Derendal v. Griffith

SUPREME COURT OF ARIZONA
En Banc

JUSTIN DERENDAL, ) Arizona Supreme Court
) No. CV-04-0037-PR
Petitioner-Appellant, )
) Court of Appeals
v. ) Division One
) No. 1 CA-CV 03-0380
HON. DEBORAH GRIFFITH, JUDGE OF )
THE PHOENIX CITY COURT, ) Maricopa County Superior
) Court
Respondent Judge, ) No. CV LC 03-000001-001DT
)
PHOENIX CITY PROSECUTOR'S OFFICE, )
)
Real Party in Interest- ) O P I N I O N
Appellee. )
__________________________________)

Order from Phoenix Municipal Court
No. 2760118
The Honorable Deborah Griffith
AFFIRMED
________________________________________________________________

Appeal from the Superior Court of Maricopa County
No. CV LC 03-000001-001DT
The Honorable Michael D. Jones
AFFIRMED
________________________________________________________________

Opinion of the Court of Appeals, Division One
No. 1 CA-CV-03-0380
VACATED
________________________________________________________________
LAW OFFICES OF NEAL W. BASSETT Phoenix
By Neal W. Bassett
And Natalee Segal
And
LAURIE A. HERMAN, Attorney at Law Scottsdale
By Laurie A. Herman
Attorneys for Justin Derendal
PETER VAN HAREN, Phoenix City Attorney Phoenix
By William C. Solomon, Assistant City Prosecutor
And Samuel K. Lesley, Assistant City Prosecutor
Attorneys for Phoenix City Prosecutor’s Office

JAMES J. HAAS, Maricopa County Public Defender Phoenix
By Kathleen N. Carey, Deputy Public Defender
Attorneys for Amicus Curiae
Maricopa County Public Defender

STEPHEN PAUL BARNARD Tucson
Attorney for Amicus Curiae
Arizona Attorneys for Criminal Justice

MICHAEL G. RANKIN, Tucson City Attorney Tucson
By Laura R. Brynwood
Principal Assistant City Attorney - Deputy
And William F. Mills, Supervising Prosecutor
Criminal Division
Attorneys for Amicus Curiae City of Tucson

JOSEPH R. BERTOLDO, Scottsdale City Attorney Scottsdale
By Kenneth M. Flint
Assistant City Prosecutor
Attorneys for Amicus Curiae City of Scottsdale

TOBIN C. SIDLES, Town Prosecutor
Town of Oro Valley Oro Valley
And Dillon Fishman, Rule 38(e) Law Student
University of Arizona, College of Law
Attorneys for Amicus Curiae Town of Oro Valley

DEBORAH J. SPINNER, Mesa City Attorney Mesa
By Roger Kevin Hays
Chief Assistant City Prosecutor
And Stephen Mercer, Assistant City Prosecutor
Attorneys for Amicus Curiae City of Mesa

LAW OFFICE OF TREASURE VANDREUMEL Phoenix
By Treasure VanDreumel
And
GARY KULA, City of Phoenix Public Defender Phoenix
Contract Office
Attorneys for Amicus Curiae City of Phoenix Public Defender
________________________________________________________________

M c G R E G O R, Vice Chief Justice

2
¶1 We granted review to consider whether Arizona should

retain the test set out in Rothweiler v. Superior Court, 100

Ariz. 37, 410 P.2d 479 (1966), to determine when the Arizona

Constitution mandates that a criminal offense be eligible for

trial by jury.

I.

¶2 Justin Derendal was charged in Phoenix Municipal Court

with drag racing,1 a class one misdemeanor, Ariz. Rev. Stat.

(A.R.S.) § 28-708.B (2001), punishable by a maximum of six

months incarceration, see A.R.S. § 13-707.A.1 (2001), and a

$2,500 fine, see A.R.S. § 13-802.A (2001). The municipal court

denied Derendal’s request for a jury trial, and Derendal filed a

special action in superior court. The superior court accepted

jurisdiction but denied relief, and Derendal appealed to the

court of appeals.

¶3 The court of appeals applied the three-part test

established by this court in Rothweiler and, concluding that

drag racing failed to meet any of the three tests for jury

____________
1
“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.” Ariz. Rev. Stat. (A.R.S.) § 28-
708.A (2001).

3
eligibility set out in Rothweiler, affirmed the superior court’s

judgment.

