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State of Arizona v George

Case No. 1 CA-CR 12-0558 (AZ Ct. App., Div. 1, Nov. 26, 2013)

Lori Dawn Bayless George appeals her conviction and sentence for driving while under the influence of intoxicating drugs. She argues that Arizona Revised Statutes (“A.R.S.”) § 28–1381(A)(1) is unconstitutionally vague as applied to her. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY



On August 14, 2009, at approximately 5:30 p.m., a witness observed George drive out of a shopping plaza’s parking lot. According to the witness, George made a wide right turn and crossed traffic lanes before striking a curb “very hard[,] . . . kicking up a lot of dirt and debris.” Concerned about George’s condition, the witness called the police. A Goodyear police officer responded and found George at a second shopping plaza. George’s two children—a three-year-old and a ten-month-old—were both passengers in the vehicle.

Although George did not have her driver’s license, she provided the officer with her correct name, address, and birth date. When asked if she remembered hitting the curb, she responded, “Yeah, I remember striking the curb, and it was probably because I took Ambien about three hours ago.”

The officer observed that while “[George] seemed aware of what was going on,” she also “seemed very tired [and] had a slow type response, slow demeanor to the questions I was asking . . . [and] how she carried herself.” At the police substation, a drug recognition expert confirmed the initial officer’s observations, noting that George appeared “sleepy, real tired, heavy eyes, drowsy.” George admitted to the officer that she had taken Ambien and Celexa—both central nervous system depressants—that day, and said several times that she was sorry, that she knew better, and that she should not have driven after taking those drugs. A blood test revealed that she had taken not only Ambien and Celexa, but also Benadryl, a third central nervous system depressant.
 


 

Judge(s): Randall M. Howe
Jurisdiction: Arizona Court of Appeals, Division One
Trial Court Judge(s)
Jerry Bernstein

 
Court of Appeals Judge(s)
Randall Howe
Diane Johnsen
Samuel Thumma

 
Appellant Lawyer(s) Appellant Law Firm(s)
Terry Reid Office of the Maricopa County Public Defender

 
Appellee Lawyer(s) Appellee Law Firm(s)
Joseph Maziarz Office of the Arizona Attorney General
Jana Zinman Office of the Arizona Attorney General

 

