                                  IN THE
              ARIZONA COURT OF APPEALS
                            DIVISION TWO


ROBERT FLEMING, CONSERVATOR, ON BEHALF OF THE SURVIVING MINOR
                CHILDREN OF FAITH MASCOLINO,
                      Plaintiff/Appellant,

                                    v.

         STATE OF ARIZONA DEPARTMENT OF PUBLIC SAFETY,
                       Defendant /Appellee.

                       No. 2 CA-CV 2013-0162
                       Filed October 31, 2014

          Appeal from the Superior Court in Pima County
                          No. C20095459
               The Honorable Ted B. Borek, Judge

                             AFFIRMED


                              COUNSEL

Mercaldo Law Firm
By Ronald D. Mercaldo, Tucson

and

Thomas A. Zlaket, PLLC
By Thomas A. Zlaket, Tucson

and

Law Office of Jojene Mills, PC
By Jojene E. Mills, Tucson
Counsel for Plaintiff/Appellant
                 FLEMING v. STATE OF ARIZONA
                      Opinion of the Court


Thomas C. Horne, Arizona Attorney General, Phoenix
By Robert R. McCright and Catherine M. Stewart,
Assistant Attorneys General, Tucson
Counsel for Defendant/Appellee



                                OPINION

Presiding Judge Miller authored the opinion of the Court, in which
Judge Espinosa and Judge Vásquez concurred


M I L L E R, Presiding Judge:

¶1             Robert Fleming, conservator of the minor children of
Faith Mascolino, appeals from a jury verdict in favor of the Arizona
Department of Public Safety (DPS) related to Mascolino’s death.
Appellant argues the trial court should not have permitted the jury
to consider A.R.S. § 12-820.02(A)(7), which provides qualified
immunity for a state entity if the injury is attributable to the
claimant’s violation of statutes that prohibit driving under the
influence and reckless driving. He also argues the court erroneously
admitted evidence of Mascolino’s breath and blood alcohol test
results. For the reasons that follow, we conclude the court did not
err in its jury instruction or its decision to admit the evidence.

                Factual and Procedural Background

¶2           We view the facts in the light most favorable to
upholding the jury’s verdict, see Jimenez v. Wal-Mart Stores, Inc., 206
Ariz. 424, ¶ 2, 79 P.3d 673, 674 (App. 2003), but, as discussed later,
we review de novo pure questions of law and mixed questions of
law and fact, see Robson Ranch Mountains, L.L.C. v. Pinal Cnty., 203
Ariz. 120, ¶ 13, 51 P.3d 342, 347 (App. 2002). One evening in
June 2009, Faith Mascolino had drinks with some of her coworkers
and her daughter, B.D., at three different establishments. Around
midnight, B.D. drove Mascolino back to her vehicle in mid-town
Tucson. B.D. later testified that Mascolino “felt okay to drive” at


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                FLEMING v. STATE OF ARIZONA
                     Opinion of the Court

that point. She also testified she had not noticed Mascolino drinking
excessive amounts of alcohol on prior similar outings.

¶3           At about 1:15 a.m., DPS Officer Scott Walter saw
Mascolino’s vehicle proceeding west on Interstate 10, drifting across
lane lines, and travelling well below the posted speed limit. Officer
Walter called for backup and attempted to pull the vehicle over, but
Mascolino refused to yield and continued driving erratically.
Eventually she came to a stop in the emergency lane, very close to a
guardrail on the rising approach to a freeway overpass.

¶4          Officer Walter got out of his cruiser and approached the
vehicle. He asked Mascolino to give him her keys and to step out of
the car. Mascolino had difficulty exiting, her speech was slurred,
and she repeatedly said, “I’m okay, I’m okay.” She had a sunken
expression, a flushed face, and bloodshot eyes. She had trouble
producing her driver’s license when asked. Her balance was poor,
and her breath smelled faintly of alcohol. She admitted she had
been drinking that night, “a lot.”