¶4 We granted Derendal’s petition for review and ordered

the parties to file supplemental briefs addressing whether the

Rothweiler test should remain the test for determining jury

trial eligibility in Arizona. We exercise jurisdiction pursuant

to Article 6, Section 5.3 of the Arizona Constitution and A.R.S.

§ 12-120.24 (2003).

II.

¶5 In 1966, this court adopted a three-pronged test to

decide whether, with regard to a particular criminal offense,

the federal or Arizona Constitution guarantees the right to a

jury trial. Relying on both federal and Arizona constitutional

law, we defined three factors as relevant to that inquiry: (1)

the relationship of the offense to common law crimes; (2) the

severity of the statutory penalties that apply; and (3) the

moral quality of the act. Rothweiler, 100 Ariz. at 42, 410 P.2d

at 483. Over time, Arizona courts have come to view these

factors as three independent prongs in the constitutional

analysis of the right to jury trial. See, e.g., State v.

Harrison, 164 Ariz. 316, 317, 792 P.2d 779, 780 (App. 1990)

(“Each prong [of the Rothweiler test] is independently

sufficient to give rise to a jury trial.”).

4
¶6 Twenty-three years after our Rothweiler decision, the

United States Supreme Court held that any criminal offense for

which the maximum statutory penalty is less than six months

incarceration is presumptively a petty offense to which the

right of trial by jury guaranteed by the Sixth Amendment to the

United States Constitution does not attach. Blanton v. City of

North Las Vegas, 489 U.S. 538, 543 (1989). On several

occasions, this court has rejected invitations to replace the

Rothweiler test with the Blanton test, reasoning that the

Arizona Constitution requires greater protection of the right to

trial by jury than does the federal constitution. See, e.g.,

Benitez v. Dunevant, 198 Ariz. 90, 94 ¶ 10, 7 P.3d 99, 103

(2000); State ex rel. McDougall v. Strohson, 190 Ariz. 120, 126-

27, 945 P.2d 1251, 1257-58 (1997); cf. State ex rel. Dean v.

Dolny, 161 Ariz. 297, 299, 778 P.2d 1193, 1195 (1989). We have

never expressly considered whether we should adopt a modified

version of Blanton. We do so today.

¶7 Two separate provisions of the Arizona Constitution

secure the right to jury trial for certain criminal defendants.

The first, Article 2, Section 23, provides that “[t]he right of

trial by jury shall remain inviolate.” The second, Article 2,

Section 24, further provides that “[i]n criminal prosecutions,

the accused shall have the right to . . . a speedy public trial

5
by an impartial jury of the county in which the offense is

alleged to have been committed . . . .”

¶8 We have established several principles that govern the

interpretation of these constitutional provisions. We have long

interpreted them as preserving, rather than creating, the right

to jury trial as it existed in Arizona prior to statehood.

Bowden v. Nugent, 26 Ariz. 485, 488, 226 P. 549, 549-50 (1924);

Brown v. Greer, 16 Ariz. 215, 217, 141 P. 841, 842 (1914). In

addition, it is well settled that under the common law at the

time of Arizona’s statehood, only those accused of “serious

offenses” had a right to trial by jury. See, e.g., Goldman v.

Kautz, 111 Ariz. 431, 432, 531 P.2d 1138, 1139 (1975);

Rothweiler, 100 Ariz. at 42, 410 P.2d at 482; Bowden, 26 Ariz.

at 491, 226 P. at 551. Thus, Article 2, Sections 23 and 24 do

not independently grant a right to jury trial to all criminal

defendants; rather, they preserve the right to jury trial for

those accused of serious offenses. Benitez, 198 Ariz. at 93 ¶

4, 7 P.3d at 102; Dolny, 161 Ariz. at 299, 778 P.2d at 1195. As

a result, the “test for jury eligibility in this state requires

an inquiry into the seriousness of the offense.” Benitez, 198

Ariz. at 92 ¶ 4, 7 P.3d at 101.

A.

¶9 The language of Article 2, Section 23 mandates that we

retain the Rothweiler test’s first prong: the relationship of

6
the offense to common law crimes. We have consistently held

that the phrase “shall remain inviolate” preserves the right to

jury trial as it existed at the time Arizona adopted its

constitution. Benitez, 198 Ariz. at 93 ¶ 4, 7 P.3d at 102;

Bowden, 26 Ariz. at 488, 226 P. at 550.2 Thus, our constitution

requires that the state guarantee a right to jury trial for any

defendant charged with an offense for which a jury trial was

granted prior to statehood.

