SUPERIOR COURT OF ARIZONA MARICOPA COUNTY

Transcription

1 Michael K. Jeanes, Clerk of Court *** Filed *** 08/01/2011 8:00 AM THE HON. CRANE MCCLENNEN CLERK OF THE COURT T. Melius Deputy HONORABLE MARIANNE BAYARDI (001) v. JOSEPH W FANNIN (001) BENJAMIN C RUNKLE II GARY L SHUPE REMAND DESK-LCA-CCC Lower Court Case Number RECORD APPEAL RULING / REMAND The State of Arizona has filed a Petition for Special Action challenging the trial court's ruling that A.R.S (D) created a justification defense rather than an affirmative defense. This Court concludes A.R.S (D) creates a defense the Defendant is required to prove, and that the State has no remedy by appeal from the trial court's ruling. This Court therefore accepts special action jurisdiction and grants relief to the State. I. FACTUAL BACKGROUND. Joseph William Fannin (Defendant) was charged in Phoenix Municipal Court with driving under the influence in violation of A.R.S (A)(1) and (A)(3). Prior to trial, Defendant filed a Motion for Jury Instruction asking the trial court to instruct the jurors that the State had the burden to prove beyond a reasonable doubt (1) Defendant had certain drugs in his system, and (2) Defendant did not take them as prescribed by a licensed medical practitioner. At the hearing on that motion, Defendant argued A.R.S (D) created a justification defense that the State must disprove beyond a reasonable doubt, while the State argued that statute created an affirmative defense that Defendant must prove by a preponderance of the evidence. (R.T. of May 2, 2011, at 2-3, 7.) The trial court ruled A.R.S (D) created a justification defense: THE COURT: All right. I have had an opportunity to consider the argument and written materials with regard to the jury instruction and more specifically with regard to whether the valid prescription and taken in accordance with a valid prescription is in the nature of an affirmative defense or a justification. Docket Code 512 Form L512 Pagel

2 And based on that information it is the finding of this Court the Defendant has the burden of proving prima facie evidence with regard to a valid prescription taken in accordance therewith [and] the State has the burden of proving beyond a reasonable doubt that the Defendant did not take the medication in accordance with a valid prescription. (R.T. of May 2, 2011, at 24.) The State then filed the instant Petition for Special Action. This Court has jurisdiction pursuant to ARIZONA CONSTITUTION Art. 6, 16, and A.R.S (A). II. ISSUES. A. Is the State entitled to seek review by means of a petition for special action. Special action review is available when the party does not have an equally plain, speedy, and adequate remedy by appeal. State v. Dawley (Barraza), 201 Ariz. 285, 34 P.3d 394, ^ 2 (Ct. App. 2001) (state wished to challenge trial court's intended jury instruction on "actual physical control" in DUI trial; because state had no equally plain, speedy, and adequate remedy by appeal, special action relief was available). In the present case, if the trial court were to instruct the jurors as stated above, and if the jurors were to find Defendant not guilty, the State could not appeal anything, much less the trial court's jury instruction. Special Action review is therefore appropriate. A. Does A.R.S (D) create a justification defense or does it create an affirmative defense. Whether A.R.S (D) created a justification defense or an affirmative defense is a matter of statutory interpretation. The process for statutory interpretation was recently stated as follows: The issue before us is a question of statutory construction, a legal issue we review de novo. In interpreting a statute, our goal is to determine the intent of the legislature, and the statute's language is the best indicator of that intent. Thus, if that language is unambiguous, we apply the language as written, without resorting to other rules of statutory construction. If the language is ambiguous, we examine the context of the statute and its historical background, subject matter, effects, consequences, and purposes to determine the legislature's intent. Rasmussen v. Munger, 2011 WL , ] 4 (Ct. App. July 1, 2011) (citations omitted). The language of A.R.S currently provides in part as follows: Docket Code 512 Form L512 Page 2

