State v. May

• Decision Date: 03 June 2005
• Docket Number: No. 2 CA-CR 2004-0099.,2 CA-CR 2004-0099.
• Citation: 210 Ariz. 452,112 P.3d 39
• Parties: The STATE of Arizona, Appellee, v. Kenneth Allen MAY, Appellant.
• Court: Arizona Court of Appeals

112 P.3d 39

210 Ariz. 452

The STATE of Arizona, Appellee, v. Kenneth Allen MAY, Appellant.

No. -0099.

Court of Appeals of Arizona, Division 2, Department B.

June 3, 2005.

Terry Goddard, Arizona Attorney General, By Randall M. Howe and Joseph L. Parkhurst, Tucson, for Appellee.

Robert J. Hooker, Pima County Public Defender, By Brian X. Metcalf, Tucson, for Appellant.

OPINION

PELANDER, Chief Judge.

¶ 1 After a jury trial, appellant Kenneth May was convicted of aggravated driving under the influence of an intoxicant (DUI) while a person under fifteen years of age was in the vehicle. See A.R.S. § 28-1383(A)(3). The trial court sentenced him to a presumptive prison term of 3.75 years. May raises six issues on appeal, but we find one dispositive. He argues, inter alia, the trial court erred in admitting hearsay evidence. We agree and, because that evidence was significant and prejudicial, we reverse his conviction on that ground. We also preliminarily address a suppression issue because it is likely to recur on remand.

BACKGROUND

¶ 2 We view the facts in the light most favorable to sustaining the verdict and resolve all reasonable inferences against the appellant. See State v. Riley, 196 Ariz. 40, ¶ 2, 992 P.2d 1135, 1137 (App.1999). Late one evening in November 2002, a Pima County sheriff's deputy saw May driving in excess of the speed limit. He pulled behind May's vehicle, saw it temporarily veer off the road, and directed May to stop. In May's car were two passengers, an adult female and a minor male.

¶ 3 Another officer arrived on the scene and arrested May for DUI after observing symptoms of intoxication. During the investigation, an adult male appeared on the scene and told the arresting officer the male passenger was his thirteen-year-old son. With May's consent, Deputy Curtin, a sheriff's department phlebotomist, drew a sample of May's blood at the scene. Testing showed he had a .195 percent alcohol concentration.

MOTION TO SUPPRESS

¶ 4 May first challenges the trial court's denial of his motion to suppress evidence, claiming the seizure of his blood violated the Fourth Amendment to the United States Constitution. In reviewing this issue, we consider only the evidence presented at the suppression hearing and view that evidence and reasonable inferences therefrom in the light most favorable to upholding the court's ruling. State v. Livingston, 206 Ariz. 145, ¶ 3, 75 P.3d 1103, 1104 (App.2003); State v. Crowley, 202 Ariz. 80, ¶ 7, 41 P.3d 618, 621 (App.2002). We will not reverse the ruling absent an abuse of discretion. Livingston, 206 Ariz. 145, ¶ 3, 75 P.3d at 1104. "We defer to the trial court's factual findings that are supported by the record and not clearly erroneous." State v. Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d 303, 307 (App.2000). We review questions of law de novo. State v. Estrada, 209 Ariz. 287, ¶ 2, 100 P.3d 452, 453 (App.2004).

¶ 5 May specifically argues the procedure used to take his blood sample was not "performed in a reasonable manner" and thus violated his Fourth Amendment right against unreasonable search and seizure, citing Schmerber v. California, 384 U.S. 757, 771, 86 S.Ct. 1826, 1836, 16 L.Ed.2d 908, 920 (1966). In Schmerber, the Court ruled that a blood sample "taken by a physician in a hospital environment according to accepted medical practices" was reasonable. Id. at 771-72, 86 S.Ct. at 1836, 16 L.Ed.2d at 920. The Court further stated, albeit in dicta:

We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment-for example, if it were administered by police in the privacy of the station house. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.

Id.

¶ 6 Although May relies on that language, Schmerber "did not attempt to set any specific rules for blood tests conducted outside the hospital setting." People v. Esayian, 112 Cal.App.4th 1031, 5 Cal.Rptr.3d 542, 549 (2003); see also Wetsch v. North Dakota Dep't of Transp., 679 N.W.2d 282,

¶ 17 (N.D.2004) (Schmerber "did not establish a requirement that blood be drawn in a hospital in order to be reasonable."); State v. Daggett, 250 Wis.2d 112, 640 N.W.2d 546, ¶ 14 (Ct.App.2001) (noting that Schmerber "did not categorically reject the possibility that a blood draw could take place in a nonmedical setting" and that blood draws need not "take place in a hospital setting in order to be constitutionally reasonable"). "The test for lawful searches and seizures is the unreasonableness of the search under the circumstances." State v. Hutton, 108 Ariz. 504, 507, 502 P.2d 1323, 1326 (1972). Society recognizes that "blood tests do not constitute an unduly extensive imposition on an individual's personal privacy and bodily integrity." Winston v. Lee, 470 U.S. 753, 762, 105 S.Ct. 1611, 1617, 84 L.Ed.2d 662, 670 (1985).