¶10 We have further held that when the right to jury trial

for an offense existed prior to statehood, it cannot be denied

for modern statutory offenses of the same “character or grade.”

Bowden, 26 Ariz. at 491, 226 P. at 551. Because the Arizona

legislature abolished all common law crimes more than thirty

years ago, see A.R.S. § 13-103.A (1978), many newly minted

statutory criminal offenses have no precise analog in the common

law.3 To determine whether Article 2, Section 23 assures the

____________
2
This has been the almost universal interpretation of the
phrase “shall remain inviolate” in those jurisdictions whose
constitutions contain equivalent language. See, e.g., Wheeler
v. Caldwell, 75 P. 1031 (Kan. 1904); State ex rel. Jackson v.
Kennie, 60 P. 589 (Mont. 1900); Kuhl v. Pierce County, 62 N.W.
1066 (Neb. 1895); State v. McClear, 11 Nev. 39 (1876); Vaughn v.
Scade, 30 Mo. 600 (1860); Work v. State, 2 Ohio St. 297 (1853);
Ross v. Irving, 14 Ill. 171 (1852).
3
We acknowledge, as the State asserts, that the farther
Arizona moves from the era of common law crimes, the more
difficult it becomes for parties and courts to compare a modern
statutory crime with common law offenses.

7
right to trial by jury, we consider whether a modern crime has a

common law antecedent. We regard a jury-eligible, common law

offense as an antecedent of a modern statutory offense when the

modern offense contains elements comparable to those found in

the common law offense. See Bowden, 26 Ariz. at 490, 226 P. at

550.

¶11 In Bowden, for instance, we determined that a

defendant charged with operating a poker game in violation of a

city ordinance was entitled to a jury trial because the charge

was similar in character to the common law crime of conducting

or maintaining a gambling house and the elements of the crimes

were substantially similar. 26 Ariz. at 490, 226 P. at 550.

¶12 Similarly, in Urs v. Maricopa County Attorney’s

Office, the court of appeals concluded that reckless driving,

defined in A.R.S. § 28-693.A (Supp. 2000) as “driv[ing] a

vehicle in reckless disregard for the safety of persons or

property . . . ,” is in the “character of operating a motor

vehicle so as to endanger [any] property [or] individual,” which

was a jury-eligible offense at common law. 201 Ariz. 71, 74 ¶

8, 31 P.3d 845, 848 (App. 2001) (quotations omitted). Because

the elements of these offenses are substantially similar, the

8
court held that reckless driving is a jury-eligible offense

under Arizona’s constitution.4

B.

¶13 If an offense does not have a common law antecedent,

determining whether the Arizona Constitution requires a trial by

jury depends upon whether the offense falls within the guarantee

of Article 2, Section 24, which provides in pertinent part:

In criminal prosecutions, the accused shall have the
right to . . . a speedy public trial by an impartial
jury of the county in which the offense is alleged to
have been committed . . . .

Ariz. Const. art. 2, § 24. Because Section 24 is Arizona’s

analog to the Sixth Amendment of the United States Constitution,5

we have construed it consistently with the federal constitution

to preserve the right to jury trial only for “serious,” as

opposed to “petty,” crimes. See Rothweiler, 100 Ariz. at 41,
____________
4
See also, e.g., City Court v. Lee, 16 Ariz. App. 449, 494
P.2d 54 (1972). There, the court found that a Tucson ordinance
prohibiting all-nude dancing had a direct antecedent in the
common law offense of indecent exposure, which was defined as
“[t]he exhibition of one’s private parts in a public place.”
Id. at 452, 494 P.2d at 57 (citations omitted). Although the
court also found that the ordinance involved a crime of moral
turpitude, that portion of the analysis was unnecessary. Once a
court determines that a common law antecedent for which a jury
trial was granted prior to statehood exists for a criminal
offense, the inquiry is concluded, and the matter must be tried
to a jury.
5
“In all criminal prosecutions, the accused shall enjoy the
right to a speedy and public trial, by an impartial jury of the
State and district wherein the crime shall have been committed .
. . .” U.S. Const. amend. VI.

