SUPREME COURT OF ARIZONA 

En Banc 

 

 

JUSTIN DERENDAL, ) Arizona Supreme Court 

 ) No. CV-04-0037-PR 

 Petitioner-Appellant, ) 

 ) Court of Appeals 

 v. ) Division One 

 ) No. 1 CA-CV 03-0380 

HON. DEBORAH GRIFFITH, JUDGE OF ) 

THE PHOENIX CITY COURT, ) Maricopa County Superior 

 ) Court 

 Respondent Judge, ) No. CV LC 03-000001-001DT 

 ) 

PHOENIX CITY PROSECUTOR'S OFFICE, ) 

 ) 

 Real Party in Interest- ) O P I N I O N 

 Appellee. ) 

__________________________________) 

Order from Phoenix Municipal Court 

No. 2760118 

The Honorable Deborah Griffith 

AFFIRMED 

________________________________________________________________ 

Appeal from the Superior Court of Maricopa County 

No. CV LC 03-000001-001DT 

The Honorable Michael D. Jones 

AFFIRMED 

________________________________________________________________ 

Opinion of the Court of Appeals, Division One 

No. 1 CA-CV-03-0380 

VACATED 

________________________________________________________________ 

LAW OFFICES OF NEAL W. BASSETT Phoenix 

 By Neal W. Bassett 

And Natalee Segal 

And 

LAURIE A. HERMAN, Attorney at Law Scottsdale 

 By Laurie A. Herman 

Attorneys for Justin Derendal 
PETER VAN HAREN, Phoenix City Attorney Phoenix 

By William C. Solomon, Assistant City Prosecutor 

And Samuel K. Lesley, Assistant City Prosecutor 

Attorneys for Phoenix City Prosecutor’s Office 

JAMES J. HAAS, Maricopa County Public Defender Phoenix 

By Kathleen N. Carey, Deputy Public Defender 

Attorneys for Amicus Curiae 

Maricopa County Public Defender 

STEPHEN PAUL BARNARD Tucson 

Attorney for Amicus Curiae 

Arizona Attorneys for Criminal Justice 

MICHAEL G. RANKIN, Tucson City Attorney Tucson 

By Laura R. Brynwood 

 Principal Assistant City Attorney - Deputy 

And William F. Mills, Supervising Prosecutor 

 Criminal Division 

Attorneys for Amicus Curiae City of Tucson 

JOSEPH R. BERTOLDO, Scottsdale City Attorney Scottsdale 

By Kenneth M. Flint 

Assistant City Prosecutor 

Attorneys for Amicus Curiae City of Scottsdale 

TOBIN C. SIDLES, Town Prosecutor 

 Town of Oro Valley Oro Valley 

And Dillon Fishman, Rule 38(e) Law Student 

 University of Arizona, College of Law 

Attorneys for Amicus Curiae Town of Oro Valley 

DEBORAH J. SPINNER, Mesa City Attorney Mesa 

By Roger Kevin Hays 

Chief Assistant City Prosecutor 

And Stephen Mercer, Assistant City Prosecutor 

Attorneys for Amicus Curiae City of Mesa 

 

LAW OFFICE OF TREASURE VANDREUMEL Phoenix 

By Treasure VanDreumel 

And 

GARY KULA, City of Phoenix Public Defender Phoenix 

Contract Office 

Attorneys for Amicus Curiae City of Phoenix Public Defender 

________________________________________________________________ 

M c G R E G O R, Vice Chief Justice 

2
¶1 We granted review to consider whether Arizona should 

retain the test set out in Rothweiler v. Superior Court, 100 

Ariz. 37, 410 P.2d 479 (1966), to determine when the Arizona 

Constitution mandates that a criminal offense be eligible for 

trial by jury. 

I. 

¶2 Justin Derendal was charged in Phoenix Municipal Court 

with drag racing,1

 a class one misdemeanor, Ariz. Rev. Stat. 

(A.R.S.) § 28-708.B (2001), punishable by a maximum of six 

months incarceration, see A.R.S. § 13-707.A.1 (2001), and a 

$2,500 fine, see A.R.S. § 13-802.A (2001). The municipal court 

denied Derendal’s request for a jury trial, and Derendal filed a 

special action in superior court. The superior court accepted 

jurisdiction but denied relief, and Derendal appealed to the 

court of appeals. 

¶3 The court of appeals applied the three-part test 

established by this court in Rothweiler and, concluding that 

drag racing failed to meet any of the three tests for jury 

____________ 

1 “A person shall not drive a vehicle or participate in any 

manner in a race, speed competition or contest, drag race or 

acceleration contest, test of physical endurance or exhibition 

of speed or acceleration or for the purpose of making a speed 

record on a street or highway.” Ariz. Rev. Stat. (A.R.S.) § 28-

708.A (2001). 