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Click the maroon box above for a formatted PDF of the decision.
goodyear police officer responded and found george at a second reasons. first, she has no standing to claim that § 28–1381(a)(1) is vague. 6 anderson, 199 ariz. 187, 191 ¶ 15, 16 p.3d 214, 218 (app. 2000). section 28- 1381(a)(1) prohibits driving while “under the influence of . . . any drug . . . identify ambien—by name or class—as prohibited to provide sufficient section 28–1381(a)(1) is not unconstitutionally vague. convicted under a statute designed to prevent the very conduct she and error of such magnitude that the defendant could not possibly have while under the influence of any drug if it impairs driving to the slightest opinion of the court j o h n s e n, chief judge, specially concurring “[a] defendant whose conduct clearly falls within the legitimate purview the state dismissed the second count before trial. be violated, no danger of arbitrary or discriminatory enforcement exists. argues that arizona revised statutes (“a.r.s.”) § 28–1381(a)(1) is no notice that ambien might cause her to “sleep-drive” in an impaired municipality of anchorage, 643 p.2d 691, 692 (alaska ct. app. 1982)) understood to be prohibited, and the statute provides sufficient notice of notice that george should not take any drug and then drive impaired. peoria unified sch. dist. no. 11, 188 ariz. 368, 370, 936 p.2d 554, 556 (1997) ariz. 231, 85 p.3d 109 (app. 2004). a statute need not be drafted with ¶3 although george did not have her driver’s license, she presents on appeal is whether the statute is unconstitutionally vague 218, 219 ¶ 3, 109 p.3d 113, 114 (app. 2005). but when a statute is nonconstitutional grounds dispositive of the case.”). involuntariness argument or cite to authorities to support it, and has as applied because it did not give prescription-drug user adequate notice peril rather than only at the public’s peril.”) (quoting morgan v. ¶6 george argues that although § 28-1381(a)(1) is not facially affirmed state v. george aware of the proscribed conduct, namely, impaired driving ability drive impaired, whether through general impairment of her faculties or therefore forfeited appellate review of such a claim. see state v. lindner, having a dangerous drug in his body, a violation of a.r.s. § 28– standards of application to prevent arbitrary and discriminatory years of age was in the vehicle (aggravated dui), a class 6 felony,1 in factual basis of that argument. george argues the ambien she took driving, not that the offender knew that the drug would cause carried herself.” at the police substation, a drug recognition expert she argues that the fact that the legal drug she had taken might cause her impairment. ambien would have the side-effect of causing her to drive impaired.2 she was not guilty because her act of driving was not voluntary: the vague if it fails to provide ‘person[s] of ordinary intelligence a reasonable degree. and because the statute establishes objective guidelines to month-old—were both passengers in the vehicle. constitutional attack on § 28-1381(a)(1) because the jury rejected the state v. george george’s argument, that george is not arguing that she had no notice that ¶18 my view is that we need not and should not reach george’s caused her to involuntarily “sleep-drive.” the jury, however, properly specific drugs or drug combinations that may cause impairment, and the ¶8 george cannot demonstrate that any error occurred, for two ¶19 accordingly, because the jury found george was not “sleep- boyd is inapposite. in that case, the defendant ingested a legal substance point where he is under the influence of alcohol. he should drive at his ingesting the legal substance was illegal, § 28–1381(a)(1) explicitly gave extreme example of impaired driving. the question george squarely 634 (2009). by driving while impaired from the influence of ambien, before striking a curb “very hard[,] . . . kicking up a lot of dirt and debris.” ¶7 fundamental error is “error going to the foundation of the johnsen specially concurred. very deferential to jury determinations of factual issues. see state v. stroud, impaired is the driver’s responsibility. a person who takes a drug and [california’s dui statute] is not required if a person is reasonably made examination that she had taken ambien and celexa that day and that she (2005). ¶15 george’s argument thus fails. george was tried and the honorable jerry bernstein, judge pro tem celexa, and benadryl, george’s conduct fell squarely within the statute’s aggravated dui, one for each person under 15 years of age in the vehicle, remember striking the curb, and it was probably because i took ambien of the statute has no standing to challenge the statute as vague.” state v. a blood test revealed that she had taken not only ambien and celexa, but george as it does not inform a person of average intelligence that taking a resulting from ingestion of some substance”). section 28-1381(a)(1) indeed, as a factual matter, the record belies george’s claim that she was statute is not vague as applied to her. “a statute is unconstitutionally was vague as applied to him because the statute did not give notice that accordingly, § 28–1381(a)(1) is not unconstitutionally vague as applied. ¶20 