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2/20/2012 3:21:00 PM
Legislation paves way for return of DUI jury trials

Howard Fischer
Capitol Media Services

PHOENIX -- Motorists accused of drunk driving may soon get back their right to demand a trial by jury.

Without dissent, the House Judiciary Committee approved legislation Thursday that would reverse a year-old decision by lawmakers to say that prosecutors could demand these cases be heard solely by a justice of the peace. HB 2284 now goes to the full House.

Rep. David Burnell Smith, R-Scottsdale, said it's not fair to deny someone who could be jailed and fined the right to a jury trial. He also questioned whether the legislation approved last year is even constitutional.

In fact, several lawyers already are pursuing legal challenges.

Sen. Linda Gray, R-Glendale, who championed the change last year, does not like the repeal effort. Gray said she sees this less as a fight over individual rights and more as a bid by defense attorneys to make money, what with a jury trial taking more time.

"You always follow the trail of the money,' Gray said. But she told Capitol Media Services she will not try to kill the measure when it comes to the Senate.

At issue are those charged with simple drunken driving, who have a blood-alcohol content of more than 0.08 but have not been convicted before.

Generally speaking, Arizona courts have said jury trials are constitutionally required only for any crime which carries a penalty of more than six months in jail. But state law did provide that right in cases of drunk driving.

All that changed Jan. 1 when legislation approved last year took effect.

Smith pointed out the change was tacked on to a much larger measure making several changes in drunk driving laws. He said many lawmakers -- himself included -- were unaware of the provision when they voted for the whole package.

Issues of fairness aside, Smith said it has created logistical problems.

For example, the change did not affect the right to a trial by jury for those charged with "extreme' DUI, meaning a blood-alcohol content of at least 0.15. A person is generally presumed to be legally intoxicated in Arizona with a BAC of 0.08.

Smith said prosecutors sometimes will charge someone with a high blood-alcohol content with both regular and extreme DUI, figuring that if there isn't enough evidence for the higher charge then they fall back on the lower one. He said that can create a complicated trial situation where the extreme charge has to go to a jury but the other does not.

Smith's legislation is not the only attack on the law.

Attorney Clifford Girard said several defense attorneys already are challenging the statute on behalf of clients they have who are accused of drunk driving but have been denied a jury trial. He said he and they believe that the state constitution does require that defendants be allowed to demand a trial by jury, even though the maximum penalty is not longer than six months.

He said the Arizona Supreme Court has said a defendant is entitled to demand a trial by jury for any offense where trial by jury was considered a matter of right under common law when Arizona became a state, regardless of the maximum penalty.

In this case, Girard said, driving while intoxicated could be considered a version of the common law crime of breach of the peace. And Girard said anyone charged with that in territorial days was entitled to a jury trial.

Smith's legislation needs final House approval before going to the Senate.

Taylor Waste

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Reader Comments

Posted: Tuesday, February 21, 2012
Article comment by: Wolfpack 7 VFW Post 7400

Sen. Linda Gray should read the Amendments to the Constitution

"Article [VI.]

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation to be confronted with the witnesses against him to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." It did not say when we think it is ok it guarantees it.

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