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Merlina v. Jejna5/18/2004
ber of the statute under which the charge is made." State v. Bowie, 119 Ariz. 336, 340, 580 P.2d 1190, 1194 (1978), citing Hunt, 2 Ariz.App. 6, 406 P.2d 208.
17 The two charges against Merlina neither contain identical elements nor involve identical proof. Extreme DUI requires proof of a BAC level of .15, whereas the lesser charge requires proof of a BAC level of .08. Although the greater cannot be committed without also committing the lesser offense, the totality of proof is not the same. Both charges may be submitted to the jury to decide whether the facts "support[ ] the lesser charge only, or also the greater charge." Schwartz, 14 Ariz.App. at 534, 484 P.2d at 1063.
18 Moreover, any possible prejudice can be prevented by a curative instruction. During oral argument, the State conceded that a defendant would be entitled to a curative instruction immediately upon the clerk of the court reading the indictment. Such an instruction would clarify that a defendant is not charged with multiple separate offenses, such as DUI's committed on separate occasions. Thus, any conceivable prejudice can be alleviated with a curative instruction.
19 Accordingly, the State is not barred from charging both lesser-included and greater offenses. The superior court did not abuse its discretion in denying relief. We affirm its ruling.
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