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State ex rel. Montgomery v. Rogers

Court of Appeals of Arizona, First Division

June 16, 2015

STATE OF ARIZONA ex rel. WILLIAM G. MONTGOMERY, Maricopa County Attorney, Petitioner,
v.
THE HONORABLE PHILIP ROGERS, Pro Tem Justice of the Peace of the SOUTH MOUNTAIN JUSTICE COURT, in and for the County of MARICOPA, Respondent Justice of the Peace Pro Tem, THE HONORABLE JOHN R. DITSWORTH, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, JOSEPH CALVIN MORGAN, Real Party in Interest

Petition for Special Action from the Superior Court in Maricopa County. LC2014-000307-001 DT. The Honorable John R. Ditsworth, Judge.

Maricopa County Attorney's Office, Phoenix, By Lisa Marie Martin, Counsel for Petitioner.

Nesci & St. Louis, P.L.L.C., Tucson, By Joseph P. St. Louis, Counsel for Real Party in Interest.

Presiding Judge John C. Gemmill delivered the opinion of the Court, in which Judge Kenton D. Jones and Judge Donn Kessler joined.

OPINION

Page 452

GEMMILL, Judge:

[¶1] The State of Arizona filed a Petition for Special Action objecting to a jury instruction proposed by the Real Party in Interest Joseph Morgan and adopted in the underlying case by the South Mountain Justice Court. For the following reasons, we accept jurisdiction and grant relief.

BACKGROUND

[¶2] On February 25, 2012, Morgan was stopped by police for suspicion of driving while under the influence of alcohol. A blood test indicated that Morgan's blood alcohol concentration (" BAC" ) was 0.17 percent within two hours of being in actual physical control of a vehicle. In June 2012, he was charged with three counts of driving or being in actual physical control of a vehicle while under the influence of alcohol (" DUI" ): (1) impaired to the slightest degree, a Class 1 misdemeanor under Arizona Revised Statutes (" A.R.S." ) section 28-1381(A)(1) (" DUI-impaired" ); (2) DUI with a BAC of 0.08 percent or more, a Class 1 misdemeanor under A.R.S. § 28-1381(A)(2) (" per se DUI" ); and (3) extreme DUI with a BAC of 0.15 percent or more, a Class 1 misdemeanor under A.R.S. § 28-1382(A)(1) (" extreme DUI" ). In June 2013, a jury acquitted Morgan of extreme DUI, but was unable to reach a verdict on either of the other two charges.

[¶3] The State intends to retry Morgan on the first two charges: DUI-impaired and per se DUI. Prior to the retrial, Morgan moved to suppress the blood test result showing that his BAC was 0.17. Morgan argued that the jury's acquittal on extreme DUI " necessarily determined that the blood test did not demonstrate that he had a BAC over .15." The justice court denied the motion to suppress,

Page 453

but directed the parties to draft a limiting instruction regarding the proper use of evidence of the blood test result. Ultimately, the justice court adopted Morgan's proposed limiting instruction, ruling that the jury in the second trial would be instructed as follows:

The Court has admitted a purported blood alcohol result of .170 in this case. That result has been admitted for the limited purpose of helping you to determine whether the Defendant's blood alcohol concentration was in excess of .08% within two hours of him being in actual physical control of a motor vehicle, as a result of alcohol consumed before or while being in actual physical control of a motor vehicle.
It has been previously determined that this evidence does not prove beyond a reasonable doubt that the Defendant had an alcohol concentration of .15 or above within two hours of him being in actual physical control of a motor vehicle, as a result of alcohol consumed before or while being in actual ...

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