State v. Mendoza
| Decision Date | 27 September 1990 |
| Docket Number | No. 1,CA-CR,1 |
| Parties | STATE of Arizona, Appellee, v. Jorge G. MENDOZA, Appellant. 89-518. |
| Court | Arizona Court of Appeals |
The defendant was convicted of driving while under the influence of intoxicating liquor (DUI) with two prior convictions, and driving with a blood-alcohol content of 0.10 or more with two prior convictions, class 5 felonies, in violation of A.R.S. §§ 28-692(A) and (B) and 28-692.01. The imposition of sentence was suspended and the defendant was placed on probation for three years. He was ordered to spend the minimum term of six months in prison. On appeal, he argues that:
(1) his convictions must be reversed because the state failed to present any "relation-back" evidence as required by Desmond v. Superior Court, 161 Ariz. 522, 779 P.2d 1261 (1989);
(2) the trial court should have dismissed the case because the 150-day arrest-to-trial rule of Hinson v. Coulter, 150 Ariz. 306, 723 P.2d 655 (1986), was violated.
We reach two conclusions. First, Desmond applies retroactively to all cases not final at the time Desmond was mandated. Any DUI conviction presently in the appellate court in which there was no relation-back evidence will be examined on a case-by-case basis. Finally, we hold that time is not excluded from the 150-day Hinson rule when the state obtains a continuance on the grounds that it is not ready to proceed to trial.
The defendant was stopped by a police officer at approximately 1:45 a.m. because his driving was erratic. As the defendant got out of his automobile, he used the car for support. His breath carried a strong odor of alcohol. When asked to produce his driver's license, the defendant searched his wallet and passed over the license three times before the officer pointed it out to him. The officer then administered the standard field-sobriety tests and the defendant's performance was very poor.
The defendant was arrested and taken to the police station where a breath test was administered at 2:31 a.m. It indicated a blood-alcohol level of .21. The defendant admitted to the officer that he had consumed three beers and two drinks. He told the officer that he had started drinking at about 11:00 p.m.
The defendant testified at his trial that he was not drunk the night he was arrested. He told the jury that he had failed the sobriety tests because the officer had spoken quickly in English and he had not understood the officer's directions.
The state did not present any evidence at trial as to how the results of the test administered at 2:31 a.m. related back to the defendant's blood-alcohol content at 1:45 a.m. The defendant moved for a judgment of acquittal on the basis of that gap in the evidence and, when the parties settled the jury instructions, the defendant objected to the instruction on presumptions pursuant to A.R.S. § 28-692(E). The trial court denied the defendant's motion and overruled his objection to the presumption instructions.
In Desmond, 161 Ariz. 522, 779 P.2d 1261 (1989), the Supreme Court addressed the question of whether a defendant's blood-alcohol content (BAC) was admissible in evidence, absent an evidentiary foundation relating the BAC at the time of the test to that which existed at the time of driving. Desmond actually involved two cases consolidated for disposition. In the first case, the evidence at Desmond's DUI trial established that Desmond had consumed two or three "shots" of liquor between 12:30 a.m. and 1:00 a.m. Twenty minutes later he was stopped by the police and arrested. About an hour later, the police administered a breath test; Desmond's BAC was .13. An expert testified that, based on these facts, Desmond's BAC at the time of driving "would probably put him somewhere in the order of around a 0.03." Id. at 524-25, 779 P.2d at 1263-64. The state presented no evidence that Desmond's BAC at the time of driving was 0.10 or more. Over counsel's objections, the jury was instructed that:
If there was at the time of the defendant's driving 0.10 percent or more by weight of alcohol in the defendant's blood, it may be presumed that the defendant was under the influence of intoxicating liquor.
In the second case, Robert W. David was tried for DUI and driving with a BAC of .10 or more. The evidence at trial established that David was stopped by the police at about 1:00 a.m. He was arrested and admitted to having had three drinks prior to being stopped, and a six-pack of beer at about 3:00 p.m. Approximately one hour after he was stopped, David submitted to an Intoxilyzer test and the results showed a BAC of .13. Five minutes later, a second test indicated a BAC of .12.
