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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

KHAMARI VANDELL THOMAS, Appellant.

No. 1 CA-CR 21-0027

Appeal from the Superior Court in Maricopa County

No. CR2019-143948-001

The Honorable Jennifer C. Ryan-Touhill, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Andrew Stuart Reilly

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Kevin D. Heade

Counsel for Appellant

FILED 2-15-2022
STATE v. THOMAS

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in 

which Judge Samuel A. Thumma and Judge Michael J. Brown joined.

C R U Z, Judge:

¶1 Defendant Khamari Vandell Thomas appeals her conviction

and resulting probation for leaving the scene of a serious injury accident. 

For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 As Thomas was driving to work one day in September 2019, 

she engaged in a shouting match with a man on a scooter after he “cut her 

off.” They proceeded to a Phoenix freeway, where Thomas allegedly

“brake checked” the scooter. The scooter’s driver was unable to stop before 

hitting Thomas’ car, and he sustained serious physical injuries.

¶3 Although Thomas knew the scooter hit her car and went “off 

the side of the road,” she did not stop to assist. Instead, she continued on 

to her job. Once there, Thomas called 9-1-1 to report that she was involved 

in a vehicle accident “on North 51.” Thomas did not more specifically 

describe where the collision occurred, and she refused to give her name or 

work location.

¶4 The State charged Thomas with leaving the scene of a serious 

injury accident in violation of Arizona Revised Statutes (“A.R.S.”) sections 

28-661 and -663. The jury found Thomas guilty of the offense but 

determined she did not cause the collision.1 The court placed Thomas on 

supervised probation, and she timely appealed. We have jurisdiction under

A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

1 “A driver who is involved in an accident resulting in death or serious 

physical injury . . . and who fails to stop or to comply with the requirements 

of § 28-663 is guilty of a class 3 felony, except that if a driver caused the 

accident the driver is guilty of a class 2 felony.” A.R.S. § 28-661(C).
STATE v. THOMAS

Decision of the Court

3

DISCUSSION

¶5 Thomas argues that by requiring drivers involved in vehicle 

accidents to remain at the scene and provide their personal information, 

A.R.S. §§ 28-661 and -663 violate the federal and state constitutions’ 

prohibition against self-incrimination. See U.S. Const. amend. V (“No 

person . . . shall be compelled in any criminal case to be a witness against 

himself[.]”); Ariz. Const. art. 2, § 10 (“No person shall be compelled in any 

criminal case to give evidence against himself[.]”).

¶6 Because Thomas did not challenge the statutes’ 

constitutionality in the superior court, we review for fundamental error, 

which requires Thomas to prove either error and resulting prejudice, or that 

the error “was so egregious that [s]he could not possibly have received a 

fair trial.” State v. Escalante, 245 Ariz. 135, 140, 142, ¶¶ 12, 21 (2018). “Our 

review of the constitutionality of [a] statute . . . is de novo, . . . but we presume 

that the law is constitutional, and, therefore, the party challenging the law 

bears the burden of persuasion to the contrary.” State v. Russo, 219 Ariz. 

223, 225, ¶ 4 (App. 2008).

¶7 The “hit-and-run” statutes provide, in relevant part, that:

The driver of a vehicle involved in an accident on public or 

private property resulting in injury to or death of a person 

shall:

1. Immediately stop the vehicle at the scene of the accident or 

as close to the accident scene as possible but shall 

immediately return to the accident scene.

2. Remain at the scene of the accident until the driver has 

fulfilled the requirements of § 28-663.

A.R.S. § 28-661(A).

The driver of a vehicle involved in an accident on public or 

private property resulting in injury to or death of a person or 

damage to a vehicle that is driven or attended by a person 

shall:

1. Give the driver’s name and address and the registration 

number of the vehicle the driver is driving.
STATE v. THOMAS

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4

2. On request, exhibit the person’s driver license to the person 

struck or the driver or occupants of or person attending a 

vehicle collided with.

3. Render reasonable assistance to a person injured in the 

accident[.]

A.R.S. § 28-663(A).

¶8 As a preliminary matter, we reject Thomas’ contention that

the state constitution provides broader protection against selfincrimination than does the Fifth Amendment. See State v. White, 102 Ariz. 

162, 163 (1967) (rejecting assertion that “Art. II, [§] 10 of the Arizona 

Constitution affords the accused in a criminal case more protection than the 

federal constitution”). Because the constitutional provisions are 

coterminous, we may rely on Fifth Amendment jurisprudence in 

addressing Thomas’ constitutional claim. See State v. Teagle, 217 Ariz. 17, 

22, ¶ 19 n.3 (App. 2007).

