Another DUI Exception to the Constitution

Posted by Lawrence Taylor on March 1st, 2012

I’ve mentioned in past posts that the right to jury trial does not exist in some states for citizens accused of drunk driving.  See, for example, The Disappearing Right to Jury Trial – in DUI Cases, Through a Glass Darkly: No Jury Trial in DUI Cases and New Law: No Right to Jury Trial in DUI Cases. This may come as a shock to many out there, but it’s pretty typical of what I’ve termed "The DUI Exception to the Constitution".  

Let me make it clear:  in some states today, you can be arrested for DUI, charged, prosecuted and sent to jail for up to six months — without any right to have a jury of fellow citizens decide your guilt or innocence.

One of those states, Arizona, is apparently having second thoughts about denying this basic constitutional right….

Arizona Considers Restoring Jury Trials for DUI

Phoenix, AZ.  Feb. 20 —  Since the beginning of the year, certain motorists charged with driving under the influence of alcohol (DUI) lost their right to a trial by jury in the state of Arizona. A bill signed into law by Governor Jan Brewer (R) on April 29, 2011 rewrote the DUI statute so that only hardcore offenders with previous convictions or "extreme" blood alcohol content readings had the benefit of having their case heard by a jury of their peers, even though the first-time accused faced the prospect of spending six months behind bars.

The law removing the jury trials took effect December 31, but the state House Judiciary Committee on Thursday voted 7-0 to retroactively nullify the provision. Many state lawmakers expressed surprise after learning that they had voted for this language, which local prosecutors have been pushing for several years.

"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," Arizona Code Section 28-1381 now states.

The addition of the phrase "if the state alleges a prior conviction" erased the right to a jury trial for those who stand accused of being first-time, minor offenders. Trial lawyers have been looking to challenge the language before an appellate court.

"It has caused a lot of problems because if you have an extreme DUI and a first-time DUI, the judge hears the DUI case, the jury hears the extreme case," state Representative David Burnell Smith (R-Scottsdale) explained at the hearing Thursday. "If you file a motion, you get the extreme dismissed, you’d still not get a jury trial. It’s confusing out there. There’s constitutional issues, back and forth motions."

Smith’s legislation, House Bill 2284, would delete the language about prior convictions and give every defendant the unilateral right to request a jury trial. The measure is retroactive to December 31 to head off any legal challenges.

"It eliminates a real problem with the courts," Smith said.

Imagine that:  citizens accused of DUI may get a jury trial in Arizona.  Now, about those other states….

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