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LESSER INCLUDED OFFENSE ISSUES

By Beth Barnes

Assistant City Prosecutor

Phoenix City Prosecutor's Office

A. Is the A.R.S. § 28-1381(A)(2) Per Se DUI Charge a Lesser Included Offense of Extreme DUI?

The per se DUI charge under A.R.S. § 28-138 I(A)(2) appears to be a lesser included offense of extreme DUI under A.R.S. § 28-1382.

If an offense cannot be committed without necessarily committing the lesser offense, then the lesser offense is a lesser included offense. State v. Seats, 131 Ariz. 89. 638 P.2d 1335 (1981); Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 221, 53 L.Ed.2d 187 (1977). The only element that differs between the two charges here is that extreme DUI requires a .18 alcohol concentration or greater within two hours of driving, and the per se charge only requires an alcohol concentration of .10 or greater within two hours of driving. If there is proof that the defendant was .18 or greater within two hours of driving, there is necessarily proof that he was .10 or greater. Accordingly, the (A)(2) charge is a lesser included offense.

B. Can Both Extreme DUI and the (A)(2) DUI Be Charged?

Both extreme DUI and A.R.S. § 28-13 8 1 (A)(2) should be able to charged. State v. Cruz, 127 Ariz. 33, 617 P.2d 1149 (1980) (State cannot be required to elect between greater and lesser charges. If, however, the defendant is convicted of both, there can be no double punishment.) If initially only the (A)(2) per se charge is charged and the defendant pleads to it, is convicted of it, or is acquitted of it. the State is precluded from later charging the greater extreme DUI charge. Ohio v. Johnson, 467 U.S. 493, 104 S.Ct. 2536 81, L.Ed.2d 425 (1984); State v. Mounce, 150 Ariz. 3, 721 P.2d 661 (App. 1986). The State is not precluded from charging a defendant with greater and lesser included offenses in a single trial. Brown v. Ohio, 432 U.S. 61, 53 L.Ed.2d 187, 97 S.Ct. 221 (1977). Even if the defendant pleads guilty to only the .10 lesser offense, he should not be able to claim double jeopardy as long as he was charged with the greater offense in the same proceeding, at the time of the change of plea. Ohio v. Johnson, supra. However, if a defendant is cited for only the .10 lesser offense and then pleads guilty, it would appear to present a double jeopardy issue to then charge extreme DUI.

C. Do Both Extreme DUI and the Lesser (A)(2) DUI Charge Have to Be Charged?

While both extreme DUI and (A)(2) may be charged, they do not have to be. If only extreme DUI is char-ed, a jury Instruction on the lesser included (A)(2) offense should be available. A trial court is required to give an instruction on a lesser included offense when the offense is a lesser included offense and when the evidence warrants the giving of the instruction. State v. Davis, 137 Ariz. 551, 672 P.2d 480 (App. 1983). As a general rule, however, a defendant is only entitled to a lesser included offense instruction if there is evidence upon which the jury could convict of the lesser offense and find that the State failed to prove an element of the greater offense. Id. The trial court is required to give a lesser included offense instruction only when the element that distinguishes the two charges is in dispute. State v. Ruelas, 165 Ariz. 326, 798 P.2d 1335 (App. 1990). Accordingly, if only extreme DUI is charged and the defendant only disputes driving or identification, he is not entitled to an instruction on the (A)(2) charge.

If only extreme DUI is charged and a jury instruction on the lesser included (A)(2) charge is not given, double jeopardy will prevent subsequently charging and prosecuting the defendant for (A)(2) if the defendant is acquitted on the extreme DUI charge. Andrade v. Superior Court. (State of Arizona, Real Party in Interest), 183 Ariz. 1 13. 901 P.2d 461 (App. 1995). If only extreme DUI is charged and the jury is instructed on both the greater and lesser included crimes, there should be a different result. If the defendant is acquitted of the greater charge there is a bar from to retrying that charge. There is no bar, however, from retrying the lesser per se charge, if the jury is instructed on and unable to reach a verdict on the second charge. Id.

AGGRESSIVE DRIVING AND RECKLESS DRIVING

A.  Is Reckless Driving a Lesser Included Offense of Aggressive Driving?

Reckless driving is not a lesser included offense of the new aggressive driving charge. Reckless driving requires proof of two things: (1) driving a vehicle (2) in reckless disregard for the safety of persons or property. Aggressive driving requires: (1) driving, (2) that the person commit at least three specified traffic violations, and (3) that the person's driving is an immediate hazard to another person or vehicle. Because reckless driving has a mental state and aggressive driving does not, they do not appear to be lesser and greater offenses.

Pursuant to A.R.S. § 13-105(9)(c) recklessly "means, with respect to a result or to a circumstance described by statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. . . ."

While there are numerous situations where a criminal defendant that commits aggressive driving will be aware of and consciously disregard a substantial and unjustifiable risk, awareness is not required to prove aggressive driving. Because it is the statutorily prescribed elements of the crime which determine whether a crime is a lesser included offense rather than the facts of the given case, State v. Mounce, 150 Ariz. 3, 721 P.2d 661 (App. 1986), reckless driving is not a lesser included offense of aggressive driving.

B. Can the Police Cite Both Charges?

Reckless driving is not a lesser included offense of aggressive driving. Even if it were, the police could charge both offenses. Cruz, supra. Depending upon the facts, the court may be required to impose only one sentence. Id.; Anderjeski, supra.

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