The Arizona Marital Privilege Statute
Under Arizona Law, specifically A.R.S.13-4062, a spouse cannot testify against their husband or wife without their consent as to events or communications between them which occurred during their marriage. Exceptions to this rule exist in criminal actions or proceedings for crimes committed by the husband against the wife, or by the wife against the husband and in criminal actions or proceeding against the husband for abandonment, failure to support or provide for, or failure or neglect to furnish the necessities of life to the wife or the minor children.
The Marital Privilege As Applied to Arizona DUI Prosecutions
Recently, the Arizona Supreme Court addressed the issue of one spouse being forced to testify against the other in a DUI prosecution. The case involved a person who was arrested for damaging her husband's property and for DUI. The defendant sought to prevent her husband from being forced to testify against her with respect to any alleged drinking, driving and DUI.
Our State Supreme Court recognized that husbands and wives can generally prevent their spouses from testifying against them in criminal prosecutions except under certain circumstances. One of those exceptions exist in situations where the testifying spouse is actually the victim of the crime for which the other is being prosecuted. In this case, the court held that the marital privilege did not apply because the criminal damage offense and the DUI occurred within one continuing incident. Consequently, the victim spouse was required to testify concerning the entire incident, including the criminal damage offense and the DUI charge.
Given this decision, it appears that a spouse can be prevented under the Marital Privilege statute from being forced to testify against their husband or wife in DUI cases if a DUI offense is the only crime which is being prosecuted. In this situation, spouses can be precluded from testifying about their husband or wife's drinking, driving behavior, statements, performance on field sobriety tests, etc.
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