3
eligibility set out in Rothweiler, affirmed the superior court’s 

judgment. 

¶4 We granted Derendal’s petition for review and ordered 

the parties to file supplemental briefs addressing whether the 

Rothweiler test should remain the test for determining jury 

trial eligibility in Arizona. We exercise jurisdiction pursuant 

to Article 6, Section 5.3 of the Arizona Constitution and A.R.S. 

§ 12-120.24 (2003).

II. 

¶5 In 1966, this court adopted a three-pronged test to 

decide whether, with regard to a particular criminal offense, 

the federal or Arizona Constitution guarantees the right to a 

jury trial. Relying on both federal and Arizona constitutional 

law, we defined three factors as relevant to that inquiry: (1) 

the relationship of the offense to common law crimes; (2) the 

severity of the statutory penalties that apply; and (3) the 

moral quality of the act. Rothweiler, 100 Ariz. at 42, 410 P.2d 

at 483. Over time, Arizona courts have come to view these 

factors as three independent prongs in the constitutional 

analysis of the right to jury trial. See, e.g., State v. 

Harrison, 164 Ariz. 316, 317, 792 P.2d 779, 780 (App. 1990) 

(“Each prong [of the Rothweiler test] is independently 

sufficient to give rise to a jury trial.”). 

4
¶6 Twenty-three years after our Rothweiler decision, the 

United States Supreme Court held that any criminal offense for 

which the maximum statutory penalty is less than six months 

incarceration is presumptively a petty offense to which the 

right of trial by jury guaranteed by the Sixth Amendment to the 

United States Constitution does not attach. Blanton v. City of 

North Las Vegas, 489 U.S. 538, 543 (1989). On several 

occasions, this court has rejected invitations to replace the 

Rothweiler test with the Blanton test, reasoning that the 

Arizona Constitution requires greater protection of the right to 

trial by jury than does the federal constitution. See, e.g., 

Benitez v. Dunevant, 198 Ariz. 90, 94 ¶ 10, 7 P.3d 99, 103 

(2000); State ex rel. McDougall v. Strohson, 190 Ariz. 120, 126-

27, 945 P.2d 1251, 1257-58 (1997); cf. State ex rel. Dean v. 

Dolny, 161 Ariz. 297, 299, 778 P.2d 1193, 1195 (1989). We have 

never expressly considered whether we should adopt a modified 

version of Blanton. We do so today. 

¶7 Two separate provisions of the Arizona Constitution 

secure the right to jury trial for certain criminal defendants. 

The first, Article 2, Section 23, provides that “[t]he right of 

trial by jury shall remain inviolate.” The second, Article 2, 

Section 24, further provides that “[i]n criminal prosecutions, 

the accused shall have the right to . . . a speedy public trial 

5
by an impartial jury of the county in which the offense is 

alleged to have been committed . . . .” 

¶8 We have established several principles that govern the 

interpretation of these constitutional provisions. We have long 

interpreted them as preserving, rather than creating, the right 

to jury trial as it existed in Arizona prior to statehood. 

Bowden v. Nugent, 26 Ariz. 485, 488, 226 P. 549, 549-50 (1924); 

Brown v. Greer, 16 Ariz. 215, 217, 141 P. 841, 842 (1914). In 

addition, it is well settled that under the common law at the 

time of Arizona’s statehood, only those accused of “serious 

offenses” had a right to trial by jury. See, e.g., Goldman v. 

Kautz, 111 Ariz. 431, 432, 531 P.2d 1138, 1139 (1975); 

Rothweiler, 100 Ariz. at 42, 410 P.2d at 482; Bowden, 26 Ariz. 

at 491, 226 P. at 551. Thus, Article 2, Sections 23 and 24 do 

not independently grant a right to jury trial to all criminal 

defendants; rather, they preserve the right to jury trial for 

those accused of serious offenses. Benitez, 198 Ariz. at 93 ¶ 

4, 7 P.3d at 102; Dolny, 161 Ariz. at 299, 778 P.2d at 1195. As 

a result, the “test for jury eligibility in this state requires 

an inquiry into the seriousness of the offense.” Benitez, 198 

Ariz. at 92 ¶ 4, 7 P.3d at 101. 

A. 

¶9 The language of Article 2, Section 23 mandates that we 

retain the Rothweiler test’s first prong: the relationship of 

6
the offense to common law crimes. We have consistently held 

that the phrase “shall remain inviolate” preserves the right to 

jury trial as it existed at the time Arizona adopted its 

constitution. Benitez, 198 Ariz. at 93 ¶ 4, 7 P.3d at 102;

Bowden, 26 Ariz. at 488, 226 P. at 550.2

 Thus, our constitution 

requires that the state guarantee a right to jury trial for any 

defendant charged with an offense for which a jury trial was 

granted prior to statehood. 

