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State v. Bigelow

Supreme Court of Arizona

May 26, 1953

STATE
v.
BIGELOW.

[76 Ariz. 14] Am. P. Mahoney, Jr., County Atty., and James H. Green, Jr., Deputy County Atty., Phoenix, for the State.

Harold E. Whitney, of Phoenix, for defendant.

PHELPS, Justice.

This cause comes to us under the provisions of section 44-2401, A.C.A.1939. There have been certified to us the following questions of law for our determination:

'1. Upon a conviction of defendant on a second or subsequent violation of Section 66-156, Arizona Code Annotated 1939 (Laws, 1950, First Special Session, Chapter 3, Section 54), is the Superior Court of the State of Arizona in and for the County of Maricopa empowered to suspend sentence?

'2. Upon a conviction of a person for violation of the section hereinabove referred to (driving an automobile while under the influence of intoxicating liquor with prior conviction) is it mandatory upon the Court to impose as its sentence an actual imprisonment of that person in the county jail for a

Page 410

period of not less than ninety (90) days?

[76 Ariz. 15] '3. If a person be convicted of driving an automobile while under the influence of intoxicating liquor on a second or subsequent conviction under the Laws of 1950, First Special Session, Chapter 3, Section 54, does the provision of Section 66-156, Arizona Code Annotated 1939, paragraph d, reading as follows:

"* * * On a second or subsequent conviction he shall be punished by imprisonment for not less than 90 days nor more than 1 year in the county jail, and, in the discretion of the court, a fine of not more than $1,000.00.'

make it mandatory upon the judge of the Superior Court to impose a jail sentence?

'4. If jail sentence be mandatory upon a conviction under said law, is the Superior Court empowered to sentence a person so convicted to jail with the provision that such sentence be served at interrupted periods; that is to say, can the sentence of ninety (90) days be imposed upon the defendant to be served and completed by that person going to jail only on certain days of each week?'

Section 66-156, Cum.Supp.1952, makes it unlawful for any person who is under the influence of intoxicating liquor to drive or be in actual physical control of any vehicle within the state and subsection (d) thereof provides:

'(d) Every person who is convicted of a violation of this section shall be punished by imprisonment for not less than 10 days nor more than 6 months, or by fine of not less than $100.00 nor more than $300.00, or by both such fine and imprisonment. On a second or subsequent conviction he shall be punished by imprisonment for not less than 90 days nor more than 1 year in the county pail, and, in the discretion of the court, a fine of not more than $1,000.00.'

It is to be noted by the specific provisions of the foregoing section that on second or subsequent convictions the defendant shall be punished by imprisonment for not less than 90 days nor more than one year and in addition thereto, in the discretion of the court, by a fine of not more than $1,000. Patently, if imprisonment is to be meted out there is a minimum and a maximum. Likewise, if there is superimposed a fine there is a minimum and a maximum.

The power vested in the court to grant probation upon conviction of any public offense is found in section 44-2229, ...


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