Chandler Criminal Defense

Imagine you’re sitting in the comfort of your own home, enjoying a glass of fine single barrel Kentucky straight bourbon whiskey. It’s about midnight, and you’re on your third or fourth when you hear the back window of your home shatter. You can hear that someone is trying to break into the house, and you run to call 911. As you frantically rush through the house, you see someone breaking in through the front window as well. You have no time to think, and not knowing what else to do, you swing open the door leading to your garage and jump in your car. You lock your doors, fire up the engine, open the automatic garage door, and speed off while calling the police.

Congratulations, you just escaped a very dangerous situation. You’re safe, but just for a little while. A few blocks from your home, a friendly law enforcement officer notices your excessive speed and pulls you over. When he walks up to the driver’s side window, he sees you’re a wreck. You’re sweaty, shaking, and can’t think straight. You don’t make any sense, constantly rambling about intruders. He notes your bloodshot, watery eyes, your slurred speech, and smells a moderate odor of alcohol. Don’t they always? He doesn’t care about your crazy burglary story because he’s heard every imaginable drunk driving sob story a million times. He wants to know how many you’ve had. He wants you to do some tests. Because you’re so flustered, you forget to ask for your lawyer. You do what he asks. He eventually takes you to the station, and you submit to a blood test.

I’ve got some bad news for you. You’re going to get a DUI. The courts won’t care that you can prove your windows were broken and your home was burglarized. It doesn’t matter that you have 911 in your call history, left your garage door wide open, and that there’s an ongoing police investigation about the burglary of your home. It won’t matter if they catch the guys who did it and you’re the named victim in the case against them.

Here’s the problem: there is no necessity defense to DUI in Arizona. In fact, to my knowledge, there is no type of DUI justification defense whatsoever in Arizona. That’s explained very clearly in State v. Fell, 203 Ariz. 186, 52 P.3d 218 (App. 2002), a Court of Appeals of Arizona, Division Two case that tells us why justification defenses do not apply to DUI.

State v. Fell doesn’t have the facts I just described, but the facts of the case do make me feel bad for the defendant. She was assaulted by her husband, who left the house. Fearing for her safety if her husband returned, she left. She was eventually stopped, arrested, and charged with DUI. She wanted to use as a defense “the fact that she had necessarily driven away from her home because of concern for her safety,” and the trial court let her. However, the state got a stay before trial and filed a special action, which it ultimately won.

The reason she didn’t get to employ a necessity defense, the same reason you won’t be able to use a justification defense, is because the DUI laws are found in Title 28 of the Arizona Revised Statutes, while the justification defenses are found in Title 13 of the Arizona Revised Statutes. A.R.S. 13-417 says that “[c]onduct that would otherwise constitute an offense is justified if a reasonable person was compelled to engage in the proscribed conduct and the person had no reasonable alternative to avoid imminent public or private injury greater than the injury that might reasonably result from the person’s own conduct.” It’s found in Chapter 4, “Justification,” which is found in Title 13. Title 13 is the criminal code. Also in Chapter 4 of Title 13 is A.R.S. 13-401, entitled “Unavailability of justification defense; justification as defense.” That statue provides that “justification, as defined in this chapter, is a defense in any prosecution for an offense pursuant to this title.” Unfortunately, Arizona’s DUI laws are all found in Title 28 along with other laws involving transportation.

State v. Fell isn’t a long opinion, but it’s long enough to pretty thoroughly piss me off. Even the way it states the facts of the case is irritating. The court admits the facts of the case were undisputed, yet it says the defendant’s husband “allegedly assaulted her.” I suspect that, if you appealed based on the facts I gave you above, the court would say your home was “allegedly burglarized.”

The defendant argued that the court should look at A.R.S. § 13-102, which provides that Title 13 “shall govern the construction of and punishment for any offense defined outside this title.” Sounds good, right? Justification defenses should apply to Title 28 offenses, right?

No such luck. The court decides the issue at hand doesn’t involve “the construction of” or the “punishment for” a DUI offense. I guess I can understand why they think that deciding whether to apply a defense might not be considered construction or punishment, but it irritates me. Arizona courts use A.R.S. § 13-102 to apply Title 13 sentence enhancement provisions to Title 28 felonies, but they won’t use it to apply Title 13 defenses to Title 28 felonies. I understand a sentence enhancement is pretty clearly “punishment for” a non-Title 13 offense, but I feel like it’s another example of courts interpreting statutes one way when they help the state and another way when they help defendants.

The court decides that the words “this title” reflect a clear legislative intent to limit application of the justification defenses to Title 13 and says that “no further inquiry is required.” The court ignores the rule of statutory construction called the rule of lenity because the statute is clear. Then, it applies the rule of statutory construction called inexpressio unius est exclusio alterius to decide that, because A.R.S. § 13-401 doesn’t list non-Title 13 offenses like DUI, the legislature did not intend justification defenses to apply to them. The court wasn’t impressed with the out-of-state authority the defendant cited, and it explained that Arizona has no common law defense of necessity. The court concludes that a DUI defendant can’t argue necessity.

The biggest frustration in all this is that I can’t say the case was wrongfully decided based on the text of the statutes. The statutes are terrible. Because of them, in the scenario I described above, you would be convicted. You could appeal, but the appellate court would just tell you the law is clear. It would use the rules of statutory construction that hurt you while dismissing the ones that help you. If you are convicted, the court may give you a Title 13 enhanced sentence, though it refused to give you a Title 13 necessity defense.

Knowing that, if you ever find yourself in the situation I described above, which I hope you never do, you will realize that you have two choices. You can risk death, or you can risk DUI. You aren’t going to find so much as a scrap of sympathy from any court.

I hope that all of you are as offended by this as I am. I wish I could say that State v. Fell is Arizona’s worst DUI opinion, but it probably isn’t close. It’s just one little sample of Arizona DUI stupidity.