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State ex rel Wangberg v. Smith8/25/2005
s that apply; and (3) the moral quality of the act," to determine whether a defendant is jury trial eligible. Id. (citing Rothweiler, 100 Ariz. at 42, 410 P.2d at 483).
Recently, in Derendal, the Arizona Supreme Court reexamined and modified that test. Derendal, 209 Ariz. 416, 104 P.3d 147. Based on the new test set forth in Derendal, the State requests we determine that the Arizona Constitution provides no right to a jury trial for charges of misdemeanor DUI. However, because Levinson has a statutory right to a jury trial we need not apply the constitutional analysis contained in Derendal.
The statutes under which Levinson was charged plainly provide a right to a jury trial for the offenses if requested. They both state "the court shall inform ... the defendant may request a trial by jury and that request, if made, shall be granted." See A.R.S. §§ 28-1381(F), -1382(C).
Despite this plain language, the State argues that, Goldman v. Kautz, 111 Ariz. 431, 432, 531 P.2d 1138, 1139 (1975), demonstrates that the legislature did not intend to grant a jury trial right to persons charged with misdemeanor DUI unless the right otherwise exists. We disagree.
In Goldman, the defendant was charged with a misdemeanor assault and battery in a criminal justice court proceeding. He alleged that he was entitled by the terms of A.R.S. § 22-320 to a trial by jury if he demanded one. A.R.S. § 22-320, which governs trial procedures in justice courts, states " trial by jury shall be had if demanded by either the state or defendant...." Goldman argued that this language gave any criminal defendant in a justice court proceeding the statutory right to a jury trial on the charges regardless of whether he was otherwise entitled to a jury trial. Goldman, 111 Ariz. at 432, 531 P.2d at 1139. The supreme court, however, rejected Goldman's contentions and observed that the statute was a procedural one that did not, in and of itself, grant a right to a jury trial where one did not otherwise exist:
We do not think the quoted section grants a substantive right, but, rather, was intended to be procedural and must be read as meaning that a trial by jury shall be had if demanded in cases where a jury trial is appropriate. If the Legislature intended to grant a jury trial in every case, it would have no doubt said so in plain, explicit language.
Id.(emphasis in original). Thus, the State argues that the apparent jury trial right given in similar language in the misdemeanor DUI statutes provides no jury trial right unless such a jury trial right otherwise exists. We reject this argument because it fails to distinguish between the two settings in which the language pertaining to jury trials is placed.
As the supreme court noted, language pertaining to jury trials in a procedural statute governing jury trials in justice courts does not in and of itself create a substantive right to a jury trial. Such language did not create a right to a jury trial for any particular offense "in plain, explicit language," nor did it create a jury trial right for all offenses tried in justice courts. However, in this case, the legislature has included in the very statutes which establish and define misdemeanor DUI offenses subsections that states "the court shall inform ... the defendant may request a trial by jury and that request, if made, shall be granted." A.R.S. §§ 28-1381, -1382. By doing so, the legislature clearly established "in plain, explicit language" that a substantive right to a jury trial for the statutory offenses exists. In cases where the statutory meaning is "plain and unambiguous, we apply it without resorting to other rules of statutory construction." Dug
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