By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — Two Arizona motorists accused of driving drunk are arguing they can escape being convicted of the more serious crime of driving the wrong way in traffic while intoxicated because no one has proven they knew it was illegal.

But the state Court of Appeals says that claim won’t work.

In a new ruling, the three-judge panel said some offenses are those of strict liability. That includes most civil traffic violations.

That means someone trying to escape a ticket for running a red light can’t escape being fined based on a claim they didn’t know the light was red. Ditto exceeding the speed limit, failing to use turn signals or driving around a school bus that is loading or unloading children.

Attorneys for the two defendants here pointed out they were charged with something that actually is a crime: driving the wrong direction on a highway while under the influence, something on conviction requires a mandatory four months in jail and a loss of license for a year. That, they argued, is different.

The judges didn’t accept that theory.

But they did agree with the defense lawyers on at least one point: Prosecutors must show the signs were sufficient so that a reasonable person would know which way traffic has to go to get a conviction.
With this ruling — and guidance from the appellate court — the cases now go back to lower court for trials where juries will decide whether the defendants are guilty.

In the first instance, police stopped Katherine Franz after she was observed driving west in the eastbound lanes of Interstate 10 in Maricopa County. One officer noticed she appeared to be intoxicated.

According to court records, Franz said she had been drinking and did not know how she ended up on State Route 202 — even while she was still on I-10.

A test showed a blood-alcohol reading of 0.134; 0.08 is considered presumptive evidence of being intoxicated.

The other case involves Arthur Schlemmer who police found driving westbound on within Phoenix on Jefferson Street, which is a one-way eastbound street. He tested at 0.250 blood alcohol content.

Attorneys for both argued jurors should be told that prosecutors must prove the defendants knew or should have known they were driving in the wrong direction. The cases wound up at the Court of Appeals after the trial judges denied both requests.

Appellate Judge Paul McMurdie, writing for the court, acknowledged that in criminal cases, the presumption is that the state “demonstrate some degree of wrongful intent.” That is defined as “mens rea,” a Latin term literally meaning a “guilty mind.”

By contrast, he said, strict liability — the fact that someone broke a law is by itself sufficient — applies only where there is “clear legislative intent that the crime does not require any degree of mens rea.”

McMurdie noted this particular offense has two elements that have to be established: that someone was driving while intoxicated, and that someone was driving the wrong way on a highway.

He pointed out there is clear case law that there is no mens rea requirement for the first part: Simply being drunk while driving is sufficient to sustain a conviction, regardless of what the motorist knew about being intoxicated.

What that leaves, McMurdie said is the other half of what’s necessary for conviction: driving the wrong way.

He said that can include driving on the wrong side of a two-way road. But what it also means — and applicable here — is driving the wrong way on a road designated and signed for one-way traffic.

McMurdie said failing to obey those signs, by itself, is sufficient to sustain a conviction regardless of whether motorists know they are going the wrong way.

But the judge said there is a defense of sorts against such charges.
“The state must move that the highway is appropriately marked or signed,” he wrote. “A defendant may present evidence and argument that, given how he or she entered or drove on the highway, the markings or signage were inadequate.”

McMurdie said, though, that still doesn’t shift the burden to the state to prove that individuals knew they were going the wrong way.

“Such evidence pertains to the legal flow of traffic, not the defendant’s mens rea,” he said. “This is true even if the signage requirement is to give reasonable motorists notice of the legal duties of traffic flow.”

All of this sends both cases back to the trial judges who are being told they should not be telling jurors the state has to show they knew they were going the wrong way. But they should be instructing those same jurors that it is the state’s burden to prove that, based on the evidence, there was sufficient signage to show the legal flow of traffic.

Attorney Gregory Zamora, who represents Schlemmer, said it makes sense for the state to have to show that the person was driving the wrong way.

“That’s not an intuitive thing,” he said.

“You don’t just know which direction you’re supposed to be traveling on the roads,” Zamora said. “You’re given clear indications from the government.”

And he suggested there is evidence that the signage is not clear “because it keeps happening, at least in downtown Phoenix,” that motorists are stopped for going the wrong way on city streets.