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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TEMA FINGI, Appellant.

No. 1 CA-CR 14-0043

Appeal from the Superior Court in Maricopa County

No. CR2012-147872-001

The Honorable Jerry B. Bernstein, Judge Pro Tem

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Myles A. Braccio

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Cory Engle

Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge John C. Gemmill delivered the decision of the Court, in 

which Judge Donn Kessler and Chief Judge Diane M. Johnsen joined.
STATE v. FINGI

Decision of the Court

2

G E M M I L L, Judge:

¶1 This appeal arises from the conviction and sentencing of 

defendant Tema Fingi for two counts of aggravated driving or actual 

physical control while under the influence of intoxicating liquor or drugs

(“DUI”), class 1 misdemeanors. Fingi challenges the constitutionality of the 

fines imposed upon him under the Eighth Amendment to the United States 

Constitution and Article 2, Section 15 of the Arizona State Constitution. 

¶2 For the following reasons, we conclude that the fines imposed 

are constitutional, and we thus affirm the judgment.

BACKGROUND

¶3 On March 18, 2013, a grand jury indicted Tema Fingi for two 

counts of aggravated DUI. The incident occurred in the early morning 

hours of January 8, 2012 when police stopped Fingi for driving northbound 

in the southbound lanes of a major road in Phoenix. After observing that 

Fingi smelled of alcohol, Phoenix Police Officer L. had him step out of the 

vehicle to conduct field sobriety tests. Fingi’s wife and two of his children, 

both under the age of 15, were also present in the vehicle.

¶4 Officer L. conducted a Horizontal Gaze Nystagmus test on 

Fingi that showed all six cues of alcohol impairment. Fingi also displayed 

other signs of impairment including alcohol on the breath and bloodshot 

and watery eyes. Fingi told the officers that he had drunk only one beer. 

Fingi was subsequently transported to a DUI van where, with the help of 

an interpreter, he consented to a blood analysis. Subsequent testing of 

Fingi’s blood at the Phoenix Police Department crime lab revealed an 

alcohol concentration of .121 grams per 100 millimeters.

¶5 Testimony at trial from Fingi and his wife detailed the events 

leading up to the incident. Both Fingi and his wife denied that he had 

consumed any alcohol that evening. Fingi explained that the reason he told 

the officer that he had a beer was due to his fear of the police.1 They both

 

1 Fingi explained that he came from the Congo as a refugee in 2010. 

According to his testimony, he told the officer he had one beer even though 

he did not actually drink any because in his country police can beat or even 

kill detainees. He does not claim that the officers who interrogated him 

were physical with him, only that they asked tough questions.
STATE v. FINGI

Decision of the Court

3

testified that they believed Fingi had been driving on the correct side of the 

road that night.

¶6 After the presentation of evidence, the jury found Fingi guilty 

on both DUI counts under Arizona Revised Statutes (“A.R.S.”) sections 28-

1381(A)(1) and (A)(2). Both counts were aggravated under A.R.S. § 28-

1383(A)(3) because both of Fingi’s children who were in the vehicle were 

under 15 years of age. The court designated both counts as class 1 

misdemeanors. Fingi was sentenced to two years unsupervised probation 

and ten days of jail time, which may be deferred upon completion of an

alcohol education or treatment program. The court also credited Fingi with 

one day served. In addition, the court ordered Fingi to pay the following

statutory fines and fees: 

 $65 per month Probation Service fee

 $1,372.50 fine (including surcharges of 83%), payable $10 per month

 $250 DUI Abatement Fund fee, payable $10 per month

 $1,500 Prison Construction and Operations Fund fee, payable $10 

per month

 $1,500 State General Fund fee, payable $10 per month

 $20 Probation Surcharge

 $20 Time Payment fee

 $13 Penalty Assessment

The fines and fees total $4,675.50 plus $65 per month for the probation 

service fee. The court’s monthly payment plan will allow Fingi to pay $105 

per month for two years and then $40 per month thereafter.