9
410 P.2d at 482 (“This Court has consistently held that the

right as guaranteed in the Constitution does not apply to petty

offenses.”); Schick v. United States, 195 U.S. 65, 70 (1904)

(“[I]t is obvious that the intent [of the framers] was to

exclude from the constitutional requirement of a jury the trial

of petty criminal offenses.”). In Rothweiler, we noted two

factors relevant to the determination of seriousness: (1)

severity of the penalty and (2) moral quality of the act. 100

Ariz. at 42, 410 P.2d at 483.

1.

¶14 The United States Supreme Court long followed a case-

by-case approach to determine the seriousness of an offense for

purposes of the right to trial by jury. See Baldwin v. New

York, 399 U.S. 66 (1970); Duncan v. Louisiana, 391 U.S. 145

(1968); District of Columbia v. Clawans, 300 U.S. 617 (1937);

Schick, 195 U.S. 65; Callan v. Wilson, 127 U.S. 540 (1888).

These decisions “focused on the nature of the offense and on

whether it was triable by a jury at common law.” Blanton, 489

U.S. at 541. Central to the analysis of the nature of the

offense was the Court’s understanding that the seriousness of

the offense and the severity of the penalty attached to that

offense are mutable and dependent on the standards of each

generation. Thus, the Court’s analysis reflected a willingness

to adapt the jury right to the changing sensibilities of the

10
culture. See Clawans, 300 U.S. at 627 (recognizing that

“commonly accepted views of the severity of punishment by

imprisonment may become so modified that a penalty once thought

to be mild may come to be regarded as so harsh as to call for

the jury trial”).

¶15 As its Sixth Amendment jurisprudence developed, the

Court began to define a more objective standard for determining

seriousness. In its decisions, the Court moved toward increased

emphasis upon the severity of the penalty attached to an

offense. Whereas the Court had in 1937 “refused to foreclose

consideration of the severity of the penalty as an element to be

considered in determining” whether a statutory offense is

serious enough to warrant a jury trial, Clawans, 300 U.S. at 625

(emphasis added), by 1970 the Court held that the “most relevant

such criteria [is] the severity of the maximum authorized

penalty.” Baldwin, 399 U.S. at 68.

¶16 In Blanton, the Court took a definitive step toward

creating an objective standard by abandoning its previous case-

by-case analysis of seriousness in favor of a bright-line rule

for determining jury eligibility under the Sixth Amendment. The

Court held that any offense for which the maximum statutory

penalty is less than six months incarceration is presumptively a

petty offense to which the right of trial by jury does not

attach. 489 U.S. at 543. The Court also held, however, that a

11
defendant could rebut this presumption by showing that the

legislature had “pack[ed] an offense it deems ‘serious’ with

onerous penalties that nonetheless do not puncture the 6-month

incarceration line.” Id. (quotations omitted).

¶17 In Blanton, the Supreme Court recognized that “[i]n

fixing the maximum penalty for a crime, a legislature

‘include[s] within the definition of the crime itself a judgment

about the seriousness of the offense.’” Id. at 541 (quoting

Frank v. United States, 395 U.S. 147, 149 (1969)). Because the

legislature, acting as a representative body, responds to

changing mores and values of the society it represents, the

Court declined to substitute its own judgment as to the

seriousness society attaches to a particular offense for that of

the legislature. See id. Thus, the Court abandoned the

somewhat subjective common law approach for a bright-line test

that focuses on the severity of the penalty attached to an

offense.

2.

¶18 During the first fifty years of Arizona’s statehood,

our serious offense analysis essentially mirrored that of the

United States Supreme Court and focused primarily upon the

nature of the offense and whether the common law afforded a

right to a jury trial. As the Supreme Court began focusing upon

the severity of the penalty rather than the nature of the

12
offense, we also began to make this transition. Thus, in State

v. Cousins, 97 Ariz. 105, 397 P.2d 217 (1964), this court first

addressed the question whether an offense for which no common

law antecedent existed might nevertheless be jury-eligible as a

result of the severity of the penalty attached to that offense.

In Cousins, we held that a maximum punishment of a $300 fine and

up to three months incarceration did not constitute punishment

sufficiently severe to require a jury trial for the offense of

drunk and disorderly conduct.6 Id. at 109, 397 P.2d at 219. In

so holding, we relied upon the United States Supreme Court’s

decision in Clawans. Id.

