                              IN THE
              ARIZONA COURT OF APPEALS
                           DIVISION TWO


                      THE STATE OF ARIZONA,
                        Plaintiff/Appellant,

                                 v.

                      BHAJANPAL S. CHOPRA,
                        Defendant/Appellee.

                      No. 2 CA-CV 2016-0086
                      Filed December 20, 2016

          Appeal from the Superior Court in Pima County
                          No. C20160619
            The Honorable Richard D. Nichols, Judge

                            AFFIRMED


                            COUNSEL

Barbara LaWall, Pima County Attorney
By Nicolette Kneup, Tucson
Counsel for Plaintiff/Appellant

Nesci & St. Louis, P.L.L.C., Tucson
By Michelle L. Behan and Joseph P. St. Louis
Counsel for Defendant/Appellee
                         STATE v. CHOPRA
                         Opinion of the Court



                              OPINION

Judge Miller authored the opinion of the Court, in which Presiding
Judge Vásquez and Chief Judge Eckerstrom concurred.


M I L L E R, Judge:

¶1           The state appeals the superior court’s order in a special
action arising out of the justice court’s ruling directing the state to
disclose the results of other blood tests in the same test batch as
defendant Bhajanpal Chopra’s. Determining the superior court did
not abuse its discretion in declining special action jurisdiction, we
affirm.

                Factual and Procedural Background

¶2           In February 2015, Chopra was charged in justice court
with driving while impaired by alcohol to the slightest degree and
driving with a blood alcohol concentration of .08 or more. Law
enforcement officers collected a blood sample from Chopra during
the course of their investigation. The state alleged a test of the blood
sample showed Chopra’s blood alcohol concentration surpassed the
legal limit.

¶3           Chopra moved for disclosure of “all chromatograms
and batch data generated for every sample tested” on the same date
as Chopra’s sample, in order to determine “whether the results of
laboratory testing conducted in this case are reliable.” The state
opposed the motion, arguing other people’s test results were
irrelevant to Chopra’s case, and that Chopra’s request amounted to a
mere “fishing expedition.” The trial court granted Chopra’s motion
and ordered disclosure.

¶4           The state challenged that ruling by special action in the
superior court. After oral argument on the petition, the court
concluded in a signed minute entry: “The court finds that the trial
court’s ruling was not clearly erroneous or an abuse of discretion.


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                          STATE v. CHOPRA
                          Opinion of the Court

Given the limited nature of the disclosure required, this Court
declines to accept jurisdiction.” The state now appeals.

                              Jurisdiction

¶5           Chopra argues we lack appellate jurisdiction, pointing
out that no subsection of A.R.S. § 13-4032, the statute governing state
criminal appeals, authorizes an appeal in this situation. The state
did not file a reply, but in its opening brief cites A.R.S. § 12-2101 as
authority for this court’s jurisdiction. The applicability of § 13-4032
to an appeal by the state from an adverse special action ruling in the
superior court has not been addressed previously. Although in
many circumstances a party’s failure to respond to an argument is
regarded as a concession to the proponent’s claim, we are required
to examine our own jurisdiction independently. Ghadimi v. Soraya,
230 Ariz. 621, ¶ 7, 285 P.3d 969, 970 (App. 2012).

¶6            A party may appeal as prescribed by law. See Ariz.
Const. art. VI, § 9; A.R.S. §§ 12-120.21(A)(1), 13-4031; see also State v.
Bayardi, 230 Ariz. 195, ¶ 6, 281 P.3d 1063, 1065 (App. 2012) (“Our
appellate jurisdiction is purely statutory.”). In this circumstance,
however, the parties disagree whether the more general appeal
statute, § 12-2101, or the more specific state criminal appeal statute,
§ 13-4032, applies. It is true that, in general, the more specific statute
controls over the less specific statute. See, e.g., Pinal Vista Props.,
L.L.C. v. Turnbull, 208 Ariz. 188, ¶ 23, 91 P.3d 1031, 1037 (App. 2004).
Moreover, there is internal consistency to Chopra’s contention that
an appeal from a special action in a criminal case is analogous to an
appeal challenging a criminal conviction or dismissal of a
conviction. Cf. A.R.S. §§ 13-4032, 13-4033. And, if this case was
pending in superior court rather than a court of limited jurisdiction,
a discovery ruling of this type could not be challenged by the state
via direct appeal in this court; rather, the exclusive remedy would be
a special action petition. See, e.g., State v. Bejarano, 219 Ariz. 518, 200
P.3d 1015 (App. 2008).

