A.R.S. § 28-3318(D) that applies in the case of the "suspension" or "revocation" of a driver's license also applies in the case of the "cancellation" of a driver's license. The trial court did not err by instructing the jury to that effect. We affirm the defendant Christopher Leroy Gonzales' convictions and sentences for two counts of aggravated driving under the influence of intoxicating liquor (DUI).
FACTUAL AND PROCEDURAL HISTORY
The defendant was charged with two counts of aggravated DUI, class 4 felonies, stemming from an incident that occurred on February 3, 2002. The charges were aggravated pursuant to A.R.S. § 28-1383 (Supp. 2002) because the defendant was driving on a cancelled driver's license at the time he was arrested for DUI. In relevant part, A.R.S. § 28-1383(A)(1) provides that DUI charges are aggravated if committed "while the person's driver license or privilege to drive is suspended, cancelled, revoked or refused or while a restriction is placed on the person's driver license or privilege to drive as a result of violating § 28-1381...." Arizona Revised Statutes section 28-1383(C) provides that " he notice to a person of the suspension, cancellation, revocation or refusal of a driver license or privilege to drive is effective as provided in § 28-3318...."
At trial, Jerald Ploium, an investigator and deputy custodian of records for the Motor Vehicle Division of the Arizona Department of Transportation (MVD), testified for the State that the MVD cancelled the defendant's driver's license on May 12, 1999. According to Ploium, the MVD had determined that problems with the defendant's driver's license status in a sister state made him ineligible for the Arizona license that he had applied for a few days prior to the cancellation. Ploium also disclosed that at no time after the defendant's driver's license was cancelled did the defendant take steps to obtain a new license. He then testified that the MVD's records revealed that the cancellation notice had been sent by first-class mail to the defendant at the address he had given on his application. This is the same address where the defendant was living at the time of his arrest.
The defendant's testimony was that he did not receive the notice and had no knowledge of the cancellation. Ploium conceded that the MVD's records do not show whether the defendant had actually received the cancellation notice.
While discussing jury instructions, defense counsel asked the trial court for an instruction that would inform the jury that in order to prove aggravated DUI based on a driver's license cancellation, the addressee must have actually received notice of the cancellation or have actual knowledge of the cancellation. The trial court rejected the requested instruction and instead instructed the jury that service of the notice of the cancellation was complete upon mailing it to the address provided by the defendant on his application for the license. If the State is able to prove that notice was mailed to the defendant, it is presumed that it was received and that the defendant has knowledge of the cancellation. The court also instructed the jury that the presumption could be rebutted by the defendant.
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