Franz v. State

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

KATHERINE ANN FRANZ, Petitioner,

ARTHUR EVAN SCHLEMMER, Petitioner,
v.

STATE OF ARIZONA, Respondent1

No. 1 CA-SA 25-0121
1 CA-SA 25-0123 (Consolidated)
FILED 08-05-2025

Special Action from the Superior Court in Maricopa County
Nos. CR2024-128399-001 & CR2024-148158-001

The Honorable Utiki Laing, Judge Pro Tempore
&
The Honorable Tracy Nadzieja, Judge Pro Tempore

JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

Koplow Law Firm, Phoenix
By Lawrence S. Koplow
Co-Counsel for Petitioner Franz

Law Offices of Rhonda Neff, PLLC, Phoenix
By Rhonda Elaine Neff
Co-Counsel for Petitioner Franz

1 We amend the caption as shown above.
 FRANZ and SCHLEMMER v. STATE
Opinion of the Court

Debus & Kazan, LTD, Phoenix
By Gregory M. Zamora & Lawrence I. Kazan
Counsel for Petitioner Schlemmer

Maricopa County Attorney’s Office, Phoenix
By Johnny Jacquez, Heather Coe-Smith, Casey Hutchison
Deputy County Attorneys
Counsel for Respondent

OPINION

Judge Paul J. McMurdie delivered the opinion of the Court, in which
Presiding Judge Anni Hill Foster and Judge Michael J. Brown joined.

M c M U R D I E, Judge:

¶1 This case involves two consolidated special actions about
Arizona Revised Statutes (“A.R.S.”) § 28-1383(A)(5), aggravated driving
under the influence (“DUI”) based on driving the wrong way on a
highway.2 Two superior court judges designated a question for special
action review about whether aggravated DUI based on driving the wrong
way on a highway requires proof that the defendant knew or should have
known he or she was driving on a highway in the wrong direction and, if
so, whether the failure to instruct a jury is error under Arizona law. Based
on the facts of these consolidated cases, we hold that A.R.S. § 28-1383(A)(5)
is a strict liability offense. We accept jurisdiction but deny relief.

FACTS AND PROCEDURAL BACKGROUND

¶2 On an early February morning in 2024, after receiving reports
that a car was driving the wrong way on Interstate 10 in Maricopa County,
police officers stopped Petitioner Franz. Before the stop, the officers
observed Franz traveling west in the eastbound lanes. During the stop, one
officer noticed Franz exhibited signs of intoxication. While still on Interstate
10, Franz told the officer she had been drinking and that she did not know

2 Under A.R.S. § 28-1171(3), a highway is “every way publicly
maintained . . . if any part of the way is generally open to the use of the
public for purposes of conventional two-wheel drive vehicular travel.”

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how she ended up on State Route 202. Several hours later, the officer
obtained a warrant for a blood draw, which revealed her blood-alcohol
concentration was .134.

¶3 A grand jury returned an indictment charging Franz with
aggravated DUI for driving under the influence while going the wrong way
on a highway. Before the trial, Franz moved to remand the indictment to
the grand jury for a new finding of probable cause under Arizona Rule of
Criminal Procedure (“Rule”) 12.9. Franz argued that A.R.S. § 28-1383(A)(5)
required the State to prove that a defendant knew or should have known
he or she was driving the wrong way. Franz also requested a jury
instruction on the statute’s mens rea requirement. The superior court
denied both motions, finding that the State did not violate Franz’s due
process rights in its presentation to the grand jury and that the requested
jury instruction was inappropriate because the statute imposes strict
liability.

¶4 Later in 2024, on an August evening, Petitioner Schlemmer
turned west onto Jefferson Street, an eastbound one-way street in Phoenix.
A police officer began following Schlemmer with her lights and siren on.
The officer saw another vehicle traveling in the correct direction that had to
stop to avoid a head-on collision with Schlemmer. Schlemmer turned onto
22nd Avenue and stopped, where the police officer approached him. While
talking with Schlemmer, the officer observed signs of intoxication, and a
blood draw taken within an hour of the driving revealed a blood-alcohol
concentration of .250.

