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Appeals Court Upholds Extreme DUI Conviction

The state does not have to provide a “grace period” for adding or amending the definition of an offense, the Arizona Court of Appeals has ruled.

Albert Soltero had argued that his conviction under a then-new standard for what constitutes driving while under the extreme influence of intoxicating liquor violated his rights of due process.

The Legislature established the offense of extreme DUI in 1998. ARS 28-1382(A) as then enacted reads:

“It is unlawful for a person to drive or be in actual physical control of a vehicle in this state if the person has an alcohol concentration of 0.18 or more within two hours of driving or being in actual physical control of the vehicle. A person who is convicted of a violation of this section is guilty of driving or being in actual physical control of a vehicle while under the extreme influence of intoxicating liquor.”

In 2001, the Legislature passed an amendment to the statute that lowered the alcohol concentration to 0.15 from 0.18. The measure was passed with an emergency clause, which meant that the change became effective upon then-Governor Hull’s signature on April 4, 2001.

Mr. Soltero was arrested May 11, 2001, and charged with extreme DUI. Mr. Soltero objected to the allegation using the same argument that the immediate effective date of the amendment violated his right to due process under the Fifth Amendment of the U.S. Constitution. A Superior Court judge rejected that argument.

Mr. Soltero’s attorneys appealed, arguing that having a criminal statute become effective immediately violates a defendant’s right to due process because it “fails to provide adequate notice of its enactment.”

In a 3-0 decision released July 3, a three-judge panel on the Arizona Court of Appeals disagreed.

“The problem with the defendant’s argument is that it is grounded upon a false premise,” Judge Lawrence F. Winthrop wrote for the majority, which also included Judge Philip Hall and Judge Pro Tem Robert R. Moon of the Mohave County Superior Court. “Contrary to defendant’s contention, there is no general due process requirement that the government give notice of the enactment of legislation, general or otherwise.”

The opinion cites a state Supreme Court opinion in Merrill v. Gordon (1914), which held that “the administration of justice, the law itself as a practical system of the regulation of human conduct, requires that some fundamental assumptions should be made as postulates. The most important of all these is the assumption that all persons of sound and mature mind are presumed to know the law.”

Neal W. Bassett, attorney for Mr. Soltero, did not respond to a telephone inquiry on whether an appeal of the decision will be made to the state Supreme Court.

The opinion is No. 1 CA-CR 02-0698. —

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