¶10 We have further held that when the right to jury trial 

for an offense existed prior to statehood, it cannot be denied 

for modern statutory offenses of the same “character or grade.” 

Bowden, 26 Ariz. at 491, 226 P. at 551. Because the Arizona 

legislature abolished all common law crimes more than thirty 

years ago, see A.R.S. § 13-103.A (1978), many newly minted 

statutory criminal offenses have no precise analog in the common 

law.3 To determine whether Article 2, Section 23 assures the 

____________ 

2

 This has been the almost universal interpretation of the 

phrase “shall remain inviolate” in those jurisdictions whose 

constitutions contain equivalent language. See, e.g., Wheeler 

v. Caldwell, 75 P. 1031 (Kan. 1904); State ex rel. Jackson v. 

Kennie, 60 P. 589 (Mont. 1900); Kuhl v. Pierce County, 62 N.W. 

1066 (Neb. 1895); State v. McClear, 11 Nev. 39 (1876); Vaughn v. 

Scade, 30 Mo. 600 (1860); Work v. State, 2 Ohio St. 297 (1853);

Ross v. Irving, 14 Ill. 171 (1852). 

3 We acknowledge, as the State asserts, that the farther 

Arizona moves from the era of common law crimes, the more 

difficult it becomes for parties and courts to compare a modern 

statutory crime with common law offenses. 

7
right to trial by jury, we consider whether a modern crime has a 

common law antecedent. We regard a jury-eligible, common law 

offense as an antecedent of a modern statutory offense when the 

modern offense contains elements comparable to those found in 

the common law offense. See Bowden, 26 Ariz. at 490, 226 P. at 

550. 

¶11 In Bowden, for instance, we determined that a 

defendant charged with operating a poker game in violation of a 

city ordinance was entitled to a jury trial because the charge 

was similar in character to the common law crime of conducting 

or maintaining a gambling house and the elements of the crimes 

were substantially similar. 26 Ariz. at 490, 226 P. at 550. 

¶12 Similarly, in Urs v. Maricopa County Attorney’s 

Office, the court of appeals concluded that reckless driving, 

defined in A.R.S. § 28-693.A (Supp. 2000) as “driv[ing] a 

vehicle in reckless disregard for the safety of persons or 

property . . . ,” is in the “character of operating a motor 

vehicle so as to endanger [any] property [or] individual,” which 

was a jury-eligible offense at common law. 201 Ariz. 71, 74 ¶ 

8, 31 P.3d 845, 848 (App. 2001) (quotations omitted). Because 

the elements of these offenses are substantially similar, the 

8
court held that reckless driving is a jury-eligible offense 

under Arizona’s constitution.4

B. 

¶13 If an offense does not have a common law antecedent, 

determining whether the Arizona Constitution requires a trial by 

jury depends upon whether the offense falls within the guarantee 

of Article 2, Section 24, which provides in pertinent part: 

In criminal prosecutions, the accused shall have the 

right to . . . a speedy public trial by an impartial 

jury of the county in which the offense is alleged to 

have been committed . . . . 

Ariz. Const. art. 2, § 24. Because Section 24 is Arizona’s 

analog to the Sixth Amendment of the United States Constitution,5

we have construed it consistently with the federal constitution 

to preserve the right to jury trial only for “serious,” as 

opposed to “petty,” crimes. See Rothweiler, 100 Ariz. at 41, 

____________ 

4

 See also, e.g., City Court v. Lee, 16 Ariz. App. 449, 494 

P.2d 54 (1972). There, the court found that a Tucson ordinance 

prohibiting all-nude dancing had a direct antecedent in the 

common law offense of indecent exposure, which was defined as 

“[t]he exhibition of one’s private parts in a public place.” 

Id. at 452, 494 P.2d at 57 (citations omitted). Although the 

court also found that the ordinance involved a crime of moral 

turpitude, that portion of the analysis was unnecessary. Once a 

court determines that a common law antecedent for which a jury 

trial was granted prior to statehood exists for a criminal 

offense, the inquiry is concluded, and the matter must be tried 

to a jury. 

5 “In all criminal prosecutions, the accused shall enjoy the 

right to a speedy and public trial, by an impartial jury of the 

State and district wherein the crime shall have been committed . 

. . .” U.S. Const. amend. VI. 