¶7 Fingi filed a timely notice of appeal on January 9, 2014. This 

court has jurisdiction pursuant to Article 6, Section 9 of the Arizona 

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

DISCUSSION

¶8 Both parties agree that Fingi is raising his constitutional attack 

on the fines and fees for the first time on appeal. This court must therefore 

review his argument under a fundamental error standard, with Fingi 

bearing “the burden of establishing both that fundamental error occurred 

and that the error caused him prejudice.” State v. Henderson, 210 Ariz. 561, 

568, ¶ 22, 115 P.3d 601, 608 (2005). The Arizona Supreme Court has

recognized that constitutional error is one form of fundamental error. State 

v. Burton, 144 Ariz. 248, 251, 697 P.2d 331, 334 (1985). This court will review
STATE v. FINGI

Decision of the Court

4

de novo the constitutionality of a statute, but will begin with a presumption 

that the law is constitutional. State v. Russo, 219 Ariz. 223, 225, ¶ 4, 196 P.3d 

826, 828 (App. 2008).

¶9 The Eighth Amendment of the United States Constitution and 

Article 2, Section 15 of the Arizona Constitution identically prohibit the 

imposition of excessive fines. An excessive fine is one that “exceeds 

reasonable, usual, proper, or just punishment or one so disproportionate to 

the offense that it shocks public sentiment and affronts the judgment of 

reasonable people.” Russo, 219 Ariz. at 227, ¶ 15, 196 P.3d at 830 (internal 

quotation marks omitted). Fingi presents two main arguments for why the 

imposed fines are unconstitutionally excessive: 1) there is no evidence that 

such fines will deter future crimes; and 2) a misdemeanor DUI is not a 

serious enough crime to warrant the imposition. We disagree with both 

arguments.

¶10 We begin by noting that because the fees, fines and 

assessments imposed upon Fingi are punitive in nature rather than 

compensatory, they are considered “fines” for purposes of the 

constitutional analysis. See id. (accepting that an assessment is “tantamount 

to a fine, which is a pecuniary punishment and a sanction.”); State v. 

McDonagh, 232 Ariz. 247, 249–50, ¶ 11, 304 P.3d 212, 214–15 (App. 2013)

(ruling that the DUI Abatement Fund, Prison Construction & Operations 

Fund and General Fund/Public Safety Equipment Fund assessments 

imposed pursuant to the aggravated DUI statute are “sentences”). Because 

the fines are imposed for one offense, we consider them in the aggregate, 

instead of considering them separately, for this constitutional analysis. 

¶11 A $4,675.50 statutory fine for the serious crime of aggravated 

DUI clearly is consistent with the important public interest of deterring 

driving while impaired. This court in State v. Wise applied a “loose 

proportionality” test in determining whether a $205,600 fine for possession 

of narcotics for sale was unconstitutionally excessive. 164 Ariz. 574, 576, 

795 P.2d 217, 219 (App. 1990). In doing so, the court considered: 1) the 

object designed to be accomplished by the fine; 2) the importance and 

magnitude of the public interest sought to be protected; 3) the 

circumstances and nature of the act for which it is imposed; 4) the 

preventive effect upon the commission of the particular kind of crime; and 

5) the ability of the accused to pay. Id.

¶12 First, Fingi argues that the Wise factors are not satisfied in this 

case because evidence shows that imposing fines on DUI offenders does not
STATE v. FINGI

Decision of the Court

5

actually accomplish the object to be achieved by those fines (the first Wise

factor). As Fingi correctly states, the Russo court explained that the object 

of DUI fines is to deter impaired driving and to share the costs of the 

criminal justice system among wrongdoers. Russo, 219 Ariz. at 226, ¶ 10, 

196 P.3d at 829. In Russo, this court upheld as constitutional the imposition 

of a $1000 prison assessment for an extreme DUI conviction. Id. at 227, ¶

13, 196 P.3d at 830. The court explained that the State’s interest in DUI 

deterrence makes the fine proportional to the crime. Id. at 228, ¶17–18, 196 

P.3d at 831.