3 A. It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances: 1. While under the influence of intoxicating liquor, any drug, a vapor releasing substance containing a toxic substance or any combination of liquor, drugs or vapor releasing substances if the person is impaired to the slightest degree. 2. If the person has an alcohol concentration of 0.08 or more within two hours of driving or being in actual physical control of the vehicle and the alcohol concentration results from alcohol consumed either before or while driving or being in actual physical control of the vehicle. 3. While there is any drug defined in or its metabolite in the person's body. 4. If the vehicle is a commercial motor vehicle that requires a person to obtain a commercial driver license as defined in and the person has an alcohol concentration of 0.04 or more. B. It is not a defense to a charge of a violation of subsection A, paragraph 1 of this section that the person is or has been entitled to use the drug under the laws of this state. C. A person who is convicted of a violation of this section is guilty of a class 1 misdemeanor. D. A person using a drug, as prescribed by a medical practitioner licensed pursuant to title 32, chapter 7, 11, 13 or 17 is not guilty of violating subsection A, paragraph 3 of this section. A.R.S Since the Arizona Legislature adopted the Arizona Revised Statutes in 1956, it has made numerous changes to what is now A.R.S : Laws of 1959, Ch. 142, 3; Laws of 1969, Ch. 41, 2; Laws of 1972, Ch. 1, 2; Laws of 1973, Ch. 158, 281; Laws of 1978, Ch. 207, 1; Laws of 1982, Ch. 234, 7; Laws of 1983, Ch. 279, 6; Laws of 1984, Ch. 257, 2; Laws of 1985, Ch. 351, 2; Laws of 1986, Ch. 127, 3; Laws of 1987, Ch. 145, 2; Laws of 1987, Ch. 259, 1; Laws of 1988, Ch. 246, 3; Laws of 1990, Ch. 375, 8; Laws of 1992, Ch. 116, 6; Laws of 1992, Ch. 330, 22; Laws of 1993, Ch. 223, 6; Laws of 1994, Ch. 317, 24; Laws of 1996, Ch. 161, 8; Laws of 1997, Ch. 1, 106; Laws of 1998, Ch. 302, 21; Laws of 1999, Ch. 11, 8; Laws of 1999, Ch. 303, 3; Laws of 2000, Ch. 4, 2; Laws of 2000, Ch. 153, 1; Laws of 2001, Ch. 95, 5; Laws of 2001, Ch. 253, 1; Laws of 2003, 2 nd S.S. Ch. 5, 5; Laws of 2004, Ch. 97, 1; Laws of 2005, Ch. 187, 26; Laws of 2005, Ch. 307, 4; Laws of 2006, Ch. 395, 3; Laws of 2007, Ch. 219, 1; Laws of 2008, Ch. 286, 12; Laws of 2009, Ch. 124, 1. This Court is only concerned with the changes that have affected A.R.S (B) and (D). In 1959, the statute was numbered A.R.S , and provided as follows: Docket Code 512 Form L512 Page 3

4 LC DT 07/29/201 A. It is unlawful and punishable as provided in section for any person who is under the influence of intoxicating liquor to drive or be in actual physical control of any vehicle within this state. B. [Subsection (B) gave presumptions: (B)(1), 0.05 or less, presumed not under the influence; (B)(2), more than 0.05 but less than 0.15, no presumption; (B)(3), 0.15 or more, presumed under the influence.] C. It is unlawful and punishable as provided in section for any person who is an habitual user of or under the influence of any narcotic drug or who is under the influence of any other drug to a degree which renders him incapable of safely driving a vehicle to drive a vehicle within this state. The fact that any person charged with a violation of this subsection is or has been entitled to use such drug under the laws of this state shall not constitute a defense against any charge of violating this subsection. A.R.S ; Laws of 1959, Ch. 142, 3. The language in the second sentence of subsection (C) of the 1959 version has now become A.R.S (B), and provided that being entitled to use a drug "shall not constitute a defense." In 1969, the legislature renamed subsection (C) as subsection (I), and in 1978, the legislature amended subsection (I) to read as follows: I. It is unlawful and punishable as provided in section for any person who is an4^ab4tual user of or under the influence of any narcotic drug-of who is under the influence of any other drug to a degree which renders him incapable of safely driving a vehicle to drive a vehicle within this state. The fact that any person charged with a violation of this subsection is or has been entitled to use such drug under the laws of this state shall not constitute a defense against any charge of violating this subsection, except that any person using a drug prescribed bv a medical practitioner licensed pursuant to title 32, chapter or 17 is not guilty of violating this section unless it can be shown that the drug influenced the person to a degree which renders such person incapable of safely driving a vehicle. A.R.S (1); Laws of 1978, Ch. 207, 1. This amendment contained the language that has now become A.R.S (D), the language that is the subject of this special action. The question then is what was the intent of the legislature when it added that language in 1978 and what is the effect of that language. On this point, this Court finds persuasive the reasoning of State v. Kelly (Abdullah), 210 Ariz. 460, 112 P.3d 682 (Ct. App. 2005), wherein the issue was whether the defendant must prove his civil rights were restored, or whether the state had to prove that the defendant's rights were not restored: Docket Code 512 Form L512 Page 4

