State v. Hamilton Nereim, 110519 AZAPP2, 2 CA-CR 2019-0062

Docket Nº:2 CA-CR 2019-0062
Opinion Judge:VÁSQUE Z, Chief Judge
Party Name:The State of Arizona, Appellee, v. Travis Ario Hamilton Nereim, Appellant.
Attorney:Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel Joshua C. Smith, Assistant Attorney General, Phoenix Counsel for Appellee Robert A. Kerry, Tucson Counsel for Appellant
Judge Panel:Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred.
Case Date:November 05, 2019
Court:Court of Appeals of Arizona
 
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The State of Arizona, Appellee,

v.

Travis Ario Hamilton Nereim, Appellant.

No. 2 CA-CR 2019-0062

Court of Appeals of Arizona, Second Division

November 5, 2019

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Pima County No. CR20160984001 The Honorable Gus Aragón, Judge

Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel

Joshua C. Smith, Assistant Attorney General, Phoenix Counsel for Appellee Robert A. Kerry, Tucson Counsel for Appellant

Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred.

MEMORANDUM DECISION

VÁSQUE Z, Chief Judge

¶1 After a jury trial, Travis Nereim was convicted of aggravated driving under the influence of an intoxicant (DUI) and aggravated driving with a blood-alcohol concentration (BAC) of .08 or more, both while his license was suspended, revoked, restricted, or cancelled; aggravated DUI and aggravated driving under the extreme influence of alcohol, both while a minor was present; and child abuse. The trial court sentenced Nereim to concurrent prison terms, the longest of which are ten years. On appeal, Nereim argues the court erred by denying his motion to suppress his blood-test results because the multiple attempts it took to draw his blood were unreasonable under the Fourth Amendment. For the following reasons, we affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to upholding Nereim's convictions. See State v. Allen, 235 Ariz. 72, ¶ 2 (App. 2014). Early one morning in February 2016, Tucson Police Department (TPD) Officer Tyler Ashton observed Nereim commit various traffic violations, including making an improper left-hand turn, speeding, and crossing over a lane divider. Nereim's thirteen-year-old daughter was a passenger in the vehicle. Ashton initiated a traffic stop and, upon contact with Nereim, noticed he had "slurred speech," "bloodshot, watery eyes," and "a strong o[dor] of intoxicants coming from [him]." After Nereim exhibited six out of six cues of impairment on the horizontal gaze nystagmus test, he was arrested and transported to a police substation.

¶3 Because Nereim refused to consent to a blood draw, Ashton obtained a search warrant. Officer Eric Altman, a trained phlebotomist, informed Nereim of the warrant and attempted to draw his blood. Nereim, however, stated that they "weren't going to get his blood" and "clenched his fists," bringing "them up to his chest" and "holding them tightly." Because Altman was unsuccessful in drawing Nereim's blood, he requested the assistance of Sergeant Corie Nolan, another phlebotomist. According to Nolan, Nereim "was not cooperative with the blood draw . . . at all," and they "had to hold him and hold the arm to make the attempt." Nolan also observed that Nereim had sclerosed veins, or "hard veins," which indicated to Nolan that Nereim was an intravenous drug user. After Nolan made two unsuccessful attempts to draw Nereim's blood, he instructed Altman to try once more. Altman was again unsuccessful, and Nolan instructed Ashton to take Nereim to the hospital for assistance.

¶4 At the hospital, Ashton spoke with several nurses, but based on Nereim's refusal to give consent, their supervisor directed them not to assist with the blood draw. Ashton notified Nolan, and they contacted Officer Carter Wingate, who had previously worked as a phlebotomist on the pediatric floor of the hospital, to assist with the blood draw. When Wingate arrived at the hospital, Nereim continued to be "uncooperative" and "verbally antagonistic." Wingate's three attempts to draw Nereim's blood were unsuccessful.

¶5 Ashton then spoke with another hospital administrator who authorized one of the nurses to assist. She was successful in drawing Nereim's blood. A retrograde calculation of the blood sample established that Nereim's BAC was between .203 and .246 within two hours of driving. It was also determined that Nereim had been driving while his license...

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