¶19 In Rothweiler, we expanded this analysis to include

consideration of statutory consequences other than the length of

incarceration and amount of the fine imposable. Thus, we held

that a charge of misdemeanor driving under the influence of

intoxicating liquor7 qualified as a serious offense triable to a

jury in part because the defendant faced not only incarceration

and a fine but also the potential suspension of his driver’s

license. 100 Ariz. at 44, 410 P.2d at 484. Because of the

“grave consequences” resulting from such a suspension, as well
____________
6
We reached this conclusion only after we first determined
that drunk and disorderly conduct had no jury-eligible common
law antecedent. Cousins, 97 Ariz. at 107-08, 397 P.2d at 218.
7
At the time, A.R.S. § 28-692 defined misdemeanor D.U.I.
The offense currently is described in A.R.S. § 28-1381 (2004).

13
as the moral quality of the act, we concluded that the penalty

was so severe as to require a jury trial for the offense. Id.

¶20 During the interim between our Rothweiler decision in

1966 and the Supreme Court’s decision in Blanton in 1989, we

decided several cases in which we relied on federal law in

declining to extend the right to trial by jury to misdemeanors

punishable by no more than six months incarceration. See

Goldman, 111 Ariz. at 432, 531 P.2d at 1139 (“The denial of a

jury trial for offenses the punishment for which does not exceed

a $300 fine nor six months in jail does not present a federal

constitutional question. Nor does the Arizona

Constitution . . . require a jury trial in petty offenses.”)

(citing Baldwin, 399 U.S. 66); State ex rel. Baumert v. Superior

Court, 127 Ariz. 152, 154-55, 618 P.2d 1078, 1080-81 (1980)

(noting that “[i]t is the law, federal and state, that a

possible penalty of a 6-month jail sentence is not so severe as

to require trial by jury” and finding a $1,000 fine not serious

enough to require a jury trial) (citing Muniz v. Hoffman, 422

U.S. 454 (1975)); Spitz v. Mun. Court, 127 Ariz. 405, 408, 621

P.2d 911, 914 (1980) (noting the federal rule that a jury is not

required when the punishment is no more than six months

incarceration and holding that “an additional sanction, such as

suspension of [a] liquor license . . . does not mandate a jury

trial”) (citing Duncan v. Louisiana, 391 U.S. 145 (1968)). Not

14
until our post-Blanton decisions did our analysis begin to

diverge from that of the United States Supreme Court.

C.

¶21 Although we have declined to adopt the Blanton

analysis, we have moved toward a more objective, bright-line

test for determining seriousness of an offense, the second prong

of the Rothweiler test. We have held, for example, that “the

most significant element [in determining whether an offense is

jury eligible] is always the potential punishment authorized by

the statute creating the crime . . . .” Strohson, 190 Ariz. at

124, 945 P.2d at 1255. Moreover, we have held that “[a]s a

general rule, the penalties attendant to misdemeanor offenses in

this state are, of themselves, not enough to secure a jury

trial.” Benitez, 198 Ariz. at 94 ¶ 13, 7 P.3d at 103. We now

expressly adopt the Blanton presumption and hold that when the

legislature classifies an offense as a misdemeanor and

punishable by no more than six months incarceration, we will

presume that offense to be a petty offense that falls outside

the jury requirement of Article 2, Section 24 of the Arizona

Constitution. By adopting that approach, we leave to the

legislature primary responsibility for determining, through its

decision as to the penalty that accompanies a misdemeanor

offense, whether the offense qualifies as a “serious offense.”

Like the Court in Blanton, however, we recognize that some

15
criminal offenses give rise to direct consequences that render

punishment “severe,” even though the legislature sets the

maximum period of incarceration at six months or less. Article

2, Section 24 guarantees a jury trial if a defendant can

demonstrate that additional grave consequences that attend a

misdemeanor conviction reflect a legislative determination that

the offense is indeed “serious.”

¶22 Our previous decisions establish that not every

consequence that follows a criminal conviction qualifies for

consideration under Article 2, Section 24. To rebut the

presumption that an offense does not require a jury trial, a

defendant must establish that a consequence of conviction meets

several criteria.

¶23 First, the penalty must arise directly from statutory

Arizona law. See Blanton, 489 U.S. at 543 n.8 (holding that in

a serious offense analysis, a court should consider only

penalties resulting directly from state action). As we

explained in Strohson, it is neither practical nor possible for

“a state court to conjure up all possible consequences that

might flow from a state court conviction when those consequences

do not flow from the law of the state.” 190 Ariz. at 125, 945

P.2d at 1256. Likewise, courts cannot conjure up all possible

consequences that might result from non-statutory sources.

