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State v. Poshka4/1/2005
AFFIRMED
Appellant Tyla Poshka was convicted after a jury trial of one count of aggravated driving under the influence of alcohol (DUI) with a suspended or revoked driver's license and one count of aggravated driving with a blood alcohol concentration (BAC) of .08 or more with a suspended or revoked driver's license. The trial court suspended the imposition of sentence and imposed concurrent, five-year terms of probation. Poshka contends the legislature's amendment to A.R.S. § 28-1381 is unconstitutionally vague and overbroad and violates her due process rights. Finding no constitutional infirmity to the statute, we affirm.
Factual and Procedural History
We view the facts in the light most favorable to sustaining the jury verdicts and resolve all reasonable inferences against the appellant. See State v. Riley, 196 Ariz. 40, 992 P.2d 1135 (App. 1999). Tucson Police Officer Nielsen stopped Poshka late one evening in August 2002 after he observed her make an improper, wide right turn. He noticed that her eyes were bloodshot and watery, her face was flushed, and her speech was slurred. He also noticed the odor of alcohol on her breath. Poshka admitted she did not have a license and had been drinking. After she stepped out of the car, Nielsen noticed she swayed back and forth as she stood. She exhibited six out of a possible six cues on the horizontal gaze nystagmus test that Nielsen administered, and he then arrested her. The results from breath tests, taken minutes apart, indicated that her BAC was .099 and .094.
Constitutionality of A.R.S. § 28-1381
Poshka challenges the constitutionality of the statute under which she was convicted, § 28-1381, on the grounds that it is both vague and overbroad. We review de novo the constitutionality of a statute, State v. McMahon, 201 Ariz. 548, 38 P.3d 1213 (App. 2002), and, if possible, construe the statute to give it a constitutional meaning. State v. Bonnewell, 196 Ariz. 592, 2 P.3d 682 (App. 1999); see State v. Klausner, 194 Ariz. 169, 172, 978 P.2d 654, 657 (App. 1998) ("We will uphold a statute if we can imagine any set of facts which rationally justifies it."). Subsection (A)(2) of § 28-1381 provides, in relevant part, that it is unlawful for a person to drive a vehicle if that person "has an alcohol concentration of .08 or more within two hours of driving . . . and the alcohol concentration results from alcohol consumed either before or while driving."
Vagueness
Poshka first argues the statute fails to provide adequate notice of the conduct it prohibits and permits arbitrary and discriminatory enforcement, making the law unconstitutionally vague. Both arguments are grounded in the statute's alleged deficiency whereby, Poshka maintains, a person of ordinary intelligence is unable to know the precise moment when his or her BAC has reached the prohibited level of .08, because various factors affect the rate and time at which alcohol is absorbed into one's bloodstream.
A statute is unconstitutionally vague if it fails to provide "person of ordinary intelligence a reasonable opportunity to know what is prohibited" and fails to contain explicit standards of application to prevent arbitrary and discriminatory enforcement.
Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed. 2d 222, 227 (1972); State v. Brown, 207 Ariz. 231, 85 P.3d 109 (App. 2004). As the state notes, in Fuenning v. Superior Court, 139 Ariz. 590, 680 P.2d 121 (1983), our supreme court addressed and rejected an argument virtually identical to the one Poshka poses here. In Fuenning, the defendant challenged the basic DUI statute in existence at
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