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State v. Gonzales12/2/2003
6 (Supp. 2002). A defendant's opportunity to be heard also applies to mandatory revocations, in which a defendant has the "opportunity to be heard in the juvenile or criminal proceedings leading to the convictions." Thomson v. Miller ex rel. Ariz. Highway Dep't, 163 Ariz. 461, 462, 788 P.2d 1212, 1213 (App. 1989); see also A.R.S. § 28-3304 (mandatory revocation). Despite the fact that a hearing is not provided for a license cancellation, the cancellation of a license is without prejudice. A.R.S. § 28-3301(D) (Supp. 2002). A person whose license has been cancelled is free to reapply for a new license at any time. Id. The mere fact that a pre-revocation hearing is allowed would not prove that actual notice has been received, especially in cases in which no hearing was requested. The defendant's argument fails to convince us that the legislature did not intend that the presumption of receipt of notice apply to license cancellations. In both cases of revocation and cancellation, there are mechanisms in place that afford a person the opportunity to challenge either the revocation or cancellation.
Finally, the defendant argues that the case of State v. Jennings, 150 Ariz. 90, 722 P.2d 258 (1986), decided by our supreme court, compels a different result. We disagree. Jennings involved a conviction for DUI with a suspended license. Id. at 91, 722 P.2d at 259. The relevant statutes in effect at that time were A.R.S. § 28-445, dealing with mandatory suspensions and revocations, and A.R.S. § 28-446, dealing with discretionary suspensions and revocations. Id. at 92, 722 P.2d at 260. The court in Jennings noted that A.R.S. § 28-446 contained language stating that " he state is not required to prove actual receipt of the notice or actual knowledge of the suspension or revocation," whereas A.R.S. § 28-445 contained no language to that effect. Id. at 93, 722 P.2d at 261. In rejecting the argument that the language should apply to both statutes, the court stated that " f the legislature had intended to have this language apply to both §§ 28-445 and 28-446, it could have simply placed it in both sections or in A.R.S. § 28-453 which covers the notice of revocation that must be given under both sections." Id. at 93, 122 P.2d at 261.
Unlike the situation in Jennings, in the current statutes dealing with license regulation, the legislature has placed the language creating the presumption of receipt of notice in the separate notice statute that applies to the entire group of statutes dealing with license regulation. Therefore, the presumption now expressly applies in all cases of suspension or revocation regardless of whether hearing is allowed. In addition, in Jennings, there was no manifestation of public policy that could have led to a different conclusion. In this case we have found public policy reasons for applying A.R.S. § 28-3318(D) to cancellation and disqualification even though only suspension and revocation are mentioned.
CONCLUSION
For the reasons explained in this opinion, we affirm the defendant's convictions and sentences.
WILLIAM F. GARBARINO, Judge
CONCURRING:
PATRICK IRVINE, Presiding Judge
CECIL B. PATTERSON, JR., Judge
Page 1 2 3 4 Arizona DUI Attorneys
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