STATE v. HON. HARRIS/SHILGEVORKYAN

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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, ex rel. WILLIAM G. MONTGOMERY, Maricopa County Attorney, ) ) ) ) Petitioner, ) ) v. ) ) THE HONORABLE MYRA HARRIS, ) Commissioner of the SUPERIOR ) COURT OF THE STATE OF ARIZONA, ) in and for the County of ) MARICOPA, ) ) Respondent Commissioner, ) ) HRACH SHILGEVORKYAN, ) ) Real Party in Interest. ) __________________________________) DIVISION ONE FILED: 11/08/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-SA 12-0211 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Petition for Special Action from the Superior Court in Maricopa County Cause No. LC2011-100433-001DT The Honorable Myra Harris, Commissioner JURISDICTION ACCEPTED; RELIEF GRANTED William G. Montgomery, Maricopa County Attorney By Andrea L. Kever, Deputy County Attorney Attorneys for Petitioner Phoenix Kimerer & Derrick, P.C. By Michael Alarid, III Attorneys for Real Party in Interest Phoenix B R O W N, Judge ¶1 In superior court s decision this special order granting action, affirming the the Defendant s State Arcadia motion challenges Justice to the Court s dismiss for insufficiency of the State s complaint under Arizona Rule of Criminal Procedure 16.6(b). For the following reasons, we disagree that the complaint was insufficient. BACKGROUND ¶2 On December 11, 2010, Hrach Shilgevorkyan ( Defendant ) was pulled over by Deputy Powe of the Maricopa County Sheriff s Office. Powe noticed Defendant had slurred speech, bloodshot eyes, and a flushed face. Defendant admitted to smoking weed but did not specify when that occurred. then took Defendant to the command post for processing Powe and eventually Defendant agreed to submit to a blood test, which revealed a concentration of 8ng/ml of Carboxy- Tetrahydrocannabinol ( Carboxy-THC ). ¶3 Powe filed an Arizona Traffic Ticket and Complaint 1 in the justice court, charging Defendant with two counts of driving 1 We take judicial notice of the complaint, which is part of the superior court s record. See City of Phoenix v. Superior 2 under the influence, in violation of Arizona Revised Statutes ( A.R.S. ) section Defendant had 28-1381 violated (2012). § Count 28-1381(A)(3) B based alleged on that Drugs. 2 Defendant moved to dismiss the complaint, asserting it would be impossible because for him to be found guilty Hydroxy-Tetrahydrocannabinol under § 28-1381(A)(3) ( Hydroxy-THC ), metabolite of marijuana, was not found in his blood. opposed the motion, asserting that Carboxy-THC the The state is also a metabolite of marijuana and thus falls within the scope of § 281381(A)(3). presented Hydroxy-THC After an evidentiary hearing in which the State expert testimony and Carboxy-THC, motion to dismiss. as to the the court differences granted between Defendant s The State appealed to the superior court. 3 Court In & For Maricopa County, 110 Ariz. 155, 157, 515 P.2d 1175, 1177 (1973). 2 Count A alleged Defendant drove while impaired to the slightest degree in violation of § 28-1381(A)(1). The State dismissed Count A prior to the appeal. Regarding Count B, § 281381(A)(3) provides that [i]t is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances: (3) While there is any drug defined in section 13-3401 or its metabolite in the person s body. (Emphasis added.) 3 Prior to appealing to the superior court, the State filed a motion for reconsideration. For the first time, the State brought State v. Phillips, 178 Ariz. 368, 873 P.2d 706 (App. 1994) and State v. Hammonds, 192 Ariz. 528, 968 P.2d 601 (App. 1998) to the justice court s attention. In light of these authorities, the judge stated, I would have reversed myself on the merits once I heard the appellate court cases that involved carboxy. I think I made a mistake on this. However, the judge 3 ¶4 After submission of briefs, the superior court affirmed the dismissal of Count B, concluding the justice court did not err. The court determined the statute was ambiguous because there was significant argument about whether the term metabolite is singular or plural. The court recognized it was permitted to interpret the singular form in the plural to overcome the ambiguity, but declined to do so. Instead, the court reasoned that the State had not shown the legislature necessarily intended to include all possible