In Re the Appeals in Maricopa County Juvenile Actions No. JV119590 & No. JV118201 , 167 Ariz. 591 ( 1990 )

OPINION

TAYLOR, Presiding Judge.

FACTS

These juvenile cases have been consolidated for purposes of this appeal. Both juveniles were arrested and charged with driving while intoxicated and driving with a blood alcohol content in excess of .10 percent, both commonly referred to as DUI. A.R.S. § 28-692. Relying upon Hinson v. Coulter, 150 Ariz. 306, 723 P.2d 655 (1986), the juvenile court judge in each case dismissed the respective charges with prejudice due to the state’s failure to try the juveniles within one hundred fifty days of arrest. The state claims that Hinson ought not apply to juvenile DUI proceedings. We agree.

The procedural facts of each case are set forth separately.

JV 119590

In this case, the juvenile was arrested at the scene of a one-car accident on June 18, 1989. He was referred to the Juvenile Court Probation Department on July 25, 1989, which, on August 7, 1989, recommended court intervention. Formal charges were filed against the juvenile on August 29, 1989, and a DUI petition was filed on October 26, 1989. Without the state’s knowledge, the advisory hearing scheduled for November 17, 1989, was vacated and reset to December 1, 1989. On December 1, 1989, a public defender was appointed to represent the juvenile. Prior to that time, the juvenile was unrepresented by counsel. Trial date of January 25, 1990, was set and a preadjudication conference, set for January 11, 1990, was vacated. Defense counsel filed a motion to dismiss on December 21,1990, for not adjudicating the juvenile within one hundred fifty days of arrest as required by Hinson. The court dismissed the state’s case, ruling that the time limits set by Rule 8, Arizona Rules of Criminal Procedure, as interpreted by Hinson, should apply to juvenile DUI cases. We note that one hundred sixty six days elapsed from the date of the arrest to December 1, 1989, the date of the advisory hearing and appointment of counsel. Even excluding the thirteen days due to the diversion process at the juvenile probation department, more than one hundred fifty days had elapsed from the date of arrest.

JV 118201

The juvenile in this case was arrested on May 27, 1989, after being involved in a hit-and-run accident. A DUI petition was filed against the juvenile on August 8, 1989. A pre-adjudication hearing was held on September 22, 1989, one hundred nineteen days after arrest, and his trial was scheduled for November 20, 1989, more than one hundred fifty days after the arrest. It was later continued to January 27, 1990. The juvenile’s defense attorney, who was appointed on July 25, 1989, after the public defender’s office withdrew, never informed the court of the possible Hinson problem.

On October 31, 1989, the juvenile filed a motion to dismiss based on the failure to try him within one hundred fifty days of arrest under Rule 8.2(a) and Hinson. The juvenile court judge dismissed the case with prejudice, citing the juvenile’s right to a speedy trial under the sixth and fourteenth amendments to the United States Constitution, and the juvenile’s right to equal protection of the law, indirectly applying Hinson.

WAIVER

We first consider the issue of waiver. The state urges that counsel for the juvenile in JV118201 intentionally waited until one hundred fifty days had passed after arrest and then moved for dismissal under Hinson. The state deems such conduct to waive the motion to dismiss, thus also waiving the right to adjudication within one hundred fifty days of arrest.

A waiver is a voluntary relinquishment of a known right and, without knowledge of a right, there can be no waiver. State v. Davis, 108 Ariz. 335, 337, 498 P.2d 202, 204 (1972).

It is difficult to perceive how the juvenile can be charged with waiving a right that had not yet been recognized nor announced. As stated above, the waiver must be of a known right. Whatever merit there may be for the extension of Hinson to juvenile proceedings, until that rule is clearly announced, it strains concepts of fundamental fairness to suggest that the unsophisticated mind of a juvenile should anticipate such a rule.

There is nothing in the record to suggest that the juvenile knew of Rule 8, knew of Hinson, or sought to take advantage of any application of Hinson to his case. Whatever the motives of counsel, the juvenile is not bound by his attorney’s deficient act. State v. Berlat, 146 Ariz. 505, 510, 707 P.2d 303, 308 (1985).