¶5 A grand jury returned an indictment for Schlemmer under
A.R.S. § 28-1383(A)(5). Before the trial, Schlemmer requested a mens rea
instruction on A.R.S. § 28-1383(A)(5), arguing the State must prove that he
knew or should have known he was driving in the wrong direction. The
superior court denied Schlemmer’s request, finding “no culpable mental
state is required for the aggravated factor of wrong-way driving.”

¶6 Franz and Schlemmer both moved the superior court to
designate the mens rea question for special action review under Arizona
Rules of Procedure for Special Action 13. In both cases, the superior court
granted the motion, designating the question for review.

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DISCUSSION

A. We Accept Jurisdiction over the Superior Court’s Designated
Question.

¶7 Under Arizona Rule of Special Action Procedure 13, a party
desiring review of a designated question may petition the appellate court
for special action review. We have the discretion to accept jurisdiction on
designated questions. See Ariz. R.P. Spec. Act. 12(b), (b)(1) (The 12(b) factors
“support but do not require accepting jurisdiction.”). In deciding whether
to accept review of a designated question, we consider if it raises issues of
first impression and statewide importance, which make special action
jurisdiction appropriate. See Ariz. Indep. Redistricting Comm’n v. Fields, 206
Ariz. 130, 135, ¶ 11 (App. 2003); see also Ariz. R.P. Spec. Act. 12(b)(3), (4).

¶8 We exercise our discretion and accept jurisdiction on the
designated question. See Ariz. R.P. Spec. Act. 12(a), 12(b)(1), (3) & (4). We
also accept jurisdiction over whether the State violated Franz’s right to a
fair grand jury presentation, because she has no adequate remedy by appeal
if convicted. Black v. Coker, 226 Ariz. 335, 338, ¶ 8 (App. 2011) (“A challenge
to the denial of a motion for remand generally must be made by special
action before trial, and is not reviewable on direct appeal.” (quoting Francis
v. Sanders, 222 Ariz. 423, 426, ¶ 9 (App. 2009))). We exercise our discretion
and decline jurisdiction on the other issues raised by the Petitioners.

B. Aggravated DUI under A.R.S. § 28-1383(A)(5) (Driving the Wrong
Direction on a Highway while under the Influence) Is a Strict Liability
Offense.

¶9 Petitioners argue that A.R.S. § 28-1383(A)(5) requires the State
to prove that a driver under the influence of an intoxicant knew or should
have known he or she was driving on a highway in the wrong direction.
We consider this legal issue de novo. State v. Gomez, 246 Ariz. 237, 238, ¶ 5
(App. 2019).

¶10 Section 13-202(B) addresses culpable mental states for
criminal offenses. It provides:

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.

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Despite the statute, our supreme court has held that “[s]trict liability
offenses are the exception rather than the rule and will only be found where
there is a clear legislative intent not to require any degree of mens rea.” State
v. Yazzie, 232 Ariz. 615, 616, ¶ 6 (App. 2013) (alteration in original) (quoting
State v. Jennings, 150 Ariz. 90, 94 (1986)); State v. Williams, 144 Ariz. 487, 488
(1985) (“The requirement that in a criminal case the State demonstrate some
degree of wrongful intent is the rule rather than the exception. Strict liability
applies only where there is a clear legislative intent that the crime does not
require any degree of mens rea.”).

¶11 To determine whether a required mental state exists, we begin
by examining the statute to determine the “clear legislative intent.” See
Yazzie, 232 Ariz. at 616, ¶ 6. To do so, we look first at the statute’s language,
then its context and history, and finally at “whether the type of crime is one
for which strict liability has been historically imposed.” State v. Slayton, 214
Ariz. 511, 515-16, ¶ 13 (App. 2007).

¶12 For the State to prove aggravated DUI under A.R.S.
§ 28-1383(A)(5), its burden is to establish two elements: (1) driving or in
actual physical control of a vehicle in violation of A.R.S. §§ 28-1381, -1382,
or -1383; and (2) driving the wrong way on a highway. The first element,
driving or being in actual physical control of a vehicle while intoxicated,
does not have a mens rea requirement. State v. Zaragoza, 221 Ariz. 49, 54,
¶ 20 (2009) (“The defendant’s intent is not an element of the strict liability
offense of driving while intoxicated.”); State v. Parker, 136 Ariz. 474, 475
(App. 1983) (The DUI offense “does not require proof of a culpable mental
state.”). Thus, we turn to the second element, wrong-way driving, to
determine whether it encompasses a mens rea requirement.

