AzMotorNews

Jury Trials Ruled Out In DUI Cases?

Judges May Decide Guilt

The decision to change the rules stemmed from an attorney's request for a jury trial in a drag-racing case. The state Supreme Court decided that it didn't merit it.

By Michael Kiefer
The Arizona Republic, 2-8-05

Prosecutors and Municipal Court judges in Arizona are pushing to eliminate the right to a jury trial for misdemeanor drunken-driving charges in the wake of an Arizona Supreme Court decision.

While the ruling addressed misdemeanors in general, prosecutors and judges across the state rushed to test whether it could be interpreted as a mandate for DUI trials to take place exclusively before a judge and not a jury.

The opinion was published Jan. 14, and since then, prosecutors in Gilbert, Mesa and Bullhead City have asked that DUI jury trials be canceled, and municipal judges and magistrates in Phoenix and Tucson have canceled some, pending hearings or a clarification from a higher court.

The prosecutors are certain they will prevail, and defense attorneys fear they will. The reasons to prefer a bench trial instead of a jury trial are simple: time and money.

"Sometimes we prepare for a jury trial, and at the last minute, the defendant wants to plead before the court," said Mary Stringer, magistrate in Bullhead City Court. "So we have all the jurors on standby, and the logistics of it are very often time-consuming."

Prosecutors don't care for misdemeanor jury trials either, because they take more time to prepare than bench trials and because they're more likely to end in acquittal.

"Juries will take into account what's going to happen to the person, whether he's going to lose his license, and they tend to be more sympathetic than judges would be," said Paul Bender, a law professor at Arizona State University.

Those are the very reasons defense attorneys often prefer jury trials.

The main obstacle to moving to bench trials exclusively is a state statute that explicitly grants jury trials in DUI cases. At question now is whether that statute is moot.

Most DUI offenses are misdemeanors and involve motorists driving under the influence of drugs or with a blood-alcohol content of 0.08 percent or more or, in the case of an extreme DUI, 0.15 percent or more. An aggravated DUI, a felony, involves the commission of another crime while driving under the influence of drugs or alcohol.

DUI, though a serious crime, is one most likely to be committed by a regular person instead of a hardened criminal.

According to the Research and Statistic Administrative Office of the Courts, which crunches numbers on behalf of the Arizona Supreme Court, there were more than 65,600 trials for misdemeanor offenses at the state's Justice Courts and Municipal Courts in fiscal 2004, which ended June 30.

Only 1,273 of those were jury trials and three-fourths of them were criminal traffic cases, the bulk of them DUIs.

"These are people you can relate to," said Clifford Girard, a Phoenix attorney who specializes in DUI. "It isn't like representing a lot of felonies in Superior Court. So you're taking jury trials away from the middle class."

From shoplifting to reckless driving to selling liquor to a minor, whether a misdemeanor merited a jury trial was determined almost case by case, according to a 1966 Arizona Supreme Court opinion on a DUI case called State vs. Rothweiler.

That case set three criteria to determine if a defendant could have a jury trial:

1.) If a similar offense drew a jury trial before Arizona statehood,

2.) If the potential punishment was severe or,

3.) If the crime carried a social stigma and raised issues of "moral turpitude."

The test results, however, were inconsistent and unfair. You could get a jury trial for possession of marijuana but not for unlawful possession of a concealed weapon, for dancing naked but not for animal cruelty or for soliciting a prostitute but not for beating your spouse.

The decision to change the rules stemmed from an attorney's request for a jury trial in a drag-racing case. The state Supreme Court decided that it didn't merit one.

The opinion, referred to as the Derendal decision, also clarified the rules for granting jury trials in any misdemeanor cases.

"What was really going on in the background and everyone knew it, was (speculation whether) the Supreme Court decision was going to do away with drunk-driving jury trials," said Neal Bassett, the attorney who took Derendal to the state Supreme Court. "That's why judges jumped on it."

Justin Derendal was arrested in August 2002 for drag- racing, a Class 1 misdemeanor, and Bassett, his attorney, requested a jury trial in Phoenix Municipal Court but was denied. He appealed all the way to the Arizona Supreme Court.

Rather than continue considering jury eligibility case by case and offense by offense, the Arizona justices invited interested prosecutors and defense attorneys to file briefs about the state's tests to decide whether any misdemeanors were jury-eligible.

Federal court rules do not allow for misdemeanor jury trials, deeming any offenses as petty if they would be punished by six months' incarceration or less. Arizona misdemeanors fall into that category. But rather than just adopt the federal standards, the Arizona Supreme Court modified the Rothweiler test.

In a Jan. 14 decision written by Vice Chief Justice Ruth McGregor, the court deemed "moral turpitude" to be too difficult to define and eliminated it as a factor. It left the provision for common-law precedence, meaning crimes such as shoplifting and reckless driving, which were tried in front of juries before statehood, will continue to be tried that way.

McGregor allowed that crimes carrying severe punishments could also be tried before juries, but she warned that losing a driver's license or going to jail for six months or less were not severe enough penalties.

Defense attorneys are scouring historical law books looking for pre-statehood precedents to the drunken-driving statutes. They're pondering whether court-ordered ignition-interlock devices and other DUI punishments will meet the definition of severe.

But their trump card may already be written into law.

In response to the 1966 Rothweiler decision, the Arizona Legislature amended the DUI laws, saying in Arizona Revised Statute 28-1381(f) that "the defendant may request a trial by jury and that the request, if made, shall be granted."

"At this point in time, most courts and judges are trying to decide the meaning of 28.1381(f), which says you must advise the defendant of the right to a jury trial and, if they request one, provide it," said Presiding Glendale City Judge Elizabeth Finn.

Link to the original article at;

http://www.azcentral.com/arizonarepublic/local/articles/0208duitrials08.html

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