Judges who are hard-pressed to “delve into the complexities of

16
federal law in each case to determine whether the individual

defendant is entitled to a jury trial,” id., would find it even

more difficult to conjure up every possible societal

repercussion a defendant might face upon conviction of a

misdemeanor criminal offense.8

¶24 Second, the consequence must be severe. See Benitez,

198 Ariz. at 96-97 ¶ 26, 7 P.3d at 105-06 (recognizing driving

as a privilege rather than a right and holding that the

“potential loss of the driving privilege [was not] a grave or

serious consequence”). To mandate a jury trial, collateral

consequences must “approximate in severity the loss of liberty

that a prison term entails.” See Blanton, 489 U.S. at 542.

Thus, for example, we have previously held insufficient to prove

seriousness a $1,000 fine, Baumert, 127 Ariz. at 155, 618 P.2d

at 1081, or the potential loss of a liquor license, Spitz, 127

Ariz. at 408, 621 P.2d at 914.

¶25 Finally, we will consider only those consequences that

apply uniformly to all persons convicted of a particular

offense. As we stated in Strohson:

[W]e have never determined jury eligibility based upon
an analysis of the individual defendant before the
court. If we were to do so . . . we would have the
____________
8
To the extent our decision in State ex rel. Dean v. Dolny,
161 Ariz. 297, 778 P.2d 1193 (1989), came to a contrary
conclusion regarding grave consequences, we now expressly
overrule it.

17
 anomalous situation where some persons would be
entitled to a jury trial and others would not,
although charged with exactly the same substantive
Arizona crime.

190 Ariz. at 125, 945 P.2d at 1256. In other words, when

determining the right to jury trial, we are concerned with the

seriousness of the offense, rather than with the impact of a

conviction on an individual defendant. For example, we will not

consider the effect a conviction might have upon a defendant’s

ability to obtain or maintain certain professional licenses, as

such a consequence does not affect all defendants convicted of

an offense.

¶26 The modified version of the Blanton test that we adopt

today preserves the right to jury trial for serious offenses,

while recognizing the legislature’s primary responsibility for

classifying crimes as to severity. We also retain a defendant’s

right to a jury trial for a misdemeanor offense if the defendant

can establish that conviction results in additional severe,

direct, uniformly applied, statutory consequences.

D.

¶27 Unlike the first two prongs of the Rothweiler test,

the final Rothweiler factor—moral quality of the offense—

possesses no discernable constitutional pedigree.

¶28 We first announced the moral quality test in

Rothweiler in response to language in Clawans, where the Supreme

18
Court observed that “those standards of action and of policy

which find expression in the common and statute law may vary

from generation to generation.” 300 U.S. at 627. Agreeing with

the Supreme Court that an analysis of the constitutional right

to jury trial requires reference to the changing standards of

seriousness and severity from generation to generation, we found

preferable a flexible test that would allow us to consider those

changing standards within Arizona. We intended that the

subjective “moral quality” prong provide that flexibility. See

Benitez, 198 Ariz. at 95 ¶ 17, 7 P.3d at 104 (finding

recognition of a right to jury trial for crimes of moral

turpitude logically consistent with the theory that a jury

reflects societal morality and therefore is best equipped to

decide the fate of one who is charged with offending that

morality).

¶29 As initially set forth in Rothweiler, the moral

quality factor focused more upon the nature of the offense than

on the character of the defendant. 100 Ariz. at 44, 410 P.2d at

484-85. Thus, in that case we held that driving under the

influence of intoxicating liquor was a “matter of statewide

concern” and “repugnant to the community . . . because of the

potential harm and evil that may result from such practice.”

Id.

19
¶30 In subsequent cases, we expanded the moral quality

prong beyond the scope of its initial purpose. Only two years

after our Rothweiler decision, we began to transform the moral

quality analysis into a “moral turpitude” test, shifting our

focus from the nature of the crime and toward the nature of the

defendant’s character and conduct. See O’Neill v. Mangum, 103

Ariz. 484, 485, 445 P.2d 843, 844 (1968) (finding that “it can

hardly be suggested that one charged or guilty of mere ‘drunk

and disorderly’ conduct is a depraved and inherently base

person”). In Dolny, we expanded the moral quality test even

further, concluding that while we were “undoubtedly concerned

with the stigma associated with certain crimes” in Rothweiler,

the moral quality test is concerned primarily with “the nature

of the consequences resulting from a conviction, such as . . .