¶13 Section 28-1383(P)(2) defines “wrong way” driving to mean
“vehicular movement that is in a direction opposing the legal flow of
traffic.” The legal flow of traffic is determined by the facts of each case and
the applicable traffic laws. For example, generally, on all roadways of
sufficient width, a motorist must drive “on the right half of the roadway”
unless certain exceptions apply. A.R.S. § 28-721(A). So an intoxicated
motorist driving on the wrong side of the typical road would be driving “in
a direction opposing the legal flow of traffic.” A.R.S. § 28-1383(P)(2). But
one of the exceptions to driving on the right side of the road is a “roadway
designated and signposted for one-way traffic.” A.R.S. § 28-721(A)(4).

¶14 Here, the State alleged that the defendants were driving the
wrong way on one-way highways while intoxicated. See A.R.S.

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§ 28-1383(A)(5) (driving the wrong direction while under the influence). So
we limit our review to that driving situation.

¶15 The legislature has authorized the creation of one-way and
controlled-access highways.3 See A.R.S. §§ 28-728(A) and 48-5312. But to do
so, the appropriate authority must “erect appropriate signs giving notice of
one-way traffic.” A.R.S. § 28-728(A). The motoring public must abide by the
designated signage. A.R.S. § 28-728(B) (“On a roadway designated and
signposted for one-way traffic, a person shall drive a vehicle only in the
direction designated.” (emphasis added)). If a motorist fails to follow the
“designated and signposted” traffic flow, he or she could be ticketed and
fined. See A.R.S. § 28-694(A) (“A person who drives the wrong way on a
controlled access highway commits wrong-way driving.”); see also A.R.S.
§ 28-694(D) (“For the purposes of this section, ‘wrong way’ means vehicular
movement that is in a direction opposing the legal flow of traffic.”); accord
A.R.S. § 28-1383(P)(2).

¶16 For driving the wrong way on a one-way or controlled-access
highway, the “legal flow of traffic” is dependent on “designated and
signposted” directional traffic instructions. And once the appropriate
authority has designated and signposted a highway as one-way, a violation
of the legal flow of traffic, like other civil traffic violations, carries no mens
rea requirement. See Morissette v. United States, 342 U.S. 246, 253-55, 262, n.20
(1952) (The United States Supreme Court identified traffic violations as an
example of “public welfare offenses” that do not require a mens rea.); State
v. Hamberlin, 253 Ariz. 470, 476, ¶ 17 (App. 2022) (To determine whether the
offenses charged require a particular mental state, courts may consider
whether the offense is one that historically imposed strict liability.); Phoenix
City Prosecutor’s Off. v. Nyquist, 243 Ariz. 227, 230, ¶ 9 (App. 2017) (This
court refused to find a culpable mental state following the “historical view
that the penalty imposed under a statute is a significant consideration” in
analyzing whether the statute dispenses with a culpable mental state.
(quotation omitted)); see also Staples v. United States, 511 U.S. 600, 616 (1994);
Holley v. State, 871 S.E.2d 13, 20 (Ga. App. 2022) (Traffic offenses may be
violated without a mens rea or guilty knowledge.); State v. Carman, 872

3 “‘Controlled access highway’ means a highway, street or roadway to
or from which owners or occupants of abutting lands and other persons
have no legal right of access except at such points only and in the manner
determined by the public authority that has jurisdiction over the highway,
street or roadway.” A.R.S. § 28-601(2). Typically, this highway is known as
a freeway.

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N.W.2d 559, 565 (Neb. 2015) (same). Thus neither element of aggravated
DUI under A.R.S. § 28-1383(A)(5) (driving under the influence or driving
the wrong way) has a mens rea component.

