United States District Court, D. Arizona
Decided September 24, 2014
For Pennie M Shoebridge, Defendant: Bruce S Griffen, LEAD ATTORNEY, Griffen & Stevens Law Firm PLLC, Flagstaff, AZ.
For USA, Plaintif: Adam Keith Zickerman, LEAD ATTORNEY, U.S. Attorneys Office - Flagstaff, AZ, Flagstaff, AZ.
MEMORANDUM AND ORDER
Mark E. Aspey, United States Magistrate Judge.
Before the Court is Defendant's motion (Doc. 6) to dismiss five Class B misdemeanor citations, see Doc. 1, filed against her on May 15, 2014. Defendant contends the charges must be dismissed because her right to counsel was violated by the government at the time of her arrest and detention.
Federal Rule of Criminal Procedure 12(b)(2) provides " [a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial of the general issue." The " general issue" has been defined as evidence relevant to the question of guilt or innocence. See United States v. Nukida, 8 F.3d 665, 669-70 (9th Cir. 1993). A charge in a complaint may be dismissed if it is subject to a defense that may be decided solely on issues of law. See United States v. Schafer, 625 F.3d 629, 636-37 (9th Cir. 2010); United States v. Flores, 404 F.3d 320, 324 (5th Cir. 2005) (holding the propriety of granting a motion to dismiss an indictment by pretrial motion is " contingent
upon whether the infirmity in the prosecution is essentially one of law or involves determinations of fact." ). Arguments raised in a motion to dismiss that rely on disputed facts should be denied. See Nukida, 8 F.3d at 669; United States v. Caputo, 288 F.Supp.2d 912, 916 (N.D.Ill. 2003), citing United States v. Shriver, 989 F.2d 898, 906 (7th Cir. 1992).
The parties do not dispute the following facts: On May 15, 2014, at approximately 17:22 hours, Defendant entered Grand Canyon National Park through the south entrance station driving a gold RoadTrek van. Defendant was subsequently stopped by National Park Service (" NPS" ) law enforcement rangers within the boundaries of Grand Canyon National Park. As a result of the traffic stop Defendant was arrested. Defendant was ultimately charged with the following five Class B misdemeanors: (1) reckless driving, in violation of 36 C.F.R. § 4.2, as defined by Arizona Revised Statutes § 28-693(A); (2) having an open container of alcohol in her vehicle, in violation of 36 C.F.R. § 4.14(b); (3) operating a vehicle while under the influence of alcohol, in violation of 36 C.F.R. § 4.23(a)(1); (4) refusing to take a test to establish the amount of alcohol in her system, in violation of 36 C.F.R. § 4.23(c)(2); and interference with a lawful order from a law enforcement officer, in violation of 36 C.F.R. § 2.32(a)(2).
In her motion to dismiss Defendant asserts that, during her detention by the NPS rangers for investigation of driving under the influence of alcohol, she made several requests to consult with an attorney and each time her request was ignored or rejected. Defendant argues, citing this Court's opinion in United States v. Goodwin, 927 F.Supp.2d 807 (2013), that the Assimilative Crimes Act (" ACA" ), codified at 18 U.S.C. § 13, applies to this prosecution. Defendant further contends that, because the ACA applies, this Court must apply Rule 6.1(a) of the Arizona Rules of Criminal Procedure and the Arizona appellate courts' decisions interpreting that rule to her case. Defendant argues that Rule 6.1(a) provides a broader right to counsel than that provided by federal law. See Doc. 6 at 3 (" Rule 6.1(a) states the defendant has a right to consult in private with an attorney as soon as feasible after arrest." ). Defendant maintains that, because her right to counsel was violated, the Arizona Supreme Court's decision in McNutt v. Superior Court, 133 Ariz. 7, 648 P.2d 122 (1982) (en banc), which found that a defendant's right to due process could be implicated if a defendant was not allowed to contact counsel when being investigated for DUI, mandates dismissal of all the pending charges. Id. at 3-4.
In the government's written response (Doc. 7) the government takes no position as to whether the ACA applies to this prosecution. The government does assert, however, that Defendant was not denied her Sixth Amendment right to counsel. The government further argues that, even under Arizona law Defendant's right to counsel was not violated because the NPS rangers'
actions were reasonable given that the rangers were timely pursuing ...