¶7          Nevertheless, an appeal from a special action in the
superior court is civil in nature. This is so even if, as here, the
underlying proceeding is criminal. See, e.g., Urs v. Maricopa Cty.
Attorney’s Office, 201 Ariz. 71, 31 P.3d 845 (App. 2001) (hearing as


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                         STATE v. CHOPRA
                         Opinion of the Court

civil appeal superior court’s grant of relief on special action petition
concerning right to jury trial for defendant charged with
misdemeanor reckless driving).           Accordingly, this court has
previously looked to § 12-2101 rather than § 13-4032 for jurisdiction
in state appeals from superior court special actions in DUI cases.
See, e.g., State v. Cooperman, 230 Ariz. 245, ¶¶ 2, 5, 282 P.3d 446, 448,
449 (App. 2012); Bohsancurt v. Eisenberg, 212 Ariz. 182, ¶¶ 4-5, 129
P.3d 471, 473 (App. 2006).

¶8            Paragraph (A)(1) of § 12-2101 permits appeal “[f]rom a
final judgment entered in an action or special proceeding
commenced in a superior court, or brought into a superior court
from any other court,” subject to an inapposite exception. Likewise,
Rule 8(a), Ariz. R. P. Spec. Act., provides “[a] decision of a Superior
Court in a special action shall be reviewed by appeal where there is
an equally plain, speedy, and adequate remedy by that means.”
See also Stant v. City of Maricopa Emp. Merit Bd., 234 Ariz. 196, ¶ 12,
319 P.3d 1002, 1006 (App. 2014) (Rule 8(a) “gives [this] 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 within this court”).
We conclude that § 12-2101(A)(1) grants us appellate jurisdiction
over the superior court’s final judgment in a special action. Accord
Cooperman, 230 Ariz. 245, ¶¶ 2, 5, 282 P.3d at 448, 449; Bohsancurt,
212 Ariz. 182, ¶¶ 4-5, 129 P.3d at 473.

                               Analysis

¶9            We conduct a bifurcated review of a superior court’s
ruling on a petition for special action. Stapert v. Ariz. Bd. of
Psychologist Exam’rs, 210 Ariz. 177, ¶ 22, 108 P.3d 956, 961
(App. 2005). We first determine whether the superior court accepted
special action jurisdiction.   Id.     If it declined special action
jurisdiction, we determine only whether it abused its discretion by
doing so. Id. If it accepted special action jurisdiction, then we
review the decision on the merits. Id.

¶10         The state argues we should review the superior court’s
decision “on its merits” because the court determined the trial court
had not abused its discretion. Chopra argues, however, that the


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                        STATE v. CHOPRA
                        Opinion of the Court

superior court declined special action jurisdiction. We agree with
Chopra. The court’s order plainly stated, “[T]his Court declines to
accept jurisdiction.” Although the order also included a finding that
“the trial court’s ruling was not clearly erroneous or an abuse of
discretion,” we agree with Chopra that this statement is reasonably
regarded as a partial explanation of the court’s rationale for
declining special action jurisdiction, as opposed to a ruling on the
merits. Cf. Amos v. Bowen, 143 Ariz. 324, 327, 693 P.2d 979, 982
(App. 1984) (special action jurisdiction may be appropriate if trial
court has committed plain and obvious error).

¶11           Because the superior court declined jurisdiction over the
state’s special action, the only question before us is whether such
declination was an abuse of discretion. See Files v. Bernal, 200 Ariz.
64, ¶ 2, 22 P.3d 57, 58 (App. 2001). We conclude it was not, for the
very reasons the declination order suggested. Chopra argued in the
trial court that he should have access to the whole batch of
chromatograms as a matter of fairness and due process because the
state’s expert would review the whole batch in the course of his or
her technical review. The superior court reasonably could have
concluded that the trial court did not clearly err by accepting this
argument, thus undermining one possible reason to accept special
action jurisdiction—to correct a plain and obvious error. Cf. Amos,
143 Ariz. at 327, 693 P.2d at 982.

¶12          Furthermore, the superior court emphasized the
“limited nature of the disclosure required” in declining jurisdiction,
indirectly indicating that the discovery request in this case was not a
matter of statewide importance. Cf. Sanchez v. Gama, 233 Ariz. 125,
¶¶ 4-5, 310 P.3d 1, 3 (App. 2013) (special action jurisdiction may be
warranted as to issues of statewide importance). The court’s
conclusion as to this jurisdictional consideration also was not a clear
abuse of discretion.

¶13          Finally, the superior court did not abuse its discretion
when it followed the general practice declining special action
jurisdiction in a discovery dispute. See Jolly v. Superior Court,
112 Ariz. 186, 188, 540 P.2d 658, 660 (1975) (“The fact that this Court
does not routinely entertain petitions for extraordinary relief on
discovery matters is apparent by the paucity of occasions in the past

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                         STATE v. CHOPRA
                         Opinion of the Court

on which we have accepted jurisdiction over such actions.”); see also
Yuma Reg’l Med. Ctr. v. Superior Court, 175 Ariz. 72, 74, 852 P.2d 1256,
1258 (App. 1993) (special action relief generally not appropriate
mechanism for resolving discovery disputes); Lang v. Superior Court,
170 Ariz. 602, 604, 826 P.2d 1228, 1230 (App. 1992) (same).

                             Disposition

¶14          We affirm the superior court’s ruling.




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