                                                             FILED BY CLERK
                                                               JAN -7 2011
                          IN THE COURT OF APPEALS               COURT OF APPEALS
                              STATE OF ARIZONA                    DIVISION TWO
                                DIVISION TWO

THE STATE OF ARIZONA,                       )   2 CA-SA 2010-0056
                                            )   2 CA-SA 2010-0063
                             Petitioner,    )   (Consolidated)
                                            )   DEPARTMENT A
                  v.                        )
                                            )   OPINION
HON. MICHAEL O. MILLER, Judge of the        )
Superior Court of the State of Arizona,     )
in and for the County of Pima,              )
                                            )
                          Respondent,       )
                                            )
                  and                       )
                                            )
DANIEL OLIVERI,                             )
                                            )
                  Real Party in Interest.   )
                                            )
                                            )
THE STATE OF ARIZONA,                       )
                                            )
                             Petitioner,    )
                                            )
                  v.                        )
                                            )
HON. MICHAEL O. MILLER, Judge of the        )
Superior Court of the State of Arizona,     )
in and for the County of Pima,              )
                                            )
                          Respondent,       )
                                            )
                  and                       )
                                            )
MICHAEL JOSEPH NELSON,                      )
                                            )
                  Real Party in Interest.   )
                                            )
                              SPECIAL ACTION PROCEEDING

                 Pima County Cause Nos. CR20082120 and CR20101334

                             JURISDICTION ACCEPTED IN PART;
                                 RELIEF GRANTED IN PART

Barbara LaWall, Pima County Attorney
 By Jacob R. Lines                                                                Tucson
                                                                  Attorneys for Petitioner

Kimminau Law Firm, P.C.
 By Chris J. Kimminau                                                               Tucson
                                                                   Attorney for Real Party
                                                                        in Interest Oliveri

Isabel G. Garcia, Pima County Legal Defender
 By Angela C. Poliquin                                                              Tucson
                                                                  Attorneys for Real Party
                                                                        in Interest Nelson


H O W A R D, Chief Judge.


¶1            In this special action, the State of Arizona seeks relief from the rulings of

the respondent judge in the underlying criminal actions against real parties in interest

Daniel Oliveri and Michael Nelson in which the respondent made clear he intended to

give the Revised Arizona Jury Instruction (Criminal) (“RAJI”) 28.1383(A)(1)-1 (2008)

rather than the state’s requested instruction.    The state asserts the RAJI instruction

misstates the law by adding an element to the crime of driving under the influence of an

intoxicant (DUI). For the reasons stated below, we accept jurisdiction of the state’s

petition and grant relief.


                                            2
                          Factual and Procedural Background

¶2            Oliveri was charged with four counts of aggravated DUI, two of which

require the state to prove that he was “impaired to the slightest degree,” and Nelson was

charged with two counts of aggravated DUI, one of which requires proof that he was

“impaired to the slightest degree.” See A.R.S. § 28-1381(A)(1). In both cases, the

respondent judge expressed his intent to instruct the jury using RAJI 28.1383(A)(1)-1 to

define the necessary elements of aggravated DUI. The state objected on both occasions,

and the respondent judge granted a stay of the trials in both proceedings to allow the state

to challenge his ruling by bringing special actions in this court. The state filed its

petitions, which we have consolidated.

                               Special Action Jurisdiction

¶3            Special action jurisdiction is discretionary. State ex rel. Romley v. Martin,

203 Ariz. 46, ¶ 4, 49 P.3d 1142, 1143 (App. 2002). Because we conclude the RAJI

instruction could be misleading and because the state would not have an adequate remedy

by appeal, we accept jurisdiction of the state’s petitions. See A.R.S. § 13-4032; Ariz. R.

P. Spec. Actions 1(a), 3; see also State v. Dawley, 201 Ariz. 285, ¶ 2, 34 P.3d 394, 395

(App. 2001) (granting special action jurisdiction to address state’s objection to jury

instructions in DUI case). Moreover, the question is likely to arise again. See Romley,

203 Ariz. at 47, 49 P.3d at 1143.




                                             3
                                       Discussion

¶4            The state argues that the respondent judge’s intended jury instruction based

on RAJI 28.1383(A)(1)-1 is erroneous because it adds an additional element to the

charged offenses, requiring it to prove the defendants’ ability to drive was impaired

instead of proving only that they had been impaired. We review de novo whether a jury

instruction correctly states the law. State v. Johnson, 212 Ariz. 425, ¶ 15, 133 P.3d 735,

741 (2006).

¶5            Preliminarily, Oliveri and Nelson contend we should review the jury

instructions as a whole. But although that would be proper if we were reviewing the

propriety of the instruction retrospectively and deciding on appeal whether there had been

error, see, e.g., State v. Zaragoza, 221 Ariz. 49, ¶ 15, 209 P.3d 629, 633 (2009), it would

not be appropriate to do so here, before the case is tried. We do not know what other

specific instructions the respondent judge ultimately will give. Furthermore, as the state

suggests, the goal should be to give instructions that are completely accurate and correct

independently rather than correcting incorrect instructions with other instructions.

Therefore, we confine our review to the instruction being challenged.