David's counsel attempted to qualify the arresting officer as an expert witness and establish that David's BAC at the time of driving was lower than at the time of the test. The state's objection was sustained. After the state rested, counsel moved for a directed verdict on the basis that the state had not presented any testimony relating the test results back to the time of driving. The motion was denied.
In reversing Desmond's and David's convictions, the court held that:
evidence of a driver's blood alcohol content taken within a reasonable period of time after arrest is admissible if A.R.S. § 28-692.03 is complied with. Such evidence, however, standing alone, does not make a prima facie case of a violation of either subsection A or subsection B of A.R.S. § 28-692. In order for the state to receive the statutory presumption instruction in a charge under subsection A or to make a prima facie case under subsection B, there must be some evidence relating the BAC back to the time of arrest.
Id. at 528-29, 779 P.2d at 1267-68.
In reaching this result, the court observed that the Intoxilyzer test usually is administered about one hour after a driver is stopped and arrested. If the BAC is falling at the time, the reading will be less than what the BAC was at the time the driver was stopped. Conversely, if the BAC is rising, the reading will be greater than the BAC at the time the driver was stopped. In some instances, the BAC will rise after the driver is stopped, peak and recede, producing the same BAC as when the driver was stopped. Therefore, the supreme court held that there could be no presumption that a driver's BAC at the time of driving was as high as his BAC taken an hour later. Id. at 527, 779 P.2d at 1266.
The court emphasized that a driver's BAC at the time of the test is relevant evidence under Rule 401, A.R.Evid. "For example, a reading of 0.20, twice the presumptive level of 0.10, taken an hour after arrest will be strong evidence that the defendant was driving with a reading of more than 0.10." Id. The court cautioned, however, that "this does not mean ... that such evidence standing alone is sufficient to obtain a conviction under either subsection A or B of A.R.S. § 28-692." Id. at 528, 779 P.2d at 1267. (Emphasis added.) If the proponent of a BAC result wishes to have such evidence admitted without relation-back testimony, only the portion of the test result that indicates the presence of alcohol in the blood is admissible; the specific percentage is not. Id. at 527-28, 779 P.2d at 1266-67.
A.R.S. § 28-692(E)(3) directs that the amount of alcohol in the defendant's blood at the time alleged, as shown by an analysis of his blood, urine, breath or other bodily substances, gives rise to the following presumption:
3. If there was at that time 0.10 or more alcohol concentration in the defendant's blood or breath, it may be presumed that the defendant was under the influence of intoxicating liquor.
The court said in Desmond that although this presumption was not unreasonable, it could not be the basis of a jury instruction unless there was testimony relating the BAC back to the time of arrest.
All relevant evidence may be considered by the trier of fact in determining whether or not the driver was, at the time of arrest, driving under the influence of intoxicating liquor. However, in order for the statutory presumption to apply or any instruction to be given, there must be some evidence of the BAC at the time the defendant was stopped and not just at the time of the test.
161 Ariz. at 528, 779 P.2d at 1267.
In Desmond's case, the court found that there was sufficient evidence of the driver's impairment to go to the jury even though an expert had testified that Desmond's BAC was only .03 at the time of driving. However, the court stated that because no expert testimony that the BAC at the time of driving was .10 or more, there could be no presumption that Desmond was driving under the influence of intoxicating liquor when stopped. Therefore, the trial court's instruction on the presumption constituted reversible error.
The court reached the same result with regard to David's conviction under subsection A and remanded the matter for a new trial. However, since there was no testimony relating David's BAC at the time of the test back to the time of driving, there was "insufficient evidence to establish a prima facie case of a violation of subsection B" and that conviction was reversed.
In the evolution of the theory of retroactivity, the United States Supreme Court most recently has said that the "failure to apply a newly declared constitutional rule to criminal cases pending on direct review violates basic norms of constitutional adjudication." Griffith v. Kentucky, 479 U.S. 314, 322-23, 107 S.Ct. 708, 713, 93 L.Ed.2d...
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- State v. Mendoza, CR-90-0325-PR
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Williams for and on Behalf of Dixon v. Thude
...(relation back evidence is necessary for the state to receive the statutory presumption of intoxication); State v. Mendoza, 170 Ariz. 196, 199, 823 P.2d 63, 66 (App.1990) approved in part, vacated in part on other grounds, 170 Ariz. 184, 823 P.2d 51 (1992) (although the presumption may not ......