                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                    RUBEN PEDRO JIMENEZ, Appellant.

                             No. 1 CA-CR 16-0529
                                 FILED 5-16-17


           Appeal from the Superior Court in Coconino County
                         No. S0300CR201500763
                 The Honorable Mark R. Moran, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Elizabeth B. N. Garcia
Counsel for Appellee

Coconino County Public Defender’s Office, Flagstaff
By Brad Bransky
Counsel for Appellant
                           STATE v. JIMENEZ
                           Decision of the Court



                      MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Lawrence F. Winthrop
joined.


B E E N E, Judge:

¶1          Ruben Jimenez (“Jimenez”) appeals from his conviction for
aggravated DUI. For the following reasons, we affirm.

              FACTUAL AND PROCEDURAL HISTORY1

¶2           On November 26, 2012, Jimenez was pulled over by a
Coconino County sheriff detective for a traffic violation. During the stop,
the detective learned that Jimenez’s driver’s license was suspended.
Jimenez was arrested for driving with a suspended license.

¶3            While speaking with Jimenez, an odor of alcohol was detected
on his breath. Jimenez was then transported to a detention facility and
during questioning, admitted to drinking alcohol. Jimenez also informed
detectives that he is a heroin user, and used heroin earlier that day. Jimenez
consented to a blood draw, which revealed the presence of
methamphetamine, morphine and hydrocodone in his blood. Jimenez was
charged with aggravated DUI.

¶4            At trial, Jimenez denied knowing his license was suspended.
The State produced evidence that the Department of Motor Vehicles
(“DMV”) mailed Jimenez six letters over a seven–year span informing him
that his license was suspended. Jimenez, who elected to testify, claimed
that he did not receive any of the DMV notices because his identity was
stolen.




1       We view the evidence presented at trial in the light most favorable
to upholding the conviction, and resolve all inferences against Jimenez. See
State v. Riley, 196 Ariz. 40, 42, ¶ 2 (App. 1999).



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                           STATE v. JIMENEZ
                           Decision of the Court

¶5            Before deliberations, the State submitted its proposed jury
instructions.2 Jimenez objected to the inclusion of a voluntary intoxication
instruction3 and an instruction on the presumption of notice established
when the DMV sends by first-class mail a letter informing an individual
that his or her license has been suspended. The superior court overruled
Jimenez’s objections, but modified the presumption of notice instruction at
his request.4


2     Jimenez submitted a proposed jury instruction, but it was not
provided in this record.

3     The final Voluntary Intoxication instruction given read:

      Temporary/voluntary intoxication resulting from the
      voluntary ingestion, consumption, inhalation, or injection of
      alcohol, an illegal substance or other psychoactive substance
      or the abuse of prescribed medications is not a defense for any
      criminal act or requisite state of mind.

4     The final presumption of notice instruction given read:

      Once mailed by the Motor Vehicle Department, the defendant
      is presumed to have received notice of the suspension. The
      State is not required to prove actual receipt of the notice or
      actual knowledge of the suspension. Compliance with the
      notice provision required by state law of the suspension may
      be presumed if the notice of suspension was mailed by the
      Motor Vehicle Department to the defendant at the address
      provided to the Department on the licensee’s application or
      provided to the Department pursuant to a notice of change of
      address or other source, including the address on a traffic
      citation received by the Department.

      That is, proof of the fact of the mailing will, absent any
      contrary evidence, establish that delivery occurred. If,
      however, the addressee denies receipt, the presumption of
      delivery disappears, but the fact of mailing still has
      evidentiary force. The denial of receipt creates an issue of fact
      that the fact finder must resolve to determine if delivery
      actually occurred.




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                            STATE v. JIMENEZ
                            Decision of the Court

¶6             The jury convicted Jimenez of one count of aggravated DUI.
Based on aggravating circumstances, Jimenez was sentenced to an 8–year
term of imprisonment. Jimenez timely appealed his conviction. This Court
has jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution
and Arizona Revised Statutes (“A.R.S.”) sections 12–120.21(A)(1) (2017), 13–
4031 (2017) and 13–4033(A) (2017).5

                                DISCUSSION

¶7             Jimenez contends that the superior court erred by giving the
presumption of notice and voluntary intoxication instruction. This Court
reviews a superior court’s decision whether to give a jury instruction for an
abuse of discretion, but reviews de novo “whether the [g]iven [i]nstruction
correctly stated the law.” State v. Tarr, 235 Ariz. 288, 291–92, ¶ 9 (App. 2014).

