Opinion
No. 2 CA-SA 91-0047.
May 16, 1991. As Corrected May 29 and June 21, 1991. Review Denied December 3, 1991.
Appeal from the Superior Court, Pima County, Howard Hantman, J., pro tem.
Frederick S. Dean, Tucson City Atty. by R. William Call, Tucson, for petitioner.
Charles P. Davies, Tucson City Public Defender by Frances T. Lynch, Tucson, for real party in interest.
OPINION
This special action presents yet another question regarding the application of the Supreme Court's decision in Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990). In this case, the issue is whether the double jeopardy clause precludes the use of evidence, in a criminal trial for driving under the influence of alcohol (DUI), of conduct that was the basis of a civil traffic citation upon which a default judgment was entered and a fine was paid. This is a matter of statewide importance involving legal as opposed to factual issues. Therefore, we accept jurisdiction. University of Arizona Health Sciences Center v. Superior Court, 136 Ariz. 579, 667 P.2d 1294 (1983). For the reasons stated below, we grant relief.
Recent cases that involve Grady issues include State v. Nunez 167 Ariz. 272, 806 P.2d 861 (1991); State v. Nichols, 169 Ariz. 409, 819 P.2d 995 (App. 1991); Mullet v. Miller, 168 Ariz. 594, 816 P.2d 251 (App. 1991); Taylor v. Sherrill, 166 Ariz. 359, 802 P.2d 1058 (App. 1990); Lewis v. Warner, 166 Ariz. 354, 802 P.2d 1053 (App. 1990).
FACTS AND PROCEDURAL BACKGROUND
Real party in interest David Root was arrested and cited for DUI under A.R.S. § 28-692(A)(1) and (2), criminal offenses, and for unsafe movement on a roadway under A.R.S. § 28-754, a civil violation. The appearance on the civil citation and the arraignment on the DUI charges were set for September 19, 1990. Root failed to appear, and a default judgment was entered on the civil citation. Petitioner State of Arizona filed a motion to dismiss that charge on November 7, but before the court signed the order granting the motion, Root paid a fine pursuant to Rule 11, Civ. Traf. Violation R.P., 17B A.R.S. On November 19, the day after the court granted the motion to dismiss the civil charge, Root filed a motion to dismiss the remaining DUI charges based on double jeopardy. The magistrate denied the motion but ordered that the state was precluded from presenting in the DUI trial any evidence of Root's conduct that was the basis of the unsafe movement citation. The state sought special action relief from the respondent superior court, which was denied. This special action followed.
DOUBLE JEOPARDY
The double jeopardy clause "protects against a second prosecution for the same offense after acquittal[,] . . . a second prosecution for the same offense after conviction[,] . . . [a]nd . . . multiple punishments for the same offense." North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 664-65 (1969). In Grady v. Corbin, supra, the Supreme Court held that to determine whether a subsequent prosecution is barred, a court must first apply the test articulated in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). In addition, the Court ruled that the "Double Jeopardy Clause bars any subsequent prosecution in which the government, to establish an essential element of an offense charged in that prosecution, will prove conduct that constitutes an offense for which the defendant has already been prosecuted." 495 U.S. at 521, 110 S.Ct. at 2093, 109 L.Ed.2d at 564.
The defendant in Grady had been in an automobile accident that resulted in the death of the driver of the other car. He was cited for DUI, a criminal charge, and failing to keep his car to the right of the median, a civil offense. The defendant pled guilty to the traffic citations and was sentenced to a fine and license revocation. He was subsequently charged with homicide and assault, which he moved to dismiss on double jeopardy grounds. The Court held that the subsequent prosecution was barred because the bill of particulars showed that the state was relying on the conduct of driving while intoxicated and failing to keep right of the median to establish the essential elements of the homicide and assault offenses. If that had not been the case and the state had intended to use other conduct to prove the offenses, the subsequent prosecution would not have been barred. Additionally, the Court noted that "[w]ith adequate preparation and foresight, the State could have prosecuted Corbin . . . in a single proceeding, thereby avoiding this double jeopardy question." 495 U.S. at 524, 110 S.Ct. at 2095, 109 L.Ed.2d at 566.
