PHOENIX -- Arizonans will not get to vote whether they want to preserve the right of a jury trial for those charged with drunk driving.
Attorney Clifford Girard told Capitol Media Services on Friday they will be unable to gather the necessary 86,405 signatures to put the question on the 2012 ballot by Tuesday's deadline. The failure means that a new law stripping defendants of that right will take effect as scheduled this coming Wednesday.
But Girard said that is not the end of the fight. He promised to challenge the new law, arguing the Legislature is ignoring constitutional rights.
Sen. Linda Gray, R-Glendale, who ushered the change through the Legislature, said there is no reason for the time and expenses of a jury trial for what, in the broad scheme of criminal laws, is a relatively minor offense.
Girard, whose practice includes representing those accused of breaking the drunk-driving law, said he and Tucson attorney Stephen Barnard initially tried to use volunteers to gather the signatures to refer the issue to the ballot. Girard said he quickly learned that doesn't work.
"You can't do it unless you use paid circulators," he said.
"So many volunteers meant well," Girard explained. "But when it came down to it, they didn't have the time."
A last-minute bid to get funding to hire circulators, he said, fell short.
Girard said, though, there is reason to believe that the measure could be overturned.
Generally speaking, Arizona courts have said jury trials are required only for any crime that carries a penalty of more than six months in jail. But the state's high court has said a defendant is entitled to demand a trial by jury for any offense where trial by jury was considered a matter of right under common law when Arizona became a state.
In this case, he said, driving while intoxicated could be considered a version of the common law crime of breach of the peace. And Girard said anyone charged with that in territorial days was entitled to a jury trial.
Girard said he expects some sort of test case to take that question to the Arizona Supreme Court.
Nothing in the new law alters the right to a trial by jury for repeat offenders, or those charged with "extreme" DUI, those with a blood-alcohol content of at least 0.15. A person is generally presumed to be legally intoxicated in Arizona with a BAC of 0.08.
Jury trials also are entitled to those charged with "aggravated" DUI. That covers those driving drunk while a license is suspended, someone who is supposed to have an ignition interlock, or if there is someone younger than 15 in the vehicle.
The change is law is part of a far-reaching measure approved by lawmakers earlier this year dealing with drunken-driving suspects.
One reduces the amount of time that those convicted are permitted to drive only a vehicle equipped with an ignition interlock. That device prevents the vehicle from starting if a breath sample shows intoxication.
Another eliminates the requirement for anyone convicted of simple drunken driving to serve at least 24 consecutive hours in jail. The law as of Wednesday will read "one day," which could mean simply being locked up overnight.
The referendum drive did not seek to overturn those provisions.