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  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                                         v.

              MICHAEL ALLEN PETERS, Defendant/Appellant.

                              No. 1 CA-CV 18-0074
                                FILED 9-27-2018


            Appeal from the Superior Court in Yavapai County
                         No. P1300CV201700661
            The Honorable Don C. Stevens, Judge Pro Tempore

                                   AFFIRMED


                                    COUNSEL

Town of Prescott Valley Prosecutor’s Office, Prescott Valley
By Robert L. Todd
Counsel for Plaintiff/Appellee

Michael Allen Peters, Prescott
Defendant/Appellant



                        MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.
                              STATE v. PETERS
                             Decision of the Court

C R U Z, Judge:

¶1             Michael A. Peters appeals from an order of the superior court
affirming the civil judgment entered against him in Prescott Valley
Municipal Court for speeding and improper use of a two-way left turn lane
in violation of Arizona Revised Statutes (“A.R.S.”) sections 28-701 and 28-
751(4)(b).    On appeal, Peters argues that A.R.S. § 28-751(4)(b) is
unconstitutionally vague, thereby denying him due process in violation of
the Fourteenth Amendment of the United States Constitution. Because the
statute is not unconstitutionally vague on its face, we affirm.

                FACTUAL AND PROCEDURAL HISTORY

¶2            This case arises out of a traffic stop. On May 10, 2017, a
Prescott Valley police officer observed Peters enter a two-way left turn lane
and drive at a high rate of speed, bypassing over a mile of heavy traffic.
Peters passed numerous vehicles, including the officer’s, before merging
back into traffic without making a left turn or a u-turn. Concluding Peters
had no intention to make a turn and estimating that Peters drove
approximately seventy miles per hour while in the turn lane, the officer
executed a traffic stop of Peters’ vehicle.1 Peters explained to the officer that
he was rushing to help his wife, who Peters claimed had car trouble.
However, during the traffic stop, Peters’ wife drove up and parked across
the street, waiting for Peters.

¶3            After a bench trial, the magistrate found Peters had violated
A.R.S. §§ 28-701 and 28-751(4)(b) and imposed a $350 fine. Peters appealed
to the superior court, arguing A.R.S. § 28-751(4)(b) is unconstitutionally
vague. The superior court affirmed and found the language of A.R.S. § 28-
751(4)(b) to be clear on its face.

¶4              Peters timely appealed. In addition to challenging the
constitutionality of A.R.S. § 28-751(4)(b), Peters raises evidentiary issues.
However, because this matter originated in municipal court, our
jurisdiction is limited to reviewing the facial validity of A.R.S. § 28-
751(4)(b). See A.R.S. § 22-375(A) (“An appeal may be taken . . . from a final
judgment of the superior court in an action appealed from a justice of the
peace or municipal court, if the action involves the validity of a . . .
statute.”); see also State v. Kaiser, 204 Ariz. 514, 516-17, ¶ 4 (App. 2003); State
v. Irving, 165 Ariz. 219, 221 (App. 1990) (“[Section 22-375] limit[s] this
court’s review to the facial validity of [a challenged statute]. Its application


1      The posted speed limit on the roadway was fifty-five miles per hour.


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                              STATE v. PETERS
                             Decision of the Court

to the specific facts of [a] case is beyond our review.”); State v. Poli, 161 Ariz.
151, 153 (App. 1989) (concluding “this court lacks jurisdiction to review a
civil traffic violation adjudication”). If we find the statute is facially valid,
we will not consider whether it is unconstitutional as applied. State v. Burke,
238 Ariz. 322, 325, ¶ 3 (App. 2015) (citation omitted).

                                 DISCUSSION

  I.   Standard of Review

¶5              We review the constitutionality of statutes de novo. Thiele v.
City of Phoenix, 232 Ariz. 40, 42, ¶ 11 (App. 2013). “In reviewing a challenge
to a statute, we presume that the statute is constitutional and must construe
it, if possible, to give it a constitutional meaning.” State v. McMahon, 201
Ariz. 548, 550, ¶ 5 (App. 2002); see also Graville v. Dodge, 195 Ariz. 119, 123,
¶ 17 (App. 1999) (“We . . . will not declare an act of the legislature
unconstitutional unless convinced beyond a reasonable doubt that it
conflicts with the federal or state constitutions.”). “It is the person
challenging the enactment who bears the burden of establishing the
contrary proposition.” Kaiser, 204 Ariz. at 517, ¶ 8. “[W]e give the language
its plain and ordinary meaning.” Id. To successfully challenge the statute’s
constitutionality, Peters “must demonstrate no circumstances exist under
which the challenged statute would be found valid.” Lisa K. v. Ariz. Dep’t
of Econ. Sec., 230 Ariz. 173, 177, ¶ 8 (App. 2012).

 II.   Vagueness

¶6             “A statute is unconstitutionally vague if it does not give
persons of ordinary intelligence a reasonable opportunity to learn what it
prohibits and does not provide explicit instructions for those who will
apply it.” State v. Johnson, 243 Ariz. 41, 43, ¶ 8 (App. 2017) (citing McMahon,
201 Ariz. at 551, ¶ 7). Moreover, a statute need only “convey a definite
warning of the proscribed conduct,” and need not “be drafted with absolute
precision.” McMahon, 201 Ariz. at 551, ¶ 8; see also Kaiser, 204 Ariz. at 517,
¶ 9. To satisfy due process requirements, statutes must “contain explicit
standards of application so as to prevent arbitrary and discriminatory
enforcement.” Martin v. Reinstein, 195 Ariz. 293, 317, ¶ 79 (App. 1999)
(citing Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972); Hernandez v.
Frohmiller, 68 Ariz. 242, 251-52 (1949)).




