State v. Aleman

Citation210 Ariz. 232,109 P.3d 571
Decision Date04 April 2005
Docket NumberNo. 2 CA-CR 2003-0075.,2 CA-CR 2003-0075.
PartiesThe STATE of Arizona, Appellee, v. Jesus Antonio ALEMAN, Appellant.
CourtCourt of Appeals of Arizona

Terry Goddard, Arizona Attorney General, By Randall M. Howe and Diane M. Acosta, Tucson, for Appellee.

Harriette P. Levitt, Tucson, for Appellant.

OPINION

PELANDER, Chief Judge.

¶ 1 After a jury trial, appellant Jesus Aleman was convicted of two counts of second-degree murder, four counts of aggravated assault, and three counts of aggravated driving while under the influence of an intoxicant (DUI). The trial court sentenced him to a combination of concurrent and consecutive prison terms totaling eighteen years on the murder and aggravated assault convictions, and a consecutive, ten-year term of supervised probation, a condition of which was a four-month prison term, on the aggravated DUI convictions. Aleman received mitigated, ten-year, concurrent sentences on the murder convictions but slightly aggravated, eight-year sentences on the aggravated assault convictions.

¶ 2 In the sole issue raised on appeal, Aleman contends the trial court erroneously denied his pretrial motion to suppress evidence of blood test results, arguing A.R.S. § 28-673(C) is unconstitutional and, even if it is not, the blood draw pursuant to that statute was illegal. We do not address that issue because we conclude the trial court did not err in alternatively finding the blood draw authorized under A.R.S. § 28-1388(E). We also reject Aleman's challenge to his aggravated sentences, raised in supplemental briefing and based on Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Accordingly, we affirm.

BACKGROUND

¶ 3 "In reviewing the denial of a motion to suppress evidence, we view the facts in the light most favorable to upholding the trial court's ruling ... [and consider] only the evidence presented at the suppression hearing." State v. Wyman, 197 Ariz. 10, ¶ 2, 3 P.3d 392, 394 (App.2000); see also State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062, 1069 (1996)

. On April 29, 2000, a car driven by Aleman crossed the centerline of a two-lane highway and collided head-on with an approaching minivan. Aleman was seriously injured and two passengers in his car were killed in the collision. The four family-member occupants of the minivan, two of whom were minors, were seriously injured. Law enforcement officers who responded to the accident scene found Aleman in and out of consciousness and trapped behind his car's steering wheel. Fire department personnel had to cut Aleman out of the car. The two passengers in Aleman's car were pronounced dead at the scene.

¶ 4 One officer testified that he had seen open alcoholic beverage containers in the car and on the roadway and that fire department personnel had told him they had detected the odor of an intoxicating beverage on Aleman's breath and person. Another officer testified he had seen beer cans in Aleman's car and had smelled a "distinct strong odor" of alcohol coming from Aleman. He also testified that from just outside the car by the driver's door, he had noticed the odor of alcohol became stronger when Aleman attempted to speak to the passenger in the front seat. A supervising officer at the scene also detected an odor of alcohol from Aleman's car and was told by another officer that Aleman was "under the influence of alcohol."

¶ 5 Aleman was transported to a hospital, where he became "extremely uncooperative." A hospital phlebotomist testified that Aleman had attempted to get off of the examination table, and it had taken about eight people to hold him down. The phlebotomist considered this a severe trauma case and testified that blood draws are "mandatory" for every trauma patient seen at the hospital. The hospital's trauma pack contained between five to seven blood vials. Regardless of the total number of vials, every pack contained two gray-topped vials that were specifically and routinely drawn for law enforcement purposes in every trauma case. The phlebotomist testified that she had drawn a "full trauma pack" on Aleman and that the two gray-topped vials were set aside in a locked area for law enforcement purposes.

¶ 6 Within a few hours, Officer Encisco of the Pinal County Sheriff's Department retrieved the two gray-topped blood vials from the hospital, took them to the sheriff's office, and stored them for evidence. The supervising officer testified that he had instructed Encisco to retrieve Aleman's blood sample from the hospital after another officer had informed the supervisor that emergency personnel had smelled an odor of alcohol on Aleman.

¶ 7 Before trial, Aleman moved to suppress evidence of the blood test results,1 arguing the blood samples had been obtained without a warrant, in violation of his Fourth Amendment rights. Following the suppression hearing, the trial court denied Aleman's motion, finding that law enforcement had properly obtained his blood sample pursuant to § 28-673(C) and, alternatively, § 28-1388(E). This appeal followed Aleman's ensuing convictions and sentencing.

