Appeal from the Superior Court in Maricopa County No. CR2010-155807-001 The Honorable Jerry Bernstein, Judge Pro Tem.
Attorney General's Office, Phoenix By Joseph T. Maziarz, Jana Zinman Counsel for Appellee.
Maricopa County Public Defender's Office, Phoenix By Terry Reid Counsel for Appellant.
Presiding Judge Randall M. Howe delivered the opinion of the Court, in which Judge Samuel A. Thumma joined and Chief Judge Diane M. Johnsen specially concurred.
HOWE, Presiding Judge.
¶1 Lori Dawn Bayless George appeals her conviction and sentence for driving while under the influence of intoxicating drugs. She argues that Arizona Revised Statutes ("A.R.S.") § 28-1381(A)(1) is unconstitutionally vague as applied to her. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On August 14, 2009, at approximately 5:30 p.m., a witness observed George drive out of a shopping plaza's parking lot. According to the witness, George made a wide right turn and crossed traffic lanes before striking a curb "very hard[, ] . . . kicking up a lot of dirt and debris." Concerned about George's condition, the witness called the police. A Goodyear police officer responded and found George at a second shopping plaza. George's two children—a three-year-old and a ten-month-old—were both passengers in the vehicle.
¶3 Although George did not have her driver's license, she provided the officer with her correct name, address, and birth date. When asked if she remembered hitting the curb, she responded, "Yeah, I remember striking the curb, and it was probably because I took Ambien about three hours ago."
¶4 The officer observed that while "[George] seemed aware of what was going on, " she also "seemed very tired [and] had a slow type response, slow demeanor to the questions I was asking . . . [and] how she carried herself." At the police substation, a drug recognition expert confirmed the initial officer's observations, noting that George appeared "sleepy, real tired, heavy eyes, drowsy." George admitted to the officer that she had taken Ambien and Celexa —both central nervous system depressants — that day, and said several times that she was sorry, that she knew better, and that she should not have driven after taking those drugs. A blood test revealed that she had taken not only Ambien and Celexa, but also Benadryl, a third central nervous system depressant.
¶5 George was charged and tried on one count of aggravated driving or being in actual physical control of a vehicle while under the influence of intoxicating liquor or drugs and while a person under 15 years of age was in the vehicle (aggravated DUI), a class 6 felony,  in violation of A.R.S. §§ 28-1381(A)(1) and -1383(A)(3). George claimed that she was not guilty because her act of driving was not voluntary: the combination of drugs she took caused her to "sleep drive." The jury rejected George's defense and found her guilty. At sentencing, the trial court designated the offense a class 1 misdemeanor, revoked George's driving privileges, ordered her to serve 24 consecutive hours of jail time, and placed her on supervised probation for 18 months.
¶6 George argues that although § 28-1381(A)(1) is not facially vague, it is unconstitutionally vague as applied to her because she had no notice that driving while impaired from Ambien would violate the statute. We review a statute's constitutionality de novo. State v. Poshka, 210 Ariz. 218, 219 ¶ 3, 109 P.3d 113, 114 (App. 2005). But when a statute is challenged as vague, we strongly presume that it is constitutional, State v. Kaiser, 204 Ariz. 514, 517 ¶ 8, 65 P.3d 463, 466 (App. 2003), and if possible, we "construe the statute to give it a constitutional meaning, " Poshka, 210 Ariz. at 219 ¶ 3, 109 P.3d at 114. Because George did not raise this argument ...