losing one’s driver’s license.” 161 Ariz. at 300, 778 P.2d at

1196 (emphasis added). In Benitez, we expanded upon the

definition of acts of moral turpitude originally pronounced in

O’Neill to include “actions which ‘adversely reflect on one’s

honesty, integrity, or personal values.’” 198 Ariz. at 95 ¶ 15,

7 P.3d at 104 (citations omitted).

¶31 As the “moral quality” test became more subjective and

ambiguous, inconsistent outcomes resulted. Compare Strohson,

190 Ariz. 120, 945 P.2d 1251 (holding that misdemeanor assault

classified as domestic violence is not a crime of moral

20
turpitude), and Bazzanella v. Tucson City Court, 195 Ariz. 372,

988 P.2d 157 (App. 1999) (finding misdemeanor child abuse not a

crime of moral turpitude), with State v. Superior Court, 121

Ariz. 174, 589 P.2d 48 (App. 1978) (holding that misdemeanor

shoplifting is a crime of moral turpitude), and Frederickson v.

Superior Court, 187 Ariz. 273, 928 P.2d 697 (App. 1996) (finding

leaving the scene of an accident to be a crime of moral

turpitude). Moreover, “[b]ecause the ‘moral quality of the act’

is in the eye of the beholder, there [seemed to] be as many

diverse results as there [were] judges.” Benitez, 198 Ariz. at

97 ¶ 32, 7 P.3d at 106 (Martone, J., concurring).

¶32 We can no longer justify use of the “moral quality”

prong of Rothweiler to determine whether one charged with a

misdemeanor criminal offense is entitled to a trial by jury.

The test, as developed and applied, has caused inexplicable

results that depend upon the evaluation by a judge that a

particular crime involves “moral turpitude” or upon a judge’s

conclusion that only a “depraved and inherently base person”

would commit a particular offense. As Blanton makes clear, the

Sixth Amendment does not require application of any “moral

quality” test and, for the reasons set out above, we conclude

that the Arizona Constitution does not require such an approach.

¶33 We recognize that the doctrine of stare decisis

cautions against overruling a former decision. See Goldman, 111

21
Ariz. at 432-33, 531 P.2d at 1139-40. In this instance,

however, our decision to overturn a portion of our holding in

Rothweiler does not offend the principles underlying stare

decisis. As we have previously noted, stare decisis “is

grounded on public policy that people should know what their

rights are as set out by judicial precedent and having relied on

such rights in conducting their affairs should not have them

done away with by judicial fiat.” White v. Bateman, 89 Ariz.

110, 113, 358 P.2d 712, 713-14 (1961). We have also

acknowledged, however, that “the doctrine of stare decisis

should not require a slavish adherence to authority . . . .”

Goldman, 111 Ariz. at 432, 531 P.2d at 1139.

¶34 Our concern for following earlier authority is

minimized when, as here, the prior rule has not provided the

consistency the doctrine of stare decisis is designed to

protect. Rather than provide consistency, the moral quality

prong of Rothweiler has caused continuing uncertainty for

parties and courts as they try to determine which misdemeanor

offenses satisfy this portion of the Rothweiler test. By

eliminating the moral quality prong of the Rothweiler analysis,

we provide assurance for both defendants and the State that the

right to jury trial for an offense will not vacillate depending

upon the ability of a given judge “to predict the moral

22
culpability the public attaches to an act.” Benitez, 198 Ariz.

at 97 ¶ 32, 7 P.3d at 106 (Martone, J., concurring).

¶35 Derendal argues that we cannot abandon the moral

quality prong of Rothweiler without severely curtailing the

right to jury trial in Arizona. History does not support such a

conclusion. In fact, despite the continuous expansion of the

moral quality prong of Rothweiler, this court has never held an

offense to be jury-eligible solely on the basis of moral

turpitude. Moreover, during the almost forty years since the

Rothweiler decision, the court of appeals has explicitly labeled

only four misdemeanor offenses as crimes of moral turpitude.

