A Mesa military man heading to Iraq on Thursday must decide if his drunkendriving trial should wait until he comes home in 18 months, or if it should go on without him.

Michael Denofre, an Army National Guardsman, contends he was simply sleeping in an idling truck to avoid arguing with his wife — not driving it drunk.

His trial is scheduled to begin Dec. 14 in Maricopa County Superior Court. If convicted, he would be dishonorably discharged.

Standing trial in absentia would mean passing on the chance to take the stand, or he can try and postpone it until his return. Either choice is unfair, his attorney said.

"If I continually move (for postponement) for a year and a half, is that still a fair and speedy trial," said defense attorney Bethany Jacobs.

The 30-year-old supply sergeant from Mesa-based 1/ 180th Field Artillery Unit, is going to trial because he contends he did not drive Feb. 5 when Mesa police arrested him outside his wife’s house. He was found behind the wheel of his truck drunk, asleep, surrounded by empty beer cans and with the engine running.

Denofre’s defense is that he slept in the truck to avoid arguing with his wife and ran the engine to run the heater to keep warm.

Denofre’s wife says in a sworn affidavit that he went outside about 2 a.m. She checked on him an hour later and saw him sleeping.

"At no point during the evening did I see or hear Michael move the vehicle," she wrote.

According to a police report, an officer shined his spotlight on the truck’s cab and saw someone slumped over in the driver’s seat.

When the officer opened the door and spoke to Denofre, he got no response until he nudged him.

Jacobs asked the court to dismiss the charge on grounds that the law allows a drunken driver to pull off the road without fear of being considered in "actual physical control" of the vehicle.

Denofre was asleep, the headlights were off, the radio was off, the heater was on and he was parked near the sidewalk, Jacobs said.

"Staff sergeant Denofre chose the right path," Jacobs wrote in court documents. "He chose not to try and drive home and endanger himself and others in the process."

Deputy Maricopa County attorney Jerald Hale argued in court documents that the truth of those facts are for a jury, not the judge, to decide, so the case shouldn’t be dismissed.

Earlier this year, a Scottsdale police officer was suspended from duty but not charged with drunken driving after he was found passed out inside his running vehicle parked in front of the police station.

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