SUPREME COURT OF ARIZONA

En Banc

PHOENIX CITY PROSECUTOR’S OFFICE, ) Arizona Supreme Court 

 ) No. CV-07-0265-PR 

 ) 

 Petitioner, ) Court of Appeals 

 ) Division One 

 v. ) No. 1 CA-SA 07-0029 

 ) 

THE HONORABLE GLORIA YBARRA, ) Maricopa County 

JUDGE OF THE PHOENIX MUNICIPAL ) Superior Court 

COURT, ) No. LC2007-000005-001 DT 

 ) 

 Respondent Judge, ) Phoenix Municipal Court 

 ) No. 13379681 

JOSHUA PRICE LANDERS, ) 

 ) 

 Real Party in Interest. ) 

 ) O P I N I O N

_________________________________ ) 

Appeal from the Phoenix Municipal Court 

The Honorable Gloria Ybarra, Judge

REVERSED AND REMANDED

________________________________________________________________

Opinion of the Court of Appeals Division One

215 Ariz. 374, 160 P.3d 695 (2007)

VACATED

________________________________________________________________

AARÓN J. CARREÓN-AÍNSA, PHOENIX CITY PROSECUTOR Phoenix 

KERRY G. WANGBERG, FORMER PHOENIX CITY PROSECUTOR 

 By Gary L. Shupe, Assistant City Prosecutor

Attorneys for Phoenix City Prosecutor’s Office

Jonathan L. Warshaw Gilbert

Attorney for Joshua Price Landers

________________________________________________________________

R Y A N, Justice 
2 

¶1 For misdemeanor driving under the influence (“DUI”) 

offenses, Arizona Revised Statutes (“A.R.S.”) section 28-1381(F) 

(1998 and Supp. 2005) provides that “[a]t the arraignment, the 

court shall inform the defendant that the defendant may request 

a trial by jury and that the request, if made, shall be 

granted.” We hold that this statute does not allow a defendant 

to waive a jury trial without the consent of the prosecution. 

I 

¶2 The Phoenix City Prosecutor’s Office charged Joshua 

Price Landers in municipal court with two DUI offenses: driving 

while impaired to the slightest degree in violation of A.R.S. § 

28-1381(A)(1) (Supp. 2005) and having an “alcohol concentration 

of 0.08 or more within two hours of driving” in violation of 

A.R.S. § 28-1381(A)(2) (Supp. 2005). Both offenses are class 

one misdemeanors. A.R.S. § 28-1381(C) (Supp. 2005). Landers 

requested a jury trial under A.R.S. § 28-1381(F). The jury 

acquitted Landers of the impaired driving charge but found him 

guilty of having a blood alcohol concentration of more than 0.08 

within two hours of driving. Landers filed a motion for a new 

trial, which the municipal court granted. 

¶3 Before the retrial, Landers filed a “Waiver Of His 

Right To Jury Trial.” The prosecutor opposed Landers’ waiver 

and demanded a jury trial, citing, inter alia, A.R.S. § 13-3983 

(2001), which permits waiver of trial by jury only with “the 
3 

consent of both parties expressed in open court and entered on 

its minutes,” and Arizona Rule of Criminal Procedure 18.1(b), 

which similarly provides that a “defendant may waive the right 

to trial by jury with consent of the prosecution and the court.” 

¶4 The municipal court granted Landers’ motion, finding 

that A.R.S. § 28-1381(F) gives a defendant the statutory right 

to a jury trial. The court also concluded that although a 

defendant may waive that right, “nothing in the statute requires 

the consent or approval of the state.” 

¶5 The prosecution filed a petition for special action in 

the superior court challenging the municipal court’s ruling. 

The superior court declined to accept jurisdiction. 

¶6 The prosecution subsequently sought relief in the 

court of appeals. That court accepted jurisdiction but, with 

one judge dissenting, denied relief. The majority held that 

“[a] plain reading of [A.R.S. § 28-1381(F)] compels the 

conclusion that only the defendant is entitled to a jury trial 

and only if the defendant asks for it. Thus, if no request is 

made by the defendant, the case will not be tried before a 

jury.” Phoenix City Prosecutor’s Office v. Ybarra (Landers),

215 Ariz. 374, 377, ¶ 10, 160 P.3d 695, 698 (App. 2007). Judge 

Hall dissented, stating that a defendant does not have “the 

right to be tried without a jury.” Id. at 381, ¶ 30, 160 P.3d 

at 702 (Hall, J., dissenting). He reasoned that the plain 
4 

language of Rule 18.1(b) and A.R.S. § 13-3983 requires the 

consent of the prosecution before the court may grant a 

defendant’s request to waive a jury trial. Id. 

