PHOENIX - Motorists accused of drunken driving may soon get back their right to demand a trial by jury.
Without dissent the House Judiciary Committee approved legislation Thursday that would reverse a year-old decision by lawmakers to say that prosecutors could demand these cases be heard solely by a justice of the peace. HB 2284 now goes to the full House.
Rep. David Burnell Smith, R-Scottsdale, said it's not fair to deny someone who could be jailed and fined the right to a jury trial. He also questioned whether the legislation approved last year is even constitutional.
In fact, several lawyers already are pursuing legal challenges.
Sen. Linda Gray, R-Glendale, who championed the change last year, does not like the repeal effort. Gray said she sees this less as a fight over individual rights and more as a bid by defense attorneys to make money, what with a jury trial taking more time.
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"You always follow the trail of the money," Gray said. But she said she will not try to defeat the measure when it comes to the Senate.
At issue are those charged with simple drunken driving who have a blood-alcohol content of more than 0.08 but have not been convicted before.
Generally, Arizona courts have said jury trials are constitutionally required only for any crime that carries a penalty of more than six months in jail. But state law did provide that right in cases of drunken driving.
All that changed Jan. 1 when the legislation approved last year took effect.
Smith pointed out the change was tacked onto a much larger measure making several changes in drunken driving laws. He said many lawmakers - himself included - were unaware of the provision when they voted for the whole package.
Issues of fairness aside, Smith said the change has created logistical problems.
For example, the change did not affect the right to a trial by jury for those charged with "extreme" DUI, meaning a blood-alcohol content of at least 0.15. A person is generally presumed to be legally intoxicated in Arizona with a blood-alcohol content of 0.08.
Smith said prosecutors sometimes will charge someone with a high blood-alcohol content with both regular and extreme DUI, figuring that if there isn't enough evidence for the higher charge they can fall back on the lower one. He said that can create a complicated trial situation where the extreme charge has to go to a jury but the other does not.
Smith's legislation is not the only attack on the law.
Attorney Clifford Girard said several defense attorneys already are challenging the statute on behalf of clients who are accused of drunken driving but have been denied a jury trial.
Smith's legislation needs final House approval before going to the Senate.