¶5           Another DPS officer, Fred Rivera, attempted to
administer two field sobriety tests: the horizontal gaze nystagmus
test and simple balance test. Mascolino was unable to complete the
tests, and the officer determined he had probable cause to arrest her
for driving under the influence of alcohol (DUI). Mascolino then
agreed to take a portable breath test (PBT) at Officer Rivera’s
request. The test showed Mascolino’s breath alcohol content (BrAC)
was .252.

¶6           Officer Rivera placed Mascolino in the back of his
cruiser, uncuffed. With Mascolino’s help, he proceeded to call
members of Mascolino’s family on her cellular telephone, trying to
find someone who could pick up her vehicle. While Rivera was on
the phone with Mascolino’s daughter, B.D., a vehicle driven by
Robert Gallivan approached, moving diagonally from the middle
lane to the emergency lane at a very high rate of speed. Officer
Walter, who was standing watch, saw the oncoming vehicle and
yelled a warning, and both officers managed to jump over the
guardrail just in time to avoid being struck. Evidence showed they
had about one second to react to the oncoming vehicle and no time


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                     Opinion of the Court

to attempt to pull Mascolino from Rivera’s cruiser. Gallivan’s car
slammed into the rear of the cruiser and Mascolino died upon
impact.

¶7          Two different forensic laboratories later analyzed
samples of Mascolino’s blood taken during an autopsy. An Arizona
DPS lab found her blood alcohol content (BAC) to be .250 and an
independent lab in Indiana determined it was .231.

¶8          Fleming brought a wrongful death action against
Gallivan and DPS. At trial, over Fleming’s objection, the court
granted DPS’s request for a jury instruction on qualified immunity
pursuant to A.R.S. § 12-820.02(A)(7). The jury returned a verdict
finding Gallivan and Mascolino seventy-five and twenty-five
percent at fault, respectively. No fault was attributed to DPS.
Fleming unsuccessfully moved for a new trial and this appeal
followed. We have jurisdiction pursuant to A.R.S. § 12-2101(A)(1).

                             Discussion

Qualified Immunity Instruction

¶9           Section 12-820.02(A)(7), A.R.S., affords qualified
immunity to a state entity for “[a]n injury to the driver of a motor
vehicle that is attributable to the violation by the driver” of A.R.S.
§§ 28-693 (reckless driving), 28-1381 (DUI), or 28-1382 (driving
under the extreme influence). The immunity, however, is limited
and does not apply when the public employee engages in gross
negligence or intends to cause the injury. § 12-820.02(A).




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                      Opinion of the Court

¶10          Fleming argues it was error for the court to instruct1 the
jury on qualified immunity because Mascolino was not a driver at
the time of her death and, in any event, her death was not
attributable to DUI. We review questions of statutory interpretation
de novo. Ariz. Citizens Clean Elections Comm’n v. Brain, 234 Ariz. 322,
¶ 11, 322 P.3d 139, 142 (2014). In addition, we review a trial court’s
jury instructions for an abuse of discretion. A Tumbling-T Ranches v.
Flood Control Dist. of Maricopa Cnty., 222 Ariz. 515, ¶ 50, 217 P.3d
1220, 1238 (App. 2009). A party is entitled to a jury instruction on
any theory of the case that the evidence reasonably supports. Id.

¶11          Section 12-820.02(A)(7) imposes a two-part analysis.
First, a person must have violated §§ 28-693, 28-1381, or 28-1382.
Second, the person’s injury must be “attributable to” that violation.
See § 12-820.02(A)(7). An injury is attributable to a driver’s violation,
and qualified immunity applies, “when ‘the violation by the driver
of § 28-693, 28-1381 or 28-1382’ is a cause or source of an injury to
the driver.” DeVries v. State, 221 Ariz. 201, ¶ 21, 211 P.3d 1185, 1191
(App. 2009). Put differently, if the injury is attributable to the
violation, then a gross negligence or intent standard applies.
§ 12-820.02(A); see also Luchanski v. Congrove, 193 Ariz. 176, ¶ 20 &
n.4, 971 P.2d 636, 640 & n.4 (App. 1998). If the injury is not
attributable to a violation, then a negligence standard applies. See
Calnimptewa v. Flagstaff Police Dept., 200 Ariz. 567, ¶ 28, 30 P.3d 634,
639 (App. 2001), citing Restatement (Second) of Torts § 314A(4)
(1965).

