State v. Moran

• Citation: 307 P.3d 95,232 Ariz. 528,666 Ariz. Adv. Rep. 13
• Decision Date: 31 July 2013
• Docket Number: No. 2 CA–CR 2011–0346.,2 CA–CR 2011–0346.
• Parties: The STATE of Arizona, Appellee, v. William Peter MORAN, Appellant.
• Court: Court of Appeals of Arizona

232 Ariz. 528

307 P.3d 95

666 Ariz. Adv. Rep. 13

The STATE of Arizona, Appellee,

v.William Peter MORAN, Appellant.

No. 2 CA–CR 2011–0346.

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

July 31, 2013.

Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Amy Pignatella Cain, Tucson, for Appellee.

Isabel G. Garcia, Pima County Legal Defender By Robb P. Holmes, Tucson, for Appellant.

OPINION

ECKERSTROM, Judge.

¶ 1 Following a jury trial, appellant William Moran was convicted of four counts of aggravated driving under the influence of an intoxicant (DUI). The trial court sentenced him to concurrent terms of four months' incarceration, pursuant to A.R.S. § 28–1383(D),¹ followed by concurrent five-year terms of probation. On appeal, Moran challenges the legality of his traffic stop and subsequent arrest. He also contends that his out-of-state DUI convictions cannot support his two aggravated DUI convictions under § 28–1383(A)(2). We agree with the latter point and vacate the two convictions and dispositions under that subsection, but we affirm the two remaining convictions and dispositions under § 28–1383(A)( l ). We set forth the facts below as they relate to each issue.

Motion to Suppress

¶ 2 Moran first contends the trial court erred in finding reasonable suspicion for his traffic stop and probable cause for his arrest. Although he raised these issues in a pretrial “motion to dismiss” the charges against him, Moran sought to suppress the evidence resulting from his stop and arrest pursuant to Rule 16.2, Ariz. R.Crim. P. On appeal, we therefore characterize the motion as one to suppress. “When reviewing a suppression order entered after a hearing, we consider only the evidence presented at the hearing, which we view in the light most favorable to upholding the trial court's order.” State v. Carlson, 228 Ariz. 343, ¶ 2, 266 P.3d 369, 370 (App.2011).

Traffic Stop

¶ 3 On April 9, 2009, Oro Valley Police Officer Joe Sanchez stopped Moran's vehicle after visually estimating Moran was driving fifty miles per hour where the posted speed limit was thirty-five. Sanchez testified his department had trained him to accurately estimate a vehicle's speed within five miles per hour. In denying the motion to suppress, the trial court deferred to Sanchez's training and found Moran's excessive speed provided justification for the stop.

¶ 4 A police officer need only have reasonable suspicion that a person is engaged in criminal activity or has violated a traffic law to conduct a stop of a vehicle. See State v. O'Meara, 198 Ariz. 294, ¶ 7, 9 P.3d 325, 326 (2000); State v. Acosta, 166 Ariz. 254, 256, 801 P.2d 489, 491 (App.1990). Under this standard, the officer must possess “a particularized and objective basis” for suspecting that the particular person stopped had committed such acts. State v. Gonzalez–Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996).

¶ 5 When reviewing a decision on a suppression motion, “we defer to the trial court's factual findings, including findings on credibility and the reasonableness of the inferences drawn by the officer.” State v. Teagle, 217 Ariz. 17, ¶ 19, 170 P.3d 266, 271 (App.2007). A court's legal conclusion regarding the lawfulness of a stop is a mixed question of fact and law, which we review de novo. State v. Livingston, 206 Ariz. 145, ¶ 3, 75 P.3d 1103, 1104 (App.2003).

¶ 6 Here, the trial court was in a superior position to evaluate the evidence relating to the vehicle's speed and to assess Officer Sanchez's credibility. See State v. Estrada, 209 Ariz. 287, ¶ 2, 100 P.3d 452, 453 (App.2004); State v. Ossana, 199 Ariz. 459, ¶ 8, 18 P.3d 1258, 1260 (App.2001). We have no basis to second-guess the court's determination that the stop was justified.

