State v. McMahon

38 P.3d 1213, 201 Ariz. 548, 365 Ariz. Adv. Rep. 8, 2002 Ariz. App. LEXIS 5
CourtCourt of Appeals of Arizona
DecidedJanuary 22, 2002
Docket1 CA-CR 01-0333
StatusPublished
Cited by21 cases

This text of 38 P.3d 1213 (State v. McMahon) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McMahon, 38 P.3d 1213, 201 Ariz. 548, 365 Ariz. Adv. Rep. 8, 2002 Ariz. App. LEXIS 5 (Ark. Ct. App. 2002).

Opinions

OPINION

PATTERSON, Judge.

¶ 1 The sole issue raised in this appeal is whether the portion of Arizona Revised Statutes (“A.R.S.”) section 28-708(A) (2000) prohibiting an “exhibition of speed or acceleration” on a public street or highway is unconstitutionally vague. We conclude that it is not and affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 Timothy N. McMahon (“defendant”) was cited for “exhibition of speed” in violation of A.R.S. § 28-708(A) after Maricopa County Sheriffs deputies observed a vehicle driven by defendant squeal its tires and fishtail into the median lane as it turned right from a stop sign. At trial in the Carefree Municipal Court, defendant was found guilty and fined $200 plus applicable surcharges. Defendant appealed to the superior court arguing that there was insufficient evidence. to support the trial court’s finding of guilt and that A.R.S. § 28-708(A) was unconstitutionally vague. The superior court rejected defendant’s claims and affirmed the guilty verdict. Defendant thereafter filed a timely appeal to this court.

DISCUSSION

¶3 Our jurisdiction is limited to a review of the facial validity of the statute at issue pursuant to Superior Court Rule of Appellate Procedure 13(b) — Criminal, and A.R.S. § 22-375 (2000) because this matter originated in a municipal court. State v. Martin, 174 Ariz. 118, 120-21, 847 P.2d 619, 621-22 (App.1992). Thus, “[o]ur jurisdiction does not extend to examining the application of the statute to an individual defendant.” Id. “If the statute is constitutional, our inquiry is at an end.” State v. Singer, 190 Ariz. 48, 50, 945 P.2d 359, 361 (App.1997).

¶ 4 Defendant contends that the portion of A.R.S. § 28-708(A) that prohibits a person from engaging in an “exhibition of speed or acceleration” is unconstitutionally vague. Section 28-708(A) states: “A person shall not drive a vehicle or participate in any manner in a race, speed competition or contest, drag race or acceleration contest, test of physical endurance or exhibition of speed or acceleration or for the purpose of making a speed record on a street or highway.”

¶ 5 The constitutionality of a statute is a matter of law that we review de novo. State v. Bomar, 199 Ariz. 472, 475, ¶ 5, 19 P.3d 613, 616 (App.2001). 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 mean ing. State v. Bonnewell, 196 Ariz. 592, 594, ¶ 5, 2 P.3d 682, 684 (App.1999). The party challenging the validity of a statute has the heavy burden of overcoming that presumption. Martin v. Reinstein, 195 Ariz. 293, 302, ¶ 16, 987 P.2d 779, 788 (App.1999).

¶ 6 As a preliminary matter, the state asserts that defendant lacks standing to raise a vagueness claim to A.R.S. § 28-708(A) because his conduct is clearly proscribed by the essential core of the statute. Ordinarily, a defendant may not challenge a statute as being impermissibly vague or overbroad where the statute has given him fair notice of the criminality of his own conduct, even though the statute may be unconstitutional when applied to someone else. State v. McLamb, 188 Ariz. 1, 6, 932 P.2d 266, 272 (App.1997); State v. Tocco, 156 Ariz. 110, 112, 750 P.2d 868, 870 (App.1988), aff'd, 156 Ariz. 116, 750 P.2d 874 (1988). In this case, as discussed above, defendant’s appeal is necessarily limited to the facial validity of the statute and consists of the argument that the statute is incapable of any valid application because the essential element of the offense is so ill-defined as to provide no notice of the conduct that is proscribed. Hence, we reject the state’s suggestion that this appeal be resolved on the basis of lack of standing. Tocco, 156 Ariz. at 112, 750 P.2d at 870.

¶7 Turning to defendant’s claim, vague statutes offend the Due Process Clause of the Fourteenth Amendment of the [551]*551United States Constitution. State v. Western, 168 Ariz. 169, 171, 812 P.2d 987, 989 (1991). 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. Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972); McLamb, 188 Ariz. at 5, 932 P.2d at 270; State v. Takacs, 169 Ariz. 392, 394, 819 P.2d 978, 980 (App.1991). “The requirement of establishing explicit standards is especially important in the context of criminal law because ‘[w]here the legislature fails to provide such minimal guidelines, a criminal statute may permit “a standardless sweep [that] allows policemen, prosecutors, and juries to pursue them personal predilections.” ’ ” Takacs, 169 Ariz. at 394, 819 P.2d at 980 (quoting Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)).

¶8 Due process does not require, however, that a statute be drafted with absolute precision. Fuenning v. Superior Court, 139 Ariz. 590, 598, 680 P.2d 121, 129 (1983). “It requires only that the language of a statute convey a definite warning of the proscribed conduct.” Id.

¶ 9 The main thrust of defendant’s attack on the portion of A.R.S. § 28-708(A) prohibiting an “exhibition of speed or acceleration” is that it fails to provide any clarification as to whether it encompasses both intentional and unintentional conduct. In upholding a similar statute from a challenge based on vagueness, the Colorado Supreme Court offered the following analysis:

[W]e find that paragraph (1) defines two primary offenses, viz., the “speed or acceleration contest,” and the “exhibition of speed or acceleration.” “Speed” and “acceleration” are related terms. The former refers to the act or state of moving swiftly, while “acceleration” means the act of increasing the speed. Webster’s Third New International Dictionary (1961).

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Cite This Page — Counsel Stack

Bluebook (online)
38 P.3d 1213, 201 Ariz. 548, 365 Ariz. Adv. Rep. 8, 2002 Ariz. App. LEXIS 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcmahon-arizctapp-2002.