¶8             To be convicted for aggravated DUI, the State must prove
beyond a reasonable doubt that Jimenez drove or had actual physical
control of the vehicle while under the influence of drugs or alcohol, and did


       You are free to accept or reject this presumption as triers of
       fact.   You must determine whether the facts and
       circumstances shown by the evidence in this case warrant any
       presumption that the law permits you to make. Even with the
       presumption, the State has the burden of proving each and
       every element of the offense beyond a reasonable doubt
       before you can find the defendant guilty.

       A driver’s license, as a legally protected property interest,
       cannot be suspended without due process of law. Due
       process does not require that the state provide actual notice
       before suspending a license, but due process does require that
       the method of notice be reasonably calculated under all of the
       circumstances to provide actual notice.

       If you find that the State has failed to prove beyond a
       reasonable doubt that it has made efforts reasonably
       calculated to provide actual notice to the defendant, and the
       defendant denies receipt of notice, then you cannot find that
       he should have known that his license was suspended.

5      Absent material revisions after the date of an alleged offense, we cite
a statute’s current version.



                                       4
                            STATE v. JIMENEZ
                            Decision of the Court

so while his driver’s license was suspended. A.R.S. § 28–1383(A)(1) (2017).
The State must also prove beyond a reasonable doubt that Jimenez knew,
or should have known, that his license was suspended at the time of the
violation. See State v. Cifelli, 214 Ariz. 524, 527, ¶ 13 (App. 2007).

¶9             Arizona law provides a rebuttable presumption that a
defendant received notice of his suspended license if the DMV mailed the
notice by first–class mail to defendant’s record address. A.R.S. § 28–3318(E)
(2017). If the DMV sends notice of the suspended license to the defendant,
the State is not required “to prove actual receipt of the notice or actual
knowledge of the suspension . . . .” Id. However, a defendant may rebut
the presumption of notice with evidence that he never received the DMV
letter. See Cifelli, 214 Ariz. at 527, ¶ 13.

¶10           Jimenez argues that the presumption of notice instruction
violated his due process rights. This Court has previously held that the
presumption of notice provided by A.R.S. § 28–3318 does not violate a
defendant’s due process rights. See State v. Church, 175 Ariz. 104, 108 (App.
1993). In Church, this Court explained that the predecessor statute to A.R.S.
§ 28–3318 creates a permissive presumption of notice that may be rebutted
through testimony and other evidence. Church, 175 Ariz. at 108. The only
proffered evidence to rebut the presumption of notice was Jimenez’s
testimony that his identity was stolen. Conversely, the State offered
evidence that DMV mailed six letters to Jimenez’s listed addresses, some
within months of a change of address.6 The jury’s charge was to decide
whether Jimenez rebutted the presumption, and it rejected Jimenez’s
testimony. See State v. Clemons, 110 Ariz. 555, 556-57 (1974). This Court will
not second guess a jury’s finding that a defendant failed to rebut the
presumption. See id. at 557. The presumption of notice does not violate
Jimenez’s due process rights, nor does it vitiate the State’s obligation to
provide notice. The State is only required to provide notice reasonably
calculated to apprise a defendant of his suspended license. See Jones v.
Flowers, 547 U.S. 220, 226 (2006); In re Rights to Use of Gila River, 171 Ariz.
230, 236 (1992). The presumption of notice statute and corresponding jury
instruction did not violate Jimenez’s due process rights.

¶11           Jimenez also contends that the superior court erred by giving
the voluntary intoxication instruction, arguing that it confused the jury into
concluding that his lack of knowledge concerning the suspension of his
driver’s license was inexcusable. Jimenez, however, does not provide

6     DMV sent the sixth letter to Appellant’s record address, but
Appellant was incarcerated.


                                      5
                           STATE v. JIMENEZ
                           Decision of the Court

evidence that the jury was confused by this instruction or provide support
for his argument. This Court will not address arguments that are not
properly developed. See Ariz. R. Crim. P. 31.13(c); State v. Cons, 208 Ariz.
409, 415–16, ¶ 18 (App. 2004).

                             CONCLUSION

¶12           For the foregoing reasons, Jimenez’s conviction and sentence
are affirmed.




                           AMY M. WOOD • Clerk of the Court
                           FILED:    JT

                                       6