¶7 We granted review to resolve this issue of first 

impression and statewide concern. See ARCAP 23(c)(3). We 

exercise jurisdiction under Article 6, Section 5(3), of the 

Arizona Constitution and A.R.S. § 12-120.24 (2003). 

II 

¶8 Landers contends that A.R.S. § 28-1381(F) grants a 

defendant a right to elect a bench trial for a misdemeanor DUI 

offense. He argues that “the plain language of A.R.S. § 28-

1381(F) vested [him] with the option – but not the obligation - 

to request a jury trial, and . . . the statute does not grant 

the [prosecution] a reciprocal option.” The prosecution 

counters that, even though a defendant may elect to forgo the 

right to jury trial under A.R.S. § 28-1381(F), A.R.S. § 13-3983 

and Rule 18.1(b) condition that right on the prosecution’s 

consent. Thus, the crux of the dispute here is whether, for a 

misdemeanor DUI offense, the prosecution has a right to veto a 

defendant’s request to have a bench trial. 

¶9 The parties do not contest that A.R.S. § 28-1381(F) 

grants a defendant charged with a misdemeanor DUI offense a 

statutory right to a jury trial if requested. See Manic v. 

Dawes (Tucson City Attorney’s Office), 213 Ariz. 252, 254, ¶ 9, 
5 

141 P.3d 732, 734 (App. 2006) (holding that § 28-1381(F) created 

a substantive right to a jury trial); State ex rel. Wangberg v. 

Smith (Levinson), 211 Ariz. 101, 104, ¶ 11, 118 P.3d 49, 52 

(App. 2005) (same). On its face, however, this statute only 

requires that, at arraignment, the magistrate advise a defendant 

of the right to a jury trial, and if one is requested, grant it. 

The statute is silent on when such a request must be made or 

what happens if a defendant does not demand a jury trial. 

Section 22-320(A) (2002) fills in some of the gaps in limited 

jurisdiction courts, providing generally, that “[u]nless the 

demand [for a jury trial] is made at least five days before 

commencement of the trial, a trial by jury shall be deemed 

waived.” But this statute, which is purely procedural, see 

Goldman v. Kautz, 111 Ariz. 431, 432, 531 P.2d 1138, 1139 

(1975), does not confer a right to a jury trial on the 

prosecution nor speak at all to the issue of whether the 

defendant’s waiver requires the prosecution’s consent.1

¶10 A third statute, A.R.S. § 13-3983, squarely addresses 

this issue. Since before statehood the legislature has 

consistently required the prosecution’s consent before a jury 

 

1 Cf. Manic, 213 Ariz. at 254, ¶ 12, 141 P.3d at 734 

(observing that although § 22-320(A) provides that a jury trial 

is deemed waived if not timely requested, “[g]enerally, waiver 

of a jury trial does not occur by default”) (citing State v. 

Jelks, 105 Ariz. 175, 177, 461 P.2d 473, 475 (1969), and Rule 

18.1). 
6 

trial can be waived in a criminal action. See Rev. Stat. of 

Ariz., Penal Code § 895 (1901) (“Issues of fact must be tried by 

jury unless a trial by jury be waived in criminal cases not 

amounting to felony, by the consent of both parties, expressed 

in open court and entered in its minutes.”); Rev. Stat. Ariz. 

Penal Code § 1006 (1913) (same); Ariz. Rev. Code § 5027 (1928) 

(“Issues of fact must be tried by jury, unless a trial by jury 

be waived in actions not amounting to felony, by the consent of 

both parties, expressed in open court and entered on its 

minutes.”); Ariz. Code Ann. § 44-1807 (1939) (same); A.R.S. § 

13-1593 (1956) (“A trial by jury may be waived in criminal 

actions not amounting to felony by the consent of both parties 

expressed in open court and entered on its minutes.”). In 1978, 

the legislature amended A.R.S. § 13-3983 to provide that “[a] 

trial by jury may be waived in criminal actions by the consent 

of both parties expressed in open court and entered on its 

minutes.” 1978 Ariz. Sess. Laws, ch. 201, § 250 (2d Reg. 

Sess.). Section 13-3983 therefore plainly requires the consent 

of the prosecution before a jury trial may be waived. Nothing 

in the legislative history or the plain language of A.R.S. § 28-

1381(F)2 reflects any legislative intent to displace § 13-3983. 

 

2 The original version of what is now A.R.S. § 28-1381(F) was 

promulgated in 1973 as part of the implied consent statute 

relating to the offense of driving while under the influence of 

intoxicating liquor, A.R.S. § 28-691. 1973 Ariz. Sess. Laws, 
7 

¶11 The court of appeals acknowledged that “the plain 

language of A.R.S. § 13-3983” gives the prosecution the right to 

object to a defendant’s decision to forgo a jury trial. 

