State v. Cantu, 1

Citation569 P.2d 298,116 Ariz. 356
Decision Date25 August 1977
Docket NumberCA-CR,No. 1,1
PartiesSTATE of Arizona, Appellee, v. Joe Alonzo CANTU, Appellant. 2257.
CourtCourt of Appeals of Arizona
Bruce E. Babbitt, Atty. Gen. by William J. Schafer, III, Chief Counsel, Crim. Div., Teresa S. Thayer, Asst. Attys. Gen., Phoenix, for appellee
OPINION

DONOFRIO, Judge.

Appellant Joe Cantu was tried before a Maricopa County Jury and convicted of driving while under the influence of an intoxicating beverage while his license was revoked (in violation of A.R.S. §§ 28-692 and 28-692.02). A sentence of one year in the Maricopa County Jail was imposed and this appeal from the conviction and sentence followed.

On February 26, 1976 at approximately 10:10 p.m. Officer Capehart observed a 1971 Buick automobile proceeding east on the Maricopa Freeway in the vicinity of 7th Avenue. Capehart followed the vehicle for about one mile and saw it continuously weave from the right edge to the left edge of the right-hand lane, occasionally striking the lane divider. Officer Capehart activated his emergency lights and the Buick stopped in the emergency parking lane whereupon the driver and the passenger sitting next to him exchanged positions. Appellant, who was the driver of the vehicle during Capehart's surveillance, was advised of his Miranda 1 rights and given a field sobriety test after admitting that he did not have a driver's license in his possession. He failed the test and in light of this and other evidence of intoxication was arrested and taken to the stationhouse where a breathalizer test was administered and resulted in a .16% blood-alcohol reading.

In this appeal Cantu argues that there was insufficient evidence presented at the preliminary hearing to constitute probable cause, that the breathalizer results were erroneously admitted into evidence at trial, and that his sentence is excessive.

When the magistrate entered an order holding appellant to answer before the Superior Court on the instant charge, appellant timely moved for new finding of probable cause pursuant to 17 A.R.S., Rules of Criminal Procedure, rule 5.5, alleging that there was no credible evidence of guilt adduced at the initial hearing. The trial court correctly denied the motion as the preliminary hearing transcript discloses that with the exception of the breathalizer reading the evidence upon which appellant was convicted was substantially the same as that introduced at the preliminary hearing. Officer Capehart's testimony at the preliminary hearing was more than ample to constitute probable cause and most certainly constituted some credible evidence of appellant's guilt. Therefore, the Superior Court's refusal to grant a new preliminary hearing was proper. See Rule 5.5, supra.

Appellant argues that the trial court should have suppressed the breathalizer results because the test ampule was destroyed by the State prior to his being allowed to independently test it. The first indication of a demand by appellant for an opportunity to examine the ampule is his motion to compel discovery, filed eighty-five days after the test was given. The State in its opposition to the motion informed appellant and the court that the ampule had previously been destroyed. The trial court held the motion to produce as moot and denied appellant's motion to suppress.

Presently our Rules of Criminal Procedure do not require the State to preserve breathalizer test ampules. Our Supreme Court rejected the contention that due process requires the State to produce the ampule for testing in State v. Superior Court, In And For County Of Maricopa, 107 Ariz. 332, 487 P.2d 399 (1971), and therein ruled that a defendant must make a prior showing that the requested evidence would aid in his case before the trial court can order production. In that case as in this one there was no prior showing made by the defendant.

Additionally, A.R.S. § 28-692 provides a defendant with the means to refute the results of the breathalizer test by permitting him to obtain an independent blood-alcohol test in addition to that administered by the police officer. This Court has been responsive to the defendant's needs in this regard. See Smith v. Cada, 114 Ariz. 510...

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21 cases
  • State v. Canaday
    • United States
    • United States State Supreme Court of Washington
    • 2 Noviembre 1978
    ......141, 257 N.W.2d 537 (1977); State v. Bryan, 133 N.J.Super. 369, 336 A.2d 511 (1974); People v. Leone, 25 N.Y.2d 511, 307 N.Y.S.2d 430, 255 N.E.2d 696 (1969); State v. Olderman, 44 Ohio App.2d 130, 336 N.E.2d 442 (1975); Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977). 3 State v. Cantu, 116 Ariz. 356, 569 P.2d 298 (1977); People v. Hedrick, 557 P.2d 378 (Colo.1976); People v. Godbout, 42 Ill.App.3d 1001, 1 Ill.Dec. 583, 356 N.E.2d 865 (1976); People v. Stark, 73 Mich.App. 332, 251 N.W.2d 574 (1976); ......
  • State v. Booth
    • United States
    • Court of Appeals of Wisconsin
    • 10 Junio 1980
    ...... However, our review[98 Wis.2d 29] of those decisions finds them to be distinguishable from the matter before us.         In State v. Cantu, 116 Ariz. 356, 569 P.2d 298 (1977); People v. Hedrick, 557 P.2d 378 (Colo.1976); and People v. Stark, 73 Mich.App. 332, 251 N.W.2d 574 (1977), the requests for production of the ampoule were made eighty-five, ninety and seventy-two days after the tests were taken. On the basis of the expert ......
  • State v. Gum
    • United States
    • Court of Appeals of Arizona
    • 6 Marzo 2007
    ......Nevertheless, we are obliged to uphold the trial court if the result is legally correct for any reason. State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984); State v. Cantu, 116 Ariz. 356, 358, 569 P.2d 298, 300 (1977). . 4. Taylor's case was consolidated with Johnson v. Aragon, 1 CA-SA 2006-0078. . 5. The 1997 amendment became effective July 21, 1997. . 6. The Arizona Constitution provides that "[n]o . . . ex-post-facto law . . . shall ever be enacted." Ariz. ......
  • State v. Helmer
    • United States
    • Supreme Court of South Dakota
    • 17 Mayo 1979
    ...... Further, we agree with those courts that have held that the accused's ability to have an independent blood test taken to challenge the breathalyzer result is sufficient protection of an accused's due process rights. State v. Shutt, 116 N.H. 495, 363 A.2d 406 (1976); State v. Cantu, 116 Ariz. 356, 569 P.2d 298 (1977).         We next consider the admissibility of breathalyzer test results in general. At the suppression hearing, appellant contended that the reliability of the 900-A Breathalyzer machine has not been sufficiently established to have gained general ......
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