9
410 P.2d at 482 (“This Court has consistently held that the 

right as guaranteed in the Constitution does not apply to petty 

offenses.”); Schick v. United States, 195 U.S. 65, 70 (1904) 

(“[I]t is obvious that the intent [of the framers] was to 

exclude from the constitutional requirement of a jury the trial 

of petty criminal offenses.”). In Rothweiler, we noted two 

factors relevant to the determination of seriousness: (1) 

severity of the penalty and (2) moral quality of the act. 100 

Ariz. at 42, 410 P.2d at 483. 

1. 

¶14 The United States Supreme Court long followed a caseby-case approach to determine the seriousness of an offense for 

purposes of the right to trial by jury. See Baldwin v. New 

York, 399 U.S. 66 (1970); Duncan v. Louisiana, 391 U.S. 145 

(1968); District of Columbia v. Clawans, 300 U.S. 617 (1937);

Schick, 195 U.S. 65; Callan v. Wilson, 127 U.S. 540 (1888). 

These decisions “focused on the nature of the offense and on 

whether it was triable by a jury at common law.” Blanton, 489 

U.S. at 541. Central to the analysis of the nature of the 

offense was the Court’s understanding that the seriousness of 

the offense and the severity of the penalty attached to that 

offense are mutable and dependent on the standards of each 

generation. Thus, the Court’s analysis reflected a willingness 

to adapt the jury right to the changing sensibilities of the 

10
culture. See Clawans, 300 U.S. at 627 (recognizing that 

“commonly accepted views of the severity of punishment by 

imprisonment may become so modified that a penalty once thought 

to be mild may come to be regarded as so harsh as to call for 

the jury trial”). 

¶15 As its Sixth Amendment jurisprudence developed, the 

Court began to define a more objective standard for determining 

seriousness. In its decisions, the Court moved toward increased 

emphasis upon the severity of the penalty attached to an 

offense. Whereas the Court had in 1937 “refused to foreclose

consideration of the severity of the penalty as an element to be 

considered in determining” whether a statutory offense is 

serious enough to warrant a jury trial, Clawans, 300 U.S. at 625 

(emphasis added), by 1970 the Court held that the “most relevant 

such criteria [is] the severity of the maximum authorized 

penalty.” Baldwin, 399 U.S. at 68. 

¶16 In Blanton, the Court took a definitive step toward 

creating an objective standard by abandoning its previous caseby-case analysis of seriousness in favor of a bright-line rule 

for determining jury eligibility under the Sixth Amendment. The

Court held that any offense for which the maximum statutory 

penalty is less than six months incarceration is presumptively a 

petty offense to which the right of trial by jury does not 

attach. 489 U.S. at 543. The Court also held, however, that a 

11
defendant could rebut this presumption by showing that the 

legislature had “pack[ed] an offense it deems ‘serious’ with 

onerous penalties that nonetheless do not puncture the 6-month 

incarceration line.” Id. (quotations omitted). 

¶17 In Blanton, the Supreme Court recognized that “[i]n 

fixing the maximum penalty for a crime, a legislature 

‘include[s] within the definition of the crime itself a judgment 

about the seriousness of the offense.’” Id. at 541 (quoting 

Frank v. United States, 395 U.S. 147, 149 (1969)). Because the 

legislature, acting as a representative body, responds to 

changing mores and values of the society it represents, the 

Court declined to substitute its own judgment as to the 

seriousness society attaches to a particular offense for that of

the legislature. See id. Thus, the Court abandoned the 

somewhat subjective common law approach for a bright-line test 

that focuses on the severity of the penalty attached to an 

offense. 

2.

¶18 During the first fifty years of Arizona’s statehood, 

our serious offense analysis essentially mirrored that of the 

United States Supreme Court and focused primarily upon the 

nature of the offense and whether the common law afforded a 

right to a jury trial. As the Supreme Court began focusing upon 

the severity of the penalty rather than the nature of the 

12
offense, we also began to make this transition. Thus, in State 

v. Cousins, 97 Ariz. 105, 397 P.2d 217 (1964), this court first 

addressed the question whether an offense for which no common 

law antecedent existed might nevertheless be jury-eligible as a 

result of the severity of the penalty attached to that offense. 

In Cousins, we held that a maximum punishment of a $300 fine and 

up to three months incarceration did not constitute punishment 

sufficiently severe to require a jury trial for the offense of 

drunk and disorderly conduct.6

 Id. at 109, 397 P.2d at 219. In 

so holding, we relied upon the United States Supreme Court’s 

decision in Clawans. Id.