APPLICATION OF RULES OF CRIMINAL PROCEDURE

The Rules of Criminal Procedure do not apply in juvenile delinquency proceedings. E.g., In the Matter of Maricopa County Juvenile Action No. J-86715, 122 Ariz. 300, 303, 594 P.2d 554, 557 (App.1979); In the Matter of Yavapai County Juvenile Action No. 7707, 25 Ariz.App. 397, 399, 543 P.2d 1154, 1156 (1975). It is true that certain rules have been held to apply to juveniles. However, each of those rules was applied as a shield to give some constitutional protection to the juvenile, i.e., Rule 11 to determine competency, State ex rel. Dandoy v. Superior Court, 127 Ariz. 184, 187-88, 619 P.2d 12, 15-16 (1980); Rule 4 to compel prompt initial appearance, JV-111701 v. Superior Court, 163 Ariz. 147, 150-152, 786 P.2d 998, 1001-3 (App.1989); Rule 17 requiring compliance with standards for accepting admissions of guilt, Juvenile No. J-86715, 122 Ariz. at 302-03, 594 P.2d at 556-57; and Rule 27 and case law pertaining to notice and opportunity to contest modification of terms of probation, In the Matter of Pinal County Juvenile Action No. J-169, 131 Ariz. 187, 189, 639 P.2d 377, 379 (App. 1981).

The application of those rules to juveniles charged with the commission of an offense is premised on concepts of due process, equal protection and fairness and not upon a belief that the rules governing prosecution of adults should apply. The Rules of Criminal Procedure only serve as a familiar vehicle to achieve due process ends. See e.g., State ex rel. Dandoy v. Superior Court, 127 Ariz. at 187, 619 P.2d at 15 (a juvenile must' be accorded due process protections in the adjudication of charges against him). As was emphasized to the juvenile courts of this state in Application of Gault, “[t]he hearing must measure up to the essentials of due process and fair treatment.” 387 U.S. 1, 30, 87 S.Ct. 1428, 1445, 18 L.Ed.2d 527, 548 (1967).

The recognition of these Constitutional guarantees does not justify a conclusion that the Hinson rule applies to juveniles. No basic rights of the juvenile are protected by this extension of Hinson. The absence of Constitutional considerations in deciding Hinson was emphasized by the Arizona Supreme Court: “We expressly stated that Hinson was not being decided on the Constitutional grounds of pre-indictment delay but was, instead, being decided strictly as a matter of application of Rule 8.2(a), Arizona Rules of Criminal Procedure.” Wood v. Goodfarb, 155 Ariz. 32, 33, 745 P.2d 90, 91 (1987).

Counsel for the juveniles suggest that the Hinson rationale applies to juvenile DUI cases; therefore, the time limits of Rule 8 would apply to such cases. We would suggest that the reverse is a more correct analysis, that is, Rule 8 does not apply to juvenile DUI cases; therefore, Hinson does not apply. As stated by Division II of this court: “Unlike the criminal rules, the juvenile rules do not establish hard and fast guidelines for delinquency proceedings____” Matter of Cochise County Juvenile Action No. D.L. 89-00020, 161 Ariz. 154, 156, 776 P.2d 1080, 1082 (App.1989). In the absence of due process and equal protection considerations, the Rules of Criminal Procedure, including Rule 8, just do not apply to juvenile proceedings.

APPLICATION OF HINSON

Our major disagreement with the announcement of a “Hinson Junior” rule arises not from a concern over the appropriateness of strict time rules for juveniles, but from the manner of the creation of this rule. Indeed, there are cogent arguments for a rule requiring the expeditious adjudication and disposition of most juvenile delinquency petitions, especially those alleging substance abuse. The juvenile judge in JV118201 set forth in his order of dismissal many of the advantages accruing to the juvenile and society by the swift resolution of juvenile cases.¹ These reasons suggest that even a five-month delay in juvenile prosecutions is undesirable.