Landers, 215 Ariz. at 379, ¶ 20, 160 P.3d at 700. But the court 

believed that such a reading of § 13-3983 “would effectively 

grant” jury-trial rights to the prosecution in misdemeanor DUI 

cases. Id. It contrasted the jury-trial right here to one that 

was constitutionally based; the court reasoned that the 

rationale “for allowing the [prosecution] to obtain a jury trial 

in the face of a defendant’s waiver of a constitutional right to 

a jury [does] not apply to a waiver of a statutorily created 

jury-trial right.” Id. at 377, ¶ 14, 160 P.3d at 698. 

¶12 We do not agree that the statutory requirement that 

the prosecution consent to a jury trial waiver depends upon 

whether that right originates from the constitution or a 

 

ch. 150, § 1 (1st Reg. Sess.). The legislature appeared to be 

responding to the holding of Rothweiler v. Superior Court (City 

of Tucson), 100 Ariz. 37, 46, 410 P.2d 479, 486 (1966), 

abrogated in part by Derendal v. Griffith, 209 Ariz. 416, 104 

P.3d 147 (2005), that DUI defendants have a constitutional right 

to a jury trial. See State ex rel. McDougall v. Strohson 

(Cantrell), 190 Ariz. 120, 126, 945 P.2d 1251, 1257 (1997) 

(observing that the legislature “codified the Rothweiler rule 

requiring jury trials . . . in DUI cases”); Manic, 213 Ariz. at 

254, ¶ 12, 141 P.3d at 734 (suggesting that, in enacting A.R.S. 

§ 28-1381(F), “the legislature intended . . . to create a 

statutory right to a jury trial that parallels the 

constitutional right to a jury trial”). Because we resolve this 

case on other grounds, we need not decide whether jury trials in 

misdemeanor DUI cases are constitutionally required. 
8 

statute. Rather, A.R.S. § 13-3983 plainly requires, in all 

criminal cases, the consent of the prosecutor before a defendant 

may forgo a jury trial; this statute does not distinguish 

between whether the jury-trial right is based on the 

constitution or on a statute. In fact, the court of appeals’ 

rationale for requiring prosecutorial consent only when the 

constitution requires a jury trial is contradicted by the 

history of § 13-3983. 

¶13 The predecessor statutes to A.R.S. § 13-3983 permitted 

jury trial waivers only in misdemeanor cases. See, e.g., Rev. 

Stat. of Ariz., Penal Code § 895 (1901); Ariz. Code § 44-1807 

(1939). Many of the misdemeanor offenses in the penal codes did 

not trigger a constitutional right to a jury trial. See, e.g., 

Ariz. Code § 43-5809 (1939) (misdemeanor to alter or deface 

marks on logs or lumber); id. § 43-5816 (misdemeanor for failure 

to return a book to a public library); id. § 43-5819 

(misdemeanor to permit swine or fowl “to run at large”). 

Accordingly, A.R.S. § 13-3983 plainly applies to the statutory 

jury-trial right provided by § 28-1381(F). 

¶14 In sum, nothing in A.R.S. § 28-1381(F), either 

explicitly or implicitly, evidences an intent of the legislature 

to abrogate § 13-3983 and single out misdemeanor DUI cases 

brought under § 28-1381 as according a defendant a unilateral 
9 

right to demand and receive a bench trial.3 Instead, § 13-3983 

requires that in all criminal cases the right to a bench trial 

is conditioned on the prosecution’s consent. Thus, that statute 

requires the prosecution’s agreement before the court may grant 

a defendant’s request for a bench trial in a misdemeanor DUI 

case.4

III 

¶15 For the foregoing reasons, we vacate the opinion of 

the court of the appeals, reverse the decision of the municipal 

court, and remand for proceedings consistent with this opinion. 

 _______________________________________

 Michael D. Ryan, Justice

CONCURRING:

_______________________________________

Ruth V. McGregor, Chief Justice

_______________________________________

Rebecca White Berch, Vice Chief Justice

 

3

 Although the legislature could have given a defendant an 

unconditional right in A.R.S. § 28-1381(F) to forgo a jury 

trial, it did not do so. 

4

 Because we decide this case on the language of the statutes 

at issue here, we find it unnecessary to discuss whether Rule 

18.1(b) requires the prosecution’s consent to a defendant’s 

decision to forgo a jury trial for a misdemeanor DUI offense. 
10 

_______________________________________

Andrew D. Hurwitz, Justice

_______________________________________

W. Scott Bales, Justice