                            IN THE
             ARIZONA COURT OF APPEALS
                         DIVISION TWO


                     THE STATE OF ARIZONA,
                          Respondent,

                               v.

                ANGELICA MARLENE WERDERMAN,
                          Petitioner.

                   No. 2 CA-CR 2015-0049-PR
                       Filed May 29, 2015


   Petition for Review from the Superior Court in Pima County
                       No. CR201001556001
         The Honorable Howard Fell, Judge Pro Tempore

             REVIEW GRANTED; RELIEF DENIED


                           COUNSEL

Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Respondent

Law Offices of Henry Jacobs, PLLC, Tucson
By Henry Jacobs
Counsel for Petitioner
                     STATE v. WERDERMAN
                       Opinion of the Court



                                OPINION

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


M I L L E R, Presiding Judge:

¶1           Angelica Werderman seeks review of the trial court’s
order summarily denying her petition for post-conviction relief filed
pursuant to Rule 32, Ariz. R. Crim. P. On review, she argues the
court erred in determining that our supreme court’s holding in State
ex rel. Montgomery v. Harris, 234 Ariz. 343, 322 P.3d 160 (2014), does
not constitute a significant change in the law applicable to her case.
We grant review but, because Harris is not such a change pursuant
to Rule 32.1(g), we deny relief.

¶2          After a jury trial, Werderman was convicted of two
counts each of aggravated driving with an illegal drug or its
metabolite in her body while a minor was present, endangerment,
and child abuse, and one count each of aggravated assault of a
minor under the age of fifteen and assault. Her aggravated driving
convictions were based on the presence of benzoylecgonine in her
blood, a non-impairing metabolite of cocaine.           See A.R.S.
§ 28-1381(A)(3). The trial court sentenced her to concurrent prison
terms, the longest of which was seven years. We affirmed her
convictions and sentences on appeal. State v. Werderman, No. 2 CA-
CR 2013-0016 (memorandum decision filed Jul. 16, 2013).

¶3            Werderman sought post-conviction relief, arguing that,
pursuant to Harris, there was insufficient evidence to support her
conviction and that trial and appellate counsel were ineffective for
failing to raise that issue. Acknowledging that Werderman did not
expressly seek relief pursuant to Rule 32.1(g), the state nonetheless
argued that Harris would not apply retroactively to her case. The
trial court, apparently concluding Werderman had implicitly raised
a claim under Rule 32.1(g), agreed that Harris did not apply



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                      STATE v. WERDERMAN
                        Opinion of the Court

retroactively and, thus, did not constitute a significant change in the
law.    The court rejected Werderman’s remaining claims and
summarily denied relief. This petition for review followed.

¶4           On review, Werderman’s sole argument is that Harris
constitutes a significant change in the law that entitles her to relief
pursuant to Rule 32.1(g), and the trial court erred in concluding it
was not retroactively applicable. We will not disturb the court’s
ruling absent an abuse of discretion. State v. Swoopes, 216 Ariz. 390,
¶ 4, 166 P.3d 945, 948 (App. 2007). An error of law constitutes an
abuse of discretion. State v. Wall, 212 Ariz. 1, ¶ 12, 126 P.3d 148, 150
(2006).

¶5            “Rule 32 does not define ‘a significant change in the
law.’” State v. Shrum, 220 Ariz. 115, ¶ 15, 203 P.3d 1175, 1178 (2009).
“But plainly a ‘change in the law’ requires some transformative
event, a ‘clear break from the past.’” Id., quoting State v. Slemmer, 170
Ariz. 174, 182, 823 P.2d 41, 49 (1991). Such change occurs, for
example, “when an appellate court overrules previously binding
case law” or when there has been a “statutory or constitutional
amendment representing a definite break from prior law.” Id.
¶¶ 16-17; see also State v. Poblete, 227 Ariz. 537, ¶ 10, 260 P.3d 1102,
1105 (App. 2011) (significant change in law occurs when subsequent
authority rejects established law).

¶6            The trial court did not expressly find whether Harris
constituted a significant change in the law as contemplated by
Rule 32.1(g). It instead determined the case would not apply
retroactively pursuant to the analysis described in Teague v. Lane, 489
U.S. 288 (1989), and Allen v. Hardy, 478 U.S. 255 (1986).1 But, if Harris
is not a significant change in the law, Werderman is not entitled to
relief and it is not necessary to evaluate, pursuant to Teague or Allen,
whether Harris should apply retroactively. See Poblete, 227 Ariz. 537,
¶¶ 10-11, 260 P.3d at 1105 (after determining holding constitutes

      1As  part of that analysis, the trial court concluded “that Harris
announced a new rule because existing precedent would not dictate
the result . . . but would instead permit an (A)(3) DUI conviction
based upon an inactive metabolite.”