See City Court v. Lee, 16 Ariz. App. 449, 494 P.2d 54 (1972)

(bottomless dancing); State v. Superior Court, 121 Ariz. 174,

589 P.2d 48 (shoplifting); Mungarro v. Riley, 170 Ariz. 589, 826

P.2d 1215 (App. 1991) (false reporting to law enforcement

agency); Frederickson, 187 Ariz. 273, 928 P.2d 697 (leaving the

scene of an accident). In two of these cases, the appellate

court also found the offense to have a common law antecedent

requiring a jury trial. Lee, 16 Ariz. App. at 452, 494 P.2d at

57 (bottomless dancing related to common law indecent exposure);

State v. Superior Court, 121 Ariz. at 176, 589 P.2d at 50

(shoplifting related to common law larceny). Thus, while our

decision today should substantially reduce uncertainty as to

which offenses merit a trial by jury, it will have little effect

23
upon the number of offenses for which our constitution mandates

a jury trial.

III.

¶36 We hold that the analysis of jury eligibility for

trials of misdemeanor offenses in Arizona requires a two step

process. First, Article 2, Section 23 requires that a court

determine whether a statutory offense has a common law

antecedent that guaranteed a right to trial by jury at the time

of Arizona statehood. In making that decision, the court should

consider whether substantially similar elements comprise the

common law offense and the offense charged. If so, the inquiry

concludes, and the defendant’s right to a trial by jury is

established.

¶37 If, however, the court finds no common law antecedent

for which a jury trial was required, the court must analyze the

seriousness of the offense under Article 2, Section 24. Because

this provision is Arizona’s analog to the Sixth Amendment, we

apply a modified Blanton test. If the legislature has defined

an offense as a misdemeanor punishable by no more than six

months incarceration, we presume that the offense is petty, and

no jury right attaches. A defendant may rebut this presumption,

however, by demonstrating that the offense carries additional

severe, direct, uniformly applied, statutory consequences that

reflect the legislature’s judgment that the offense is serious.

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If a defendant makes that showing, Article 2, Section 24

guarantees a right to trial by jury.

IV.

¶38 Applying this test to the case at hand, we agree with

the court of appeals that drag racing, as prescribed by A.R.S. §

28-708.A, is not a jury-eligible offense. Derendal argues that

drag racing is related to reckless driving, which has been held

to be a jury-eligible offense because it had a common law

antecedent that was jury-eligible. Thus, according to Derendal,

drag racing also must be tried to a jury.

¶39 The test for determining whether a modern offense is

of the same character as a common law offense is whether the

modern offense shares substantially similar elements with the

common law offense, not whether the offense in question relates

in some way to another modern offense for which a jury-eligible

common law antecedent exists. As the court of appeals noted, it

had regarded reckless driving as a jury-eligible offense because

the element of reckless disregard compares with the common law

offense of operating a vehicle in a manner that endangers

individuals or property. Derendal v. Griffith, 207 Ariz. 51, 55

¶ 16, 83 P.3d 51, 55 (App. 2004). The statute prohibiting drag

racing does not include the element of reckless disregard, and

we find no other common law antecedent. Thus, Article 2,

25
Section 23 does not require that a charge of drag racing be

tried to a jury.

¶40 We next inquire whether, under Article 2, Section 24,

drag racing qualifies as a serious offense. Because drag racing

is a class one misdemeanor punishable by no more than six months

incarceration, we presume that it is not a jury-eligible

offense. To overcome that presumption, Derendal must

demonstrate additional severe, direct, uniformly applied,

statutory consequences of conviction for the offense. At the

trial court, Derendal argued that the potential loss of his

driver’s license upon conviction qualifies as a grave

consequence and shows that the legislature views drag racing as

a serious crime. We previously have rejected that argument,

holding that the potential loss of the driving privilege does

not qualify as a serious consequence necessitating a jury trial.

Benitez, 198 Ariz. at 96-97 ¶ 26, 7 P.3d at 105-06.9 We

therefore hold that Derendal has failed to show severe, direct,

uniformly applied, statutory consequences and that drag racing

is not a jury-eligible offense.

____________
9
Derendal faces the same statutory consequences as Benitez
faced: up to six months incarceration, a possible fine of
$2,500, and potential loss of his driver’s license for up to
ninety days. See Benitez, 198 Ariz. at 92 ¶ 1, 7 P.3d at 101.

26
 V.

¶41 For the foregoing reasons, we vacate the decision of

the court of appeals and affirm the order of the municipal court

and judgment of the superior court denying Derendal a jury

trial.

__________________________________
Ruth V. McGregor
Vice Chief Justice

CONCURRING:

_________________________________
Charles E. Jones, Chief Justice

_________________________________
Rebecca White Berch, Justice

_________________________________
Michael D. Ryan, Justice

_________________________________
Andrew D. Hurwitz, Justice

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