State v. Pereyra

In State v. Pereyra, 199 Ariz. 352, 18 P.3d 146 (App. 2001), the Court held that a person convicted of personal drug possession within a school zone was entitled to probation, despite Arizona's drug-free school zone statute, A.R.S. 13-3411 (2001), which seemed to require incarceration. Pereyra, 199 Ariz. at 355, P 12, 18 P.3d at 149. The drug-free school zone statute renders persons convicted of possessing or using drugs within school zones ineligible for probation and subject to increased penalties. Id. at 354, P 4, 18 P.3d at 148. The Court applied A.R.S. 13-901.01 to possession within a drug-free school zone because of 13-901.01's comprehensiveness in treating personal possession, because of its explicit language superseding laws that deny probation for personal possession, and because it does not specifically list among its exceptions possession or use in a drug-free school zone. Id. at P 7. Section 28-1381(A)(3) does not proscribe personal possession or use; it proscribes driving under certain conditions. The drug-free school zone statute proscribed personal possession, the underlying offense intended to be covered by section 13-901.01, adding only the additional element of location. See id. at 355, P 9, 18 P.3d at 149. Section 28-1381(A)(3), however, prohibits driving under circumstances that might pose a danger to others who drive on Arizona's roads.