¶12           Fleming argues the term “driver” is limited to one who
is actively driving. Although the statute is silent on the definition of

      1Fleming   also appeared to contend at oral argument that the
determination of whether an injury is “attributable to” DUI can
never be delegated to the jury because the application of a qualified
immunity is a question of law. Issues raised for the first time at oral
argument are waived absent fundamental error. State v. Murdaugh,
209 Ariz. 19, ¶ 29, 97 P.3d 844, 851 (2004). But we find no error,
fundamental or otherwise, as this issue is resolved by DeVries v.
State, 221 Ariz. 201, ¶¶ 24-26, 211 P.3d 1185, 1192 (App. 2009) (court
applies qualified immunity if jury finds factual prerequisites).


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                 FLEMING v. STATE OF ARIZONA
                      Opinion of the Court

“driver” for qualified immunity purposes, we disagree with
Fleming’s contention that it can only apply to a person injured while
in the act of driving. If the legislature has not defined a word in a
statute, we will consider the definitions of respected dictionaries.
DeVries, 221 Ariz. 201, ¶ 21, 211 P.3d at 1191. The American
Heritage Dictionary defines “driver” as “[o]ne that drives, as the
operator of a motor vehicle.” The American Heritage Dictionary 548
(5th ed. 2011). This definition closely tracks with the definition our
legislature has employed in title 28: “‘Driver’ means a person who
drives or is in actual physical control of a vehicle.” 2 § 28-101(18).
Notably, in both definitions, the term “driver” does not require that
one be in the act of driving; rather, it describes a person who drives.
If the legislature had intended to limit application of
§ 12-820.02(A)(7) to persons actively driving at the time of injury, it
could have included language to that effect. Indeed, Fleming’s
interpretation would require the implicit insertion of additional
language. But it is not the function of the courts to rewrite statutes,
and we must not substitute our judgment for that of the legislature.
City of Phoenix v. Butler, 110 Ariz. 160, 162, 515 P.2d 1180, 1182 (1973).

¶13          The term “driver” also serves to limit the class of
claimants against whom the state could assert a qualified immunity.
See Doe ex rel. Doe v. State, 200 Ariz. 174, ¶ 4, 24 P.3d 1269, 1271
(2001) (governmental liability immunity provisions construed
narrowly).     For instance, as the state acknowledged at oral
argument, if a passenger in Mascolino’s vehicle also had been placed
in the patrol car, the qualified immunity would not have applied to
the passenger’s claim for injuries because that person was not an
intoxicated driver. Without the inclusion of the term “driver,” the


      2 Subsections 28-101(17) and (18), A.R.S., define “drive” and
“driver” only within title 28. These definitions, while perhaps
persuasive, are not mandatory with respect to § 12-820.02(A)(7) as
appellant contends. Even were we to assume that § 28-101(18)
defined “driver” for purposes of § 12-820.02(A)(7), Mascolino still
fell within that definition, including at the time of her death. See
§ 28-101(18) (“driver” is one who “drives,” not one who “is
driving”).


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                FLEMING v. STATE OF ARIZONA
                     Opinion of the Court

qualified immunity arguably might apply to many people affected
by or who interacted with the person driving the vehicle while
intoxicated.

¶14          Fleming’s principal argument is that no reasonable jury
could have found that Mascolino’s death was attributable to DUI.
He therefore maintains the trial court erred as a matter of law in
even allowing the possibility 3 that the jury might measure the
conduct of DPS against a lower standard of care than negligence.
The court instructed the jury to determine whether Mascolino
violated §§ 28-693, 28-1381, or 28-1382 4 and, if so, to determine
whether her death was attributable to that violation. 5 The jury was
further instructed that if it found both conditions existed, it could
return a verdict for the plaintiffs only upon a finding of gross
negligence or intent to injure. Fleming argues this interpretation of
§ 12-820.02(A)(7) is untenable because it leads to what he
characterizes as an absurd result: a standard of care for DPS officers
that varies depending on the crime that the suspect in their custody


