Leon v. Marner

Citation421 P.3d 664
Decision Date27 April 2018
Docket NumberNo. 2 CA-SA 2018-0007,2 CA-SA 2018-0007
Parties Jorge LEON, Petitioner, v. 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.
CourtArizona Court of Appeals

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, 35 P.3d 82 (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, 322 P.3d 160 (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, 35 P.3d 82 (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-THC2 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, 322 P.3d 160, 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 state, to replace "any drug defined in § 13-3401 or its metabolite" with "[BE], a metabolite of cocaine."5

¶ 6 At trial, a forensic scientist for the Arizona Department of Public Safety testified Leon’s blood sample contained BE, "one of the main metabolites of cocaine." She explained that cocaine metabolizes rapidly, would remain present in someone’s blood for "just a few hours," and continues to metabolize after blood is drawn. In contrast, she said BE, as a metabolite of cocaine, would be detectable for "about a day," or, in the case of "chronic heavy binges," "up to ... five days." She explained cocaine is a stimulant drug that has multiple effects; BE, in contrast, is "an inactive metabolite, which means it’s not having any effect on the body."

¶ 7 In moving for acquittal pursuant to Rule 20, Ariz. R. Crim. P., Leon’s attorney argued, "Because of the jury instruction on the [ § 28-1381(A)(3) charge], I must concede that there is substantial evidence to go to the jury," but added, "I would disagree with the jury instruction and I believe it doesn’t accurately state the law[ ] that now stands." With respect to the § 28-1381(A)(3) charge, the justice court instructed the jury:

The State has charged the Defendant with driving or being in actual physical control of a motor vehicle within the State while there is BE in the Defendant’s body.... The central elements that the State ... must prove are:
1. The Defendant was driving [or in] actual physical control of a motor vehicle.
2. This occurred within Pima County, Arizona, at or near the vicinity and on ... or about the time alleged in the Complaint.
3. That at the time of the driving o[r] being in actual physical control of the vehicle, a drug [BE], a metabolite of cocaine[,] was in the Defendant’s body.

The jury acquitted Leon of driving under the influence of alcohol or drugs while impaired to the slightest degree, see § 28-1381(A)(1), but convicted him of the § 28-1381(A)(3) charge.

Appeal to Superior Court

¶ 8 Leon appealed from his conviction, again relying on our supreme court’s decision in Harris . He argued the trial court had erred as a matter of law in rejecting his proposed instruction and "in ruling that a non-impairing metabolite of a drug satisfied the prohibition of [ § 28-1381(A)(3) ]," thereby resulting in his wrongful conviction under that section of the statute. In its answering brief on appeal, the state again characterized Harris as "a narrow decision addressing only Carboxy-THC." It argued BE is distinguishable because "[c]ocaine is quickly metabolized directly into BE" and Carboxy-THC "is a second metabolite of THC and can stay in a person’s body for as many as twenty-eight to thirty days."6

¶ 9 In affirming Leon’s conviction, the respondent judge concluded the justice court had not erred in rejecting Leon’s proposed jury instruction or "in ruling that the prohibition of the statute is satisfied by a non-impairing metabolite of a drug." The respondent further concluded the court’s final jury instructions "did not misstate the law or the statute." Citing "distinctive" features of BE and this court’s decision in State v. Werderman , 237 Ariz. 342, 350 P.3d 846 (App. 2015), the respondent reasoned "[t]he ruling in Harris is narrow as it pertains to Carboxy-THC, and cannot simply be extended to include" BE "despite it also being a non-impairing metabolite."7

¶ 10 In his petition for special action relief, Leon argues the respondent judge "perpetuated [the] error" of the justice court by upholding his conviction, pursuant to § 28-1381(A)(3), for driving while BE, a non-impairing metabolite of cocaine, was present in his body. In response, no longer relying on the authorities it cited in the courts below, the state argues the holding in Harris "should not be extended to BE because of the numerous differences between BE and Carboxy-THC."


¶ 11 Special action relief is available for a respondent’s abuse of discretion, Ariz. R. P. Spec. Act. 3(c), and a court abuses its discretion if it commits an error of law, City of Tucson v. Clear Channel Outdoor, Inc. , 218 Ariz. 172, ¶ 58, 181 P.3d 219 (App. 2008). We review a decision to give or refuse a requested jury instruction for an abuse of discretion. State ex rel. Thomas v. Granville , 211 Ariz. 468, ¶ 8, 123 P.3d 662 (2005). But we review de novo whether a jury instruction accurately reflects the law, reading the instructions as a whole to determine whether the jury received the information needed to arrive at a legally correct decision. Id. Thus, we will not reverse a conviction for an erroneous ruling on jury instructions "unless we can reasonably find that the instructions, when taken...

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