¶19 In Rothweiler, we expanded this analysis to include 

consideration of statutory consequences other than the length of 

incarceration and amount of the fine imposable. Thus, we held 

that a charge of misdemeanor driving under the influence of 

intoxicating liquor7

 qualified as a serious offense triable to a 

jury in part because the defendant faced not only incarceration 

and a fine but also the potential suspension of his driver’s 

license. 100 Ariz. at 44, 410 P.2d at 484. Because of the 

“grave consequences” resulting from such a suspension, as well 

____________ 

6 We reached this conclusion only after we first determined 

that drunk and disorderly conduct had no jury-eligible common 

law antecedent. Cousins, 97 Ariz. at 107-08, 397 P.2d at 218. 

7 At the time, A.R.S. § 28-692 defined misdemeanor D.U.I. 

The offense currently is described in A.R.S. § 28-1381 (2004). 

13
as the moral quality of the act, we concluded that the penalty 

was so severe as to require a jury trial for the offense. Id. 

¶20 During the interim between our Rothweiler decision in 

1966 and the Supreme Court’s decision in Blanton in 1989, we 

decided several cases in which we relied on federal law in 

declining to extend the right to trial by jury to misdemeanors 

punishable by no more than six months incarceration. See 

Goldman, 111 Ariz. at 432, 531 P.2d at 1139 (“The denial of a 

jury trial for offenses the punishment for which does not exceed 

a $300 fine nor six months in jail does not present a federal 

constitutional question. Nor does the Arizona 

Constitution . . . require a jury trial in petty offenses.”) 

(citing Baldwin, 399 U.S. 66); State ex rel. Baumert v. Superior 

Court, 127 Ariz. 152, 154-55, 618 P.2d 1078, 1080-81 (1980) 

(noting that “[i]t is the law, federal and state, that a 

possible penalty of a 6-month jail sentence is not so severe as 

to require trial by jury” and finding a $1,000 fine not serious 

enough to require a jury trial) (citing Muniz v. Hoffman, 422 

U.S. 454 (1975)); Spitz v. Mun. Court, 127 Ariz. 405, 408, 621 

P.2d 911, 914 (1980) (noting the federal rule that a jury is not 

required when the punishment is no more than six months 

incarceration and holding that “an additional sanction, such as 

suspension of [a] liquor license . . . does not mandate a jury 

trial”) (citing Duncan v. Louisiana, 391 U.S. 145 (1968)). Not 

14
until our post-Blanton decisions did our analysis begin to 

diverge from that of the United States Supreme Court. 

C. 

¶21 Although we have declined to adopt the Blanton 

analysis, we have moved toward a more objective, bright-line 

test for determining seriousness of an offense, the second prong 

of the Rothweiler test. We have held, for example, that “the 

most significant element [in determining whether an offense is 

jury eligible] is always the potential punishment authorized by 

the statute creating the crime . . . .” Strohson, 190 Ariz. at 

124, 945 P.2d at 1255. Moreover, we have held that “[a]s a 

general rule, the penalties attendant to misdemeanor offenses in 

this state are, of themselves, not enough to secure a jury 

trial.” Benitez, 198 Ariz. at 94 ¶ 13, 7 P.3d at 103. We now 

expressly adopt the Blanton presumption and hold that when the 

legislature classifies an offense as a misdemeanor and 

punishable by no more than six months incarceration, we will 

presume that offense to be a petty offense that falls outside 

the jury requirement of Article 2, Section 24 of the Arizona 

Constitution. By adopting that approach, we leave to the 

legislature primary responsibility for determining, through its 

decision as to the penalty that accompanies a misdemeanor 

offense, whether the offense qualifies as a “serious offense.” 

Like the Court in Blanton, however, we recognize that some 

15
criminal offenses give rise to direct consequences that render 

punishment “severe,” even though the legislature sets the 

maximum period of incarceration at six months or less. Article 

2, Section 24 guarantees a jury trial if a defendant can 

demonstrate that additional grave consequences that attend a 

misdemeanor conviction reflect a legislative determination that 

the offense is indeed “serious.” 

¶22 Our previous decisions establish that not every 

consequence that follows a criminal conviction qualifies for 

consideration under Article 2, Section 24. To rebut the 

presumption that an offense does not require a jury trial, a 

defendant must establish that a consequence of conviction meets 

several criteria. 

¶23 First, the penalty must arise directly from statutory 

Arizona law. See Blanton, 489 U.S. at 543 n.8 (holding that in 

a serious offense analysis, a court should consider only 

penalties resulting directly from state action). As we 

explained in Strohson, it is neither practical nor possible for 

“a state court to conjure up all possible consequences that 

might flow from a state court conviction when those consequences 

do not flow from the law of the state.” 190 Ariz. at 125, 945 

P.2d at 1256. Likewise, courts cannot conjure up all possible 

consequences that might result from non-statutory sources. 

