Crime exception to Arizona anti-marital fact privilege allowed husband to testify in Phoenix Municipal Court as a witness against his wife about her DUI crime arising from the same unitary event as her domestic violence crime against him.
DUI Committed in Same Unitary Event as Domestic Violence
The following circumstances involved what the Arizona Supreme Court described as the same “unitary event” allowing husband to testify as witness for the prosecution against his wife, the defendant, without her consent.
The husband called Phoenix police to report unlawful activity by his wife, the defendant, and her driving under the influence of alcohol. She had been drinking when she attempted to drive away from the marital home in the spouses’ mini-van. The defendant backed into the spouses’ other car which the husband had moved to block the mini-van – his attempt to prevent her from driving away from their residence while intoxicated.
Wife Charged with Domestic Violence and DUI
The Phoenix Municipal Court had jurisdiction. The defendant was charged with one count of criminal damage to their jointly owned vehicles. In Arizona, criminal damage to property owned by a victim-spouse is a domestic violence crime. ARS § 13-1602 and 13-3601(A).
The defendant was also charged with three counts of DUI:
- Impairment to the slightest degree under ARS § 28-1381(A)(1);
- BAC of 0.08 or more under ARS § 28-1381(A)(2); and
- Extreme influence of intoxicating liquor under ARS § 28-1832(A)(1).
The defendant motioned to invoke the anti-marital fact privilege to preclude her spouse from testifying about the DUI charges and to sever those proceedings from the criminal damage charge. The municipal court granted defendant’s pre-trial motions and severed the DUIs. A domestic violence victim, the husband would testify about the criminal damage charge as within the crime exception to the privilege. However, the husband would not testify as a witness to the DUI which was ruled outside the exception.
The superior court affirmed the trial court’s ruling as did the Court of Appeals. The Arizona Supreme Court reversed the ruling and remanded the case.
Anti-Marital Fact Privilege in Arizona Criminal Law
The anti-marital fact privilege “promotes marital peace and harmony” by preventing spouses from testifying against each other in court. Citing State v. Crow, 104 Ariz. 579 (1969). As the spouse charged with the crime, the wife held the privilege which she asserted by pre-trial motion.
Arizona’s statutory anti-marital fact privilege and crime exception are set forth in ARS § 13-4062(1):
A person shall not be examined as a witness in the following cases:
1. A husband for or against his wife without her consent, nor a wife for or against her husband without his consent, as to events occurring during the marriage, nor can either, during the marriage or afterwards, without consent of the other, be examined as to any communication made by one to the other during the marriage. These exceptions do not apply in a criminal action or proceeding for a crime committed by the husband against the wife, or by the wife against the husband…
This testimonial privilege enables a defendant-spouse to “prevent the other spouse from testifying” in a criminal proceeding. Citing Blazek v. Superior Court, 177 Ariz. 535 (App. 1994). Importantly, the anti-marital fact privilege is very narrowly construed because it “presents an obstacle to the truth seeking goal of the justice system.”
As a victim of domestic violence crime allegedly committed by his wife – by criminal damage to jointly held property – husband’s testimony against defendant was allowed as within the exception to the privilege. The issue was whether it would violate the anti-marital fact privilege if husband also testified against the defendant regarding the three DUI charges. Husband was the alleged victim of domestic violence in the criminal damage to the two vehicles, but was not a victim of DUI.
Crime Exception to Anti-Marital Fact Privilege
The long-standing crime exception to the privilege applies in any offense committed by one spouse against the other. Within the crime exception, the husband can testify against the wife in a criminal action or proceeding on the charge committed by his wife against him, and vice versa. See Trammel v. US, 445 US 40 (1980). This exception also allows husband to testify as a witness in the DUI proceedings if within the same unitary event.
Unitary Event Rule in the Whitaker Test
The proper crime exception test to follow is the unitary event rule in State v. Whitaker, 112 Ariz. 537, 544 P2d 219 (1975). In Whitaker, “when a defendant commits a crime ‘against’ his or her spouse and is charged for that crime, the crime exception allows the witness-spouse to testify not only regarding that charge, but also as to any charges arising out of that same unitary event.”
The supreme court held the husband could testify in the DUI proceedings without violating the privilege because the criminal damage offense and DUIs were within the same unitary event under Whitaker. Furthermore, because the crime exception permits husband’s DUI testimony, there is no basis for severing the DUI charged. Reversed and remanded for further proceedings consistent with this opinion.
Phoenix v. Hon. Lowery/Craig, CV-18-0101-PR (Ariz. Dec. 3, 2018)
For precise language, please read the court’s original opinion. Legal citations omitted.
For information about misdemeanor DUI proceedings in municipal court, visit our DUI practice areas.