¶9 In State v. Adams, 181 Ariz. 383, 386 (App. 1995), this court 

held that the hit-and-run statutes’ disclosure requirements do not run afoul 

of the constitutional guarantees against self-incrimination. That holding 

was based on California v. Byers, 402 U.S. 424 (1971), which rejected a similar 

challenge to California’s hit-and-run statutes. Adams, 181 Ariz. at 385-86.

¶10 Thomas asks us to conclude that Adams was incorrectly

decided. According to Thomas, Arizona caselaw refers to A.R.S. §§ 28-661 

and -663 as having a criminal purpose, and Byers found the California 

statutes constitutional only because of their non-criminal purpose. Thus,

Thomas challenges the Adams court’s reliance on Byers. We reject Thomas’ 

line of reasoning.

¶11 First, we reject Thomas’ assertion that Arizona’s hit-and-run 

statutes serve a primarily criminal purpose for purposes of determining 

whether they require self-incrimination in violation of the Fifth 

Amendment. In State v. Milligan—decided 11 years before Byers—our 

Supreme Court rejected the defendant’s argument that he was not required 

to make the disclosures required under A.R.S. § 28-663 because the accident 

victim was unconscious. 87 Ariz. 165, 169-70 (1960). The Court noted that 

“[t]he gist of the offense is in concealing, or attempting to conceal the 

identity of one involved in an automobile accident wherein personal 

injuries are sustained[.]” Id. To illustrate, the Court cited a Vermont case 

that explained the statute is designed to “prohibit drivers of motor cars 

from seeking to evade civil or criminal liability by escaping, before their 
STATE v. THOMAS

Decision of the Court

5

identity can be established, and from leaving persons injured in collisions, 

in distress or danger, for want of proper medical or surgical treatment.” Id.

(quoting State v. Severance, 138 A.2d 425, 428 (Vt. 1958)).

¶12 We do not consider this language from Milligan as holding 

that the hit-and-run statutes serve a primarily criminal purpose in the 

context of evaluating whether they violate the constitutional prohibition 

against self-incrimination. Arizona cases have quoted the “civil or criminal 

liability” referenced in Milligan, but they also did so in contexts other than 

the hit-and-run statutes’ purported violation of the privilege against selfincrimination. See State v. Powers, 200 Ariz. 363, 364, ¶ 9 (2001) (holding that 

§ 28-661 is “scene related” not “victim related,” thus, defendant improperly 

charged with two hit-and-run charges where one vehicle accident resulted 

in two injured victims); State v. Rodgers, 184 Ariz. 378, 380 (App. 1995) 

(holding that the term “accident” in § 28-661 includes “any vehicular 

incident resulting in injury or death, whether or not such harm was 

intended.”).

¶13 Second, as Thomas correctly notes, “the Byers plurality rested 

upon the notion that California’s hit-and-run statute applied to a category 

of people not likely to face criminal prosecution.”2 See Byers, 402 U.S. at 

430-31. The reason Byers found the California statute had a “noncriminal 

governmental purpose” is because, under California law, mere 

involvement in a vehicle accident is not a criminal offense. Burrell v. 

Virginia, 395 F.3d 508, 512-13 (4th Cir. 2005); see Byers, 402 U.S. at 456 (“[T]he 

‘hit-and-run’ statute in the present case predicates the duty to report on the 

occurrence of an event which cannot, without simply distorting the normal 

connotations of language, be characterized as ‘inherently suspect’; i.e., 

involvement in an automobile accident with property damage.”) (Harlan, 

J., concurring). As in California, being involved in a vehicle accident is not 

itself a criminal offense in Arizona, and Thomas does not argue otherwise.

¶14 We therefore reject Thomas’ contention that Adams was 

wrongly decided. And pursuant to Adams, Thomas’ constitutional 

challenge to A.R.S. §§ 28-661 and -663 fails. See Adams, 181 Ariz. at 386

(holding that § 28-663 does not violate defendant’s right against self2 Despite Thomas’ apparent argument to the contrary, Justice Harlan 

enunciated this principle even more broadly in his concurrence. See Byers, 

402 U.S. at 439 (“[T]he presence of a ‘real’ and not ‘imaginary’ risk of selfincrimination is not a sufficient predicate for extending the privilege against 

self-incrimination to regulatory schemes of the character involved in this 

case.”) (Harlan, J., concurring).
STATE v. THOMAS

Decision of the Court

6

incrimination). Thomas thus fails to establish error, let alone fundamental 

and prejudicial error. See Escalante, 245 Ariz. at 142, ¶ 21 (“[T]he first step 

in fundamental error review is determining whether trial error exists.”).

CONCLUSION

¶15 We affirm Thomas’ conviction and the resulting disposition.