                                 IN THE
             ARIZONA COURT OF APPEALS
                              DIVISION ONE


 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.

                           No. 1 CA-SA 15-0058
                             FILED 6-16-2015


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


           JURISDICTION ACCEPTED, RELIEF GRANTED


                                COUNSEL

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
       STATE v. HON ROGERS/HON DITSWORTH/MORGAN
                      Opinion of the Court


                                 OPINION

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


G E M M I L L, 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, 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


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        STATE v. HON ROGERS/HON DITSWORTH/MORGAN
                       Opinion of the Court

       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 physical
       control of a motor vehicle.           You shall accept this
       determination as a fact.

¶4             The State filed a petition for special action in Maricopa
County Superior Court, challenging the justice court’s order adopting the
limiting instruction. The superior court denied relief under the State’s
petition, ruling that the justice court may utilize the “previously prepared”
limiting instruction. The superior court also granted the State’s motion to
stay the retrial, to allow the State to file a special action with this court.

                   SPECIAL ACTION JURISDICTION

¶5             Special action review, rather than appellate review, of a
special action decided by a superior court is appropriate when there is no
equal or adequate remedy on appeal. Ariz. R.P. Spec. Act. 8(a); see also Stant
v. City of Maricopa Emp. Merit Bd., 234 Ariz. 196, 200, ¶ 12 (App. 2014)
(explaining that Rule 8 “gives our court procedural flexibility to expedite
our review of a superior court’s special action decision, either by processing
the case as an ordinary appeal, a modified appeal, or a special action”). This
court’s decision to accept special action jurisdiction is discretionary, and the
exercise of jurisdiction is appropriate when the issue involved is one of law
and of statewide importance. See Andrade v. Maricopa Cnty. Super. Ct., 183
Ariz. 113, 115 (App. 1995).

¶6            Here, if the jury is erroneously instructed as to the reliability
of the BAC test, the State has no adequate remedy by appeal. Moreover,
whether this intended jury instruction is appropriate is a question of law
and does not turn on the resolution of disputed facts. For these reasons,
and in the exercise of our discretion, we accept special action jurisdiction to
address the substantive question presented.




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        STATE v. HON ROGERS/HON DITSWORTH/MORGAN
                       Opinion of the Court

¶7            When reviewing a special action initiated in a superior court,
we conduct a two-part review. Hamilton v. Mesa Mun. Ct., 163 Ariz. 374, 377
(App. 1989). First, we consider whether the superior court erred in
accepting jurisdiction, and second, we consider the superior court’s
decision on the merits. Id. We conclude that the superior court did not
abuse its discretion by accepting jurisdiction in the special action below.
Accordingly, we now consider the merits of the superior court’s decision.

                                DISCUSSION

¶8             The State argues that the superior court erred when it upheld
the justice court’s ruling adopting Morgan’s proposed jury instruction. We
review a court’s decision to adopt a particular jury instruction for an abuse
of discretion, State v. Johnson, 205 Ariz. 413, 417, ¶ 10 (App. 2003), and
review de novo whether a jury instruction correctly states the law, State v.
Morales, 198 Ariz. 372, 374, ¶ 4 (App. 2000). Because the jury’s acquittal on
the extreme DUI charge did not constitute a judicial determination that the
blood test result was unreliable, we conclude that the proposed limiting
instruction contains incorrect statements of law and fact.

¶9             This court’s decision in State v. Bartolini, 214 Ariz. 561, 564, ¶
10 (App. 2007), is instructive here. In Bartolini, we held that collateral
estoppel principles did not preclude the State from introducing BAC results
in a DUI retrial following an acquittal. Id. There, the defendant was
charged with DUI-impaired and per se DUI. Id. at 563, ¶ 3. As evidence, the
State introduced BAC results from two breathalyzer tests. Id. at 562, ¶ 2.
The jury in the initial trial found Bartolini guilty of DUI-impaired and not
guilty of per se DUI. Id. at 562, ¶ 1. The court thereafter granted a new trial
on DUI-impaired, finding evidence regarding the vertical gaze nystagmus
test should not have been admitted. Id. at 563, ¶ 3.