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                      STATE v. WERDERMAN
                        Opinion of the Court

significant change in the law, reviewing court must then determine
whether case is retroactively applicable).

¶7           Pursuant to § 28-1381(A)(3), it is unlawful for a person
to drive or be in actual physical control of a vehicle “[w]hile there is
any drug defined in [A.R.S.] § 13-3401 or its metabolite in the
person’s body.” In Harris, our supreme court determined the term
“its metabolite” was ambiguous because it could include “all of a
proscribed drug’s byproducts” or only “primary or impairment-
causing metabolites.” 234 Ariz. 343, ¶¶ 11-12, 322 P.2d at 162. It
concluded that adopting the first interpretation—the term “its
metabolite” encompassed all byproducts—would lead to an absurd
result because it would “criminalize otherwise legal conduct,” “a
driver who tested positive for trace elements of a non-impairing
substance could be prosecuted,” and legal substances could generate
metabolites common with prohibited substances. Id. ¶¶ 14-17.
Based on the statute’s intent—“to prevent impaired driving”—the
court thus “h[e]ld that the ‘metabolite’ reference in § 28-1381(A)(3) is
limited to any of a proscribed substance’s metabolites that are
capable of causing impairment.” Id. ¶ 24.

¶8            Werderman argues that our supreme court’s holding in
Harris “broke new ground” because this court had determined in
State v. Phillips, 178 Ariz. 368, 873 P.2d 706 (App. 1994), that the
predecessor statute to § 28-1381(A)(3), A.R.S. § 28-692(A)(3), “is not
ambiguous.” But, as our supreme court noted in Harris, that issue
was not presented in Phillips. Harris, 234 Ariz. 343, ¶ 6, 322 P.3d at
161. In Phillips, this court addressed a constitutional challenge to
§ 28-692(A)(3) that the statute was “vague and overbroad.” 178
Ariz. at 370, 873 P.2d at 708. We determined it was not because the
statute “precisely defines, in unequivocal terms, the type of behavior
prohibited: No one may drive or be in actual physical control of a
vehicle if there is any amount of illicit drug or its metabolite in that
person’s system.” Id. at 371, 873 P.2d at 709. We did not interpret
the meaning of the phrase “its metabolite,” much less evaluate
whether it would encompass non-impairing metabolites.

¶9          Werderman cites no other authority interpreting
§ 28-1381(A)(3) or its predecessor statute. The only other case we
have found addressing the constitutionality or meaning of

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                       STATE v. WERDERMAN
                         Opinion of the Court

§§ 28-1381(A)(3) or 28-692(A)(3), State v. Hammonds, 192 Ariz. 528,
968 P.2d 601 (App. 1998), also does not determine the meaning of the
phrase “its metabolite.” As it did in regards to Phillips, the supreme
court noted Hammonds did not address the issue presented in Harris.
234 Ariz. 343, ¶ 6, 322 P.3d at 161.

¶10          In Hammonds, this court instead addressed a
constitutional equal protection challenge to § 28-692(A)(3). 192 Ariz.
528, ¶ 7, 968 P.2d at 603. The appellee claimed the statute “[swept]
more broadly than necessary by including drivers who have only a
metabolite of a drug in their urine,” because “the scientific evidence
shows that a metabolite in the urine not only does not necessarily
indicate an impairment to drive, it cannot even rule out that the
drug may have been used long before the driving.” Id. We
determined the statute did not violate equal protection by
encompassing both impairing and non-impairing substances.
Id. ¶¶ 9-12. But, we did not identify any ambiguity or evaluate
whether § 28-692(A)(3) actually encompassed non-impairing
metabolites.

¶11         Werderman has not identified any binding precedent
overruled by our supreme court in Harris, and we have found none.
We acknowledge that prior cases have suggested, without analysis,
that a conviction under § 28-1381(A)(3) could be based on a non-
impairing metabolite alone. But none of those cases actually
confronted that question and, thus, Harris is not a significant change
in the law2—it is merely the first case to address the ambiguity of the
phrase “its metabolite.” See Shrum, 220 Ariz. 115, ¶ 21, 203 P.3d at
1180 (“An appellate decision is not a significant change in the law
simply because it is the first to interpret a statute.”); see also State v.
Kelly, 210 Ariz. 460, ¶ 5, 112 P.3d 682, 684 (App. 2005) (dicta not
binding authority).

¶12          Although we grant review, we deny relief.



      2Because Harris is not a significant change in the law, we need
not determine whether its holding applies to a conviction based on a
non-impairing cocaine metabolite.


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