      3 Neither party requested an interrogatory to determine
whether the jury found Mascolino’s death attributable to her DUI. It
is possible, therefore, that the jury verdict for DPS was based on the
conclusion that the conduct of the officers was not negligent.
Because the record does not establish which standard of proof
applied, we assume for the purpose of argument that the jury found
Mascolino’s death was attributable to her DUI violation, which
mandated proof greater than negligence.
      4The   relevant portions of these statutes were included in full
in the jury instructions.
      5“[A]ttributable  to” was not defined in the jury instructions
just as it is not defined in § 12-820.02(A)(7). The court did not err
when it left the interpretation of “attributable to” to the common
sense of the jury and their knowledge of the ordinary usage of the
English language. Cf. DeVries, 221 Ariz. 201, ¶ 21, 211 P.3d at 1191
(construing “attributable to” by reference to respected dictionaries);
see also State v. Dann, 220 Ariz. 351, ¶ 88, 207 P.3d 604, 621 (2009)
(jury to apply ordinary meaning of word if undefined).


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                  FLEMING v. STATE OF ARIZONA
                       Opinion of the Court

is suspected of having committed. For instance, Fleming notes that
if Mascolino had been arrested for public drunkenness after DPS
officers had observed her walking intoxicated along the highway,
then § 12-820.02(A)(7) would not apply and Fleming could recover
upon a showing of ordinary negligence. But because Mascolino was
arrested for DUI or under the extreme DUI, § 12-820.02(A)(7)
applied and plaintiffs needed to show at least gross negligence.

¶15           First, we disagree with Fleming’s claim that this is an
absurd result. The legislature reasonably could have concluded that
qualified immunity against actions brought by intoxicated drivers
would discourage drinking and driving. See State v. Poshka, 210
Ariz. 218, ¶ 13, 109 P.3d 113, 117 (App. 2005) (noting state’s strong
public policy interest in preventing DUI-related death and injury).
Second, and more important, such a policy determination is a matter
for the legislature, not the court. See Clouse ex rel. Clouse v. State, 199
Ariz. 196, ¶¶ 20, 26, 16 P.3d 757, 763-64 (2001) (“[W]e consistently
have recognized the power of the legislature to retain or confer
immunity where appropriate.”); Winsor v. Glasswerks PHX, L.L.C.,
204 Ariz. 303, ¶ 24, 63 P.3d 1040, 1047 (App. 2003) (legislature better
positioned to address policy concerns than courts); see also Ariz.
Const. art. IV, pt. 2, § 18; DeVries, 221 Ariz. 201, ¶¶ 13-14, 211 P.3d at
1189-90. In short, to the extent Fleming asserts that § 12-820.02(A)(7)
is bad public policy, it is an argument better directed to the
legislature than the court. Clouse, 199 Ariz. 196, ¶ 26, 16 P.3d at 764;
DeVries, 221 Ariz. 201, ¶ 16, 211 P.3d at 1190. It is not our
prerogative to rewrite a statute under the guise of judicial
interpretation. Tucson Unified Sch. Dist. v. Borek ex rel. Cnty. of Pima,
234 Ariz. 364, ¶ 11, 322 P.3d 181, 185 (App. 2014).

¶16          Fleming alternatively contends that unless qualified
immunity is limited to a person actually driving or in physical
control of a vehicle, the result we reach implies a but-for analysis of
unlimited scope. Specifically, if the state is entitled to a qualified
immunity instruction grounded on the bare contention that a DUI
violation initiated a chain of events, then every injury subsequent to
the DUI might be held to a higher standard of proof. For instance, a
DUI arrestee might be injured in a slip and fall during booking.
Nothing in our decision, however, should be read to preclude a trial


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                 FLEMING v. STATE OF ARIZONA
                      Opinion of the Court

court from refusing to give a qualified immunity instruction after
concluding that no reasonable jury could find the driver’s injury
attributable to the DUI violation. Cf. Patterson v. Thunder Pass, Inc.,
214 Ariz. 435, ¶ 19, 153 P.3d 1064, 1069 (App. 2007) (legal causation
chain broken by events too attenuated).