Rule-Making Power

We are mindful of the lack of rule-making power in this court. Of the entities that might be called upon to confront this issue, only this court lacks specific rule-making power in juvenile matters. Pursuant to 17B A.R.S. Juvenile Court Rules of Procedure, Rule 23,² the Maricopa County Juvenile Court has the power to enact rules, subject to approval of the Supreme Court. The Supreme Court is empowered by virtue of article VI, section 5 of the Arizona Constitution³ to implement rules for all courts, including juvenile courts. Matter of Maricopa County Juvenile Action No. J-U536-S, 126 Ariz. 546, 547, 617 P.2d 54, 55 (1979); Maricopa County Appeal No. J-68100 v. Haire, 107 Ariz. 309, 311, 486 P.2d 791, 793 (1971). The legislature, if it perceives a need for corrective measures, may act within the bounds of its authority. While this lack of rule-making power does not prevent us from declaring the law as we perceive it to be, or as we perceive it should logically be extended, it does suggest that we proceed with caution into those areas where others have been given specific rule-making power.

We have before us two cases from Mari-copa County. We have no evidence in the record that tardy prosecution of juvenile DUI cases are a problem in Maricopa County or in other counties. From this meager record, we are asked to fashion a rule that impacts upon juvenile courts throughout most of the state. Excluded from having input into this decision are parents, child behavior specialists, the presiding juvenile judge of Maricopa County, other juvenile judges and juvenile court personnel, the collective defense bar, other prosecutors, law enforcement personnel and the public, which has a significant interest in the disposition of both juvenile and DUI matters.

As set forth previously, Rule 23 of the Arizona Rules of Procedure for the Juvenile Courts provides that “[t]he juvenile court of each county may ... make ... rules governing its practice ... subject to approval of the Supreme Court” (emphasis supplied). The value of this rule is that, if Maricopa County has a problem of tardy prosecution of its juvenile cases, the Mari-copa County Juvenile Court, subject to Supreme Court approval, can devise a rule to address its problems in processing its juveniles in its courts. Juvenile courts in other counties would not be bound by such a rule and its results. As an example of the exercise of this authority, the Pima County Juvenile Court has enacted local rules ⁴ providing for filing a petition no later than thirty days after receipt of a complaint, adjudicatory hearing within fifteen days after filing if the child is detained and within thirty days if not. Disposition must occur within fifteen days of adjudication if in custody and within thirty days if not. These rules apply to all delinquency proceedings, not just DUI cases. Under Rule 23, each juvenile court may fashion such rules as best meets its needs and case management goals. In the matters before us, the Maricopa County Juvenile Court did not make the rule; the Supreme Court has not approved the rule, and this court does not possess the power to enact nor approve such a rule.

If we could read in Hinson and its progeny an intention on the part of the Supreme Court to extend the rule to juveniles, we believe this court would have the authority to further that intent. However, the juveniles have pointed to no language of the court manifesting such an intention. In fact, caution in extending Hinson into any new areas is indicated by mention in the special concurrence of Justice Moeller in State ex rel. Romley v. Superior Court, 162 Ariz. 302, 306, 783 P.2d 241, 245 (1989), of a “committee of knowledgeable individuals to study problems inherent to DUI cases, including Hinson and its impact.” This suggests that even the wisdom of Hinson may be the subject of re-evaluation.

Equal Protection

In JY 118201, the court premised its order of dismissal upon equal protection considerations, holding that “[tjhere is no rational basis for providing an adult defendant the protection of a strict per se prejudice rule under Hinson, and failing to provide the same standard to a juvenile____” If the purpose of Hinson was to extend protection to the accused, we would agree with this statement. The Hinson court, however, after finding the lack of diligence on the part of prosecutors “intolerable,” announced the Hinson rule as “the only means this court has to ensure that the intent of the legislature is followed.” It was not the intent of the court to offer special protection to drunk drivers.

The Maricopa County Juvenile Court has other means of assuring the prompt prosecution of juvenile DUI cases. It can enact rules similar to those of Pima County. It can schedule juvenile matters for timely hearing and it can, if applicable, apply A.R.S. 11-534⁵ to assure the participation of the prosecutor.