¶ 7 Deputy Curtin testified at the suppression hearing that he had drawn May's blood while they stood at the rear of a police car. Wearing protective gloves, Curtin cleaned the surface of May's arm, placed a tourniquet around it, applied an antiseptic to the site of the venipuncture, and secured the arm with one hand while it rested on the trunk of the car. He then drew two vials of blood. Curtin also testified that he had experienced no problems during the blood draw and that May had not moved his arm. An expert witness May called testified that Curtin had violated the standard of care by having May stand while his blood was drawn. She testified that doing so creates a risk the individual could pass out or faint, move his arm and cause the needle to fall out, and possibly cause nerve damage.

¶ 8 The trial court found the seizure reasonable because the procedure Curtin used resulted in only a "slightly higher" risk of complications "in a field setting" than those of a clinical setting.¹ We have no basis for disturbing that ruling. May consented to having his blood drawn. And Curtin testified that, based on his knowledge and training, the standard of care required him to clean the arm and "not caus[e] any injury to the patient." Further, May's witness testified that on-site and clinical testing are equally reliable and both present possible risks to the patient but, in her opinion, "the risk of injury goes up" with on-site testing.

¶ 9 The trial court essentially determined that the possible increased risks associated with on-site testing did not render the blood draw here unreasonable. See Schmerber, 384 U.S. at 771-72,

86 S.Ct. at 1836,

16 L.Ed.2d at 920. Based on this record, we cannot say the trial court abused its discretion in so ruling. See State v. Clary, 196 Ariz. 610, 2 P.3d 1255 (App.2000) (upholding seizure of defendant's blood sample drawn at police station by phlebotomist while other officers restrained defendant on floor and exerted reasonable force to overcome his resistance); Esayian, 5 Cal.Rptr.3d at 550 (blood draw by phlebotomist upheld when no showing made that "manner of drawing the blood was unsanitary, or subjected the suspect to any unusual pain or indignity"); State v. Sickler, 488 N.W.2d 70, 73-74 (S.D.1992) (blood draw taken in a jail from suspect while restrained in a "semi-sitting" position reasonable); Daggett, 250 Wis.2d 112,

640 N.W.2d 546, ¶ 18 (finding reasonable blood draw in booking room of jail, "although not a sterile environment," when record did not suggest "any danger to [suspect's] health").

¶ 10 May also contends the trial court should have granted his motion to suppress because Curtin was not a trained phlebotomist. But in Arizona, a physician, registered nurse, or other "qualified person" may withdraw blood from the operator of a vehicle to determine his or her alcohol concentration. A.R.S. § 28-1388(A). A phlebotomist is a "qualified person" under the statute. State ex rel. Pennartz v. Olcavage, 200 Ariz. 582, ¶ 21, 30 P.3d 649, 655 (App.2001) (phlebotomist is "a person who, through training or experience, is competent to draw blood"). A phlebotomist need not be certified, but rather, "only demonstrate competence through training or experience." State v. Carrasco, 203 Ariz. 44, ¶ 9, 49 P.3d 1140, 1141 (App.2002). Deputy Curtin attended a one-week course in phlebotomy. As of November 2002, he had drawn blood 150 to 200 times. That training and experience sufficiently qualified Curtin as a person competent to draw blood. See Esayian, 5 Cal.Rptr.3d at 549

. We find no statutory or constitutional violation relating to Curtin's qualifications. Accordingly, the trial court did not err in denying May's motion to suppress.

EVIDENCE OF PASSENGER'S AGE

¶ 11 As noted earlier, at the time of the traffic stop there were two other people in May's car, a female adult and a younger male. Just before trial started, the prosecutor told the trial court that the state had not located the male passenger or his putative father who had appeared at the scene.² Having failed to identify or locate that passenger or the father, the state sought to prove the passenger's age through the arresting officer's testimony about what the father had told him at the scene. After a brief hearing outside the jury's presence, the trial court ruled that the state had failed to prove the male passenger was "unavailable." Ariz. R. Evid. 804(a), 17A A.R.S. Thus, the trial court ruled that Rule 804(b)(4), Ariz. R. Evid., did not apply. But, over May's objection, the court allowed the officer to testify about that passenger's age pursuant to Rule 803(19), Ariz. R. Evid.,³ which allows hearsay reputation evidence of various "fact[s] of personal or family history."

¶ 12 The arresting officer testified at trial that the male passenger "looked very young, like a child, teenager at best." Based on the passenger's physical characteristics, the officer opined he was...