State v. Juarez
| Decision Date | 06 April 1989 |
| Docket Number | Nos. CR-88-0372-P,CV-88-0491-SA and CV-88-0510-SA,s. CR-88-0372-P |
| Parties | The STATE of Arizona, Appellee, v. Timothy JUAREZ, Jr., Appellant. Mark Neal SCHOEFFLER, Petitioner, v. SUPERIOR COURT In and For MARICOPA COUNTY, and the Honorable Michael O. Wilkinson, a judge thereof; Municipal Court of the City of Phoenix, and the Honorable Ralph G. Smith, Jr., and the Honorable John J. Murphy, Judges thereof, and The STATE of Arizona, Real Party in Interest, Respondents. William M. ELSBURY, Petitioner, v. Patrick O'NEIL, Judge Pro Tem of the Superior Court, County of Maricopa, State of Arizona; Roderick G. McDougall, as City Attorney of the City of Phoenix, Arizona; M. Louis Levin, as Presiding Judge of the Phoenix Municipal Court, Phoenix, Arizona; and N. Pike Johnson, as Judge of the Phoenix Municipal Court, Phoenix, Arizona, Respondents. |
| Court | Arizona Supreme Court |
Patrick O'NEIL, Judge Pro Tem of the Superior Court, County of Maricopa, State of Arizona; Roderick G. McDougall, as City Attorney of the City of Phoenix, Arizona; M. Louis Levin, as Presiding Judge of the Phoenix Municipal Court, Phoenix, Arizona; and N. Pike Johnson, as Judge of the Phoenix Municipal Court, Phoenix, Arizona, Respondents.
Nos. CR-88-0372-PR, CV-88-0491-SA and CV-88-0510-SA.
Supreme Court of Arizona In Banc.
Reconsideration Denied June 13, 1989.
Robert K. Corbin, Atty. Gen., Phoenix, by Eric J. Olsson, Asst. Atty. Gen., Tucson, for appellee State.
Robert Arentz, Cochise County Public Defender by Joseph P. DiRoberto, Deputy Public Defender, Bisbee, for appellant Timothy Juarez, Jr.
Roderick G. McDougall, Phoenix City Atty. by Samuel K. Lesley and Richard J. Graci, Asst. City Prosecutors, Phoenix, for respondent/real party in interest.
Earl Terman, Phoenix, for petitioner Mark Schoeffler.
Patrick E. Eldridge, Phoenix, for petitioner William Elsbury.
Timothy Juarez, Jr., petitions this court to review the court of appeals' decision affirming his convictions by a jury of driving under the influence of intoxicating liquor (DUI) (A.R.S. § 28-692(A)) and driving with a blood alcohol content (BAC) of 0.10 percent or more (A.R.S. § 28-692(B)). William M. Elsbury petitioned this court for writ of special action to review his convictions for DUI (A.R.S. § 28-692(A)) and driving with a BAC of 0.10 percent or more (A.R.S. § 28-692(B)). Mark Neil Schoeffler petitioned this court for special action to review his conviction for DUI (A.R.S. § 28-692(A)). We granted Juarez's petition for review, accepted jurisdiction of Elsbury's and Schoeffler's petitions for special action and consolidated the three cases for disposition. We have jurisdiction in Juarez pursuant to Ariz. Const. art. 6, § 5(3), A.R.S. § 12-120.24 and Ariz.R.Crim.P. 31.19, 17 A.R.S. and in Elsbury and Schoeffler pursuant to Ariz. Const. art. 6, § 5(1).
We consider only one question: Was it error to inform the driver that following his arrest for DUI he would not be permitted to contact his attorney before deciding whether to submit to a breath test?
The facts necessary for a determination of this matter on appeal are as follows:
A. Timothy Juarez
On 14 July 1987 just before 7:00 p.m., DPS Officer Matthew Janton arrested Timothy Juarez in Cochise County near the Arizona-New Mexico border. After making arrangements for the removal of Juarez's truck from the road, the two left for Willcox, where the nearest police station with an intoxilyzer machine was located. They arrived about 8:40 p.m., and Janton began the mandatory (A.R.S. § 28-692.03) twenty-minute observation period before administering the intoxilyzer test.
In requesting Juarez's consent to submit to the intoxilyzer test, Officer Janton read to the defendant the following:
Arizona law requires you to submit to a breath test to determine the alcoholic content of your blood. If you refuse to submit to this test, your license or permit to drive will be suspended for twelve months. You are therefore requested to submit to a breath test.
Unless you expressly agree to take the test, I will consider you are refusing. You will not be allowed to call an attorney before deciding if you will take this test. However, after you take the test, you may then telephone an attorney or friend if you choose.
If you decide not to take the test, you will still be allowed to telephone an attorney, but your refusal will still result in suspension of your license or permit to drive for twelve months.
(Emphasis added.) The intoxilyzer test was administered at 9:05 p.m., more than two hours after the arrest, and it showed a BAC of 0.179 percent.
Juarez was charged by indictment with DUI (A.R.S. § 28-692(A)) and driving with a BAC of 0.10 percent or more. (A.R.S. § 28-692(B)). At trial, the parties stipulated that Juarez was driving with a revoked license. A jury found him guilty as charged and the court sentenced him to concurrent, maximum prison terms of four years. The court found Juarez's eight prior DUI convictions and the fact that he consciously posed a risk to others by deciding to drive while intoxicated and without a license to be aggravating circumstances. Additionally, the court noted that pursuant to one of Juarez's prior convictions, he had been sentenced to two years in prison.
In a per curiam opinion, 775 P.2d 1137, the court of appeals affirmed and Juarez petitioned this court for review which we granted.