Judges who are hard-pressed to “delve into the complexities of 

16
federal law in each case to determine whether the individual 

defendant is entitled to a jury trial,” id., would find it even 

more difficult to conjure up every possible societal 

repercussion a defendant might face upon conviction of a 

misdemeanor criminal offense.8

 

¶24 Second, the consequence must be severe. See Benitez, 

198 Ariz. at 96-97 ¶ 26, 7 P.3d at 105-06 (recognizing driving 

as a privilege rather than a right and holding that the 

“potential loss of the driving privilege [was not] a grave or 

serious consequence”). To mandate a jury trial, collateral 

consequences must “approximate in severity the loss of liberty 

that a prison term entails.” See Blanton, 489 U.S. at 542. 

Thus, for example, we have previously held insufficient to prove 

seriousness a $1,000 fine, Baumert, 127 Ariz. at 155, 618 P.2d 

at 1081, or the potential loss of a liquor license, Spitz, 127 

Ariz. at 408, 621 P.2d at 914. 

¶25 Finally, we will consider only those consequences that 

apply uniformly to all persons convicted of a particular 

offense. As we stated in Strohson: 

[W]e have never determined jury eligibility based upon 

an analysis of the individual defendant before the 

court. If we were to do so . . . we would have the 

____________ 

8 To the extent our decision in State ex rel. Dean v. Dolny, 

161 Ariz. 297, 778 P.2d 1193 (1989), came to a contrary 

conclusion regarding grave consequences, we now expressly 

overrule it. 

17
anomalous situation where some persons would be 

entitled to a jury trial and others would not, 

although charged with exactly the same substantive 

Arizona crime. 

190 Ariz. at 125, 945 P.2d at 1256. In other words, when 

determining the right to jury trial, we are concerned with the 

seriousness of the offense, rather than with the impact of a 

conviction on an individual defendant. For example, we will not 

consider the effect a conviction might have upon a defendant’s 

ability to obtain or maintain certain professional licenses, as 

such a consequence does not affect all defendants convicted of 

an offense. 

¶26 The modified version of the Blanton test that we adopt 

today preserves the right to jury trial for serious offenses, 

while recognizing the legislature’s primary responsibility for 

classifying crimes as to severity. We also retain a defendant’s 

right to a jury trial for a misdemeanor offense if the defendant 

can establish that conviction results in additional severe, 

direct, uniformly applied, statutory consequences. 

D. 

¶27 Unlike the first two prongs of the Rothweiler test, 

the final Rothweiler factor—moral quality of the offense—

possesses no discernable constitutional pedigree.

¶28 We first announced the moral quality test in 

Rothweiler in response to language in Clawans, where the Supreme 

18
Court observed that “those standards of action and of policy 

which find expression in the common and statute law may vary 

from generation to generation.” 300 U.S. at 627. Agreeing with 

the Supreme Court that an analysis of the constitutional right 

to jury trial requires reference to the changing standards of 

seriousness and severity from generation to generation, we found 

preferable a flexible test that would allow us to consider those 

changing standards within Arizona. We intended that the 

subjective “moral quality” prong provide that flexibility. See

Benitez, 198 Ariz. at 95 ¶ 17, 7 P.3d at 104 (finding 

recognition of a right to jury trial for crimes of moral 

turpitude logically consistent with the theory that a jury 

reflects societal morality and therefore is best equipped to 

decide the fate of one who is charged with offending that 

morality). 

¶29 As initially set forth in Rothweiler, the moral 

quality factor focused more upon the nature of the offense than 

on the character of the defendant. 100 Ariz. at 44, 410 P.2d at 

484-85. Thus, in that case we held that driving under the 

influence of intoxicating liquor was a “matter of statewide 

concern” and “repugnant to the community . . . because of the 

potential harm and evil that may result from such practice.” 

Id. 

19
¶30 In subsequent cases, we expanded the moral quality 

prong beyond the scope of its initial purpose. Only two years 

after our Rothweiler decision, we began to transform the moral 

quality analysis into a “moral turpitude” test, shifting our 

focus from the nature of the crime and toward the nature of the 

defendant’s character and conduct. See O’Neill v. Mangum, 103 

Ariz. 484, 485, 445 P.2d 843, 844 (1968) (finding that “it can 

hardly be suggested that one charged or guilty of mere ‘drunk 

and disorderly’ conduct is a depraved and inherently base 

person”). In Dolny, we expanded the moral quality test even 

further, concluding that while we were “undoubtedly concerned 

with the stigma associated with certain crimes” in Rothweiler, 

the moral quality test is concerned primarily with “the nature 

of the consequences resulting from a conviction, such as . . . 

