                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                           TEMA FINGI, Appellant.

                             No. 1 CA-CR 14-0043
                               FILED 4-9-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-147872-001
            The Honorable Jerry B. Bernstein, Judge Pro Tem

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Myles A. Braccio
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Cory Engle
Counsel for Appellant



                       MEMORANDUM DECISION

Presiding Judge John C. Gemmill delivered the decision of the Court, in
which Judge Donn Kessler and Chief Judge Diane M. Johnsen joined.
                             STATE v. FINGI
                           Decision of the Court

G E M M I L L, Judge:

¶1            This appeal arises from the conviction and sentencing of
defendant Tema Fingi for two counts of aggravated driving or actual
physical control while under the influence of intoxicating liquor or drugs
(“DUI”), class 1 misdemeanors. Fingi challenges the constitutionality of the
fines imposed upon him under the Eighth Amendment to the United States
Constitution and Article 2, Section 15 of the Arizona State Constitution.

¶2            For the following reasons, we conclude that the fines imposed
are constitutional, and we thus affirm the judgment.

                             BACKGROUND

¶3            On March 18, 2013, a grand jury indicted Tema Fingi for two
counts of aggravated DUI. The incident occurred in the early morning
hours of January 8, 2012 when police stopped Fingi for driving northbound
in the southbound lanes of a major road in Phoenix. After observing that
Fingi smelled of alcohol, Phoenix Police Officer L. had him step out of the
vehicle to conduct field sobriety tests. Fingi’s wife and two of his children,
both under the age of 15, were also present in the vehicle.

¶4            Officer L. conducted a Horizontal Gaze Nystagmus test on
Fingi that showed all six cues of alcohol impairment. Fingi also displayed
other signs of impairment including alcohol on the breath and bloodshot
and watery eyes. Fingi told the officers that he had drunk only one beer.
Fingi was subsequently transported to a DUI van where, with the help of
an interpreter, he consented to a blood analysis. Subsequent testing of
Fingi’s blood at the Phoenix Police Department crime lab revealed an
alcohol concentration of .121 grams per 100 millimeters.

¶5             Testimony at trial from Fingi and his wife detailed the events
leading up to the incident. Both Fingi and his wife denied that he had
consumed any alcohol that evening. Fingi explained that the reason he told
the officer that he had a beer was due to his fear of the police.1 They both



1  Fingi explained that he came from the Congo as a refugee in 2010.
According to his testimony, he told the officer he had one beer even though
he did not actually drink any because in his country police can beat or even
kill detainees. He does not claim that the officers who interrogated him
were physical with him, only that they asked tough questions.


                                      2
                              STATE v. FINGI
                            Decision of the Court

testified that they believed Fingi had been driving on the correct side of the
road that night.

¶6            After the presentation of evidence, the jury found Fingi guilty
on both DUI counts under Arizona Revised Statutes (“A.R.S.”) sections 28-
1381(A)(1) and (A)(2). Both counts were aggravated under A.R.S. § 28-
1383(A)(3) because both of Fingi’s children who were in the vehicle were
under 15 years of age. The court designated both counts as class 1
misdemeanors. Fingi was sentenced to two years unsupervised probation
and ten days of jail time, which may be deferred upon completion of an
alcohol education or treatment program. The court also credited Fingi with
one day served. In addition, the court ordered Fingi to pay the following
statutory fines and fees:

      $65 per month Probation Service fee
      $1,372.50 fine (including surcharges of 83%), payable $10 per month
      $250 DUI Abatement Fund fee, payable $10 per month
      $1,500 Prison Construction and Operations Fund fee, payable $10
       per month
      $1,500 State General Fund fee, payable $10 per month
      $20 Probation Surcharge
      $20 Time Payment fee
      $13 Penalty Assessment

The fines and fees total $4,675.50 plus $65 per month for the probation
service fee. The court’s monthly payment plan will allow Fingi to pay $105
per month for two years and then $40 per month thereafter.

¶7            Fingi filed a timely notice of appeal on January 9, 2014. This
court has jurisdiction pursuant to Article 6, Section 9 of the Arizona
Constitution, and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A).