B. William M. Elsbury
On 7 March 1987, at about 11:15 p.m., Phoenix Police Officer William Niles responded to a traffic accident in which Elsbury was involved. Elsbury was arrested and taken to the police station, where at 12:02 a.m. the officer began the twenty-minute observation period before the breath test. During the observation period, the officer read Elsbury his Miranda rights, and Elsbury said he did not want to answer questions without an attorney being present. Toward the end of the twenty-minute observation period, Elsbury was also advised of the Implied Consent Law, A.R.S. § 28-691, and was told that he had no right to contact an attorney during the test but could do so after the test. The breath test was administered at 12:23 a.m., resulting in a reading of 0.21. The officer advised Elsbury of his right to a second sample test and permitted Elsbury to make a phone call. Rather than calling an attorney, Elsbury called a friend for a ride home. At 12:35 a.m., after his phone call, he took a second breath test.
Elsbury was charged with violating A.R.S. § 28-692(A), DUI, and (B), driving with a BAC of 0.10 percent or more. Elsbury subsequently contacted an attorney, who had the second breath sample analyzed. The test results showed a BAC of 0.26 percent.
The court granted Elsbury's pretrial motion to suppress the first breath test apparently and correctly (we believe) because it found a violation of Kunzler v. Pima County Superior Court, 154 Ariz. 568, 744 P.2d 669 (1987). The state moved to use the results of the second test in its case-in-chief. The defense disclosed the result to the prosecution pursuant to Ariz.R.Crim.P. 15. The court granted this motion, finding that Elsbury had the opportunity to call an attorney before taking the second sample. Elsbury was found guilty as charged. He admitted a prior DUI conviction and was sentenced to sixty days in jail and fined $715. He appealed to the superior court, which affirmed. We granted Elsbury's petition for special action.
C. Mark Neal Schoeffler
On 13 September 1987, at approximately 7:00 p.m., Officer Miner saw Schoeffler at 3525 E. Emile Zola, and determined that Schoeffler had been drinking. Because he had information that Schoeffler had been driving, Officer Miner warned Schoeffler not to drive in his condition.
At 11:40 p.m., while monitoring the intersection of 36th Street and Sweetwater, Officer Curatola observed Schoeffler's vehicle approaching Sweetwater at a high rate of speed and crossing the intersection without slowing or stopping at the stop sign. The officer paced Schoeffler, by calibrated speedometer, at 60 m.p.h. Officer Miner stopped him at 37th Place, south of Thunderbird Road.
Schoeffler stumbled out of his vehicle. Officer Curatola observed his watery, bloodshot eyes and smelled a strong odor of alcohol. During the field sobriety tests, Schoeffler swayed and could not recite the alphabet. Schoeffler was arrested for DUI and transported to the Union Hills police station.
After Officer Curatola transported Schoeffler to the police station, he advised him of his Miranda rights and Schoeffler refused to answer questions. After he completed the twenty-minute observation, Officer Curatola read Schoeffler a statement from the Implied Consent Law which advised Schoeffler that:
"You will not be allowed to call an attorney before deciding if you will take this test."
Schoeffler said that he would submit to the test. The machine was started, at which point Schoeffler said he did not understand what had been read to him. The officer read Schoeffler the implied consent warning four times at his request. Schoeffler finally said he would not take the test. Officer Curatola testified at trial that Schoeffler did not ask to call an attorney, but that even if he had requested a call after being read the implied consent warning, it would have interrupted the ongoing DUI investigation. After his refusal, Schoeffler requested and was allowed to make a phone call. The call was to a non-lawyer. Schoeffler was subsequently charged and tried for DUI in violation of A.R.S. § 28-692(A). At trial, the state introduced Schoeffler's refusal to take the test. A.R.S. § 28-692(K).
At a hearing on Schoeffler's motion to dismiss or to suppress any evidence of Schoeffler's refusal to take a breath test, defense counsel cross-examined Officer Curatola as follows:
To continue reading
Request your trial
-
McCambridge v. State
...of Louisiana's Third Court of Appeals filed in State v. Broussard, 517 So.2d 1000, 1004 (La.App. 3 Cir.1987). Also see Arizona v. Juarez, et al., 775 P.2d 1140 (Ariz.1989). Today, a majority of this Court holds that "a critical stage in the criminal process does not occur until formal charg......
-
Tornabene v. Bonine ex rel. Arizona Highway Dept.
...suspension is entitled to assistance of counsel in deciding whether to submit to chemical breath testing. See State v. Juarez, 161 Ariz. 76, 80, 775 P.2d 1140, 1144 (1989); Kunzler v. Miller, 154 Ariz. 570, 571, 744 P.2d 671, 672 (1987); Campbell v. Superior Court, 106 Ariz. 542, 549-50, 47......
-
State v. Rosengren
...this violation of defendant's right to counsel must be suppressed." 154 Ariz. at 570, 744 P.2d at 671. See also State v. Juarez, 161 Ariz. 76, 775 P.2d 1140 (1989) (evidence of breath test suppressed because defendant denied opportunity to contact counsel before test although allowed to con......
-
Mogard v. City of Laramie
...to consult with counsel before chemical testing, the right being defined as a "limited statutory right"); State v. Juarez, 161 Ariz. 76, 775 P.2d 1140, 1144-45 (1989) (a criminal rule requires counsel "as soon as feasible after a defendant is taken into custody," but it also violates the Si......
-
Administrative hearings
...denied a right to counsel because that case concerned a civil license revocation and was not a criminal prosecution. In State v. Juarez , 775 P.2d 1140 (Ariz. 1989), the Arizona Supreme Court reaffirmed its prior holding in Kunzler v. Pima County Superior Court , 744 P.2d 669 (Ariz. 1987) t......