search warrant, the appealing defendant in this case had not developed
any argument that a violation of the
statute required suppression. State
v. Navarro, 2 CA-CR 2016-0020,
In a shoplifting case in which the
loss prevention officer did not
observe the defendant place anything
in his backpack, which was later
found when searched by police incident to arrest to contain contraband
(i.e., an antique flintlock pistol, a . 22
caliber handgun, ammunition and a
small bag of crystalline powder believed to be methamphetamine) a
trial court errs by failing to suppress evidence related to the illegal
search of a backpack not in the
immediate control of an arrestee
a warrantless breath test is allowed
as a search incident to a lawful DUI
arrest. The court further found that
earlier Arizona precedent in State v.
Berg forecloses the argument that
Article II, Sec. 8 of the Arizona
Constitution provides greater privacy protection because in Berg the
Arizona Supreme Court found that
merely requiring a DUI arrestee
to exhale into a testing device is
a “slight inconvenience” that represents a “burden which such defendant must bear for the common
interest.” The Court noted, however, that although Arizona’s implied
consent statute, A.R.S. § 28-1321
(B), (D), normally prohibits law en-
forcement officers from collecting
samples for chemical testing in the
absence of either actual consent or a
occur unless the defense participated
in a hearing related to a contested
issue before the original judge who is
the subject of the request, the plain
language of Rule 10. 4 now provides
that a party waives the right to a per-
emptory change of judge by partici-
pating “in any … pretrial hearing,”
and not just a contested matter.
Higuera v. Hon. K. Lee and State of
AZ (RPI), 2 CA-SA 2016-0033,
In an aggravated DUI case a
trial court does not err by failing
to suppress the results of a warrantless breath test
notwithstanding the Arizona Supreme Court’s
decision in State v. Valenzuela because
under the U.S. Supreme Court’s
decision in Birchfield v. North Dakota,
child support order precluded
Mother from contesting the validity of the out-of-state order, however, such did not preclude Mother
from later contesting Father’s statements in the registration notice that
no child support arrears were owed.
The statutes addressed regarding the
registration issues included A.R.S.
§§ 25-1301, 25-1302, 25-1305,
25-1306, and 25-1309. Taylor v.
Pandola, 1 CA-CV 15-0191-FC,
COURT OF APPEALS CRIMINAL MATTERS
Under Rule 10. 4(a), ARIZ.R.
CRIM.P., a defendant waives their
right to a peremptory change of
judge by participating in a pretrial
hearing because although earlier case
law suggested that a waiver may not
The Court granted review on eight petitions on August 30, 2016. Through an editing error, the following two cases
were misreported in the November 2016 issue. We regret the error. The cases* are:
State of Arizona v. Donald Wade Dalton, CR-16-0012-PR, 1 CA-CR 15-0074, 239 Ariz. 74, 366 P.3d 133 (App. 2016)
• Did the two-judge majority of the court of appeals err by reversing Appellant’s burglary conviction upon concluding
the trial court committed fundamental, prejudicial error by failing to instruct the jury to “begin deliberations anew”
under Arizona Rule of Criminal Procedure 18. 5(h) when it substituted a deliberating juror with an alternate juror?
Jesse Mesa v. Hon. Granville/State, CR-16-0053-PR, 1 CA-SA 15-0303
• Where the State indicts a person for first-degree murder and fails to give notice of its intent to seek the death penalty
within the 60-day time limit provided by Rule 15. 1(i)( 1); and where the State further chooses to re-indict the same
person on the same first-degree murder count under a new cause number, does the Rule 15. 1(i)( 1) time limit restart,
thus allowing the State to file a notice to seek the death penalty in the second case over a defendant’s objection?
The Arizona Supreme Court accepted review or jurisdiction of the following issues on Oct. 18, 2016:
Mary Wade and Marla Paddock v. Ariz. State Retirement Sys. et al., CV-16-0087-PR, 1 CA-CV 14-0721, 239 Ariz. 263, 370 P.3d 132 (App. 2016)
• In this case, the Arizona State Retirement System filed a petition for review with these two issues:
1. Are employer contributions to a deferred compensation plan ASRS compensation when the statutory definition of compensation in
A.R.S. § 38-711( 7) limits compensation to salary and wages?
2. Does the resolution of the first issue presented—an issue of statutory construction—arise out of contract within the meaning of
A.R.S. § 12-341.01(A)?
American Power Prods. Inc./LFMG/App LLC v. CSK Auto Inc., CV-16-0133-PR, 1 CA-CV 12-0855, 2016 WL 2930686 (Memorandum Decision)
The trial judge found that American Power Products was the “prevailing party” at trial for having obtained a $10,733 jury verdict, despite American
having asked the jury to award it $10,848,661. The trial judge then awarded American $775,000 in attorneys’ fees and $73,670.29 in costs, and
interest on the verdict for a total judgment of $858,403.29. Several months prior to trial, CSK made a written offer to settle the case for a judgment
in American’s favor of $1,000,001. In affirming the trial court, the Court of Appeals specifically rejected that part of A.R.S. § 12-341.01(A) that
defines a “successful party” as one whose pretrial written settlement offer is rejected, but was better than the ultimate verdict.
1. Was it error for the Court of Appeals to ignore the statutorily mandated definition of “successful party” in the context of a rejected settlement
offer by not finding that CSK was the successful party from the date of its rejected offer?
2. Was it error for the Court of Appeals to not apply the statutorily mandated definition of “successful party” in the context of a rejected
settlement offer where the parties agreed that their contract was controlled by Arizona law?
The Arizona Supreme Court accepted review or jurisdiction of the following issue on Nov. 15, 2016:
State of Arizona v. Dustin Gill, CR-16-0286-PR, 1 CA-CR 15-0509
• Issue presented:
Pursuant to an agreement reached during plea negotiations at a settlement conference, the State agreed to defer prosecution to allow Mr. Gill
to complete a program by the Treatment Assessment Screening Center (“TASC’). Did the court of appeals incorrectly decide an important legal
issue when it held that Arizona Rule of Evidence 410 did not apply to statements made in furtherance of a deferred prosecution agreement?
* Unless otherwise noted, the issues are taken verbatim from either the petition for review or the certified question.
compiled by Judy Schaffert,
Chief Staff Attorney
Arizona Supreme Court