State v. Cook
| Decision Date | 30 June 1992 |
| Docket Number | CA-CR,No. 2,2 |
| Citation | 172 Ariz. 122,834 P.2d 1267 |
| Parties | The STATE of Arizona, Appellee, v. David Lincoln COOK, Appellant. 91-0434. |
| Court | Arizona Court of Appeals |
Following a jury trial, appellant was convicted of driving under the influence of intoxicating liquor (DUI) while his license was suspended, cancelled, revoked, or refused, a class 5 felony. He was sentenced to the presumptive term of two years in prison. On appeal, he argues that the trial court erred in 1) permitting the prosecutor to elicit testimony correlating the results of a horizontal gaze nystagmus (HGN) test with blood alcohol content (BAC) and 2) failing to grant a continuance to permit the defense to secure the attendance of a key witness. Finding no error, we affirm.
Appellant was stopped by police officers after they observed him driving in a manner that led them to suspect that he was under the influence of intoxicants. Appellant had difficulty locating and extracting his identification from his wallet and repeatedly asked the officer what he had said he wanted. He also admitted having consumed alcohol. The two officers testified that, when he emerged from his vehicle, he was staggering, his face was flushed, his eyes were bloodshot, and his breath smelled of alcohol. He refused requests to submit to field sobriety tests and then began to walk away from the officers. As they grabbed his arms, he collapsed to his knees. He was then placed under arrest and asked to take an intoxilyzer test, which he refused. Officer Kmak, a member of the DUI squad, was then summoned.
Appellant refused Officer Kmak's request that he take an intoxilyzer test but agreed to submit to the HGN test. See generally State v. Superior Court (Blake), 149 Ariz. 269, 718 P.2d 171 (1986). Kmak testified that one cause of appellant's failure on all six clues of the test "could" be a central nervous system depressant, such as alcohol. On cross-examination, he stated that Department of Public Safety standards required only that he have an 80 percent accuracy rate in administering the HGN test in order to retain his certification, which meant that "under the DPS standards that are acceptable, if you assume that all these jurors were tested, one was tested incorrectly." To rebut this challenge to the test's reliability, the prosecutor elicited testimony on redirect that Kmak's own accuracy rate was in excess of 97 percent. On recross, the following transpired:
Q Officer Kmak, who made determination [sic] that you were 97 percent accurate in HGN?
A I believe that was Sgt. John Patla from the Traffic Division DUI Squad.
Q That's based on a review of your HGN logs?
A Yes, sir.
Q Who fills out the logs?
A I do.
Q Does anyone come out and observe you on all your HGN tests to make sure you're doing it properly?
A As a matter of fact, yes.
Q On every single test?
A No. But Sgt. Patla is an instructor in it and he's watched me perform it numerous times in the field and in training.
Q Was there any one out there--was Sgt. Patla out there on the date of this arrest?
A No.
Q Who keeps the logs?
A There was--there is several copies of it. The original copy the original officer trained technician maintains and keeps it. And a copy of it goes to the traffic division where they maintain your accuracy and proficiency on it. And a copy of it goes to the police department academy where the kind a standard on it [sic] and an accuracy level on it and have copies available for prosecutors and different courts.
Over appellant's objection, the prosecutor then proceeded to establish that Kmak's personal proficiency rate was determined by comparing the HGN test results with the results of subsequent chemical tests of blood, breath, or urine and that Kmak's test results were accurate if he "came up with six cues and then that person took an intoxylizer [sic], they were over .10...."
Appellant contends that admission of this testimony violates the supreme court's holding in State ex rel. Hamilton v. City Court (Lopresti), 165 Ariz. 514, 799 P.2d 855 (1990), that he did not open the door to its admission, and that if he did open the door, the resulting prejudice far outweighed its probative value. In Lopresti, the supreme court held as follows:
In a case involving only a § 28-692(A) charge, where no chemical test of blood, breath, or urine has occurred, the use of HGN evidence is restricted. Evidence derived from the HGN test, in the absence of a chemical analysis, although relevant to show whether a person is under...
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State v. Harold
...and we will not disturb that decision on appeal absent a showing of a clear abuse and resulting prejudice." State v. Cook, 172 Ariz. 122, 125, 834 P.2d 1267, 1270 (App. 1992). We review all constitutional questions de novo. State v. Nichols, 219 Ariz. 170, ¶ 9, 195 P.3d 207, 211 (App. 2008)......
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The State Of Ariz. v. Kelley, 2 CA-CR 2009-0310
...that the witness could have been located and produced within a reasonable time had a continuance been granted." State v. Cook, 172 Ariz. 122, 125, 834 P.2d 1267, 1270 (App. 1992) (no prejudice where defendant did not show witness could have been located and her testimony was insufficient to......
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State v. Sanchez, 2 CA-CR 2011-0207
...we may uphold a trial court's decision to deny a motion to continue without relying on the Reynolds factors. E.g., State v. Cook, 172 Ariz. 122, 834 P.2d 1267 (App. 1992); State v. Nadler, 129 Ariz. 19, 628 P.2d 56 (App. 1981). And in any event, the court's decision in this case rested on t......
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State v. Vasko
...we will not reverse such a ruling on appeal in the absence of a clear abuse and resulting prejudice. State v. Cook, 172 Ariz. 122, 125, 834 P.2d 1267, 1270 (App.1990), citing State v. Amarillas, 141 Ariz. 620, 688 P.2d 628 (1984). The issue we must first determine is whether the trial court......