An Arizona legislator has made news in recent months for loudly and obnoxiously flaunting his “immunity” from prosecution for repeatedly violating Arizona’s criminal speeding statute, A.R.S. § 28-701.02, which criminalizes speeding over 85 m.p.h. on highways across the state (you can also be cited/arrested for criminal speeding by exceeding 35 m.p.h. in a school crossing zone, exceeding the posted speed limit by 20 m.p.h. in a business or residential zone, or by going over 45 m.p.h. in a business or residential zone if there is no posted speed limit). Violating the Excessive Speeding statute is a Class 3 misdemeanor for us plebeians, punishable by up to 30-days in jail, 1-year of supervised probation, and up to a $500 fine plus surcharges ($920 with the standard 84% surcharge).
Rep. Paul Mosley, a Republican (you know, the “law and order party,” the “what don’t you understand about ‘illegal?’ party,” etc.) from Lake Havasu City was popped by an Arizona Department of Public Safety Officer (I refuse to call them “Troopers” until they start wearing those white plastic helmets like they do in Star Wars) for going 97 m.p.h. in a 55 m.p.h. zone in La Paz County, apparently on his way home from Phoenix. Since 97 m.p.h. is more than the Excessive Speed limit of 85 m.p.h. on the highway, Rep. Mosley should have to face the music like you, I, or Sammy Hagar would, right? Wrong.
Rep. Mosley smugly told the Officer that he had “legislative immunity,” and couldn’t be cited for speeding. He then went on to brag about going even faster than 97 m.p.h. (140 m.p.h. to be exact) previously, ON VIDEO!
The legislative immunity Rep. Mosley spoke of is in Article IV, Section 6 of the Arizona Constitution, which states, “[m]embers of the legislature shall be privileged from arrest in all cases except treason, felony, and breach of the peace, and they shall not be subject to any civil process during the session of the legislature, nor for fifteen days next before the commencement of each session.”
Apparently, back in the day, both in Arizona and nationwide, political opponents of sitting legislators would have their goons (elected and un-elected) arrest the legislators before they could vote on certain pieces of legislation at the state house, or in Congress. Granting legislative immunity from all but the most serious crimes eliminated the possibility of arrest and delay (or absence).
Here’s where it gets interesting, the Arizona Constitutional clause at issue here provides immunity from “arrest in all cases except treason, felony, and breach of the peace…” (emphasis supplied.) In most cases, at least in cases with previous clients of mine that have been stopped for Excessive Speeding, the officer writes a citation in lieu of arrest for the offense. Nothing would seem to have prevented the Officer from doing just that with Rep. Mosley on the day of the offense here. Secondly, while it’s clear that Excessive Speeding is a misdemeanor and NOT a felony (it’s not a treasonous offense either), could Excessive Speeding be considered a “breach of the peace?”
The term, “breach of the peace,” pops up a couple of times in the Arizona Revised Statutes, most applicably here in A.R.S. § 13-3884, Arrest by a private person (don’t worry, I’ll tie this stuff together!). This statute allows arrests by private persons, “[w]hen the person to be arrested has in his presence committed a misdemeanor amounting to a breach of the peace, or a felony” (emphasis supplied.) A 2002 Arizona Court of Appeals case discussing A.R.S. § 13-3884, State v. Chavez, held that misdemeanor DUI constituted a “breach of the peace,” rejecting Chavez’s argument that breach of the peace was limited to what made up disorderly conduct (essentially, “disturbing the peace”) under Arizona law citing the phrase’s common law roots, and noting that “other jurisdictions have held, and legal treatises recognize, that dangerous or reckless driving, including DUI, amounts to a breach of the peace . . .”
It would not be a stretch for an Arizona Court to take the not-so-far-leap of equating “dangerous or reckless driving” with Excessive Speeding, especially in a case such as Rep. Mosley’s, where his speed was far in excess of the posted limit of 55 m.p.h., and was only 3 m.p.h. slower than triple digits.
Only after the bad press that Rep. Mosley and the Arizona Legislature received in the aftermath of Rep. Mosley’s non-arrest for Excessive Speeding, in this election year, Arizona Governor Doug Ducey issued an Executive Order that empowers law enforcement agencies to issue citations to (and, I guess, arrest) legislators for excessive speeding, reckless driving, and DUI, equating them all to “breaches of the peace.”
Ultimately, this issue will (maybe) some day, be challenged in the courts and ultimately brought before an appellate court that will (finally) put the issue to rest. However, even if I had a legislator for a client in such a case, trying to convince the court that Excessive Speeding is not a “breach of the peace,” especially in light of the Arizona Court of Appeals’ decision in Chavez, and Ducey’s Executive Order, would be a formidable, uphill battle.