DISCUSSION
I. Motion to suppress

¶ 8 "We review the trial court's ruling on a motion to suppress for clear and manifest error." State v. Clary, 196 Ariz. 610, ¶ 8, 2 P.3d 1255, 1256-57 (App.2000); see also State v. Howard, 163 Ariz. 47, 49, 785 P.2d 1235, 1237 (App.1989)

. In his opening brief, Aleman only challenges the trial court's reliance on § 28-673(C) as a basis for denying the motion to suppress.2 Relying on several out-of-state cases,3 he argues that the statute is unconstitutional because it does not require "probable cause to believe that a crime has been committed before conducting a [warrantless] search which involves the taking of blood from a person." The state does not respond to Aleman's constitutional argument at all, but rather urges us to uphold the trial court's ruling under § 28-1388(E), which the court cited as an alternative basis for denial of the motion to suppress.

¶ 9 In his reply brief, however, Aleman argues that § 28-1388(E) "does not apply in this case because no officer claimed to have had probable cause to arrest [Aleman] at the time Officer Encisco was requested to retrieve the blood from the hospital." Generally, an appellant may not raise issues for the first time in the reply brief. See State v. Watson, 198 Ariz. 48,

¶ 4, 6 P.3d 752, 755 (App.2000); State v. Cohen, 191 Ariz. 471, ¶ 13, 957 P.2d 1014, 1017 (App.1998). And, if the appellant does so, "[a]n appellate court can `disregard [the new] substantive issues raised.'" Id., quoting State v. Cannon, 148 Ariz. 72, 79, 713 P.2d 273, 280 (1985).

¶ 10 Although Aleman did not challenge or otherwise address § 28-1388(E) in his opening brief, in our discretion we address the issue of whether the trial court's ruling is supportable under that statute. See State v. Myers, 117 Ariz. 79, 87, 570 P.2d 1252, 1260 (1977)

; Ariz. R.Crim. P. 31.13(c)(3), 17 A.R.S. (reply brief may respond "to questions of law or fact raised by the appellee's brief"); cf. State v. Shipman & Sweeney, 208 Ariz. 474, n. 2, 94 P.3d 1169, 1171 n. 2 (App.2004) (appellate court may consider merits of dispositive issue even if not raised in opening brief). And, we address that issue first because courts should decide cases on nonconstitutional grounds if possible and should determine a statute's constitutionality only if absolutely necessary. See Aitken v. Indus. Comm'n, 183 Ariz. 387, 389, 904 P.2d 456, 458 (1995); State v. Yslas, 139 Ariz. 60, 63, 676 P.2d 1118, 1121 (1984).

¶ 11 Under Arizona law, absent express consent, police may obtain a DUI suspect's blood sample only pursuant to a valid search warrant, Arizona's implied consent law, A.R.S. § 28-1321, or the medical blood draw exception in § 28-1388(E). See State v. Cocio, 147 Ariz. 277, 283-84, 709 P.2d 1336, 1344-45 (1985)

; see also State v. Estrada, 209 Ariz. 287, ¶ 11, 100 P.3d 452, 455 (App.2004). The state did not obtain a search warrant here and now relies solely on § 28-1388(E), which provides:

Notwithstanding any other law, if a law enforcement officer has probable cause to believe that a person has violated [A.R.S.] § 28-1381 and a sample of blood, urine or other bodily substance is taken from that person for any reason, a portion of that sample sufficient for analysis shall be provided to a law enforcement officer if requested for law enforcement purposes.4

¶ 12 In Cocio, our supreme court addressed the constitutionality and application of the predecessor statute, former A.R.S. § 28-692(M). The court held that, under the statute, removal of blood without a warrant from a person suspected of DUI is constitutionally permissible if there is "probable cause ... to believe the person has [been driving under the influence of an intoxicant], ... exigent circumstances are present and, ... the blood is drawn for medical purposes by medical personnel." 147 Ariz. at 286,709 P.2d at 1345; see also Clary, 196 Ariz. 610,

¶¶ 10-11, 2 P.3d at 1257; Lind v. Superior Court, 191 Ariz. 233, ¶ 17, 954 P.2d 1058, 1062 (App.1998) (holding that hospital blood sample falls within permissible scope of medical-purpose statute when blood is drawn before showing of probable cause or arrest, amount of blood drawn is more than that needed for medical purposes at the time, and extra blood is set aside for possible law-enforcement use). The court in Cocio also ruled that the statutory language "`taken from that person for any reason'" means that "the blood must be drawn by medical personnel for any medical reason so as not to conflict with the orderly administration of care to those injured." 147 Ariz. at 286,

709 P.2d at 1345,

quoting former § 28-692(M).

¶ 13 The record reflects, and Aleman does not dispute, that his blood samples were drawn by medical personnel (a hospital phlebotomist) for medical purposes. See Cocio, 147 Ariz. at 286,

709 P.2d at 1345; Lind, 191 Ariz. 233, ¶ 17, 954 P.2d...

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