IN THE SUPREME COURT OF THE STATE OF NEVADA

RONALD LEAVELL, No. 79923 Petitioner, vs. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF FIL CLARK; AND THE HONORAI3LE DOUGLAS W. HERNDON, DISTRICT SEP 1 2020 JUDGE, EL!ZAi3E11-1 . BROWN CLE• :Ai ENE COURT Respondents, BY and DEPUT7 'LEW THE STATE OF NEVADA, Real Party in Interest.

ORDER GRANTING PETITION This is an original petition for a writ of mandamus challenging the district court's denial of a pretrial petition for a writ of habeas corpus.

Petitioner Ronald Leavell argues that the district court manifestly abused its discretion by denying his pretrial habeas petition and allowing the State to charge him with second-degree murder with the use of a deadly weapon for a death allegedly resulting from driving under the influence of an intoxicating liquor and/or controlled substance. He seeks a writ of mandamus ordering the district court to grant his habeas petition.

We elect to entertain his mandamus petition because "judicial economy and sound judicial administration militate in favor of writ review." Scarbo v. Eighth Judicial Dist. Court, 125 Nev. 118, 121, 206 P.3d 975, 977 (2009).

Whether to grant a habeas petition is within the district court's discretion. See Rugarnas v. Eighth Judicial Dist. Court, 129 Nev. 424, 436, 305 P.3d 887, 896 (2013). We may issue a writ of mandamus to control a discretionary act if the district court manifestly abused its discretion.

zo-s3a3 Round Hill Gen. Improvement Dist. v. Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981).

Although malice may be inferred from the facts of this case, which would support a charge of second-degree murder, the Legislature has preempted such a charge for cases of non-intentional vehicular homicide.

See NRS 484B.657. As we likewise held in Sheriff v. LaMotte, 100 Nev.. 270, 272-73, 680 P.2d 333, 334 (1984), and confirmed in Johnston v. State, 101 Nev. 94, 95, 692 P.2d 1307, 1308 (1985), the State may not charge a defendant with second-degree murder for a death resulting from driving under the influence. The district court nonetheless allowed the State to do so here, so it erred in interpreting and applying those holdings, which was a manifest abuse of discretion. State v. Eighth Judicial Dist. Court (Arrnstrong), 127 Nev. 927, 932, 267 P.3d 777, 780 (2011). Accordingly, we ORDER the petition GRANTED AND DIRECT THE CLERK OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the district court to vacate its order denying Leavell's habeas petition and enter a new order granting it.

4.14. (1 , C.J.

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Par aguirre Stiglich

J. J.

Cadish Silver SUPREME COURT OF NEVADA cc: Hon. Douglas W. Herndon, District Judge Clark County Public Defender Attorney General/Carson City Clark County District Attorney Eighth District Court Clerk

SUPREME COURT OF NEVADA I 947A