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State ex rel Wangberg v. Smith8/25/2005
an v. Fujitsu Business Communications Systems Inc., 188 Ariz. 516, 518, 937 P.2d 706, 709 (1997).
Because the legislature has granted a right to a jury trial for misdemeanor DUI offenses, Levinson is so entitled.
CONCLUSION
For the above mentioned reasons we affirm the ruling that Levinson is entitled to a jury trial.
PATRICIA A. OROZCO, Judge
CONCURRING: G. MURRAY SNOW, Presiding Judge
IRVINE, Judge, specially concurring.
The issue addressed in this opinion is whether the legislature provided defendants with a right to a jury trial in misdemeanor driving under the influence ("DUI") prosecutions. The State argues that the language of A.R.S. §§ 13-1381(F) and -1382(C) simply sought to direct trial courts to give defendants notice of the existing constitutional right at an early stage in the prosecution, so the language is procedural and does not confer a substantive right. Because, the State argues, Derendal v. Griffith, 209 Ariz. 416, 104 P.3d 147 (2005), should now be interpreted to eliminate the constitutional right to a jury trial recognized in Rothweiler v. Superior Court (Richey), 100 Ariz. 37, 410 P.2d 479 (1966), we should read out of the statutes the language that a "defendant may request a trial by jury and that request, if made, shall be granted."
Both parties to this action provide extensive history of the right to a jury trial at common law and in DUI cases. While the parties do not agree as to how Derendal should be applied to DUI cases, they appear to agree that jury trials have been provided in DUI prosecutions for most of the State's history. See also Rothweiler v. Super. Ct. (Richey), 1 Ariz. App. 334, 341, 402 P.2d 1010, 1017 (1965), aff'd 100 Ariz. 37, 410 P.2d 479 (1966) (finding a statutory right to a jury trial in DUI cases and declining to hold "that a legislative grant of jury trial has been repealed by innuendo."). The State also analyzes in detail the legislative history of what is now A.R.S. §§ 13-1381(F) and -1382(C), beginning with language added to the implied consent statutes in 1973. From this the State concludes that the legislature did not intend to provide a substantive right to a jury trial to DUI defendants. The problem with the State's position is that until Derendal the legislature had no reason to consider whether defendants had such a right because Rothweiler had already settled the matter. Although the State's position has some logic behind it, it is not the only reasonable interpretation of the legislature's adoption of the relevant statutory language. Indeed, our supreme court has interpreted the statutory language, albeit in dicta, as being a codification of Rothweiler's constitutional rule, an interpretation directly at odds with the State's.
In essence, the State is asking for a major change in long-standing practice without any clear expression from the legislature that it wished to equate the statutory right to a jury trial in DUI cases with the supreme court's constitutional interpretation of such a right. As the majority discusses, the language of A.R.S. §§ 13-1381(F) and -1382(C) is quite clear, and while the State presents a reasonable interpretation that explains why the legislature did not intend to create a substantive right to a jury trial in DUI cases, our interpretation of the statutes must also be influenced by the historical practice. Derendal may have opened the door for the legislature to act to eliminate jury trials in DUI cases, but until the legislature amends the statutes we should apply them as written.
Therefore, I concur that we should deny relief.
Patrick Irvine, Judge
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