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New Court Decision on A.R.S. § 28-672

Armando Nava

Just last week, the Arizona Court of Appeals ruled that A.R.S. § 28-672 violations are strict liability offenses which warrant no jury trial.

Phoenix City Prosecutor’s Office v. Honorable Monyette Nyquist and Jamie Hernandez-Alejandro

Arizona Revised Statutes section 28-672 is a class 3 misdemeanor offense for causing a person serious physical injury by committing one of the enumerated traffic violations listed in the statute. This statute fails to provide a culpable mental state for a violator of the statute, and is generally not severe enough to require a jury trial.

In November 2013, Jamie Hernandez-Alejandro stopped at a stop sign and proceeded to turn left through an intersection. While turning at the intersection, his car hit a scooter, which seriously injured its driver and passenger. By failing to yield to the scooter in the intersection, Hernandez-Alejandro violated section 28-672(A)(5). Before the start of Hernandez-Alejandro’s bench trial, he made two motions: (1) to require the State to prove a culpable mental state and (2) requesting a jury trial.

So, is a culpable mental state required for A.R.S. § 28-672?

No, the statute does not expressly require a culpable mental state. According to A.R.S. § 13-202(B), “If a statute defining an offense does not expressly prescribe a culpable mental state that is sufficient for commission of the offense, no culpable mental state is required . . . and the offense is one of strict liability.” Section 28-672 only describes acts or results that violate the statute, it lacks any reference to a person’s state of mind. Just doing the act is enough to violate the statute. Thus, the statute does not require any culpable mental state.

This reading of section 28-672 is also backed by its legislative history. While revising section 28-672, the Legislature also added sections 28-675 and 28-676. Under these added sections, the Legislature indicated that a person must know or should have known of their violation.  In other words, the Legislature intentionally included a mental culpability requirement with the added statutes, whereas with respect to section 28-672, the Legislature purposefully did not include a mental culpability requirement. This illustrates that if the Legislature wanted to attach a mental state to a statute, it would have done so. By not doing so, the Legislature clearly expressed its intention to make the violation a strict liability offense. Since this violation is a strict liability offense, the State is not required to prove any culpable mental state.

Is an A.R.S. § 28-672 violation jury eligible?

No, because this is a petty criminal offense with no common law antecedent for a jury trial. To determine whether or not an offense is jury eligible, Arizona courts use Derendal’s two-pronged test. First, the court must determine whether the offense has a common law antecedent that guaranteed a right to trial by jury at the time of Arizona statehood. If the first prong is not satisfied, the court then looks at the seriousness of the offense.

Hernandez-Alejandro contended that section 28-672 satisfied the first prong because there is a jury eligible common law antecedent offense for “[o]perating a motor vehicle so as to endanger [any] property [or] individual.” However, the Court saw this differently, explaining that the two offenses did not share the same fundamental characteristics because section 28-672 requires serious physical injury or death to occur, whereas the common law offense did not. Therefore, the first prong of the test was not satisfied and the second prong needed to be analyzed.

Under Derendal’s second prong, misdemeanor offenses punishable by no more than six months’ incarceration are presumed to be jury ineligible. Hernandez-Alejandro was charged with a class 3 misdemeanor which holds a sentence of at most, 30 days imprisonment. Thus, a violation of section 28-672 is presumed to be jury ineligible.

What does this mean for future A.R.S. § 28-672 violations?

In a post-Hernandez-Alejandro Arizona, a defendant can no longer argue that he lacked the proper mental culpability and he can no longer request a jury trial.

Thus, any person charged with a violation of A.R.S. § 28-672 will need a strong legal defense. Whether this is your first violation, or a subsequent one, it is important that you consult with an Arizona lawyer who will work to minimize the consequences of this offense.

Contact The Nava Law Firm, PLLC today for a free consultation if you have been charged with causing serious physical injury or death by a moving violation.

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