State v. Marchiondo

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. JASON MARCHIONDO, Appellant. ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 12/16/10 RUTH WILLINGHAM, ACTING CLERK BY: DLL 1 CA-CR 09-0762 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court of Yavapai County Cause No. P-1300-CR-20090542 The Honorable Tina R. Ainley, Judge AFFIRMED Terry Goddard, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Phoenix and Sheila Polk, Yavapai County Attorney by Tanaaz R. Wheeler, Deputy County Attorney Attorneys for Appellee Gorence & Oliveros, P.C. by Robert J. Gorence and Camp Verde Albuquerque Law Offices of Lee Phillips, P.C. by Lee Phillips Attorneys for Appellant Flagstaff T H O M P S O N, Judge ¶1 Jason Marchiondo appeals his misdemeanor conviction for driving with a drug or its metabolite in his body. He argues to that suppress the trial evidence and judge in erred failing in to denying accord his him motion trial by an eight-person jury. He also argues that the statute under which he is was convicted jurisdiction to facially address invalid. We unconstitutionally only find the no claim vague. that constitutional We the have statute infirmity, is and accordingly affirm. ¶2 of A jury convicted Marchiondo in Seligman Justice Court the misdemeanor offense of driving metabolite was present in his body, in Revised Statutes (A.R.S.) 28-1381(A)(3). his conviction to the affirmed the conviction. Yavapai County while a drug violation of or its Arizona Marchiondo appealed Superior Court, which Marchiondo filed a timely notice of appeal to this court. ¶3 We have jurisdiction of Marchiondo s appeal pursuant to A.R.S. § 22-375(A) (2002). Our jurisdiction, however, is limited to determining the facial validity of the statute at 2 issue. See id.; State v. Russo, 219 Ariz. 223, 225, ¶ 4, 196 P.3d 826, 828 (App. 2009) (citation omitted); State v. Phillips, 178 Ariz. 368, accordingly 370, have no 873 P.2d 706, 708 in this jurisdiction (App. 1994). appeal to We address Marchiondo s claims that the trial court erred in denying his motions to suppress evidence violation of the Fourth that he argued was Amendment and his obtained in Miranda rights, violated his statutory right to trial by an eight-person jury,1 or that the statute was vague as applied to him. ¶4 We have jurisdiction only to See id. address Marchiondo s argument that A.R.S. § 28-1381(A)(3) is void on its face for vagueness. See id. constitutional. We review de novo whether the statute is State v. Mutschler, 204 Ariz. 520, 522, ¶ 4, 65 P.3d 469, 471 (App. 2003). A party challenging a statute s constitutionality must overcome a strong presumption that the statute is constitutional, and we will, if possible, interpret a statute in such construction. 463, 466 a way as to give it a constitutional State v. Kaiser, 204 Ariz. 514, 517 ¶ 8, 65 P.3d (App. obey 2003) a (holding peace that officer neither criminalizing refusal to vague). The person challenging the statute bears the burden of 1 was ordinance overbroad nor Marchiondo has abandoned the constitutional claim he alludes to in the caption to this latter argument by failing to provide any argument in support thereof. See State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989); Ariz. R. Crim. P. 31.13(c)(1)(vi). 3 establishing its invalidity. Russo, 219 Ariz. at 225, ¶ 4, 196 P.3d at 828. A criminal statute is unconstitutionally vague if it give fails notice of to what persons conduct is of average intelligence prohibited, explicit standards for enforcement. and reasonable fails to provide State v. McLamb, 188 Ariz. 1, 5, 932 P.2d 266, 270 (App. 1996). A statute is not void for vagueness simply because it may be difficult to determine how far one can go before the statute is violated. State v. Lefevre, 193 Ariz. 385, 390, ¶ 19, 972 P.2d 1021, 1026 (App. 1998) (citations omitted). ¶5 We follow established precedents and hold that A.R.S. § 28-1381(A)(3) is not void for vagueness on its face. 28-1381(A)(3) expressly provides that It is A.R.S. § unlawful for a person to drive or be in actual physical control of a vehicle in this state . . .