                                DISCUSSION

¶8             Both parties agree that Fingi is raising his constitutional attack
on the fines and fees for the first time on appeal. This court must therefore
review his argument under a fundamental error standard, with Fingi
bearing “the burden of establishing both that fundamental error occurred
and that the error caused him prejudice.” State v. Henderson, 210 Ariz. 561,
568, ¶ 22, 115 P.3d 601, 608 (2005). The Arizona Supreme Court has
recognized that constitutional error is one form of fundamental error. State
v. Burton, 144 Ariz. 248, 251, 697 P.2d 331, 334 (1985). This court will review


                                       3
                              STATE v. FINGI
                            Decision of the Court

de novo the constitutionality of a statute, but will begin with a presumption
that the law is constitutional. State v. Russo, 219 Ariz. 223, 225, ¶ 4, 196 P.3d
826, 828 (App. 2008).

¶9            The Eighth Amendment of the United States Constitution and
Article 2, Section 15 of the Arizona Constitution identically prohibit the
imposition of excessive fines. An excessive fine is one that “exceeds
reasonable, usual, proper, or just punishment or one so disproportionate to
the offense that it shocks public sentiment and affronts the judgment of
reasonable people.” Russo, 219 Ariz. at 227, ¶ 15, 196 P.3d at 830 (internal
quotation marks omitted). Fingi presents two main arguments for why the
imposed fines are unconstitutionally excessive: 1) there is no evidence that
such fines will deter future crimes; and 2) a misdemeanor DUI is not a
serious enough crime to warrant the imposition. We disagree with both
arguments.

¶10            We begin by noting that because the fees, fines and
assessments imposed upon Fingi are punitive in nature rather than
compensatory, they are considered “fines” for purposes of the
constitutional analysis. See id. (accepting that an assessment is “tantamount
to a fine, which is a pecuniary punishment and a sanction.”); State v.
McDonagh, 232 Ariz. 247, 249–50, ¶ 11, 304 P.3d 212, 214–15 (App. 2013)
(ruling that the DUI Abatement Fund, Prison Construction & Operations
Fund and General Fund/Public Safety Equipment Fund assessments
imposed pursuant to the aggravated DUI statute are “sentences”). Because
the fines are imposed for one offense, we consider them in the aggregate,
instead of considering them separately, for this constitutional analysis.

¶11            A $4,675.50 statutory fine for the serious crime of aggravated
DUI clearly is consistent with the important public interest of deterring
driving while impaired. This court in State v. Wise applied a “loose
proportionality” test in determining whether a $205,600 fine for possession
of narcotics for sale was unconstitutionally excessive. 164 Ariz. 574, 576,
795 P.2d 217, 219 (App. 1990). In doing so, the court considered: 1) the
object designed to be accomplished by the fine; 2) the importance and
magnitude of the public interest sought to be protected; 3) the
circumstances and nature of the act for which it is imposed; 4) the
preventive effect upon the commission of the particular kind of crime; and
5) the ability of the accused to pay. Id.

¶12           First, Fingi argues that the Wise factors are not satisfied in this
case because evidence shows that imposing fines on DUI offenders does not



                                       4
                               STATE v. FINGI
                             Decision of the Court

actually accomplish the object to be achieved by those fines (the first Wise
factor). As Fingi correctly states, the Russo court explained that the object
of DUI fines is to deter impaired driving and to share the costs of the
criminal justice system among wrongdoers. Russo, 219 Ariz. at 226, ¶ 10,
196 P.3d at 829. In Russo, this court upheld as constitutional the imposition
of a $1000 prison assessment for an extreme DUI conviction. Id. at 227, ¶
13, 196 P.3d at 830. The court explained that the State’s interest in DUI
deterrence makes the fine proportional to the crime. Id. at 228, ¶17–18, 196
P.3d at 831.