derivatives of drugs particularly inactive end products that no longer affect an individual. ¶5 The court then turned more specifically to Carboxy-THC and found it was a metabolite of marijuana. Finding that the legislature did not intend to include Carboxy-THC within the term its metabolite, the court relied on the State s expert, who testified Carboxy-THC was not psychoactive and could take up to four weeks to completely evacuate the body. Additionally, the court rejected the State s reliance on State v. Hammonds and State v. Phillips and focused on the inactive nature of CarboxyTHC. The court therefore concluded that the the legislature did not intend for the term metabolite to include more than the declined to reconsider, finding there was no longer jurisdiction because of the State s appeal to the superior court. 4 single active metabolite [H]ydroxy THC. The State then filed its petition for special action to this court. SPECIAL ACTION JURISDICTION ¶6 is Special action review seeks extraordinary relief and therefore highly discretionary. State ex rel. Romley v. Fields, 201 Ariz. 321, 323, ¶ 4, 35 P.3d 82, 84 (App. 2001). Because this appears the exercise of case involves State our has no a pure adequate discretion we question remedy accept of by law, and in appeal, it the jurisdiction. 4 See Chartone, Inc. v. Bernini, 207 Ariz. 162, 165-66, ¶¶ 8-9, 83 P.3d 1103, 1106-07 (App. 2004); Ariz. R.P. Spec. Act. 1(a) (2012). DISCUSSION ¶7 Arizona Rule of Criminal Procedure 16.6(b) requires that a complaint be dismissed if, on a motion by a defendant, the court finds that the charging document is insufficient as a matter of law. Ariz. R. Crim. P. 16.6(b). Our supreme court has held that [i]f a defendant can admit to all the allegations 4 Defendant argues the State has an equally plain, speedy, and adequate remedy by appeal under A.R.S. § 12-2101(A)(1). It does not appear, however, that we would have appellate jurisdiction over the superior court s order in this case. See A.R.S. § 22-375(B) ( [T]here shall be no appeal from the judgment of the superior court given in an action appealed from a justice of the peace or a police court. ). In any event, because we have elected to accept jurisdiction under our discretionary authority, we need not address Defendant s contention. 5 charged in the [complaint] and still not have committed a crime, then the [complaint] is insufficient as a matter of law. Mejak v. Granville, 212 Ariz. 555, 556, ¶ 4, 136 P.3d 874, 875 (2006). ¶8 Here, it is undisputed that Carboxy-THC is a metabolite of marijuana and was the only metabolite found in Defendant s blood. Defendant s sole contention is that he can admit to all the allegations in the State s complaint for Count B and still not be convicted because Carboxy-THC is not included in the phrase its metabolite found in A.R.S. § 28-1381(A)(3). We disagree. ¶9 Our legislature has determined that it is unlawful for a person to drive a vehicle while there is any drug, as defined in A.R.S. § 13-3401, or its metabolite in the person s body. A.R.S. § 28-1381(A)(3). This statutory prohibition was enacted as part of Arizona s comprehensive law regulating drivers under the influence of intoxicating liquor or drugs ( DUI ) and designed to protect the public by reducing the terrible toll of life and limb on our roads. 371, 873 omitted). P.2d 706, 709 State v. Phillips, 178 Ariz. 368, (App. 1994) (internal quotations To effectuate this legislative intent, this court has broadly construed A.R.S. § 28-1381(A)(3) and upheld it against several constitutional challenges. ¶10 In validity of Phillips, A.R.S. § the defendant 28-692(A)(3) 6 challenged (1994) (now the A.R.S. facial § 28- 1381(A)(3)), overbroad. arguing it was unconstitutionally 178 Ariz. at 370, 873 P.2d at 708. vague and We disagreed and noted the legislature intended to create a per se prohibition and a flat ban on driving with any proscribed drugs in one s system. Id. at 372, 873 P.2d at 710 (emphasis added). This flat ban extended to all substances, whether capable of causing impairment or not. As a result, we concluded that the statute precisely defines, in unequivocal terms, the type of behavior prohibited[.] Id. at 371, 873 P.2d at 709. The defendant also argued the statute could not withstand any level of scrutiny under the equal protection clause. Id. We rejected that argument