¶17          In contrast to the hypotheticals Fleming poses, there
were sufficient facts to refer this matter to the jury. For instance,
Mascolino’s BAC was more than three times the legal limit. Her
vehicle drifted across lane lines and travelled well below the posted
speed limit. When the officer attempted a traffic stop, Mascolino
refused to yield and then drove erratically for more than a mile
before she stopped on the approach to a freeway overpass.
Mascolino’s failure to yield to the officer initially caused the DUI
investigation to occur in a position on the freeway not chosen by the
officer. Based on these facts, a reasonable jury could have found that
Mascolino’s death was attributable to her DUI violation.

Admission of PBT and BAC Results

¶18            Fleming next argues the trial court erred by admitting
test results showing Mascolino’s breath and post-mortem BAC.
Fleming contends that admitting the evidence was error because
(1) the test results were irrelevant under Rule 401, Ariz. R. Evid., and
(2) their prejudicial effect substantially outweighed their probative
value pursuant to Rule 403, Ariz. R. Evid. We review a court’s
decision to admit evidence for an abuse of discretion or a prejudicial
error of law. TM2008 Invs., Inc. v. Procon Capital Corp., 234 Ariz. 421,
¶ 12, 323 P.3d 704, 707 (App. 2014).

¶19         Evidence is relevant if it has any tendency to make any
fact of consequence more or less probable. Ariz. R. Evid. 401.
Mascolino’s test results were directly relevant to the consequential
issue of whether she had violated A.R.S. §§ 28-1381 or 28-1382, a
predicate to the application of qualified immunity.                    See
§§ 28-1381(A)(2), 28-1382(A) (listing minimum numerical alcohol
concentration values as elements of offenses); § 12-820.02(A)(7); see
also Hawkins v. Allstate Ins. Co., 152 Ariz. 490, 496, 733 P.2d 1073, 1079
(1987) (pleadings and substantive law determine facts of
consequence for relevance purposes). These results also were


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                 FLEMING v. STATE OF ARIZONA
                      Opinion of the Court

relevant to the jury’s allocating relative fault among the parties. See
Zuern v. Ford Motor Co., 188 Ariz. 486, 492, 937 P.2d 676, 682 (App.
1996) (trial court did not err in admitting evidence bearing on
party’s degree of fault, including evidence of intoxication). Thus,
the trial court did not abuse its discretion in determining that the
forensic evidence was relevant. See id.

¶20          Fleming also argues the tests were improperly admitted
because the results were both unduly inflammatory and needlessly
cumulative under Rule 403, Ariz. R. Evid. Relevant evidence is
admissible unless otherwise prohibited by law. Ariz. R. Evid. 402.
But if the probative value of the evidence is “substantially
outweighed” by a danger of unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence, the court may exclude the evidence
even if relevant. Ariz. R. Evid. 403.

¶21          Here, the numerical BrAC and BAC results were
probative as to whether Mascolino’s alcohol concentration was
above the statutory thresholds in §§ 28-1381 and 28-1382. They were
admissible, in part, because Fleming contested the degree to which
Mascolino was intoxicated. Indeed, B.D. testified that she had not
noticed Mascolino drinking excessive amounts of alcohol on prior
similar outings and that on the night of the incident, neither she nor
Mascolino believed that Mascolino was unfit to drive.

¶22          Thus, the trial court did not abuse its discretion by
allowing DPS to introduce the BrAC and BAC numbers in order to
rebut plaintiff’s suggestion that Mascolino might not have been
drinking excessively or might not have been impaired. The
evidence was properly admitted to allow the state to prove its
affirmative defenses and to provide the jury with a complete picture
of relevant facts by which to judge the reasonableness of the officers’
actions in conducting the traffic stop.

                             Disposition

¶23           For the foregoing reasons, the judgment of the trial
court is affirmed.



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