State v. Nelson ( 2021 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
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
Decision of the Court
MEMORANDUM DECISION
Judge David B. Gass delivered the decision 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 Because we conclude his ignition-interlock order was in effect
on the day of his offense and conclude he was given sufficient notice, we
affirm the superior court on these issues but vacate and remand consistent
with the contemporaneously filed opinion.
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
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
1 A separate opinion filed simultaneously with this memorandum
decision vacates his conviction on jury-instruction grounds. See Ariz. R.
Sup. Ct. 111(h); Ariz. R. Crim. P. 31.19(f).
2
STATE v. NELSON
Decision of the Court
“[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 Before trial, Nelson filed a motion in limine asking the
superior court to rule as a matter of law he was not required to have an
interlock device in his vehicle on the day he was stopped. The motion also
argued MVD deprived him of due process by failing to mail him notice his
restriction had been extended to November 12, 2017. The superior court
denied the motion, finding the interlock requirement was in effect on the
date of the offense but not expressly ruling on the due process argument.
¶9 A jury convicted Nelson on count 1 but failed to reach a
verdict on count 2.
3
STATE v. NELSON
Decision of the Court
¶10 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
¶11 Nelson argues: (1) he was not subject to the interlock-device
requirement at the time of the offense; and (2) he was denied due process
because MVD did not give him proper notice of the new interlock order and
its expiration date.
I. The interlock-device requirement was in effect on the date of the
offense.
¶12 Nelson advances two reasons he was not subject to an
interlock requirement on the date he was pulled over for aggravated DUI.
First, Nelson argues his eighteen-month interlock requirement began on
April 1, 2016, not May 12, 2016. Second, Nelson contends MVD lacked
statutory authority to impose a new eighteen-month interlock requirement
after it received notice he had installed an interlock device in the BMW.
¶13 Both arguments involve matters of statutory interpretation,
which this court reviews de novo. See State v. Potter, 248 Ariz. 347, 349, ¶ 9
(App. 2020). The statute’s text is the most reliable indicator of its meaning.
Id. If the text is clear and unambiguous, this court does not resort to other
methods of statutory interpretation. Id. at 349–50. Plain language analysis,
however, “does not focus on statutory words or phrases in isolation.” Glazer
v. State, 244 Ariz. 612, 614, ¶ 10 (2018). Rather, “we look to the statute as a
whole and we may also consider statutes that are in pari materia . . . for
guidance and to give effect to all of the provisions involved.” Id. (quoting
Stambaugh v. Killian, 242 Ariz. 508, 509, ¶ 7 (2017)).
¶14 We note, the legislature amended many of the relevant
statutes in May 2017, but with an effective date after Nelson’s November
2017 offense. See 2017 Ariz. Sess. Laws, ch. 331, § 13 (1st Reg. Sess.) (S.B.
1150) (“This act is effective from and after June 30, 2018.”). Accordingly, all
statutory citations are to the versions in effect at the time of Nelson’s offense
on November 10, 2017.
A. A new interlock-device requirement started on May 12,
2016.
¶15 MVD did not issue Nelson a new restricted driver license
until May 12, 2016, when Nelson personally notified MVD an interlock
4
STATE v. NELSON
Decision of the Court
device was installed in the BMW. Nelson argues the period for his new
interlock order should have begun on April 1, 2016, when MVD received
notice from the installer. We disagree and conclude the DUI statutes
unambiguously placed the burden on Nelson—not the installer—to notify
MVD when the new device was installed as a condition of reinstating his
driving privileges and interlock order. See A.R.S. §§ 28-1461.A.2, -1463.A, -
1464.I.
¶16 The duration of an interlock order began when MVD
reinstates a person’s driving privileges suspended following a DUI
conviction. A.R.S. § 28-3319.E. Defendants—such as Nelson—who have
been convicted of certain DUI crimes must notify MVD an interlock device
has been installed in any vehicle they operate before MVD may issue them
restricted driver licenses. See A.R.S. §§ 28-1461.A.2, -1463.A. Paragraph 28-
1461.A.2 said “[t]he department shall not reinstate the person’s driving
privilege or issue a special ignition interlock restricted driver license until
the person has installed a functioning certified ignition interlock device in
each motor vehicle operated by the person and has provided proof of
installation to the department.” Subsection 28-1463.A went on to say, “[i]f
a person . . . does not submit proof of compliance to [MVD] as prescribed
in section 28-1461, [MVD] shall suspend the person’s driving privilege until
proof of compliance is submitted to [MVD].” These obligations are logical
because Nelson alone—not the interlock installer—has knowledge of all the
vehicles he may operate.