¶13 Fingi makes a policy argument that deterrence is not actually 

achieved by way of sanctions because, in order for sanctions to deter, 

“potential offenders must be aware of sanction risks” and yet “research 

shows that the general public tends to underestimate the severity of 

sanctions generally imposed.” Fingi’s research discussion is not 

compelling. In essence, Fingi urges us to abandon legislative reasoning that 

imposing a pecuniary consequence for a behavior will decrease the 

prevalence of that behavior. See A.R.S. § 28-1383(J)(2)–(5) (listing the 

mandatory minimum fines for a DUI conviction); see also A.R.S. § 28-1389 

(“[The] court shall not waive a fine or assessment imposed pursuant to this 

article”). Disagreement about the effectiveness of a fine in deterring crime 

does not rise to a constitutional infirmity. It is the job of the legislature, not 

the judiciary, to evaluate the research. See Edwards v. State Bd. of Barber 

Exam’rs, 72 Ariz. 108, 112–13, 231 P.2d 450, 452 (1951) (“[W]here an 

enactment bears any reasonable relationship to the end sought the courts 

may not substitute their judgment for the judgment of the legislature.”). 

¶14 Second, Fingi urges this court to stray from Russo because 

“the legislature designated the DUI at issue in Russo, as well as the DUI in 

this case, as misdemeanor offenses, the lowest possible rung on the ladder 

of crimes a person can commit.” From that premise, Fingi concludes that 

calling a misdemeanor an “extremely serious offense” is not enough to 

merit the fines in question. This argument is not persuasive. The fact that 

a crime is in the lowest possible class of crimes does not change society’s 

interest in deterring that dangerous behavior. As explained in Russo, “[t]he 

same considerations apply to deter persons impaired by alcohol from 

driving whether the offense is a felony or a misdemeanor, and there are the 

same types of costs associated with the criminal-justice system.” Id. at 228, 

¶18, 196 P.3d at 831. The deterrence rationale has historically been used to 

uphold much larger fines than the $4,675 at issue here. See e.g., Wise, 164 

Ariz. at 575, 575, 795 P.2d at 218, 218 (upholding fines in the amount of 

$205,600 as constitutional because of their deterrent effect); State v. 
STATE v. FINGI

Decision of the Court

6

Delgadillo, 174 Ariz. 428, 429–30, 850 P.2d 141, 142–43 (App. 1993) 

(upholding a $68,088 fine as constitutional because of its deterrent effect).

¶15 Because a reasonable relationship exists between the fines 

imposed and the goal of deterrence, the first and fourth Wise factors are met 

in this case (the objects designed to be accomplished and the preventive 

effect on the commission of the particular kind of crime). The second and 

third factors are also supported here. The public interest sought to be 

protected is safety: an impaired driver is one of the most dangerous 

hazards one might come across on the road. Additionally, the nature and 

circumstances of Fingi’s particular act demonstrate a dangerous risk of 

driving impaired: driving on the wrong side of the road. By doing so, Fingi 

endangered not only the public but also his wife and two minor children 

who were in the vehicle.

¶16 Finally, Fingi argues that the fines are excessive under the 

final Wise factor because he is unable to pay. There is, however, only a 

limited record of his financial status because he did not object to the fines. 

This court must presume that the financial status of Fingi supports the trial 

court’s decision. State v. Zuck, 134 Ariz. 509, 513, 658 P.2d 162, 166 (1982) 

(“Where matters are not included in the record on appeal, the missing 

portions of the record will be presumed to support the action of the trial 

court.”).

¶17 Even absent the presumption in favor of the court, the fifth 

Wisefactor (ability to pay) is not dispositive and should be considered along 

with the other factors. Wise, 164 Ariz. at 219, 795 P.2d at 576. Fingi argues 

that he does not have the ability to pay the “nearly $5,000 financial sanction 

imposed in this case.” This argument fails to consider the fines in light of 

the payment schedule: $105 per month for two years and then $40 per 

month thereafter. “The fact that the trial judge has the discretion to set the 

schedule for payment considerably ameliorates the statute’s failure to allow 

for a consideration of the ability to pay.” Id. Because the other factors are 

satisfied in this case, given the payment schedule, we cannot hold that the 

fines are constitutionally excessive.

¶18 In light of the Wise factors, and keeping in mind the extreme 

danger of Fingi’s actions, the $4,675 fine is “neither unreasonable nor an 

amount that shocks public sentiment and affronts the judgment of 

reasonable people so as to render it unconstitutional.” See Russo, 219 Ariz. 

at 228, ¶18, 196 P.3d at 831. 
STATE v. FINGI

Decision of the Court

7

CONCLUSION

¶19 For the foregoing reasons, we affirm the trial court’s 

imposition of fines against Fingi.