¶13            Fingi makes a policy argument that deterrence is not actually
achieved by way of sanctions because, in order for sanctions to deter,
“potential offenders must be aware of sanction risks” and yet “research
shows that the general public tends to underestimate the severity of
sanctions generally imposed.”          Fingi’s research discussion is not
compelling. In essence, Fingi urges us to abandon legislative reasoning that
imposing a pecuniary consequence for a behavior will decrease the
prevalence of that behavior. See A.R.S. § 28-1383(J)(2)–(5) (listing the
mandatory minimum fines for a DUI conviction); see also A.R.S. § 28-1389
(“[The] court shall not waive a fine or assessment imposed pursuant to this
article”). Disagreement about the effectiveness of a fine in deterring crime
does not rise to a constitutional infirmity. It is the job of the legislature, not
the judiciary, to evaluate the research. See Edwards v. State Bd. of Barber
Exam’rs, 72 Ariz. 108, 112–13, 231 P.2d 450, 452 (1951) (“[W]here an
enactment bears any reasonable relationship to the end sought the courts
may not substitute their judgment for the judgment of the legislature.”).

¶14            Second, Fingi urges this court to stray from Russo because
“the legislature designated the DUI at issue in Russo, as well as the DUI in
this case, as misdemeanor offenses, the lowest possible rung on the ladder
of crimes a person can commit.” From that premise, Fingi concludes that
calling a misdemeanor an “extremely serious offense” is not enough to
merit the fines in question. This argument is not persuasive. The fact that
a crime is in the lowest possible class of crimes does not change society’s
interest in deterring that dangerous behavior. As explained in Russo, “[t]he
same considerations apply to deter persons impaired by alcohol from
driving whether the offense is a felony or a misdemeanor, and there are the
same types of costs associated with the criminal-justice system.” Id. at 228,
¶18, 196 P.3d at 831. The deterrence rationale has historically been used to
uphold much larger fines than the $4,675 at issue here. See e.g., Wise, 164
Ariz. at 575, 575, 795 P.2d at 218, 218 (upholding fines in the amount of
$205,600 as constitutional because of their deterrent effect); State v.



                                        5
                             STATE v. FINGI
                           Decision of the Court

Delgadillo, 174 Ariz. 428, 429–30, 850 P.2d 141, 142–43 (App. 1993)
(upholding a $68,088 fine as constitutional because of its deterrent effect).

¶15            Because a reasonable relationship exists between the fines
imposed and the goal of deterrence, the first and fourth Wise factors are met
in this case (the objects designed to be accomplished and the preventive
effect on the commission of the particular kind of crime). The second and
third factors are also supported here. The public interest sought to be
protected is safety: an impaired driver is one of the most dangerous
hazards one might come across on the road. Additionally, the nature and
circumstances of Fingi’s particular act demonstrate a dangerous risk of
driving impaired: driving on the wrong side of the road. By doing so, Fingi
endangered not only the public but also his wife and two minor children
who were in the vehicle.

¶16           Finally, Fingi argues that the fines are excessive under the
final Wise factor because he is unable to pay. There is, however, only a
limited record of his financial status because he did not object to the fines.
This court must presume that the financial status of Fingi supports the trial
court’s decision. State v. Zuck, 134 Ariz. 509, 513, 658 P.2d 162, 166 (1982)
(“Where matters are not included in the record on appeal, the missing
portions of the record will be presumed to support the action of the trial
court.”).

¶17            Even absent the presumption in favor of the court, the fifth
Wise factor (ability to pay) is not dispositive and should be considered along
with the other factors. Wise, 164 Ariz. at 219, 795 P.2d at 576. Fingi argues
that he does not have the ability to pay the “nearly $5,000 financial sanction
imposed in this case.” This argument fails to consider the fines in light of
the payment schedule: $105 per month for two years and then $40 per
month thereafter. “The fact that the trial judge has the discretion to set the
schedule for payment considerably ameliorates the statute’s failure to allow
for a consideration of the ability to pay.” Id. Because the other factors are
satisfied in this case, given the payment schedule, we cannot hold that the
fines are constitutionally excessive.

¶18            In light of the Wise factors, and keeping in mind the extreme
danger of Fingi’s actions, the $4,675 fine is “neither unreasonable nor an
amount that shocks public sentiment and affronts the judgment of
reasonable people so as to render it unconstitutional.” See Russo, 219 Ariz.
at 228, ¶18, 196 P.3d at 831.




                                      6
                         STATE v. FINGI
                       Decision of the Court

                          CONCLUSION

¶19          For the foregoing reasons, we affirm the trial court’s
imposition of fines against Fingi.




                             :ama




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