¶10           Facing a second trial on the DUI-impaired charge, Bartolini
argued—as Morgan argues here—that the acquittal on the per se DUI charge
constituted a determination that the BAC test result was “unreliable.” Id.
at 564, ¶ 10. This court disagreed:

       Bartolini further contends that because her BAC test results
       were rejected as unreliable by the first jury when it acquitted
       her on the per se DUI charge, the test results cannot be used
       in the retrial on the DUI-impaired charge. We might agree
       with this proposition if the acquittal on per se DUI constituted
       a jury determination that the BAC results were unreliable for



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        STATE v. HON ROGERS/HON DITSWORTH/MORGAN
                       Opinion of the Court

       any purpose. But the per se DUI acquittal establishes merely that
       the State did not prove beyond a reasonable doubt that Bartolini had
       a BAC of .08 or more within two hours of driving and that she
       cannot be retried on any charge that requires such a finding.
       The BAC test results remain relevant and probative, however,
       on the issue of impairment.

Id. (emphasis added).

¶11            Consistent with the reasoning of Bartolini, we conclude that
Morgan’s acquittal was not a judicial determination that the BAC test result
was unreliable.1 See id. The acquittal could have resulted from jury
concerns about the accuracy of the BAC test result or from other
discretionary considerations unrelated to the accuracy or reliability of the
test result. Although we cannot know with certainty why the jury acquitted
Morgan of extreme DUI, in our view the only fact established by its
acquittal was that the State did not prove beyond a reasonable doubt that
Morgan had a BAC of 0.15 or above within two hours of being in actual
physical control of a motor vehicle.

¶12            Based on the constitutional protection against double
jeopardy, the first jury’s acquittal precludes the State from retrying Morgan
on the charge of extreme DUI. In the second trial, however, the State is not
attempting to convict Morgan of DUI with a BAC of 0.15 or higher. That
the jury may have discounted the probative strength of the 0.17 BAC test
result in the first trial does not conclusively establish that the test result is
suspect or unreliable for the purpose of proving charges distinct from that
of extreme DUI. See Bartolini, 214 Ariz. at 564, ¶ 10. The State is not
precluded from introducing evidence of the blood test result in support of
the distinct charges of DUI-impaired and per se DUI.

¶13           The justice court correctly rejected Morgan’s argument that
collateral estoppel applied to preclude altogether the admission of the
blood test result at the second trial. See State v. Rodriguez, 198 Ariz. 139, 141,
¶ 7 (App. 2000) (explaining that collateral estoppel applies only when an

1 We disagree with Morgan that State ex rel McDougall v. Maricopa County
Superior Court, 179 Ariz. 295 (App. 1994), should control the outcome here.
McDougall allowed the use of previously admitted evidence so long as it
was not offered to contradict the results of a prior verdict. 179 Ariz. at 298.
The State does not seek to contradict the first verdict here, because it intends
to re-try Morgan on the two separate and distinct charges that were not
resolved by the first jury.


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        STATE v. HON ROGERS/HON DITSWORTH/MORGAN
                       Opinion of the Court

issue litigated in the second trial is exactly the same as an issue “necessarily
decided in the defendant’s favor” in the first trial (quoting Schiro v. Farley,
510 U.S. 222, 236 (1994))). But the court erred when it determined that a
limiting instruction informing the second jury of the first trial’s result was
appropriate. We recognize that jury instructions describing the results of
prior judicial proceedings have been upheld when they “merely informed
the jury of an uncontroverted fact.” See Barrett v. Samaritan Health Servs.,
Inc., 153 Ariz. 138, 143 (App. 1987). But it is not an uncontroverted fact that,
by acquitting, the jury in the first trial deemed the blood test result
unreliable. Whatever evidence Morgan used in the first trial to undermine
the test result may again be relevant and persuasive, but the jury should
not be instructed that the result of the first trial has any bearing on the
evidence presented in the second.

¶14            Accordingly, the proposed jury instruction contains both
incorrect and irrelevant information. It is legally erroneous to instruct the
jury that the 0.17 BAC result is now tarnished or unreliable. In the second
trial, the result of the first trial—on a separate charge—is irrelevant. For
these reasons, the proposed instruction is erroneous as a matter of law.

                               CONCLUSION

¶15            The limiting instruction proposed by Morgan misstates the
law and may not be submitted to the jury. The BAC test result is admissible
upon proper foundation, as if the first trial had not occurred. No limiting
instruction is needed. This court accepts special action jurisdiction and
grants relief by vacating that portion of the justice court’s order adopting
the limiting instruction. We also vacate the superior court’s order denying
relief and approving the proposed limiting instruction.




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