from the Superior Court in Maricopa County No. LC
2016-000472-001 The Honorable Michael D. Gordon, Judge
Phoenix City Prosecutor's Office, Phoenix By Amy B.
Offenberg Counsel for Petitioner/Appellant
Kazan & Westerhausen, Phoenix By Tracey Westerhausen
Counsel for Respondent/Real Party in Interest
Jennifer B. Campbell delivered the opinion of the Court, in
which Presiding Judge Lawrence F. Winthrop and Judge Paul J.
Phoenix City Prosecutor (the "City") appeals the
superior court's decision affirming two rulings by the
municipal court in favor of Real Party in Interest Claudette
Craig. The City argues the superior court erred when it found
that the anti-marital fact privilege applied to Craig's
driving under the influence charges and when it granted
Craig's motion to sever those charges from a criminal
damage charge. We hold that the anti-marital fact privilege
precludes testimony by one spouse against another regarding
DUI charges and that severance of the criminal damage charge
from the DUI charges was proper. Accordingly, we affirm.
AND PROCEDURAL BACKGROUND
Craig was charged with three counts of driving under the
influence of alcohol ("DUI"), Ariz. Rev. Stat.
("A.R.S.") §§ 28-1381(A)(1) (impaired to
slightest degree), -1381(A)(2) (blood alcohol of .08 or
more), -1382(A)(1) (extreme DUI), and one count of criminal
damage, a domestic violence offense, A.R.S. §§
13-1602, -2601(A). Before trial in the municipal court, Craig
moved to preclude testimony and statements by her husband
regarding the three DUI charges. See A.R.S. §
13-4062(A)(1) (anti-marital fact privilege). Craig also moved
to sever the three DUI charges from the criminal damage
The City responded that Craig's husband had called the
police to say he was concerned that Craig had been drinking
and might attempt to drive. The City claimed he parked one of
the couple's vehicles behind the couple's van to
prevent Craig from driving away in the van. It alleged that,
Craig, intoxicated and undeterred by the car blocking her
way, backed the van out, shoving the other car fifteen feet
down the driveway. When the police arrived, Craig was not in
a vehicle. An officer noted property damage to the van
consisting of a small dent and some scratches on the rear
bumper and a large dent on the front bumper of the other
vehicle. The City argued that the exception to the
anti-marital fact privilege for crimes committed by a wife
against her husband found in A.R.S. § 13-4062(1) applied
to the DUI charges as well as the criminal damage charge. The
municipal court disagreed, severed the criminal damage count
from the DUI counts and precluded Craig's husband from
testifying in the DUI trial.
The City filed a petition for special action. The superior
court accepted jurisdiction but denied relief to the City.
The City appealed to this court.
Craig argues that this court has jurisdiction under A.R.S.
§ 12-2101(A)(1). Section 12-2101(A)(1) confers
"appellate jurisdiction over the superior court's
final judgment in a special action." State v.
Chopra, 241 Ariz. 353, 355, ¶ 8 (App. 2016). The
superior court's ruling, however, does not appear to be a
final judgment within the meaning of A.R.S. §
12-2101(A)(1). See State v. Bayardi, 230 Ariz. 195,
197 n. 4, ¶ 7 (App. 2012). We need not decide this issue
here. This appeal raises an issue of first impression,
see State ex rel. Romley v. Martin, 203 Ariz. 46,
47, ¶ 4 (App. 2002), and there is no equally plain,
speedy, and adequate remedy by appeal, see Ariz.
R.P. Spec. Act. 1(a). We therefore elect to exercise special
action jurisdiction. See Bayardi, 230 Ariz. at 197,
¶ 7 (court sua sponte accepted special action
Accordingly, we review the superior court's ruling on the
applicability of the anti-marital fact privilege for an abuse
of discretion. State v. Whitaker, 112 Ariz. 537, 542
(1975). We review the interpretation and application of
statutes de novo. See State v. Boyston, 231 Ariz.
539, 543, ¶ 14 (2013). The anti-marital fact privilege
provides, in part, that a wife may prevent her spouse from
testifying for or against her regarding any "events
occurring during marriage." A.R.S. § 13-4062(1).
The anti-marital fact privilege does not apply, however, in
"a criminal action or proceeding for a crime committed
by the husband against the wife, or by a wife against the
husband." A.R.S. § 13-4062(1). Craig does not
dispute that her husband can testify about the criminal
damage claim because he is a co-owner of the car, and the
crime therefore, allegedly was committed "against"
him. Craig, however, argues that the criminal damage charge
is the only charge to which the exception to the anti-marital
fact privilege applies and such testimony should be precluded
for the other charged offenses pursuant to the privilege.
The legislative purpose of the privilege is "to support
the peace and tranquility of families and to protect the
marital relation [ship]." Whitaker, 112 Ariz.
at 540. This means that "whether the marital privilege
should be recognized and under what circumstances . . .
involves a determination of the rights and status which flow
from the institution of marriage." State v.
Williams,133 Ariz. 220, 232 (1982). As our supreme
court has recognized, the Arizona Legislature has "made
it clear that it places paramount importance on the marital
relationship and believes the privilege is necessary to
protect that relationship from the strain which would be
placed upon it if spouses were allowed to testify against
each other." Williams, 133 Ariz. at 232;
see also State v. Watkins,126 Ariz. 293, ...