State v. Leonard
| Decision Date | 13 March 1986 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 151 Ariz. 1,725 P.2d 493 |
| Parties | STATE of Arizona, Appellee, v. Kent Alan LEONARD, Appellant. 8658. |
| Court | Arizona Court of Appeals |
Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Chief Counsel, Criminal Div., Crane McClennen, Asst. Atty. Gen., Phoenix, for appellee.
Perry, Hammond, Drutz & Musgrove by Marc E. Hammond, Prescott, for appellant.
*
Kent Alan Leonard appeals from his conviction and sentence for the crime of driving while under the influence of intoxicating liquor (DWI) with two prior similar convictions within a period of sixty months. He raises six issues on appeal, each of which require a detailed statement of facts.
On March 18, 1984, at approximately 1:00 a.m., Officer Robert McCarthy of the Department of Public Safety observed the defendant driving away from Shawn's Bar in Sedona, Arizona. The defendant's vehicle made erratic movements and its headlights flickered on and off. As the vehicle approached the officer, the headlights were off, but when the vehicle turned onto the highway, the headlights were illuminated. Officer McCarthy observed the vehicle weaving and traveling 10 to 20 miles per hour in a 40-mile-per-hour zone. The defendant executed a left turn by traveling for a short distance in the lane for oncoming traffic. At that point, Officer McCarthy turned on his emergency lights and stopped the vehicle.
Officer McCarthy noticed that the defendant was unsteady on his feet and smelled of alcohol. The defendant's face was flushed, his eyes bloodshot and watery, and his speech slurred. He failed to pass four field sobriety tests. Upon his arrest at 1:14 a.m., he was put into the back of a patrol car. He kicked the insides of the vehicle to the extent that mace and leg irons were needed to subdue him.
Officer McCarthy drove the defendant to a police sub-station in Sedona, arriving at approximately 2:00 a.m. Shortly thereafter, the defendant was read his Miranda rights. McCarthy administered two breath (intoxilyzer) tests between 2:29 and 2:33 a.m. The test results were .26 and .24 percent, respectively. The defendant admitted that he had drunk about six beers between 1:15 p.m. and 12:45 a.m. McCarthy advised the defendant that he could request a breath sample for his independent testing and an independent blood test. McCarthy secured a breath sample in a glass tube which was placed with the defendant's property. The defendant testified that he received this sample but that he later lost it.
The defendant expressed a desire to contact a physician to obtain an independent blood test. He wanted to contact a Dr. Caskey but could not find the doctor's telephone listing. He did call the number of a Dr. Hildebrand whose answering service indicated that the doctor was unavailable. He then asked if he could call a Dr. Kahle in Flagstaff and Sam Ornsby, a long-time friend and retired Department of Public Safety officer. McCarthy testified that he permitted Leonard to continue his efforts to contact a physician up until the time that he was transported to Flagstaff for booking on an outstanding trespass warrant discovered after the DWI arrest. Although the defendant testified otherwise, the trial judge accepted McCarthy's testimony on this point. At trial, McCarthy explained his reasons as follows:
I said, well, the doctors he wanted were in Flagstaff, we are going to Flagstaff, so he could call from there.... I finally cut it off at the end. I thought I was quite patient with him.... [T]he deputy ... said the doctor he wanted was in Flagstaff Hospital, so as long as we're going to Flagstaff it seemed reasonable he could contact him up there.... Then he wanted to call this Sam Ornsby the retired patrolman, and I think at this point I said, look you can make your call from Flagstaff. We made a reasonable attempt here.
McCarthy and the defendant left Sedona at 3:30 a.m.
During the approximately one-hour drive to Flagstaff, McCarthy learned from the defendant that Ornsby was living in Phoenix rather than Flagstaff. After arriving in Flagstaff, the defendant made no attempt to make any further phone calls to arrange for a blood test. He posted bond and was released between 5:00 and 5:30 a.m.
The jury returned a verdict of guilty of driving while intoxicated with two prior similar convictions within a period of sixty months. The defendant was sentenced to the presumptive term of two years imprisonment. He now raises these six issues on appeal:
(1) whether the trial court erred in applying the April, 1984, amended version of A.R.S. § 28-692.03(B) retroactively;
(2) whether A.R.S. § 28-692.03(B) as amended constitutes an unconstitutional violation of the doctrine of separation of powers;
(3) whether the trial court erred by denying the defendant's motion for new trial on the grounds of jury misconduct;
(4) whether the trial court erred by admitting evidence of a horizontal nystagmus test administered to the defendant;
(5) whether the state unreasonably interfered with the defendant's attempt to obtain an independent blood test, thereby denying him due process and a fair trial;
(6) whether the trial court erred by refusing to accept the defendant's offer to stipulate to two prior DWI convictions.
