License Suspension Notice Arizona Law
In Arizona, a license to operate a motor vehicle is a privilege subject to legislative mandate. State v. Cabrera, 202 Ariz. 296, 299, P13, 44 P.3d 174, 177 (App. 2002).
Among the duties the legislature has placed on licensed operators is that of notifying the Department of any change in address within ten days of such change. 28-448.
It is well-settled in Arizona that actual notice of suspension is unnecessary; that is, a licensee is guilty of driving with a suspended license even if he only should have known that his license was suspended. Jennings, 150 Ariz. at 94, 722 P.2d at 262.
No Arizona case has addressed whether the "should have known" mens rea element for an aggravated DUI can be satisfied by evidence that the Department served notice of the suspension in compliance with 28-3318 by mailing the notice to a licensee's address of record coupled with the licensee's failure to update a change of address as required by 28-448.
Former A.R.S. 28-210(B) (1981), repealed by 1995 Ariz. Sess. Laws, ch. 132, 1, required the Department to send license suspension notices via certified mail. In two previous cases, State v. Rufenacht, 157 Ariz. 10, 754 P.2d 339 (App. 1988), and State v. Allen, 124 Ariz. 500, 605 P.2d 902 (App. 1979), we addressed whether the statutory presumption of receipt of notice would apply when the Department sent notices of suspension by registered or certified mail that were, returned to the Department as "unclaimed."
Because the "unclaimed" and returned notices demonstrated the defendants did not receive the notices, we held that the statutory presumption did not apply. Rufenacht, 157 Ariz. at 11, 754 P.2d at 340; Allen, 124 Ariz. at 502, 605 P.2d at 904.
Accordingly, we then examined whether the defendants nonetheless knew or should have known their licenses were suspended.
In Rufenacht, we held that the trial court was "required to dismiss the felony charge" because no evidence, other than the statutorily compliant mailing, was presented that the defendant "had notice that his license had been suspended." 157 Ariz. at 11, 754 P.2d at 340.
In Allen, on the other hand, we upheld defendant's conviction because the arresting officer had informed defendant during a previous arrest that his license was suspended. 124 Ariz. at 502, 605 P.2d at 904.