5 Moreover, although the use of "and" in a criminal statute might normally indicate that an element is to follow, the provision at issue here reads "and whose civil right to possess or carry a gun or firearm has not been restored." (A)(6)(b) (emphasis added). The negative aspect of this provision makes it extremely ill-suited to be an element of the crime; it would place an onerous burden on the state to prove beyond a reasonable doubt that something has not happened, not only in this state but throughout the country. The "and... not" construction introduces a negative condition into the statute that functions the same way "unless" or "except" would: as a statutory exception or proviso. Although sometimes classified as a type of affirmative defense, statutory exceptions are conceptually different from justification defenses, such as those codified at A.R.S through -417, in that they do not excuse or justify an actor who engages in the prohibited conduct but, rather, exclude the actor from the class of people for whom the conduct is prohibited. Our finding that the restoration provision of (A)(6) (b) is such an exception is supported by the fact that the provision at issue is contained in (A)(6)(b), the definitions section describing the class of people who are prohibited possessors, not (A)(4), the statute defining the criminal act that constitutes the offense. Because the restoration provision of (A)(6)(b) functions as an exception, it is not an element of the offense that the state must prove. "A defendant who relies upon an exception to a criminal statute made by a proviso or distinct clause has the burden of establishing and showing that she comes within the exception." Id. at 9-11 (citations omitted; emphasis added). The court then went on to discuss whether this was an "affirmative defense" or merely a "defense": But neither the state nor federal constitutions prohibit assigning the defendant the burden of persuasion for an affirmative defense. In 1997, the Arizona legislature assigned the burden of persuasion for affirmative defenses to the defendant. Section (A), A.R.S., now provides: "Except as otherwise provided by law, a defendant shall prove any affirmative defense raised by a preponderance of the evidence, including any justification defense." We do not characterize the statutory exception to the prohibited possessor statutes for those whose rights have been restored as a true affirmative defense. However, we agree the exception functions similarly to an affirmative defense and see no reason for infusing unnecessary confusion into Arizona law by announcing an inconsistent burden or standard of proof for exceptions. We therefore draw guidance from (A) and hold Abdullah has the burden of persuading the trier of fact by a preponderance of the evidence that his civil rights have been restored. Id. at 15 (citations omitted). Docket Code 512 Form L512 Page 5

6 In the present case, when the legislature added the language in question in 1978, it began with the word "except": [EJxcept that any person using a drug prescribed by a medical practitioner licensed pursuant to title 32, chapter 7, 11, 13 or 17 is not guilty of violating this section... A.R.S (1); Laws of 1978, Ch. 207, 1 (emphasis added). This puts this provision squarely within the reasoning used by the court in Kelly (Abdullah). This Court therefore concludes Defendant has the burden of persuading the trier of fact by a preponderance of the evidence that he is a "person using a drug, as prescribed by a [licensed] medical practitioner." As further support for this position, this Court notes that, when the legislature adopted this language in 1978, it had adopted a preliminary version of the New Criminal Code in 1977, and adopted the final version of the New Criminal Code in Laws of 1977, Ch. 142, 1-188; Laws of 1978, Ch. 201, That New Criminal Code contained A.R.S to - 413, the justification provisions. The legislature thus knew what language to use when it wanted to create a justification defense, and could have done so with A.R.S (1) if it had chosen to add "proper prescription drug use" as a justification defense. Instead it used the "except" language discussed above, which Kelly (Abdullah) held created a defense the defendant must prove, and not an element the state must prove. This Court further notes the court of appeals has stated, albeit in dicta, that proper prescription drug use is an affirmative defense: See A.R.S (B) (providing that a prescription for a drug in question is an affirmative defense to a charge of driving with a drug or metabolite in the body, so long as the driver is not actually impaired by the prescription drug). State v. Hammonds, 192 Ariz. 528, 532, 968 P.2d 601, 605 (Ct. App. 1998) (emphasis added). Since the legislature added the operative language in 1978, it has made numerous amendments to what was A.R.S and is now A.R.S The operative language that is the subject of this special action has, however, remained essentially consistent: [E]xcept that any person using a drug prescribed by a medical practitioner licensed pursuant to title 32, chapter 7, 11, 13 or 17 is not guilty of violating this section... A.R.S (1) (1978 version). A person using a drug, as prescribed by a medical practitioner licensed pursuant to title 32, chapter 7, 11, 13 or 17 is not guilty of violating subsection A, paragraph 3 of this section. A.R.S (D) (current version). Because the legislature has not changed the operative language of this subsection, this Court concludes the intervening amendments to A.R.S do not change this Court's reasoning and conclusions. Docket Code 512 Form L512 Page 6

7 III. CONCLUSION. Based on the foregoing, this Court concludes the trial court erred as a matter of law in its ruling. This Court concludes that, if Defendant chooses to utilize the defense provided in A.R.S (D), Defendant has the burden of proving to the jurors by a preponderance of the evidence (1) the drug or drugs were prescribed by a licensed medical practitioner, and (2) Defendant was using that drug or those drugs as prescribed by the licensed medical practitioner. IT IS THEREFORE ORDERED vacating the ruling of the Phoenix Municipal Court found at R.T. of May 2, 2011, at 24. IT IS FURTHER ORDERED remanding this matter to the Phoenix Municipal Court for all further appropriate proceedings. IT IS FURTHER ORDERED signing this minute entry as a formal Order of the Court. /s/ Crane McClennen THE HON. CRANE MCCLENNEN JUDGE OF THE SUPERIOR COURT Docket Code 512 Form L512 Page 7