Flagstaff, AZ – We all lose out when the government downgrades individual rights but retains 100% of its governmental powers. People charged with a first-time DUI offense in Arizona are entitled to a jury trial. But only until December 31, 2011.
The Arizona Legislature, in an effort to undermine constitutional rights under the guise of budget cuts, has taken away an individual’s right to a jury trial in a misdemeanor first-offense DUI case involving a blood alcohol concentration (BAC) of below 0.15%. So if you want to preserve your right to a jury trial in a DUI case, you had better be blitzed with a BAC above 0.15%. Otherwise, whether you’re innocent or not, your case will have to be tried to a judge – a government employee, on the same government payroll as the prosecutor – who will decide your fate. So much for a jury of your peers.
In Arizona, every defendant charged with a DUI offense had a substantive right to a jury trial. In 2011, the Arizona Legislature passed a law amending A.R.S. § 28-1381 to reflect that first-offense simple DUI defendants are no longer afforded that substantive right to a jury trial. The new law does not go into effect until January 1, 2012.
The current law says:
“At the arraignment, the court shall inform the defendant that the defendant may request a trial by jury and that the request, if made, shall be granted.” A.R.S. § 28-1381(F).
The new law says (amendments are capitalized and underlined):
“F. At the arraignment, the court shall inform the defendant that IF THE STATE ALLEGES A PRIOR CONVICTION the defendant may request a trial by jury and that the request, if made, shall be granted.” See Arizona Senate Bill 1200, Chaptered Version.
Those simple words, “if the State alleges a prior conviction,” substantively deprive first-time DUI defendants of the right to a jury trial. Under the new law, you have to have a prior DUI, or a BAC above 0.15%, to get a jury trial.
JURY TRIALS ARE A SUBSTANTIVE CONSTITUTIONAL RIGHT
It is well-founded in Arizona case law that all defendants charged with a misdemeanor DUI offense have a substantive right to a jury trial. See, e.g., Phoenix City Prosecutor’s Office v. Ybarra, 182 P.3d 1166, 218 Ariz. 232 (Ariz., 2008) (“The parties do not contest that A.R.S. § 28-1381(F) grants a defendant charged with a misdemeanor DUI offense a statutory right to a jury trial if requested.”); see also Manic v. Dawes (Tucson City Attorney’s Office), 213 Ariz. 252, 254, ¶ 9, 141 P.3d 732, 734 (App.2006) (holding that § 28-1381(F) created a substantive right to a jury trial); State ex rel. Wangberg v. Smith (Levinson), 211 Ariz. 101, 104, ¶ 11, 118 P.3d 49, 52 (App. 2005) (§28-1381(F) plainly and unambiguously created “a substantive right to a jury trial.”).
Prosecutors have tried to deprive defendants of the right to a jury trial in the past – and the prosecutors were shut down. In Dawes, the trial court afforded the defendant a right to a jury trial over the prosecutor’s objection. Upon appeal by the State, the Court of Appeals of Arizona, Division 2 expressly held that § 28-1381(F) created a substantive right to a jury trial. Dawes, 141 P.3d at 734 (“The state contends that, to create a substantive right to a jury trial, the legislature must do so in ‘plainer and clearer’ language . . . and the language of § 28-1381(F) is insufficient to create a substantive jury trial right. We disagree.”) (emphasis added).
JURY TRIAL NO LONGER A RIGHT, BUT GOVERNMENT RETAINS ALL ITS POWERS
Current Arizona law provides a substantive right to a jury trial for all simple DUI defendants. Arizona’s amended law, which goes into effect on January 1, 2012, changes a fundamental historical right to a trial by a jury of your peers. Yet, the police have broad, almost unrestricted, powers in DUI cases.
Once an officer pulls you over, you can be detained and arrested for DUI based on the police officer’s speculation about your driving, body language, coordination, and other factors. The officer then has the power to force you to give a blood sample, to suspend your driver’s license for 12 months (innocent until proven guilty?), and to charge you with DUI. Then, you’ll get a Court Summons, appear in Court, assert your innocence, and ask for a
jury trial. The judge will hear testimony from the police officer, listen to the arguments of a prosecutor, and then will, without the assistance of any jury of your peers or members of the community, decide whether to pronounce you guilty of DUI. If convicted, you can go to jail for up to six (6) months, with no jury ever hearing your case.
It’s you versus the government.