¶17 The DUI statutes treated the removal of an interlock device
differently. Subsection 28-1464.H required an ignition-interlock “installer”
to notify MVD if an installer removed a device from a vehicle. In such a
situation, “[i]f the person does not provide evidence to [MVD] within
seventy-two hours that the person has installed a functioning certified
ignition interlock device in each vehicle operated by the person,” MVD must
suspend the person’s driving privileges “as prescribed in § 28-1463.” A.R.S.
§ 28-1464.I (emphasis added).
¶18 Sections 28-1461, 28-1463, and 28-1464 drew a distinction
between a “person” subject to an interlock order and the other actors in the
statutory scheme—here, principally installers. An “installer” was “a person
who is certified by [MVD] to install ignition interlock devices and provide
services to the public related to ignition interlock devices.” A.R.S. § 28-
1301(5). The relevant statutes did not use “person” to refer to installers
when the term “installers” was used. See A.R.S. §§ 28-1461, -1464.
5
STATE v. NELSON
Decision of the Court
¶19 “[W]hen the legislature chooses different words within a
statutory scheme,” this court presumes the distinction is meaningful. State
v. Harm, 236 Ariz. 402, 407, ¶ 19 (App. 2015). The legislature placed a burden
on installers to notify MVD when they removed an interlock device. See
A.R.S. § 28-1464.H. Here, the interlock installer fulfilled its statutory
obligation when it notified MVD the ignition-interlock device was removed
from Nelson’s first vehicle. This obligation is independent of the
requirement placed on a person whose “driving privilege is limited” from
previous DUI convictions to personally “[p]rovide proof to [MVD] of
installation of a functioning certified ignition interlock device in each motor
vehicle” he or she operated. See A.R.S. § 28-1461.A.1(b); see also A.R.S. §§
28-1463.A; -1464.I.
¶20 Nelson’s argument fails because it ignores how MVD’s
mandate to “suspend the person’s driving privilege until proof of
compliance is submitted to [MVD]” was prefaced with a clause triggering
such an event “[i]f a person whose driving privilege is limited . . . does not
submit proof of compliance to [MVD] as prescribed in § 24-1461.” A.R.S. §
28-1463.A. (emphasis added). Though subsection 28-1463.A used passive
wording to suggest proof of compliance could be submitted by anyone, the
“prescribed” text in section 28-1461 did not. Rather, paragraph 28-1461.A.2
plainly prohibited MVD from reinstating Nelson’s “driving privilege or
issu[ing] a special ignition interlock restricted driver license until [Nelson]
ha[d] installed a functioning certified ignition interlock device in each
motor vehicle operated by [Nelson] and [had] provided proof of installation
to [MVD].” See A.R.S. § 28-1461.A.2; see also A.R.S. § 28-1463.A.
¶21 “We presume the legislature says what it means.” Garcia v.
Butler, 247 Ariz. 366, 369, ¶ 8 (App. 2019) (quoting Chavez v. Ariz. Sch. Risk
Retention Tr., Inc., 227 Ariz. 327, 330, ¶ 9 (App. 2011)). If the legislature
wanted MVD to reinstate an interlock-restricted driver license upon proof
provided by an installer, it would have said so.
¶22 Accordingly, the statutes’ plain language required Nelson to
provide proof of compliance to MVD himself. Nelson did not do so until
May 12, 2016, when he applied for a new restricted license. Nelson’s new
interlock period commenced then, as it was “the date [Nelson] submit[ted]
proof of compliance as prescribed in § 28-1461.” See A.R.S. § 28-1463.A.
Until then, MVD could not reinstate Nelson’s restricted driver license or his
interlock order. See id.
6
STATE v. NELSON
Decision of the Court
B. MVD permissibly imposed a new eighteen-month
interlock-device requirement.
¶23 Nelson argues MVD lacked authority to impose a new
eighteen-month restriction once he was back in compliance. He contends
MVD instead should have credited him for the previous time he complied.
¶24 Nelson was convicted of extreme DUI under paragraph 28-
1382.A.2. After Nelson’s conviction, MVD was required to impose an
eighteen-month interlock order and ensure compliance with § 28-1461. See
A.R.S. § 28-3319.D.2. Subsection 28-1461.A, in turn, required Nelson to
provide MVD with proof of installation of an interlock device in each
vehicle he operated and required on-going proof of compliance at least once
every ninety days. As discussed above, the removal of Nelson’s first
interlock device triggered his requirement to submit proof of compliance to
MVD. See A.R.S. § 28-1464.I. His failure to comply with this requirement
obligated MVD to suspend his driving privilege, “as prescribed in § 28-1463,”
until he submitted proof of compliance to MVD. See id. (emphasis added).