Even if the equal protection argument is considered, an adequate distinction exists for different treatment of adult and juvenile DUI cases. As the Supreme Court has stated:

We believe that the difference in classification between adults and juveniles is not only a reasonable one but one which meets the vital interest of the state in protecting children. We are satisfied that the separate system of rehabilitation provided by the statutes is a legitimate means to carry out the state’s need to protect and control children.

In the Matter of the Appeal, in Maricopa County Juvenile No. J-86509, 124 Ariz. 377, 379, 604 P.2d 641, 643 (1979), cert. denied, 445 U.S. 967, 100 S.Ct. 1660, 64 L.Ed.2d 245 (1980).

The juvenile in JV 118201 was processed on other charges contemporaneously with the dismissal of the DUI charges. The rehabilitative value of the juvenile court is strikingly demonstrated in the following passage from the Disposition Report of that companion case.

When discussing substance abuse, the juvenile indicates that he has experimented with marijuana, cocaine, speed, and has tried paint sniffing as well. Since taking the classes, the juvenile indicates that he is much more educationally aware of the consequences and the physical damage that can occur when involving himself with drugs and alcohol. Again, the juvenile states that the temptation is always there, but has been able to avoid it since entering the T.A.S.C. Program. *

The juvenile at this time is waiting to be placed at the Maricopa County Skill Center as a machinist. The juvenile’s vocational counselor indicates that the juvenile’s overall attitude and behavior at the program has been excellent.

The value of parental input before fashioning a rule respecting their children’s cases is gleaned from the following passage from the same report:

Both parents indicate that they were concerned with their son’s past behavior and feel that the court’s intervention has been very instrumental in straightening [the juvenile’s] life out. Again, the mother feels that [the juvenile] was completely out of control and was hanging around other kids from the neighborhood who were categorized as gang members. Since his involvement with the Juvenile Court, the mother states that [the juvenile] seems to be more in tune to living a cleaner and safer life than he had demonstrated in the past.

In summary, we do not read in Hinson any legal basis for extending its holding to juvenile matters. Any perceived deficiencies of the Maricopa County juvenile procedures can best be addressed by the Marico-pa County Juvenile Court under Rule 23, Juv.Ct.Rules of Proc. If new procedures should have statewide application, the Supreme Court can exercise its rule-making authority. Under either procedure, a cautious, deliberate review with input from all interested parties would most likely assure a more suitable rule.

For the foregoing reasons, the orders of dismissal are reversed and the matters are remanded for further proceedings.

EUBANK, J., concurs.

1 . [An extended delay] increases the likelihood of diminishing memories, absence of witnesses, and loss or destruction of evidence needed to prove a case. A speedy trial is essential to protect against undue and oppressive incarceration prior to trial, and to minimize anxiety and concern accompanying public accusation____ Delay in juvenile cases, in addition, often affects the juvenile’s relationships with peer groups, school officials, and other adult authorities. A lengthy delay between the offense and the imposition of disposition is likely to be detrimental to the youth’s rehabilitation.

2 . Rule 23, Arizona Rules of Procedure for the Juvenile Court:

The juvenile court of each county may from time to time make and amend rules governing its practice not inconsistent with these rules, subject to approval by the Supreme Court. In all cases not provided for by rules, the juvenile court may regulate its practice in any manner not inconsistent with these rules or such local rules.

3 . Arizona Constitution article VI, § 5:

The Supreme Court shall have:

5. Power to make rules relative to all procedural matters in any court.

4 . See 17B A.R.S. Local Rules of Proc. for the Pima County Juv.Ct., Rule IV-VI.

5 . Arizona Revised Statutes § 11-534:

Effect of failure of county attorney to attend court:

If the county attorney fails to attend in person, or by deputy, any session of the superior court at which a criminal action is to be tried, the court may designate some other person to perform the duties of county attorney during his absence from court. The person so designated shall receive a reasonable compensation, to be fixed by the court and paid by the county treasurer, and the amount thereof shall be deducted from the salary of the county attorney.