although i do not join the majority’s analysis, i join it in ¶12 due process does not require § 28-1381(a)(1) to specifically 1 although george was originally indicted on two counts of notice; all due process requires is that the statute give notice that impaired 1338 (1995). in convicting george, the jury necessarily concluded she was driving while under the influence of any drug if the driver is impaired, impair her driving. she argues instead that she had no notice that ambien the prohibited conduct. due process does not require that the statute list opinion of the court opinion of the court by joseph t. maziarz, jana zinman presiding judge randall m. howe delivered the opinion of the court, in on nonconstitutional grounds.”); goodman v. samaritan health sys., 195 attorney general’s office, phoenix conclusion ambien might cause her to “sleep-drive.” see r.l. augustine constr. co. v. maricopa county public defender’s office, phoenix provides that notice. whether a particular drug may cause a driver to be enforcement.” poshka, 210 ariz. at 220 ¶ 5, 109 p.3d at 115 (quoting statute’s constitutionality. but “sleep-driving” is merely a specific and ¶5 george was charged and tried on one count of aggravated such a reading. indeed, george does not explicitly present an driving.” which judge samuel a. thumma joined and chief judge diane m. also benadryl, a third central nervous system depressant. the witness, george made a wide right turn and crossed traffic lanes “sleepy, real tired, heavy eyes, drowsy.” george admitted to the officer reasonable doubt that she committed a voluntary act, and this court is driving voluntarily, thereby rejecting her argument that she was “sleep- driving under the influence of any drug is prohibited. see people v. olive, and that is what george did. while the statute in boyd gave no notice that shopping plaza. george’s two children—a three-year-old and a ten- ¶9 second, even if george had standing to raise this claim, the offenders and law enforcement officers to determine when the statute will lori dawn bayless george, appellant. depressants—that day, and said several times that she was sorry, that she court designated the offense a class 1 misdemeanor, revoked george’s if the person is impaired to the slightest degree.” driving under the violation of a.r.s. §§ 28–1381(a)(1) and –1383(a)(3). george claimed that johnsen, c.j. specially concurring case, error that takes from the defendant a right essential to his defense, arizona court of appeals 8 confirmed the initial officer’s observations, noting that george appeared state v. george grayned v. city of rockford, 408 u.s. 104, 108–09 (1972)); state v. brown, 207 might cause her to “sleep-drive” in an impaired state. more specifically, that she had taken ambien and celexa—both central nervous system ariz. at 219 ¶ 3, 109 p.3d at 114. because george did not raise this through “sleep-driving.” the jury’s apparent rejection of her defense that facts and procedural history what was going on,” she also “seemed very tired [and] had a slow type instructed that it could find george guilty only if it found beyond a argue that the statute is vague because she had no notice that taking culpable mental state. state v. zaragoza, 221 ariz. 49, 54 ¶ 20, 209 p.3d 629, opinion division one medication as prescribed and then going to bed can result in a felony ¶11 george nevertheless argues that the statute is vague, stating claim that her conduct was involuntary, a closer look does not support ¶13 george relies heavily on this court’s decision in state v. combination of drugs she took caused her to “sleep drive.” the jury asked if she remembered hitting the curb, she responded, “yeah, i person who drinks and drives to be responsible for not drinking to the unconstitutionally vague as applied to her conduct. see id. (statute vague statute. id. at ¶ 12. this court agreed, holding that a person of average conviction.” although at first blush george’s argument might be read to 341, 344, 674 p.2d 895, 898 (app. 1983) (“it does make sense to require a a.r.s. §§ 13-105(42), -201; state v. lara, 185 ariz. 233, 234, 902 p.2d 1337, legal substance into an illegal one. section 28–1381(a)(1) directly prohibits opinion of the court 2 our concurring colleague submits that we have mischaracterized no. 1 ca-cr 12-0558 about three hours ago.” opinion of the court state v. george response, slow demeanor to the questions i was asking . . . [and] how she unconstitutionally vague as applied to her. finding no error, we affirm. that, when metabolized, turned into a prohibited drug. id. at 29 ¶ 10, 13 she did not commit a voluntary act does not answer that legal question. such an argument would surely fail on appeal. the jury was properly v. 216 p.3d 1203, 1205 (app. 2009). knew better, and that she should not have driven after taking those drugs. ¶2 on august 14, 2009, at approximately 5:30 p.m., a witness 5 provided the officer with her correct name, address, and birth date. when no. cr2010-155807-001 that the statute is unconstitutionally vague because she did not know that offense, zaragoza, 221 ariz. at 54 ¶ 20, 209 p.3d at 634, and the state need p.3d at 143. she thus contends that a.r.s. § 28-1381(a)(1) is boyd, 201 ariz. 27, 31 p.3d 140 (app. 2001), to support her argument, but 7 counsel