losing one’s driver’s license.” 161 Ariz. at 300, 778 P.2d at 

1196 (emphasis added). In Benitez, we expanded upon the 

definition of acts of moral turpitude originally pronounced in 

O’Neill to include “actions which ‘adversely reflect on one’s 

honesty, integrity, or personal values.’” 198 Ariz. at 95 ¶ 15, 

7 P.3d at 104 (citations omitted). 

¶31 As the “moral quality” test became more subjective and 

ambiguous, inconsistent outcomes resulted. Compare Strohson, 

190 Ariz. 120, 945 P.2d 1251 (holding that misdemeanor assault 

classified as domestic violence is not a crime of moral 

20
turpitude), and Bazzanella v. Tucson City Court, 195 Ariz. 372, 

988 P.2d 157 (App. 1999) (finding misdemeanor child abuse not a 

crime of moral turpitude), with State v. Superior Court, 121 

Ariz. 174, 589 P.2d 48 (App. 1978) (holding that misdemeanor 

shoplifting is a crime of moral turpitude), and Frederickson v. 

Superior Court, 187 Ariz. 273, 928 P.2d 697 (App. 1996) (finding 

leaving the scene of an accident to be a crime of moral 

turpitude). Moreover, “[b]ecause the ‘moral quality of the act’ 

is in the eye of the beholder, there [seemed to] be as many 

diverse results as there [were] judges.” Benitez, 198 Ariz. at 

97 ¶ 32, 7 P.3d at 106 (Martone, J., concurring). 

¶32 We can no longer justify use of the “moral quality” 

prong of Rothweiler to determine whether one charged with a 

misdemeanor criminal offense is entitled to a trial by jury. 

The test, as developed and applied, has caused inexplicable 

results that depend upon the evaluation by a judge that a 

particular crime involves “moral turpitude” or upon a judge’s 

conclusion that only a “depraved and inherently base person” 

would commit a particular offense. As Blanton makes clear, the 

Sixth Amendment does not require application of any “moral 

quality” test and, for the reasons set out above, we conclude 

that the Arizona Constitution does not require such an approach. 

¶33 We recognize that the doctrine of stare decisis

cautions against overruling a former decision. See Goldman, 111 

21
Ariz. at 432-33, 531 P.2d at 1139-40. In this instance, 

however, our decision to overturn a portion of our holding in 

Rothweiler does not offend the principles underlying stare 

decisis. As we have previously noted, stare decisis “is 

grounded on public policy that people should know what their 

rights are as set out by judicial precedent and having relied on 

such rights in conducting their affairs should not have them 

done away with by judicial fiat.” White v. Bateman, 89 Ariz. 

110, 113, 358 P.2d 712, 713-14 (1961). We have also 

acknowledged, however, that “the doctrine of stare decisis 

should not require a slavish adherence to authority . . . .” 

Goldman, 111 Ariz. at 432, 531 P.2d at 1139. 

¶34 Our concern for following earlier authority is 

minimized when, as here, the prior rule has not provided the 

consistency the doctrine of stare decisis is designed to 

protect. Rather than provide consistency, the moral quality 

prong of Rothweiler has caused continuing uncertainty for 

parties and courts as they try to determine which misdemeanor 

offenses satisfy this portion of the Rothweiler test. By 

eliminating the moral quality prong of the Rothweiler analysis, 

we provide assurance for both defendants and the State that the 

right to jury trial for an offense will not vacillate depending 

upon the ability of a given judge “to predict the moral 

22
culpability the public attaches to an act.” Benitez, 198 Ariz. 

at 97 ¶ 32, 7 P.3d at 106 (Martone, J., concurring). 

¶35 Derendal argues that we cannot abandon the moral 

quality prong of Rothweiler without severely curtailing the 

right to jury trial in Arizona. History does not support such a 

conclusion. In fact, despite the continuous expansion of the 

moral quality prong of Rothweiler, this court has never held an 

offense to be jury-eligible solely on the basis of moral 

turpitude. Moreover, during the almost forty years since the 

Rothweiler decision, the court of appeals has explicitly labeled 

only four misdemeanor offenses as crimes of moral turpitude. 

