While the Sixth Amendment gives us the right to a trial by jury when accused of a criminal offense, this right is not absolute. The U.S. Supreme Court held that a defendant generally does not have a right to jury trial for petty offenses where the maximum penalty does not exceed six months incarceration. Even if the penalty is five years probation and a five thousand dollar fine, this is still considered a petty offense for the purposes of determining whether a defendant has a right to a jury trial. Additionally, if a defendant is charged with multiple petty offenses and faces an aggregate sentence of more than six months, there is still no constitutional right to jury trial.

States are generally free to give their citizens greater rights under their state constitutions and statutes than those contained in the U.S. Constitution. Most states, including Arizona, either give a judge discretion to grant a jury trial for certain categories misdemeanors, or grant statutory or constitutional rights to jury trials for certain offenses, even if those offenses carry a penalty of less than six months.

In Arizona, under A.R.S. 28-1381(f) a defendant has the right to request a jury trial, at arraignment, when charged with DUI. This is a statutory right for all defendants charged with DUI, even if the maximum penalty is less than six months incarceration.

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A defendant in Arizona may have a right to a jury trial for some other misdemeanors with penalties of less than six months incarceration. Under the Arizona Constitution, defendants also have a right to a jury trial when accused of any crime for which a right to jury trial was guaranteed pre-statehood. For example, the Court held that a defendant accused of operating an illegal poker game was entitled to a jury trial because pre-statehood, defendants charged with maintaining a gambling house had a right to jury trial. The Court determined that the elements of the modern crime of “operating an illegal poker game” were essentially the same as the pre-statehood crime of “maintaining a gambling house.”

The Court has also held that defendants charged with reckless driving in Arizona have a right to a jury trial because pre-statehood, those charged with “operating a motor vehicle so as to endanger any property or individual” had a right to a jury trial. However, the Court held that the crime of “drag racing” was not similar enough to this pre-statehood statute to guarantee the defendant a jury trial. The Court has also extended the right to jury trials to shoplifting offenses, because this was also a crime for which a jury trial was guaranteed pre-statehood.

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Therefore, in Arizona, you may have a right to a jury trial for misdemeanors with penalties less than six months if it is statutorily mandated, as with DUIs, or if there was a right to a jury trial for that crime pre-statehood, such as reckless driving or shoplifting. You would also have a right to a jury trial if the maximum period of incarceration exceeded six months, as guaranteed by the U.S. Constitution. You may also have a right to a jury trial if the Arizona courts have determined that the other consequences of a particular crime are “serious” even though the period of incarceration is less than six months. For example, the Court held that if a defendant would be required to register as a sex offender if convicted, but did not face jail time, this was still a serious consequence and the defendant was entitled to a jury trial. The loss of a driving license or liquor license, however, is not a serious enough consequence alone to entitle a defendant to a jury trial.

If a defendant requests a jury trial on the basis of “serious consequences” the Court will only look at possible consequences that would be consequences for anyone convicted of the crime, not just that particular defendant, therefore the potential loss of a professional license will not be grounds for granting a jury trial. For the purposes of determining eligibility for a jury trial, the Court also does not look at consequences that are not mandated by law, such as harm to reputation.

The highest court in New York recently held that if a defendant could be deported upon conviction, this was a severe consequence and therefore the defendant was entitled to a jury trial, even though the maximum penalty for the defendant’s domestic violence charge was three months incarceration. While the penalty of deportation is severe, it is not a criminal penalty and the penalty would not apply to everyone convicted of the same crime, so this could be a difficult argument to make under current Arizona law. Still, given the ever-increasing likelihood of severe immigration consequences resulting from minor criminal offenses, this will be a point of contention in many states.

Whether or not to request a jury trial is a strategic decision that usually needs to be made very soon after an arrest. If you are facing misdemeanor criminal charges, an experienced criminal defense attorney can advise you as to whether a jury trial is best for your particular circumstances.