¶17 Both Petitioners and the State acknowledge that no case or
statute explicitly rejects a mens rea for A.R.S. § 13-1383(A)(5). Still, caselaw
about other DUI aggravators helps determine whether an implicit mens rea
requirement applies. The first case to impose an implicit mens rea
requirement on a DUI aggravator was State v. Williams, in which our
supreme court held that to prove “driving without a license” as an
aggravator, the State must show that the driver “knew or should have
known” their license had been suspended. 144 Ariz. at 489 (referring to the
statute under its former code, A.R.S. § 28-692.02). In State v. Jennings, the
court found an implicit mens rea requirement for DUI with revoked
licenses, writing:

This is not, however, a strict liability statute. It is merely a
presumption statute . . . that if the state shows that a notice of
revocation was mailed, it is presumed to have been received
and the driver is presumed to have knowledge of the
revocation. The state then no longer has the burden of proof.
The driver has the burden and may show that he did not
receive the notice.

150 Ariz. at 94.

¶18 This court applied the same logic in State v. Nelson, holding
the State must prove the defendant knew or should have known at the time
of the offense that he was subject to an ignition-interlock restriction under
A.R.S. § 28-1383(A)(4). 251 Ariz. 420, 422, 424, ¶¶ 1, 18 (App. 2021). The
court noted that “it may be difficult for defendants . . . to rebut evidence
they knew an interlock restriction was in effect at the time of the offense.
Nevertheless, they are entitled to try.” Id. at 424, ¶ 18 (cleaned up).

¶19 But not all A.R.S. § 28-1383 aggravators carry an implicit mens
rea requirement. In State v. Gomez, we held that aggravated DUI with a
passenger under 15 is a strict liability offense, and the State need not prove
that the defendant knew or should have known the passenger was under
fifteen. 246 Ariz. 237, 238, ¶ 1 (App. 2019). Analogizing this aggravator to
the child sex trafficking crimes under A.R.S. § 13-3212(B)(2), we reasoned,
“the legislature has been clear elsewhere when it means to require the State
to prove the defendant knew the victim was a minor.” Id. at 240, ¶ 14.

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Imposing strict liability for aggravated DUI with a minor under fifteen
tracked this legislative scheme.

¶20 Both Petitioners and the State differentiate Gomez because
Nelson, Jennings, and Williams all required some initial action by the Motor
Vehicle Division or the Department of Transportation before the
defendants engaged in the intoxicated driving. Petitioners argue this makes
wrong-way driving under A.R.S. § 28-1383(A)(5) more like the aggravators
in Nelson and Williams because it “turns on external signs the State must
place and keep up.” The State counters by explaining that suspending a
license and subjecting a defendant to an ignition-interlock device are
personalized determinations and that no such determinations can be
applied here because a driver can never lawfully drive the wrong way on a
properly designated highway. We agree with the State.

¶21 In this case, the plain language of the statute expresses the
legislature’s clear intent to make wrong-way DUI under A.R.S.
§ 28-1383(A)(5) a strict liability offense if the motorist is going against the
“legal flow of traffic” on a roadway that is “designated and signposted.”
A.R.S. § 28-728; Mathews ex rel. Mathews v. Life Care Ctrs. Of Am., Inc., 218
Ariz. 606, 608, ¶ 6 (App. 2008) (A statute’s plain language is the best
indicator of legislative intent.). To prove the wrong-way driving aggravator
under the facts presented by these cases, the State must prove that the
highway is appropriately marked or signed. A defendant may present
evidence and argument that, given how he or she entered or drove on the
highway, the markings or signage were inadequate. But such evidence
pertains to the legal flow of traffic, not the defendant’s mens rea. This is true
even if the signage requirement is to give reasonable motorists notice of the
legal direction of traffic flow.

C. The Superior Court Correctly Denied Petitioners’ Request for a
Jury Instruction.

¶22 Petitioners Schlemmer and Franz both asked the superior
court to instruct the jury that A.R.S. § 28-1383(A)(5) requires a known or
should-have-known mental state for wrong-way driving on a one-way
highway while intoxicated. As noted above, we disagree that a mens rea
requirement exists for the aggravator. But that does not mean a defendant
is not entitled to instructions on whether the signage was adequate. “A
party is entitled to an instruction on any theory reasonably supported by
the evidence. . . . The test is whether the instructions, viewed in their
entirety, adequately set forth the law applicable to the case.” State v.
Rosas-Hernandez, 202 Ariz. 212, 220, ¶ 31 (App. 2002) (quotation omitted). If

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a proposed instruction correctly states the law, then the defendant is
entitled to the instruction so long as he or she develops a theory of the case
reasonably supported by the evidence at the trial. See State v. Shumway, 137
Ariz. 585, 588 (1983).

