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Merlina v. Jejna5/18/2004
Demi-Jon Merlina appeals from the superior court's judgment denying special action relief. Merlina was charged in city court with three DUI offenses. He argued in the superior court that the charges were multiplicitous, prejudicial and violative of Rule 13.2, Arizona Rules of Criminal Procedure. For the following reasons, we affirm the court's denial of relief.
2 The pertinent facts are as follows. Merlina was charged with DUI having a BAC of .15 or greater in violation of Arizona Revised Statutes ("A.R.S.") section 28-1382 (Supp.2003); DUI having a BAC of .08 or greater in violation of A.R.S. § 28-1381(A)(2) (Supp.2003); and DUI while impaired to the slightest degree in violation of A.R.S. § 28-1381(A)(1). Merlina moved to dismiss the .08 charge, arguing that it was a lesser-included offense of the . 15 charge and that to charge both violated double jeopardy and Rule 13.2, Arizona Rules of Criminal Procedure. He also asserts charging both was prejudicial.
3 The city court agreed and directed the State to "elect" which of the two charges to bring. The State moved for reconsideration, conceding that the .08 charge was a lesser-included offense of the .15 charge, but arguing that charging both was permissible. After oral argument, the court reversed its prior ruling and stayed further proceedings to allow Merlina to seek special action relief in superior court.
4 In the special action, Merlina argued that charging both the lesser and greater offenses was multiplicitous and therefore improper. However, Merlina conceded that charging the greater and lesser offenses was not a double jeopardy violation. The superior court accepted jurisdiction and denied relief. The court stated:
The only issue presented is whether the actions of the Scottsdale City Prosecutor in charging Petitioner with the crime of Extreme DUI [in violation of A.R.S. Section 28-1382] and its lesser included offense of Driving with a Blood Alcohol Content in *204 Excess of .08 [in violation of A.R.S. Section 28-1381(A)(2) ] violate Petitioner's protection against double jeopardy?
This Court finds that the "per se DUI" offense of Driving with a Blood Alcohol Content Greater than .08 [in violation of A.R.S. Section 28- 1381(A)(2) ] is the lesser included offense of Extreme DUI [in violation of A.R.S. Section 28-1382]. This Court concludes that the charges are multiplicitous and that conviction of Extreme DUI would necessarily be a conviction of the per se DUI charge. Therefore, a conviction of both charges could not stand. However, the multiplicitous nature of these charges does not preclude or prevent the State from charging these crimes. It is the conviction of both of these multiplicitous crimes which would violate principles against double jeopardy.
5 Merlina timely appealed. On appeal, Merlina challenges the court's implicit denial of his arguments that explicitly charging both the greater and lesser offenses violates Rule 13.2, Arizona Rules of Criminal Procedure, and that such charging is multiplicitous and prejudicial. [FN1] We have jurisdiction pursuant to A.R.S. § 12-2101(B)(2003).
FN1. On appeal, the State agrees that the .08 DUI offense is a lesser-included offense of extreme DUI. We concur. A lesser-included offense is an offense "composed solely of some but not all of the elements of the greater crime so that it is impossible to have committed the crime charged without having committed the lesser one." State v. Celaya, 135 Ariz. 248, 251, 660 P.2d 849, 852 (1983). The two offenses have identical elements except for the specified BAC level. No defendant could commit
extreme DUI, with a specified BAC level of .15, without also committing per se DUI, with a specified BAC level of .08.
6 We review a special action in wh
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