In Taylor v. Sherrill, 166 Ariz. 359, 802 P.2d 1058 (App. 1990), we held that a default judgment for civil traffic charges of unsafe turning and speeding placed the defendant in jeopardy, thereby precluding the state from either prosecuting the defendant for aggravated assault and criminal damage or from using evidence of the civil violations in a trial on the criminal charges. The defendant in Taylor was initially cited for unsafe turn, speeding, failure to provide proof of insurance, providing false information to the police, driving on a suspended license, and DUI under former A.R.S. § 28-692(A) and (B). After the default judgment was entered against him on the unsafe turning and speeding charges, the DUI charges were dismissed. Thereafter, he was indicted and convicted of aggravated assault, criminal damage, the two DUI charges, and driving on a suspended license. He was granted a new trial following post-conviction proceedings under Rule 32, Ariz.R.Crim.P., 17 A.R.S., and he then filed a motion to dismiss the aggravated assault and criminal damage charges based on Grady.
In granting special action relief, this court found that the fact that the traffic violations were civil in nature did not mean that jeopardy did not attach, noting that in Grady one of the violations that placed the defendant in jeopardy was a civil traffic charge. In addition, we recognized that the sanctions for those violations were intended to punish under the analysis of United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). As a result, we held that the trial court abused its discretion in concluding that jeopardy did not attach and in denying Taylor's alternative request that evidence of the unsafe turn and speeding be precluded from the trial on aggravated assault and criminal damage.
This case is distinguishable from both Taylor and Grady. Both cases involved subsequent prosecutions; here, it appears that the state heeded the warning in Grady and prosecuted all charges in one proceeding. Root does not dispute the state's claim that the citations were issued at the same time, that the matters were set for initial appearance at the same time, and that one docket number was used for all three citations, all factors reflecting that the state was prosecuting the citations in one proceeding. Therefore, we believe that this case is similar to Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536, 81 L.Ed.2d 425 (1984).
There, the defendant was indicted for grand theft, aggravated robbery, involuntary manslaughter, and murder. At his arraignment the defendant pled guilty to the lesser-included offenses of grand theft and involuntary manslaughter. The trial court then granted the defendant's motion to dismiss the remaining, more serious charges based on double jeopardy. The ruling was sustained on appeal. In reversing, the Supreme Court rejected the argument that the defendant would be subjected to multiple prosecutions and stated as follows:
The grand jury returned a single indictment, and all four charges were embraced within a single prosecution. Respondent's argument is apparently based on the assumption that trial proceedings, like amoebae, are capable of being infinitely subdivided, so that a determination of guilt and punishment on one count of a multicount indictment immediately raises a double jeopardy bar to continued prosecution on any remaining counts that are greater or lesser included offenses of the charge just concluded.
467 U.S. at 501, 104 S.Ct. at 2541-42, 81 L.Ed.2d at 434.
Although this case does not involve an actual multicount criminal indictment, it is similar to Johnson. Although Root, unlike Johnson, did not plead guilty to the civil charge, because he failed to appear, the allegations in the complaint were deemed admitted, and the magistrate was required to enter a judgment against him. A.R.S. § 28-1076(D). Root paid the fine, thereby resolving only one of the charges against him, as was the case in Johnson. We note also that unsafe movement on the roadway is not a lesser-included offense of DUI, as grand theft and manslaughter are lesser-included offenses of aggravated robbery and murder. Thus, there is even less danger of violating Root's double jeopardy rights than was true in Johnson. Root will neither be punished nor prosecuted twice for the same conduct.
We conclude that because all matters were pursued in one prosecution, there is no jeopardy problem in this case. Therefore, there was no reason to preclude the state from using the conduct of unsafe movement on the roadway in the DUI trial. If we were to hold otherwise, we would be permitting Root and others in similar situations "to use the Double Jeopardy Clause as a sword to prevent the State from completing its prosecution on the remaining charges." Johnson, 467 U.S. at 502, 104 S.Ct. at 2542, 81 L.Ed.2d at 435.
The superior court's order affirming the order of the city court is reversed, and this matter is remanded for further proceedings consistent with this decision.
HOWARD, P.J., and JAMES C. CARRUTH, J., concur.
A Judge of the Pima County Superior Court authorized and assigned to sit as a Judge on the Court of Appeals, Division Two, pursuant to Arizona Supreme Court Order filed July 25, 1990.