¶23 Because the proposed mens rea instructions did not correctly
state the law for aggravated DUI (driving the wrong way on a one-way
highway), the courts correctly rejected them. Crafting a correct instruction
based on the evidence and the State’s burden to prove that Petitioners’
driving was against the legal flow of traffic is left to the court and parties.

D. The Court Correctly Denied Franz’s Request to Remand Her Case
to the Grand Jury.

¶24 Franz argues the trial court erred by refusing to remand her
indictment because the State failed to instruct the grand jury about the
implied mental state in A.R.S. § 28-1383(A)(5). Schlemmer did not raise
such a request on special action, nor did he raise the issue in the trial record
before us. We review the denial of a motion to remand to the grand jury for
an abuse of discretion. Willis v. Bernini, 253 Ariz. 453, 458, ¶ 14 (2022).

¶25 Arizona grand juries “shall inquire into every offense which
may be tried within the county which is presented to them by the county
attorney,” A.R.S. § 21-407(A), and they may require the State to produce
evidence “when they have reasonable ground to believe that other
evidence, which is available, will explain away the contemplated charge,”
A.R.S § 21-412; but see Willis, 253 Ariz. at 459, ¶ 20 (But no such federal
corollary exists as Arizona grand juries have a broader statutory duty.). As
a result, the State must correctly instruct the grand jury on the applicable
law, including justification defenses. See Trebus v. Davis, 189 Ariz. 621, 623
(1997) (The prosecutor must “instruct the grand jury on all the law
applicable to the facts of the case.” (emphasis added)), abrogated on other
grounds by, Willis, 253 Ariz. at 461-62, ¶¶ 27-32. Because A.R.S.
§ 12-1383(A)(5) is a strict liability crime, the State need not instruct the
grand jury on a mens rea element for the statute because none exists.

¶26 Under Rule 12.9, a defendant may only challenge a grand jury
proceeding when he or she was denied a substantial procedural right or
when not enough qualified jurors concurred in the indictment. And while
the State need not present all exculpatory evidence, it must provide the
grand jury with all “clearly exculpatory” evidence. State v. Superior Court
(Mauro), 139 Ariz. 422, 425 (1984). If the State is aware of evidence showing

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the appropriate authority did not signpost the one-way highway, then such
evidence should be offered to the grand jury. See Mauro, 139 Ariz. at 425.

¶27 As for Franz’s specific claim, the State informed the grand
jury that an officer observed her driving on the wrong side of the interstate
after someone called 9-1-1 to report a wrong-way driver on Interstate 10.
This testimony was sufficient for the grand jury to find probable cause that
Franz was driving the wrong way on a one-way highway. See State v.
Morris, 246 Ariz. 154, 157, ¶ 9 (App. 2019) (Probable cause requires showing
only a substantial chance the alleged criminal activity occurred, and not an
actual showing of such activity.); A.R.S. § 21-413.

¶28 Franz identifies no evidence that would have required the
State to instruct the grand jury differently in this case. While the State must
instruct the jury about all defenses implicated by the evidence, unnecessary
instructions to the grand jury are harmless. See Francis v. Sanders, 222 Ariz.
at 427, ¶ 16 (“[T]he State has no obligation to anticipate every defense, or to
present facts and law pertaining to defenses in every case . . . .”).

¶29 Franz did request to appear or submit exculpatory evidence,
claiming she believed she had been roofied at the bar and wished to testify.
She did not request to testify about the inadequate signage on entering the
freeway, and no evidence has been offered about where she entered or
whether the entrance was inadequately signed. The State informed the
grand jury about the request Franz made, and the jurors did not request to
hear her testimony on that issue. Hansen v. Chon-Lopez, 252 Ariz. 250, 258,
¶ 24 (App. 2021) (“It is for the grand jury, not the state, to decide whether
to grant or deny the defendant’s request [to present evidence].”). The State
fulfilled its duty to inform the grand jury of her request to testify or submit
exculpatory evidence. See Trebus, 189 Ariz. at 623-24. The State provided a
fair and impartial presentation of the law and evidence, and the superior
court did not abuse its discretion by denying Franz’s motion to remand.

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CONCLUSION

¶30 We grant review but deny relief.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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