                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

               SADIE ELISABETH ESCALANTE, Appellant.

                             No. 1 CA-CR 13-0824
                              FILED 11-25-2014


          Appeal from the Superior Court in Maricopa County
                       No. CR 2012-135835-001
          The Honorable Phemonia L. Miller, Judge Pro Tempore
           The Honorable Rick Nothwehr, Judge Pro Tempore


                                  AFFIRMED


                                   COUNSEL


Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
                          STATE v. ESCALANTE
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge John C. Gemmill joined.


W I N T H R O P, Judge:

¶1             Sadie Escalante appeals her convictions for two counts of
aggravated driving under the influence (“DUI”). On appeal, Escalante
alleges the trial court abused its discretion when it denied her request for a
necessity defense instruction in her aggravated DUI trial. For the following
reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            On July 6, 2012, a Glendale police officer observed a truck
weaving and drifting in its lane and initiated a traffic stop at approximately
2:50 a.m. Escalante was the driver and sole occupant of the truck. The
officer conducted three separate field sobriety tests and concluded
sufficient evidence existed to place Escalante under arrest. Escalante’s
subsequent blood draw revealed her blood alcohol content to be .166, more
than twice the legal limit. Escalante was charged by information with two
counts of aggravated DUI. A jury found Escalante guilty on both counts
after four days of trial. The trial court suspended imposition of sentencing
and placed her on concurrent terms of three years’ supervised probation,
including concurrent terms of four months’ incarceration in the Arizona
Department of Corrections, with credit for 35 days of presentence
incarceration. Escalante timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21, 13-4031, and 13-
4033.1

                                ANALYSIS

¶3            Escalante alleges the trial court abused its discretion and
violated her due process and equal protection rights when it denied her
request for a necessity defense instruction. We disagree.



1     We cite the current version of the statutes if no revisions material to
our decision have occurred since the relevant dates.


                                      2
                           STATE v. ESCALANTE
                            Decision of the Court

¶4              This court’s decision in State v. Fell, 203 Ariz. 186, 52 P.3d 218
(App. 2002) (review denied Feb. 11, 2003), is dispositive of Escalante’s
appeal. In Fell, this court addressed whether the necessity defense, as
codified in A.R.S. § 13-417, was applicable “to defend against charges filed
under Title 28, specifically, driving while under the influence of an
intoxicant.” Id. at 219, ¶ 1, 52 P.3d at 187. We concluded that the language
“this title” in A.R.S. § 13-401 demonstrated the legislature’s intent to limit
justification defenses, including necessity, to charges brought under Title
13. Id. at 221, ¶ 9, 52 P.3d at 189; see A.R.S. § 13-401(B). On the record before
us, we find no reason to part with our decision in Fell.

¶5            Further, even if we set aside Fell and its sound statutory
foundation and assume arguendo that the necessity defense could apply in
this prosecution, Escalante’s argument still fails. The necessity defense
allows a reasonable person to engage in conduct that would otherwise be
criminal if “the person had no reasonable alternative to avoid imminent
public or private injury greater than the injury that might reasonably result
from the person’s own conduct.” A.R.S. § 13-417(A). At trial, Escalante
failed to establish she had no reasonable alternative but to drive that
evening. Escalante testified that on the night in question she, her friend,
and her friend’s boyfriend had been at a Scottsdale nightclub, where
Escalante stated she consumed one alcoholic beverage. When they
returned to her friend’s home, they discovered they had locked themselves
out of the home. An argument ensued between Escalante’s friend and the
boyfriend, and Escalante felt an “overwhelming need” to leave. By sheer
coincidence, Escalante’s mother’s truck was parked at Escalante’s friend’s
home. Escalante explained that she chose to leave in her mother’s truck
because the situation was “nerve racking.”

¶6             Escalante presented no evidence that she attempted but failed
to find an alternative to driving, such as calling a friend, family member, or
a taxi service to assist her. Escalante’s contention that the situation was
“nerve racking” does not meet the high standard required to assert a
necessity defense, as the record before this court reflects she faced no verbal
or physical threats of imminent injury from either party. Moreover, given
her two prior DUI convictions and four prior convictions for driving on a
suspended license, as well as the fact that she acknowledged she did not
have a valid driver’s license at the time of this incident, Escalante was well
aware that she should not be driving, especially after consuming alcohol.
We find nothing in the record to support Escalante’s claim that a necessity
defense was applicable to her situation.




                                        3
                STATE v. ESCALANTE
                 Decision of the Court

                    CONCLUSION

¶7   For the foregoing reasons, we affirm.




                       :gsh




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