as well, concluding the legislature was reasonable in determining that there is no level of illicit drug use which can be acceptably combined with driving a vehicle. P.2d at 710. Id. at 372, 873 To buttress our conclusion, we emphasized the compelling legitimate interest the state has to protect the public from impaired driving because the potential for lethal consequences is too great. Id. It was thus reasonable for the legislature to create this statutory flat ban. this interpretation of the constitutionality of § 28-692(A)(3). ¶11 statute, we Id. Based on upheld the Id. Similarly, in State v. Hammonds, 192 Ariz. 528, 530, ¶ 6, 968 P.2d 601, 603 (App. 1998), we were presented with another constitutional challenge to A.R.S. § 28-692(A)(3). 7 In that case, the defendant displayed symptoms of intoxication and was arrested for DUI. Id. at ¶ 2. alcohol the concentrations, After tests revealed low arresting officers suspected drug use and asked the defendant to provide a urine sample, which he did. Id. at ¶¶ 3-4. The sample revealed the presence of Carboxy-THC as well as metabolites of the prescription drug, Soma. Id. at ¶ 4. counts of DUI. The State charged the defendant with two Id. at ¶ 5. As relevant here, Count 2 was premised on driving with a drug or its metabolite in the body. Id. A jury acquitted the defendant of Count 1, driving while impaired, but appealed, arguing clause. convicted the him on statute Count violated Id. the at equal ¶ 6. He protection Id. ¶12 Using the rational basis test, we held the statute did not violate the equal protection clause. P.2d 2. at 606. We reiterated our Id. at 533, ¶ 17, 968 court s broad statement in Phillips that the statute created a flat ban on driving with any proscribed substance in the body, whether capable of causing impairment or not. Id. at 531, ¶ 9, 968 P.2d at 604. We also found other cogent reasons for broadly interpreting the ban on drug use while driving. Id. at ¶ 10. For example, we noted, based on the expert s testimony, that metabolic rates differ from drug to drug and that the presence of an illicit drug s metabolite [whether active or 8 inactive] establishes the possibility of the presence of the active, impairing component of the drug. legislature metabolite Id. This fact, we concluded, justifies the banning entirely present. Id. at the ¶ right 11. to drive Moreover, with in any affirming Hammonds conviction on Count 2, we found it was irrelevant to determine precisely which metabolite evidence the jury relied on to convict Hammonds because, regardless, the conviction [under the statute was] Carboxy-THC. ¶13 sustainable for the marijuana metabolite, Id. at 530 n.2, ¶ 6, 873 P.2d at 603 n.2. Although these cases do not directly interpret the phrase its metabolite, they stand for the proposition that § 28-1381(A)(3) must be interpreted broadly to appropriately effectuate the purpose and legislative intent underpinning the statutory language. We follow this established precedent and hold that § 28-1381(A)(3) s provision prohibiting driving with a proscribed drug or its metabolite includes the metabolite Carboxy-THC. ¶14 Our holding is consistent with A.R.S. § 1-214(B) (2012), which allows us to interpret [w]ords in the singular number [to] legislative include intent. the plural Estate of in order McGill ex to rel. effectuate McGill v. Albrecht, 203 Ariz. 525, 529, ¶ 11, 57 P.3d 384, 388 (2002) (explaining that § 1-214(B) is a permissive statute and allows us to interpret the singular as 9 the plural when such an interpretation enable Defendant intent. ). will has us carry cited, not to nor out has legislative our research revealed, any authority suggesting the legislature intended that § 28-1381(A)(3) be construed only in the singular number. A.R.S. § 1-214(B). erred as a matter See We therefore conclude the superior court of law in concluding Carboxy-THC was not included in the phrase its metabolite. CONCLUSION ¶15 For the foregoing reasons, we reverse the superior court s order dismissing Count B of the State s complaint and remand to the superior court for further proceedings. /s/ _________________________________ MICHAEL J. BROWN, Presiding Judge CONCURRING: /s/ ___________________________________ ANDREW W. GOULD, Judge /s/ ___________________________________ DONN KESSLER, Judge 10

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