¶6            We first note that the proposed RAJI 28.1383(A)(1)-1, which instructs on

aggravated DUI, incorporates the elements of the basic DUI instruction, RAJI

28.1381(A)(1)-1. Compare State Bar of Arizona, Revised Arizona Jury Instructions

(Criminal) 28.1381(A)(1)-1 with RAJI 28.1383(A)(1)-1 (3d 2008). The respondent judge

made his ruling based on whether RAJI 28.1381(A)(1)-1 correctly states the law in

                                            4
A.R.S. § 28-1381(A)(1).        Therefore, we similarly focus our analysis on RAJI

28.1381(A)(1)-1 and § 28-1381(A)(1).

¶7            Section 28-1381(A)(1) provides: “It is unlawful for a person to drive or be

in actual physical control of a vehicle . . . [w]hile under the influence of intoxicating

liquor . . . if the person is impaired to the slightest degree.” The impairment must result

from the intoxicating liquor. See § 28-1381(A)(1); State v. Morales, 198 Ariz. 372, ¶¶ 3,

5, 10 P.3d 630, 631-32 (App. 2000). And RAJI 28.1381(A)(1)-1 states, in relevant part:

“The crime of driving . . . while under the influence requires proof that . . . [t]he

defendant’s ability to drive a vehicle was impaired to the slightest degree by reason of

being under the influence of intoxicating liquor.” The state challenges the language in

the proposed instruction because it requires proof that the person’s ability to drive is

impaired, arguing this element does not appear in § 28-1381(A)(1).

¶8            “The purpose of jury instructions is to inform the jury of the applicable law

in understandable terms.” State v. Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708 (App.

1996). And the instructions “must not mislead the jury in any way.” Id.

¶9            The legislature has prohibited a person from driving or being in actual

physical control of a vehicle while impaired to the slightest degree by intoxicating liquor.

See § 28-1381(A)(1). It has not chosen to require any finding that the person’s physical

ability to drive was impaired. See id.




                                             5
¶10           We find that the language added to RAJI 28.1381(A)(1)-1 is improper

because it could mislead a jury.1 The jury could interpret it to require proof that the

defendant’s physical ability to drive was impaired as opposed to requiring only proof that

the “person” was impaired, for example, in judgment. The state need not offer evidence

of bad driving to prove that a defendant is guilty of DUI.          See § 28-1381(A)(1).

Therefore, the instruction has the potential to confuse or mislead the jury as to the

elements of the offense.

¶11           Oliveri and Nelson assert that the challenged instruction does not require

the state to prove an additional element because impairment by alcohol is itself evidence

that the person’s ability to drive a motor vehicle is impaired. Although we agree the jury

could interpret the “ability to drive” language broadly, it could also interpret it narrowly

and require a physical impairment. And Oliveri and Nelson do not suggest any harm

could arise from the jury being given an instruction more accurately stating the law.

¶12           Oliveri and Nelson next argue that the history of the statute and the

accompanying case law support the inclusion of the language regarding the person’s

impaired ability to drive. But our duty in interpreting statutes is “to give effect to the

legislature’s intent” and when the “statute’s language is plain and unambiguous, we look

no further.” State v. Hinden, 224 Ariz. 508, ¶ 9, 233 P.3d 621, 623 (App. 2010).


       1
        We are not convinced, however, by the state’s assertion that Morales, 198 Ariz.
372, ¶¶ 3-4, 10 P.3d at 631-32, found this instruction to be incorrect; the court did not
evaluate the appropriateness of the proposed instruction, it merely noted that the
instruction tracked the language of the old statute.

                                             6
Previous cases interpreting predecessor statutes that did not have that language have little

bearing on the present question. Therefore, we find this argument unpersuasive.

¶13           The history of the DUI statute and the RAJI does show, however, that the

RAJI did not change significantly in this regard when the statute was amended to include

the requirement that the person be impaired. Rather it retained the language regarding

the ability to drive being impaired in the slightest degree.

¶14           Oliveri and Nelson further contend that our supreme court’s decision in

Clayton v. State, 38 Ariz. 135, 140, 297 P. 1037, 1039 (1931), has some bearing on this

case because the court stated that the statute “is not against inebriety, but against

driving.” Thus, they emphasize, “[w]e are dealing with proscribing dangerous driving

not inebriety.” And they are correct; the statute proscribes a person from driving or being

in actual physical control of a vehicle while impaired to the slightest degree by an

intoxicating substance. § 28-1381. But it does not follow that, by proscribing such

behavior, the state must prove the person’s physical ability to drive is impaired. Finally,

Oliveri and Nelson assert without support that only behavior, not persons, can be

impaired. This argument is waived, however, for lack of proper argument. See Ariz. R.

Crim. P. 31.13(c)(1)(vi); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995)

(issue waived when argument insufficient to permit appellate review). Consequently, we

conclude that RAJI 28.1381(A)(1)-1 does not state the law.




                                              7
                                        Conclusion

¶15           This opinion has limited effect. We are not examining or changing the

substantive law concerning driving while intoxicated.            And, although the RAJI

instruction has remained essentially unchanged without this issue having been addressed,

courts and parties apparently have been able to explain the law correctly to the juries.

Nevertheless, it is important that jury instructions conform accurately to the elements of

the relevant statute. Therefore, we accept jurisdiction of the state’s petitions and grant

relief, directing the respondent not to give the RAJI instruction as written.




                                              /s/ Joseph W. Howard
                                              JOSEPH W. HOWARD, Chief Judge

CONCURRING:

/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Presiding Judge


/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge




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