[w]hile there is any drug defined in § 13-3401 or its metabolite in the person s body. the drugs defined in A.R.S. § 13-3401. and (20)(w). Marijuana is one of See A.R.S. § 13-3401(19) Accordingly, the statute at issue prohibits a person from driving while he has a metabolite of marijuana in his body. See A.R.S. § 28-1381(A)(3). This statute provides a person of average intelligence reasonable notice that it is a criminal offense to drive with a metabolite of marijuana in one s body, and thus, a person uses marijuana before driving at his own peril. It also provides a bright line standard for 4 enforcement: if a person has metabolites of marijuana in his body at the time he drives a vehicle, he has committed the offense. ¶6 We have repeatedly rejected similar vagueness challenges to the facial validity of A.R.S. § 28-1381(A)(3). In Phillips, we rejected such a challenge to an earlier statute with identical language, reasoning as follows: We fail to see how section 28-692(a)(3) is ambiguous in any way. It precisely defines, in unequivocal terms, the type of behavior prohibited: No one may drive or be in actual physical control of a vehicle if there is any amount of illicit drug or its metabolite in that person s system. None of the statute s terms defy common understanding, and its interpretation is not dependent on the judgment of police officers or prosecutors. The statute gives fair and objective guidelines to both potential offenders and law enforcement personnel that any driver who has ingested a proscribed drug will be subject to prosecution. 178 Ariz. at 371, 873 P.2d at 709 (emphasis in original). Quoting this language, we reiterated in State v. Boyd, 201 Ariz. 27, 31 P.3d 140 (App. 2001) that A.R.S. § 28-1381(A)(3) is not facially vague. See id. at 29, ¶ 12, 30, ¶ 14, 31 P.3d at 142, 143 (holding, however, that the statute was vague as applied in prohibiting the metabolite of a legal, over-the-counter no reason to product). ¶7 issue. Marchiondo has given us revisit this Marchiondo s argument that expert testimony in this case 5 established active that Mr. metabolite Marchiondo s TCH 2 of is bloodstream of no contained consequence to no a determination of whether the statute provides adequate notice, because the statute prohibits a person from driving a vehicle when he has any metabolite of marijuana in his body, whether active or inactive. Ariz. at 371-72, See A.R.S. § 28-1381(A)(3); 873 P.2d at 709-10 (rejecting Phillips, 178 due process challenge, reasoning that the legislature could have rationally determined that impairment necessitated proscribed drugs significance to the in an absence a one s analysis of flat a reliable ban on system. ). of the indicator driving Nor facial is of with any of any of the it validity statute that although Marchiondo conceded that he had taken a puff of marijuana recently, there was no evidence that Mr. Marchiondo was aware that a THC metabolite was present in his bloodstream. A.R.S. § 28-1381(A)(3) by its terms requires no such awareness; it is a strict liability statute. 2 See Boyd, 201 Marchiondo, in any case, is mistaken in his characterization of the testimony. The experts testified that the metabolites found in his urine were inactive, and would have had no pharmacological effect. This court noted in State v. Hammonds, 192 Ariz. 528, 968 P.2d 601 (App. 1998), that the metabolic component of a drug detected in urine is inactive, incapable of causing impairment, but a urine test says nothing conclusively about what is presently in the bloodstream, that is, whether an active component, capable of causing impairment, was simultaneously present in the bloodstream. Id. at 530, ¶ 4, 531, ¶¶ 10, 11, 968 P.2d at 603, 604. 6 Ariz. at 31. ¶ 19, 31 P.3d at 144. The fair notice required by due process is notice that one cannot use an illegal drug and then drive. It is not necessary for due process that the statute define the precise moment for any given person when the metabolites of the illegal drug disappear and it is no longer an offense to drive. See State v. Thompson, 138 Ariz. 341, 344, 674 P.2d 895, 898 (App. 1984) (rejecting vagueness challenge to prohibition against driving with .10 BAC that relied on argument that a person would have no way of knowing when his BAC reached .10). ¶8 For the foregoing reasons, we find no constitutional infirmity and affirm Marchiondo s conviction and sentence. /s/ ________________________________ JON W. THOMPSON, Judge CONCURRING: /s/ _____________________________________ DONN KESSLER, Presiding Judge /s/ _____________________________________ DANIEL A. BARKER, Judge 7 8

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