State v. Nelson

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

SCOTT NELSON, Appellant.

No. 1 CA-CR 19-0604
FILED 6-17-2021

Appeal from the Superior Court in Maricopa County
No. CR2017-152007-001
The Honorable Laura Johnson Giaquinto, Judge Pro Tempore

VACATED AND REMANDED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Celia Rumann Attorney at Law, Tempe
By Celia Rumann, Michael P. O’Connor, appearing Pro Hac Vice
Counsel for Appellant
 STATE v. NELSON
Opinion of the Court

OPINION

Judge David B. Gass delivered the opinion of the Court, in which Presiding
Judge Jennifer M. Perkins and Judge Michael J. Brown joined.

G A S S, Judge:

¶1 Scott Nelson appeals his conviction for aggravated driving
under the influence while required to have an ignition-interlock device in
the vehicle. 1 Nelson argues the superior court erred by failing to instruct
the jury the State needed to prove he knew he was subject to an ignition-
interlock restriction. We agree and hold when a defendant is charged with
aggravated DUI under A.R.S. § 28-1383.A.4, the jury must be instructed,
and the State is required to prove, the defendant knew or should have
known an ignition-interlock restriction was in effect at the time of the
offense. Accordingly, we vacate Nelson’s conviction and remand for a new
trial.

FACTUAL AND PROCEDURAL HISTORY

¶2 This court reviews the facts in the light most favorable to
sustaining the jury’s verdict, resolving all reasonable inferences against
Nelson. See State v. Felix, 237 Ariz. 280, 283, ¶ 2 (App. 2015).

¶3 On September 15, 2015, after Nelson was convicted of
misdemeanor extreme driving under the influence (DUI), the Department
of Transportation, Motor Vehicle Division (MVD) ordered him to install a
certified interlock device in any motor vehicle he operated. Based on
Nelson’s conviction, the order was to last for eighteen months from the date
his driving privileges were reinstated with an interlock-restricted driver
license. See A.R.S. § 28-3319.D.2. On December 1, 2015, after Nelson
provided proof of compliance, MVD reinstated his driving privileges with

1 A separate memorandum decision filed simultaneously with this
opinion affirms a superior court order expressly rejecting Nelson’s
argument his interlock order was not in effect at the time of the offense and
implicitly rejecting Nelson’s argument he did not receive due process. See
Ariz. R. Sup. Ct. 111(h); Ariz. R. Crim. P. 31.19(f).

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 STATE v. NELSON
Opinion of the Court

the interlock restriction. Accordingly, Nelson was eligible to remove the
interlock device on June 1, 2017.

¶4 On March 18, 2016, an interlock installer notified MVD the
interlock device was removed from Nelson’s vehicle when he sold it. MVD
then sent Nelson a notice of corrective action, stating he was out of
compliance and MVD would suspend his license until he submitted proof
an interlock device was installed in all vehicles he operated. The notice said
“[t]he device must be installed for one year from the date that proof is
received, unless a different time period is specified.” On April 1, an
interlock installer submitted proof to MVD showing it had installed an
interlock device in a BMW Nelson had just purchased. When Nelson
appeared in person and provided proof of compliance on May 12, MVD
gave him a second restricted driver license with “ignition interlock” printed
on it.

¶5 When MVD issued Nelson his second restricted license, MVD
determined Nelson would not be able to remove the interlock device until
November 12, 2017—a full eighteen months after Nelson provided proof of
compliance. MVD’s standard practice is to inform individuals of the
expiration date of their interlock-device requirements when they go to
MVD to prove compliance and receive their restricted licenses. Though
MVD mailed the first interlock order expiration date to Nelson, it did not
do so with the revised November 12 date, and the record contains no
document signed by Nelson acknowledging the new date.

¶6 On November 10, 2017, law enforcement stopped Nelson for
speeding. Nelson produced his license with the interlock restriction printed
on it. Nelson was not driving the BMW, but another vehicle that lacked an
interlock device. The officer arrested Nelson on suspicion of aggravated
DUI, for operating a vehicle without an interlock device, and for being
under the influence of alcohol. Seven days later, on November 17, 2017,
Nelson removed the interlock device from his BMW.

¶7 The State charged Nelson with aggravated DUI while
impaired to the slightest degree and while required to have an interlock
device installed in the vehicle (count 1) and aggravated DUI with a blood
alcohol concentration of at least 0.08 while required to have an interlock
device installed in the vehicle (count 2). See A.R.S. §§ 28-1381.A.1,
.A.4; -1383.A.4.

¶8 Nelson asked the superior court to instruct the jury that
knowledge of the interlock restriction is a required element of the offenses.

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 STATE v. NELSON
Opinion of the Court

The State objected, and the superior court denied Nelson’s request. A jury
convicted Nelson on count 1 but failed to reach a verdict on count 2.

¶9 Nelson timely appealed. This court has jurisdiction under
article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 13-4031, 13-
4033.A.1.

ANALYSIS

¶10 Nelson argues the superior court erred when it declined to
instruct the jury the State was required to prove he knew his interlock
restriction was still in effect on the date of the offense. We agree.