for appellant influence is a strict liability offense that does not require proof of any challenged as vague, we strongly presume that it is constitutional, state v. state of arizona, appellee, about three hours ago.” she also told the officer conducting the drug prohibited conduct: driving or being in actual physical control of a vehicle 1381(a)(3). id. at ¶ 11. on appeal, the defendant claimed that the statute received a fair trial.” id. at ¶ 19. to prevail under fundamental error ingesting the legal substance in question would cause him to violate the error. state v. henderson, 210 ariz. 561, 567 ¶¶ 19–20, 115 p.3d 601, 607 review, a defendant must prove that fundamental error exists and that the only show that the offender took “any drug” that caused impaired person is impaired to the slightest degree.” (emphasis added). a person of we “construe the statute to give it a constitutional meaning,” poshka, 210 appeal from the superior court in maricopa county influence of intoxicating liquor or drugs and while a person under 15 h o w e, presiding judge: that: “a.r.s. § 28-1381(a)(1) is unconstitutionally vague as applied to ms. ¶16 for the foregoing reasons, we affirm george’s conviction of the factual predicate of her argument obviates any need to address the 112 cal. rptr. 2d 687, 690 (cal. app. dep’t super. ct. 2001) (holding that counsel for appellee sentence for driving while under the influence of intoxicating drugs. she ¶14 in this case, however, no mysterious bodily process turned a that drug’s unknown side effects would violate statute). we review a statute’s constitutionality de novo. state v. poshka, 210 ariz. voluntarily and because she does not contest she was impaired at the time. opinion of the court ¶ 18, 972 p.2d 1021, 1026 (app. 1998). 4 driving” at the time she was stopped, i would not address her argument by terry reid concerned about george’s condition, the witness called the police. a state. because the jury’s guilty verdict necessarily rejected george’s ¶1 lori dawn bayless george appeals her conviction and intelligence and common knowledge would not be aware of the bodily ordinary intelligence would understand that the statute prohibits driving determining whether error occurred. state v. silva, 222 ariz. 457, 459 ¶ 11, in the state v. george risk that any particular drug may cause impairment falls on george. counsel unaware of ambien’s effects. when the police officer asked her about her notice that driving while impaired from ambien would violate the statute. driving or being in actual physical control of a vehicle while under the argument at trial, she has forfeited appellate review absent fundamental :mjt driving privileges, ordered her to serve 24 consecutive hours of jail time, process that turned the legal substance into the prohibited drug. id. ariz. 502, ¶ 11, 990 p.2d 1061, 1064 (app. 1999) (“it is sound judicial policy “actual notice of each drug constituting a basis for prosecution under error caused prejudice. id. at ¶ 20. the first step in this analysis is and placed her on supervised probation for 18 months. then drives does so at his or her own risk. cf. state v. thompson, 138 ariz. argument. george does not argue she lacked notice that ambien might discussion (emphasis omitted). section 28–1381(a)(1) establishes a strict liability knew that she should not have driven. poor driving when she struck the street curb, she answered, “yeah, i absolute precision to satisfy due process. state v. lefevre, 193 ariz. 385, 390 rejected george’s defense and found her guilty. at sentencing, the trial state v. george and sentence. 3 remember striking the curb, and it was probably because i took ambien because it gave no notice that ambien had the side-effect of causing her to ¶17 with respect, i believe the majority misconstrues george’s while under the influence of “liquor, any drug, a vapor releasing argument that she “slept-drove,” our colleague suggests that the rejection to involuntarily “sleep-drive” was “unknown to a person of average observed george drive out of a shopping plaza’s parking lot. according to opportunity to know what is prohibited’ and fails to contain explicit p.3d at 142. the defendant was charged and convicted of driving while 209 ariz. 410, 411 ¶ 6, 103 p.3d 912, 913 (2005). we understand george to 227 ariz. 69, 70 ¶ 3 n.1, 252 p.3d 1033, 1034 n.1 (app. 2010). moreover, was instructed of the state’s burden to prove she acted voluntarily. see ¶10 applying this test, § 28–1381(a)(1) clearly identifies the vague, it is unconstitutionally vague as applied to her because she had no she should not drive while impaired by ambien, but instead that she had substance containing a toxic substance or any combination [thereof] if the ¶4 the officer observed that while “[george] seemed aware of intelligence and common experience.” see boyd, 201 ariz. at 30, ¶ 20, 31 affirming george’s conviction because the jury found she was driving to avoid deciding a case on constitutional grounds if there are (“we will not reach a constitutional question if a case can be fairly decided filed 11-26-2013 ambit. thus, she cannot argue that the statute is vague. kaiser, 204 ariz. 514, 517 ¶ 8, 65 p.3d 463, 466 (app. 2003), and if possible, state v. george 2


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