See City Court v. Lee, 16 Ariz. App. 449, 494 P.2d 54 (1972) 

(bottomless dancing); State v. Superior Court, 121 Ariz. 174, 

589 P.2d 48 (shoplifting); Mungarro v. Riley, 170 Ariz. 589, 826 

P.2d 1215 (App. 1991) (false reporting to law enforcement 

agency); Frederickson, 187 Ariz. 273, 928 P.2d 697 (leaving the 

scene of an accident). In two of these cases, the appellate 

court also found the offense to have a common law antecedent 

requiring a jury trial. Lee, 16 Ariz. App. at 452, 494 P.2d at 

57 (bottomless dancing related to common law indecent exposure); 

State v. Superior Court, 121 Ariz. at 176, 589 P.2d at 50 

(shoplifting related to common law larceny). Thus, while our 

decision today should substantially reduce uncertainty as to 

which offenses merit a trial by jury, it will have little effect 

23
upon the number of offenses for which our constitution mandates 

a jury trial. 

III. 

¶36 We hold that the analysis of jury eligibility for 

trials of misdemeanor offenses in Arizona requires a two step 

process. First, Article 2, Section 23 requires that a court 

determine whether a statutory offense has a common law 

antecedent that guaranteed a right to trial by jury at the time 

of Arizona statehood. In making that decision, the court should 

consider whether substantially similar elements comprise the 

common law offense and the offense charged. If so, the inquiry 

concludes, and the defendant’s right to a trial by jury is 

established. 

¶37 If, however, the court finds no common law antecedent 

for which a jury trial was required, the court must analyze the 

seriousness of the offense under Article 2, Section 24. Because 

this provision is Arizona’s analog to the Sixth Amendment, we 

apply a modified Blanton test. If the legislature has defined 

an offense as a misdemeanor punishable by no more than six 

months incarceration, we presume that the offense is petty, and 

no jury right attaches. A defendant may rebut this presumption, 

however, by demonstrating that the offense carries additional 

severe, direct, uniformly applied, statutory consequences that 

reflect the legislature’s judgment that the offense is serious. 

24
If a defendant makes that showing, Article 2, Section 24 

guarantees a right to trial by jury. 

IV.

¶38 Applying this test to the case at hand, we agree with 

the court of appeals that drag racing, as prescribed by A.R.S. § 

28-708.A, is not a jury-eligible offense. Derendal argues that 

drag racing is related to reckless driving, which has been held 

to be a jury-eligible offense because it had a common law 

antecedent that was jury-eligible. Thus, according to Derendal, 

drag racing also must be tried to a jury. 

¶39 The test for determining whether a modern offense is 

of the same character as a common law offense is whether the 

modern offense shares substantially similar elements with the 

common law offense, not whether the offense in question relates 

in some way to another modern offense for which a jury-eligible 

common law antecedent exists. As the court of appeals noted, it 

had regarded reckless driving as a jury-eligible offense because 

the element of reckless disregard compares with the common law 

offense of operating a vehicle in a manner that endangers 

individuals or property. Derendal v. Griffith, 207 Ariz. 51, 55 

¶ 16, 83 P.3d 51, 55 (App. 2004). The statute prohibiting drag 

racing does not include the element of reckless disregard, and 

we find no other common law antecedent. Thus, Article 2, 

25
Section 23 does not require that a charge of drag racing be 

tried to a jury. 

¶40 We next inquire whether, under Article 2, Section 24, 

drag racing qualifies as a serious offense. Because drag racing 

is a class one misdemeanor punishable by no more than six months 

incarceration, we presume that it is not a jury-eligible 

offense. To overcome that presumption, Derendal must 

demonstrate additional severe, direct, uniformly applied, 

statutory consequences of conviction for the offense. At the 

trial court, Derendal argued that the potential loss of his 

driver’s license upon conviction qualifies as a grave 

consequence and shows that the legislature views drag racing as 

a serious crime. We previously have rejected that argument, 

holding that the potential loss of the driving privilege does 

not qualify as a serious consequence necessitating a jury trial. 

Benitez, 198 Ariz. at 96-97 ¶ 26, 7 P.3d at 105-06.9

 We 

therefore hold that Derendal has failed to show severe, direct, 

uniformly applied, statutory consequences and that drag racing 

is not a jury-eligible offense. 

____________ 

9 Derendal faces the same statutory consequences as Benitez 

faced: up to six months incarceration, a possible fine of 

$2,500, and potential loss of his driver’s license for up to 

ninety days. See Benitez, 198 Ariz. at 92 ¶ 1, 7 P.3d at 101. 

26
V. 

¶41 For the foregoing reasons, we vacate the decision of 

the court of appeals and affirm the order of the municipal court 

and judgment of the superior court denying Derendal a jury 

trial. 

 __________________________________ 

 Ruth V. McGregor 

 Vice Chief Justice 

CONCURRING: 

_________________________________ 

Charles E. Jones, Chief Justice 

_________________________________ 

Rebecca White Berch, Justice 

_________________________________ 

Michael D. Ryan, Justice 

_________________________________ 

Andrew D. Hurwitz, Justice 

27