¶25 Under subsection 28-1463.A, once a non-compliant person
provided proof an interlock device is installed in each vehicle the person
operated, MVD was to: (1) reinstate the person’s limited driving privilege
and (2) require the person to use the interlock device for one year from the
date the person submits proof of renewed compliance, “[u]nless a different
time period is specified.” As already noted, the original time period
specified under subsection 28-3319.D for Nelson’s extreme DUI was
eighteen months.
¶26 “The plainness or ambiguity of statutory language is
determined by . . . the broader context of the statute as a whole.” Glazer, 244
Ariz. at 614, ¶ 10 (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997)).
Subsection 28-1464.I expressly incorporated § 28-1463 and its procedures
for MVD. Section 28-1463, in turn, provided two distinct consequences for
non-compliance: the suspension of driving privileges and the use of an
interlock device. Having received proof of compliance from Nelson on May
12, MVD reinstated his driving privileges, fulfilling the first consequence.
MVD then required Nelson to use an interlock device for eighteen months
from May 12—the “different time period [] specified.” See A.R.S. §§ 28-
1463.A; -3319.D.2. We do not read the “statutory words [and] phrases [of
subsection 28-1463.A] in isolation.” See Glazer, 244 Ariz. at 614, ¶ 10. Instead,
analyzing the statutory scheme as a whole, we conclude MVD permissibly
looked to the time periods specified in paragraph 28-3319.D.2 for Nelson’s
interlock order. See id.
7
STATE v. NELSON
Decision of the Court
¶27 Nelson asserts MVD lacked statutory authority to reimpose
an eighteen-month interlock-device requirement after he submitted proof
of compliance to MVD. To the contrary, the DUI statutes required it. Under
§§ 28-1382 and 28-3319, Nelson was subject to the requirements of § 28-1461.
He triggered § 28-1464 by failing to provide proof of compliance after an
interlock installer notified MVD the interlock device was removed from his
first vehicle. Consequently, MVD suspended his driving privileges as
required under §§ 28-1464, 28-1463, and 28-1461.
¶28 In short, the only way for Nelson to be relieved of the
interlock order was to complete eighteen full months without falling out of
compliance. See A.R.S. § 28-3319.D. Finding the statutes’ plain language
clear and unambiguous, we conclude MVD permissibly set November 12,
2017, as the expiration date for Nelson’s new interlock restriction.
II. MVD did not violate Nelson’s due process rights.
¶29 Nelson argues MVD should have given him notice it had
extended his interlock restriction until November 12, 2017, and it violated
his due process rights when he was convicted in the absence of such notice.
¶30 The court reviews due process claims de novo. State v. O’Dell,
202 Ariz. 453, 457, ¶ 8 (App. 2002). If a defendant did not know of a duty
“and where there was no proof of the probability of such knowledge, he
may not be convicted consistently with due process.” Lambert v. California,
355 U.S. 225, 229–30 (1957).
¶31 Nelson cites Lambert and State v. Garcia, 156 Ariz. 381 (App.
1987), for the proposition he could not have been convicted absent proof he
had notice of the MVD order extending his interlock restriction to
November 12, 2017. He argues the text of the statutes alone did not provide
him adequate notice. Nelson, however, did have notice beyond the statutes.
MVD sent Nelson a notice when it imposed his initial interlock order. MVD
then sent Nelson a notice of corrective action after learning Nelson removed
his interlock device, notifying him it would suspend his license until he
submitted proof of compliance. That notice stated “[t]he device must be
installed for one year from the date that proof is received, unless a different
time period is specified.” When Nelson provided proof to MVD showing
he had an interlock device installed in the BMW, MVD gave him a new
restricted license indicating he was under an interlock order.
¶32 To suggest, as Nelson does, he is being punished for not
having an interlock device in his vehicle “without any notice of that duty
other than the statute itself” ignores the repeated notices he was given.
8
STATE v. NELSON
Decision of the Court
MVD put Nelson on actual notice of the new order in its notice of corrective
action, and at a minimum, put him on constructive notice as to the order’s
duration. Accordingly, “the probability of such knowledge” exists. See
Lambert, 355 U.S. at 229.
CONCLUSION
¶33 We affirm the superior court’s order on the above issues but
vacate and remand consistent with the contemporaneously filed opinion.
AMY M. WOOD • Clerk of the Court
FILED: AA
9