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Arizona Special Actions [2019]


The Ultimate Guide (2019)

This is the ultimate guide to Special Actions arising out of criminal cases.  In this guide, you’ll find:

  • How to evaluate whether your case fits the requirements for a special action. 
  • Advanced strategies for persuading a court to accept review that have actually worked.
Arizona Special Actions

In a nutshell:

If you want your best chance to convince a higher court – to fix a trial court’s ruling before a conviction – then you’re in the right place.



Fifth Amendment

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Substantive due process.

See Fifth and Fourteenth Amendments, United States Constitution, and Article II, section 4 of the Arizona Constitution.


The Arizona Court of Appeals has jurisdiction to hear and decide petitions for special actions that are brought pursuant to the rules of procedure for special actions. See Arizona Rules of Procedures for Special Action, Rules 1, 3, 4 and 7.

This Court of appeals is appropriate to consider this Petition as it arises out of a case in the Superior Court for the County of Maricopa. See Ariz. R. Proc. Sp. Act., R. 1; see also Arizona Revised Statutes, Section12-120.21(A)(4) (“[t]he court of appeals shall have: … jurisdiction to hear and determine petitions for special actions brought pursuant to the rules of procedure for special actions, without regard to its appellate jurisdiction.”)

Special action jurisdiction “is frequently accepted when under no rule of law can a trial court’s actions be justified.” See King v. Superior Court, 138 Ariz. 147, 149-150, 673 P.2d 787, 789 (1983).

No Equally Plain and Adequate Remedy

No “equally plain, speedy, and adequate remedy by appeal.” Rule 1(a), Arizona Rules of Procedure for Special Actions; Gilbert Prosecutor’s Office v. Foster, 245 Ariz. 15, 17, ¶ 5, 424 P.3d 416, 418 (App. 2018).

  • Claims of Privilege
  • Remand for probable cause findings
  • Bail Issues
  • Judicial orders requiring discovery that present problems beyond inconvenience
  • Procedural rulings that, under the the facts, cannot be effectively appealed

State v. Bejarano, 219 Ariz. 518, ¶ 4, 200 P.3d 1015, 1017 (App. 2008): order granting defendant’s motion to preclude state’s witness from testifying at trial not appealable.

Statewide Importance and Likely to Recur

  • Haywood Secs., Inc. v. Ehrlich, 214 Ariz. 114, ¶ 6, 149 P.3d 738, 739 (2007): The issue raised here is of statewide importance and one that is likely to recur due to the state’s reliance on wiretap evidence in criminal prosecutions.

Pure Questions of Law

  • State v. Nichols, 224 Ariz. 569, ¶ 2, 233 P.3d 1148, 1149 (App. 2010): the issue involves a pure question of law, further supporting our acceptance of special action jurisdiction.

Arbitrary and Capricious Abuses of Discretion

Special Actions are also appropriate when there is an issue as to “[w]hether a determination was arbitrary and capricious or an abuse of discretion.” Ariz. R. Proc. Sp. Act., R. 3(c).

The Three Questions

The Rules limit review by Special Action to three questions. Ariz. R. P. Spec. Actions 3.

  1. Respondent’s failure to exercise discretion under a preexisting duty or to perform a duty required by law entailing no discretion.
  2. Respondent proceeding or threatening to proceed without or in excess of jurisdiction or legal authority.

  3. Whether a determination was arbitrary and capricious or an abuse of discretion.


Grand Jury Challanges

“To obtain review of a denial of redetermination of probable cause, a defendant must seek relief before trial by special action.” State v. Murray, 184 Ariz. 9, 32 (1995).

If a person convicted, he has no right to appeal denial of his motion to remand. Bashir v. Pineda, 226 Ariz. 351, 353, 248 P.3d 199, 201 (App. 2011).


Review of Decisions​ of the Court of Appeals

If a special action arises out of a criminal case, a review of a decision from – the Court of Appeals – by the Supreme Court “shall be by way of a petition for review pursuant to Rule 31.21, Arizona Rules of Criminal Procedure.” See rule 8(c), Arizona Rules of Special Actions. 

Any petition for review filed in accordance with rule 8(c) should be captioned as follows: “Petition for Review of a Special Action Decision of the Court of Appeals.” See rule 8(e), Arizona Rules of Special Actions. 

Rule 31.21. Petition for Review

Timing: A party must file a petition for review no later than 30 days after the Court of Appeals enters its decision, unless a party files a timely motion for reconsideration in the Court of Appeals and, in that event, a party must file a petition for review no later than 15 days after the motion’s final disposition.


Contents: A petition should contain concise statements of:

(A) the issues that were decided by the Court of Appeals that the petitioner is presenting for Supreme Court review. The petition must also list, separately and without argument, additional issues presented to, but not decided by, the Court of Appeals that the Supreme Court may need to decide if review is granted.

(B) the facts material to a consideration of the issues presented to the Supreme Court for review, with appropriate references to the record on appeal.

No evidentiary matter should be included if it is not material to proper consideration of the issues.

If an evidentiary matter is material, the party must include a reference to the record where that evidence appears, as provided in Rule 31.10(d).

(C) the reasons the petition should be granted, which may include, among others, that no Arizona decision controls the point of law in question, that a decision of the Supreme Court should be overruled or qualified, that there are conflicting decisions by the Court of Appeals, or that important issues of law have been incorrectly decided.

Form and Length of Petition:

Form. The caption of the petition must designate the parties as designated in the caption of filings in the Court of Appeals. The formatting requirements of Rule 31.6(b) apply to a petition, a cross-petition, and a response to a petition or cross-petition.

Length. A petition, a cross-petition, or a response to a petition or cross-petition must not exceed 3,500 words

Certificate of Compliance. A petition, a cross-petition, or a response to a petition or cross-petition must include a certificate of compliance as shown in Form 30. A party preparing this certificate may rely on the word count of the processing system used to prepare the petition, cross-petition, or response.


A party filing a petition, a cross-petition, a response, a reply, or an appendix must serve a copy of the document in the manner provided in Rule 31.13(d) on all parties who were entitled to service in the Court of Appeals.

The party also must file and serve a certificate of service in the manner provided in Rule 31.13(d)(2).

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