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Leon v. Marner

Court of Appeals of Arizona, Second Division

April 27, 2018

Jorge Leon, Petitioner,
Hon. James E. Marner, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and The State of Arizona, Real Party in Interest.

          Special Action Proceeding Pima County Cause No. CR20174769001

          T.S. Hartzell, Tucson Counsel for Petitioner

          Barbara LaWall, Pima County Attorney By Jacob R. Lines, Deputy County Attorney, Tucson Counsel for Real Party in Interest

          Judge Espinosa authored the opinion of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred.



         ¶1 In this special action, Petitioner Jorge Leon challenges the respondent judge's ruling affirming his conviction, following a jury trial in Pima County Justice Court, for driving or being in actual physical control of a vehicle with an illegal drug or "its metabolite" in his body, in violation of A.R.S. § 28-1381(A)(3). Leon's appeal to the Pima County Superior Court argued the justice court "err[ed] as a matter of law in finding that benzoylecgonine [(BE)], an inactive metabolite of cocaine, satisfied the requirement of a metabolite of a drug as used in [§ 28-1381(A)(3)]" and in its related instructions to the jury. The respondent judge affirmed Leon's conviction, and this special action petition followed. For the following reasons, we accept jurisdiction and grant relief.


         ¶2 Special action review is highly discretionary. State ex rel. Romley v. Fields, 201 Ariz. 321, ¶ 4 (App. 2001). As an initial matter, we note that Leon has no remedy by appeal. See A.R.S. § 22-375 (with exceptions not relevant here, no appeal lies "from the judgment of the superior court given in an action appealed from a justice of the peace or a municipal court"); Ariz. R. P. Spec. Act. 1(a) (special action review not available "where there is an equally plain, speedy, and adequate remedy by appeal"). Accepting jurisdiction is appropriate when the question raised is a purely legal matter of statewide importance, and one on which lower courts appear to require some guidance. See State ex rel. Montgomery v. Harris, 234 Ariz. 343, ¶ 7 (2014) (review granted "because whether § 28-1381(A)(3) applies to non-impairing metabolites presents a recurring issue of statewide importance"); Fields, 201 Ariz. 321, ¶ 4 (special action review appropriate to address recurring legal questions of statewide importance on which lower courts have rendered inconsistent judgments). Because the issue here engages the scope of Harris and appears to be a recurring one that warrants additional guidance, we accept jurisdiction of this special action.

         Factual and Procedural Background

         ¶3 The facts are undisputed. As set forth in the respondent judge's ruling, in May 2015, law enforcement officers were responding to a single-vehicle accident in the median of I-19 when they made contact with Leon, who was standing by his broken-down truck. After conducting field sobriety tests and suspecting impairment, the officers charged Leon with driving under the influence in violation of § 28-1381(A)(1) and (2)[1] and conducted a blood draw. Leon's blood tests were negative for the presence of alcohol, but positive for two drug metabolites, Carboxy-THC[2] and BE. The state eventually amended the charges to replace the count related to alcohol concentration, § 28-1381(A)(2), with a charge under § 28-1381(A)(3), which proscribes driving "[w]hile there is any drug defined in [A.R.S.] § 13-3401 or its metabolite in the person's body."[3]

         Justice Court Proceedings and Jury Trial

         ¶4 Relying on Harris, 234 Ariz. 343, Leon filed a pretrial motion to dismiss the § 28-1381(A)(3) charge, arguing he could not be convicted for the presence of Carboxy-THC, a metabolite of cannabis, or BE, a metabolite of cocaine, because neither metabolite "can cause impairment" and they are instead "by-products of the breakdown of other substances."[4] The justice court denied the motion as to BE, citing the lack of expert testimony "to suggest that a BE metabolite is non-impairing or at what rate it becomes non-impairing."

         ¶5 Leon renewed his argument just before trial, when the justice court was settling jury instructions. He asked the court to include the following instruction:

"Metabolite, " as used in these instructions, means only a metabolite that itself is capable of causing impairment. Thus, to prove a violation of A.R.S. § 28-1381(A)(3) based on metabolites of proscribed drugs, the State must prove beyond a reasonable doubt that any metabolite found in the blood of Jorge Leon while he was driving or in actual physical control of a vehicle is both a metabolite of a proscribed drug AND the metabolite is capable of causing impairment in and of itself.

         The state conceded that BE was a non-impairing metabolite, but it opposed any such instruction, arguing that § 28-1381(A)(3) is a "strict liability" statute and "that the Harris case is expressly limited to Carboxy[-]THC because of the nature of how it metabolizes, whereas cocaine, which is a very fast metabolizing drug, will metabolize very quickly in the system." The court agreed with the state and denied Leon's request, stating it would instruct the jury using the language of the statute, but modified, as urged by the ...

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