Retroactive Application of A.R.S. § 28-692.03(B)
The defendant's first contention is that the trial court erred in ruling that the April, 1984, version of A.R.S. § 28-692.03(B) should apply to the admissibility of his breath test. A 1984 amendment to that statute reduced the foundational requirements necessary to admit the results of a breath test. Prior to that amendment, A.R.S. § 28-692.03, as interpreted by our Supreme Court in Fuenning v. Superior Court, 139 Ariz. 590, 680 P.2d 121 (1983), required the state to satisfy procedures and guidelines promulgated by the Department of Health Services. The defendant contends that the state should have had to meet these more burdensome foundational requirements before the results of his breath test were admitted.
The current version of A.R.S. § 28-692.03 became effective April 24, 1984, after the defendant's arrest, but before his trial. The defendant contends it was enacted too late to apply to his crime. Statutory changes in procedure may be applied to pending proceedings unless such a statute impairs vested rights. Allen v. Fisher, 118 Ariz. 95, 96, 574 P.2d 1314, 1315 (App.1977). There is no vested right to a particular mode of procedure. A procedural law prescribes the method of enforcing rights as opposed to creating, defining, or regulating such rights. Id. Statutes relating only to procedure rather than substantive law may apply retroactively. Id.
The defendant argues that his situation parallels that in State v. Coconino County Superior Court, 139 Ariz. 422, 678 P.2d 1386 (1984). There our Supreme Court held that the amended version of A.R.S. § 13-502(B) shifting the burden of proof of sanity to the accused would not be applied retroactively. However, the amended version of A.R.S. § 28-692.03 is distinguishable. Unlike A.R.S. § 13-502(B), A.R.S. § 28-692.03 is a procedural rule governing the foundation for admission of evidence, not the amount of evidence required for conviction.
The United States Constitution neither prohibits nor requires retroactive application of a constitutional rule of criminal procedure. State v. Espinosa-Gamez, 139 Ariz. 415, 418, 678 P.2d 1379 (1984). In State v. Steelman, 120 Ariz. 301, 585 P.2d 1213 (1978), the court held that constitutional prohibitions against ex post facto laws do not apply to changes in rules of evidence, whether statutory or court-made. Steelman found no ex post facto violation where "the crimes for which the defendant was charged, the punishment to be imposed, and the quantity or degree of proof necessary to convict remained the same; only the admissibility of certain evidence was changed." Id. at 318, 585 P.2d at 1230. In this context, and in light of Steelman, the amended version of A.R.S. § 28-692.03 constitutes a procedural rule merely governing the admissibility of evidence. The trial court thus did not err in applying the 1984 version of A.R.S. § 28-692.03 retroactively.
The defendant's next argument is that A.R.S. § 28-692.03(B) constitutes an unconstitutional violation of the doctrine of separation of powers because it eliminates foundational safeguards for admitting breath test results. This objection was not raised in the trial court. This argument is therefore waived on appeal, absent fundamental error. State v. Thomas, 130 Ariz. 432, 435, 636 P.2d 1214, 1217 (1981).
We find no fundamental violation of the separation of powers doctrine in the legislature's promulgation of the amended version of A.R.S. § 28-692.03. In State ex rel. Collins v. Seidel, 142 Ariz. 587, 691 P.2d 678 (1984), in discussing admission of blood alcohol test results, our Supreme Court considered the legislature's promulgation of procedures for admission of evidence. Although Article 6, § 5(5) of the Arizona Constitution gives the Arizona Supreme Court the power to make court rules, courts also recognize the legislature's "statutory arrangements" which are "reasonable and workable." Id. at 591, 691 P.2d at 682.
The defendant claims that the amended version of A.R.S. § 28-692.03 eliminates the requirement that the party offering the blood alcohol test comply with statewide uniform Department of Health Services (DHS) procedures. The amended version of A.R.S. § 28-692.03 does require compliance with uniform statewide standards. The test must utilize a device approved by DHS. The operator must possess a valid permit from DHS and must follow a DHS-approved checklist. Maintenance records must still be presented. Here, the trial testimony showed that DHS had promulgated a uniform checklist and other uniform standards. The...
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