                                        3
                              STATE v. PETERS
                             Decision of the Court

¶7            Section 28-751(4)(b), the statute at issue here, provides as
follows:

       If a special lane for making left turns by drivers proceeding in
       opposite directions has been indicated by official traffic
       control devices: . . . (b) A driver shall not drive a vehicle in the
       lane except if preparing for or making a left turn from or into
       the roadway or if preparing for or making a u-turn if
       otherwise permitted by law.

A.R.S. § 28-751(4)(b).

¶8            Peters argues the statute is vague because it “does not say
how long in time or distance a person can be in his vehicle [in the two-way
turn lane] before the vehicle can safely make a left turn or a U-turn from the
center lane.” The superior court concluded, “Arizona traffic statutes do not
require absolute specificity and definition to be enforceable.” We agree.
Peters has not shown that the statute is incapable of any valid application
based on a lack of limiting language or a temporal descriptor.

¶9           Section 28-751(4)(b) requires drivers to use two-way left turn
lanes only when “preparing for or making” a left turn or u-turn. The section
provides people of ordinary intelligence sufficient notice that drivers may
use the two-way left turn lanes only to make imminent left turns or u-turns
when permitted. The statute also gives sufficient notice to drivers that they
are not permitted to use the two-way left turn lanes to bypass traffic.

¶10            In State v. Burke, this court rejected a similar challenge to the
facial validity of a traffic statute. 238 Ariz. at 328, ¶¶ 13-14. We concluded
that the traffic statute requiring compliance with a police officer’s lawful
order “does not need a temporal limit to give persons of ordinary
intelligence a reasonable understanding of what the statute provides.” Id.
at 328, ¶ 13. Rather, a traffic statute “requires flexibility,” and specifying “a
time frame would inject rigidity.” Id. The same reasoning applies to A.R.S.
§ 28-751(4)(b), which requires flexibility because an appropriate temporal
limit or distance for one two-way turn lane may be inappropriate for
another. Just as in Burke, the statute under which Peters was cited is not
void for vagueness “simply because it may be difficult to determine how
far one can go before the statute is violated.” Burke, 238 Ariz. at 328, ¶ 14
(internal quotation and citation omitted).

¶11            Peters offers hypothetical examples of situations when a
driver or officer might not know the proper way to approach and turn from
the two-way turn lane. He references the officer’s testimony that a driver


                                        4
                             STATE v. PETERS
                            Decision of the Court

in the two-way turn lane must turn at “either the first available opportunity
to make that left turn or so long as reasonable,” and emphasizes that
description proves the statute is vague. The officer’s testimony does not
establish beyond a reasonable doubt, however, that A.R.S. § 28-751(4)(b) is
unconstitutional. Peters has not shown the statute fails to give drivers a fair
warning they must not remain in the two-way turn lane for an unlimited
time before turning. Rather, the statute provides fair warning that after the
driver enters the lane, the turn must be reasonably imminent. Therefore,
Peters fails to show the statute’s language is void for vagueness on its face.

¶12           Peters also argues the phrase “preparing for” in A.R.S. § 28-
751(4)(b) is not sufficiently definite and therefore is unconstitutionally
vague. Peters does not provide any legal support for his argument.
Because the term “preparing for” is not statutorily defined, “we must
follow the plain and natural meaning of the language of the statute to
discover what the legislature intended.” State v. Arthur, 125 Ariz. 153, 155
(App. 1980); see also State v. Mahoney, 193 Ariz. 566, 568, ¶ 12 (App. 1999)
(“Unless the legislature clearly expresses an intent to give a term a special
meaning, we give the words used in statutes their plain and ordinary
meaning.”); State v. Takacs, 169 Ariz. 392, 395 (App. 1991) (“A statute is not
unconstitutionally vague because one of its terms is not explicitly
defined.”).

¶13            Black’s Law Dictionary defines “prepare” as “[t]o provide
with necessary means; to make ready; to provide with what is appropriate
or necessary.” Black’s Law Dictionary 1182 (6th ed. 1990). Interpreting
A.R.S. § 28-751(4)(b) in accordance with the plain and ordinary meaning of
its terms requires that drivers use the two-way turn lane only when getting
ready to make an imminent or reasonably prompt left turn or u-turn. The
statute provides notice that drivers may not use a two-way turn lane to
avoid slow traffic or drive for an unlimited period until a driver turns.
Using the lane in this fashion creates a substantial risk of collisions. Because
we believe this meaning would be evident to a person of reasonable
intelligence, the term “preparing for” is constitutional as written. Drivers
may enter and remain in the two-way left turn lane for different distances
and times when they intend to make an imminent turn; therefore, the facial
attack fails.




                                       5
                           STATE v. PETERS
                          Decision of the Court

                             CONCLUSION

¶14           We hold that A.R.S. § 28-751(4)(b) is not unconstitutionally
vague on its face. Accordingly, we affirm.




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




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