¶11 “This court reviews a decision to give a jury instruction for
abuse of discretion but reviews de novo whether the instruction correctly
states the law.” State v. Farid, 249 Ariz. 457, 460, ¶ 12 (App. 2020) (citing
State v. Solis, 236 Ariz. 285, 286, ¶ 6 (App. 2014)). In this analysis, this court
reads “the instructions as a whole to determine whether the jury received
the information needed to arrive at a legally correct decision.” See Leon v.
Marner, 244 Ariz. 465, 469, ¶ 11 (App. 2018) (citing State ex rel. Thomas v.
Granville, 211 Ariz. 468, 471, ¶ 8 (2005)).

¶12 The superior court here instructed the jury the State needed
to prove Nelson: (1) drove a vehicle in Arizona; (2) was under the influence
of intoxicating liquor while driving, (3) was impaired to the slightest degree
while driving; and (4) had been ordered to equip any motor vehicle he
operated with an interlock device. See A.R.S. §§ 28-1381.A.1; -1383.A.4; see
also Rev. Ariz. Jury Instr. Stat. Crim. 28.1383(A)(4)-1 (vehicular crimes) (4th
ed. 2016).

¶13 Though Nelson and the State both acknowledge no statute or
case has expressly imposed a mental-state element on the statute at issue
here, we find State v. Williams, 144 Ariz. 487 (1985), instructive. In Williams,
the supreme court held a defendant may not be convicted of DUI with a
suspended license absent proof the defendant knew of the suspension. 144
Ariz. at 489. In that case, MVD mailed the defendant three letters informing
him it was suspending his license for non-compliance with the implied
consent laws. Id. at 488. The first two letters were returned as unclaimed or
undeliverable. Id. The third notice, which the defendant did receive, said
MVD would suspend his driving privileges in fifteen days unless it
received a request for a hearing on or before that date. Id. MVD asserted it
never received a request for a hearing and, therefore, suspended his license.
Id. At trial, the defendant testified he timely mailed a request, which would
have maintained his license’s active status until the hearing. Id.

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 STATE v. NELSON
Opinion of the Court

¶14 To determine whether the State was required to prove the
defendant knew of the license suspension, the Williams court first looked to
A.R.S. § 13-202.B, which states, in part:

If a statute defining an offense does not expressly prescribe a
culpable mental state that is sufficient for commission of the
offense, no culpable mental state is required for the
commission of such offense, and the offense is one of strict
liability unless the proscribed conduct necessarily involves a
culpable mental state.

(Emphasis added.)

¶15 Though the DUI statute in Williams “contain[ed] no language
concerning mens rea,” the supreme court concluded “‘driving without a
license’ necessarily involves a ‘culpable mental state.’” 144 Ariz. at 489. “A
driver needs to know he does not have a license before he can be punished
for driving without one even if he is driving while intoxicated, which does
not require intent.” Id. As support for its holding, the supreme court cited
the risk of administrative error and the chance drivers might be unaware
MVD has suspended their licenses. Id.

¶16 This court recently declined to extend Williams to aggravated
DUI with a passenger under the age of fifteen. State v. Gomez, 246 Ariz. 237,
239–40, ¶¶ 10–15 (App. 2019); A.R.S. § 28-1383.A.3. The Gomez court
distinguished Williams, holding that DUI with a passenger under the age of
fifteen does not “necessarily involve” a culpable mental state because “not
everyone who transports a child ‘necessarily’ knows whether the child is
younger than 15.” 246 Ariz. at 239, ¶ 11. This case, however, is more like
Williams than Gomez. Unlike a DUI with a passenger under the age of
fifteen, both DUI with an interlock restriction and DUI with a suspended
license require initial MVD action. Compare A.R.S. § 28-1383.A.3 with A.R.S.
§§ 28-1383.A.1 and -1383.A.4.

¶17 Here, as in Williams, Nelson’s non-compliance with a law
resulted in administrative action restricting his driving privileges. See 144
Ariz. at 489. The notice of corrective action MVD sent Nelson told him the
new order would last one year from the date MVD received his proof of
compliance “unless a different time period is specified.” See A.R.S. § 28-
1463.A. MVD asserts it determined a “different time period” applied to
Nelson’s interlock order when it issued Nelson a new restricted license in
May 2016, but the issue remains whether he knew about it. The offense of
DUI while “ordered . . . to equip any motor vehicle the person operates”

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Opinion of the Court

with an interlock device “necessarily involves” knowing the order is in
effect. See A.R.S. §§ 28-1383.A.4; 13-202.B. The knowledge requirement is
critical when—as here—MVD imposed a new eighteen-month restriction
and not the presumptive one-year period indicated in the notice.

¶18 An MVD worker testified drivers usually are informed of
their new restriction expiration dates when they pick up their new licenses
at the MVD. And Nelson removed the interlock device in his BMW days
after his interlock order’s November expiration date. But that evidence goes
to the proof of the element, not the element’s necessity. We recognize in
most cases it may be difficult for defendants like Nelson to rebut evidence
they knew an interlock restriction was in effect at the time of the offense.
“Nevertheless, [they are] entitled to try.” State v. Jennings, 150 Ariz. 90, 94
(1986). Following the supreme court’s precedent in Williams, the superior
court should have instructed the jury the State was required to prove
Nelson knew his interlock restriction was in effect on the day of his offense.
See 144 Ariz. at 489.

CONCLUSION

¶19 Nelson’s conviction and sentence are vacated. The case is
remanded to the superior court for retrial.

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

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