¶ 7 Moran, however, contends a video taken from the dashboard of Officer Sanchez's vehicle provides “objective evidence” that contradicts his estimation of Moran's speed. This video, which was played during the evidentiary hearing, apparently only showed Moran travelling in his vehicle; it did not display a “speed read-out” or provide a numerical measurement of the car's speed. The trial court therefore correctly noted that the video did not refute a trained officer's estimation of speed. Furthermore, the video was not admitted into evidence. Thus, it cannot provide a basis for reversing the trial court's ruling. See State v. Rivera, 168 Ariz. 102, 103, 811 P.2d 354, 355 (App.1990) (“An appellate court will not speculate about the contents of anything not in the appellate record.”).

Arrest

¶ 8 Moran also claims Officer Sanchez lacked probable cause to arrest him, arguing the officer only collected evidence of alcohol consumption, not actual impairment. “We will review the facts in the light most favorable to the trial court's ruling and will not disturb it absent clear and manifest error.” State v. Howard, 163 Ariz. 47, 49, 785 P.2d 1235, 1237 (App.1989). However, we review de novo whether the evidence supported the trial court's determination of probable cause. State ex rel. McDougall v. Superior Court (Seidel), 191 Ariz. 182, 186, 953 P.2d 926, 930 (App.1997).

¶ 9 During the traffic stop, Officer Sanchez noted Moran exhibited watery, bloodshot eyes, slurred speech, and the odor of alcohol. Moran could not produce a driver's license for the purpose of identification. Instead, he provided Sanchez a social security number. When Sanchez checked this number, however, he discovered it actually belonged to Moran's wife. Sanchez then asked Moran for his wife's social security number, and the number he produced in response actually belonged to Moran, not his wife. Sanchez next administered a consensual horizontal gaze nystagmus (HGN) test and observed four of the six cues of impairment. He could not observe the fifth and sixth cues of the test because Moran's eyes ceased to follow the stimulus. After Moran refused to undergo a portable breathalyzer test, Sanchez placed him under arrest. The trial court acknowledged the situation presented a close case but nevertheless determined that the totality of the circumstances provided probable cause for arrest. We agree.

¶ 10 Section 13–3883(A), A.R.S.,² allows a peace officer to make an arrest if he or she has probable cause to believe a felony or misdemeanor has been committed in the officer's presence and the person arrested has committed the crime. “A police officer has probable cause when reasonably trustworthy information and circumstance would lead a person of reasonable caution to believe that a suspect has committed an offense.” State v. Hoskins, 199 Ariz. 127, ¶ 30, 14 P.3d 997, 1007–08 (2000), vacated in part on other grounds,204 Ariz. 572, ¶ 8, 65 P.3d 953, 955 (2003). In the DUI context, “probable cause does not require law enforcement ‘to show that the operator was in fact under the influence’; ‘[o]nly the probability and not a prima facie showing of intoxication is the standard for probable cause.’ ” State v. Aleman, 210 Ariz. 232, ¶ 15, 109 P.3d 571, 576 (App.2005), quoting Smith v. Ariz. Dep't of Transp., 146 Ariz. 430, 432, 706 P.2d 756, 758 (App.1985) (alteration in Aleman). “When assessing whether probable cause exists, ‘we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.’ ” State v. Dixon, 153 Ariz. 151, 153, 735 P.2d 761, 763 (1987), quoting Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949).

¶ 11 In arresting Moran for a suspected violation of A.R.S. § 28–1381(A)(1), Officer Sanchez concluded it was probable that he was “impaired to the slightest degree” due to the influence of “intoxicating liquor.” When making this determination, the officer was permitted to draw inferences based on his training and experience. State v. Superior Court, 149 Ariz. 269, 275, 718 P.2d 171, 177 (1986). Given the odor of intoxicants coming from Moran, his confusion about his basic identifying information, and his performance on the HGN test, there was a likelihood he had been driving a vehicle in violation of § 28–1381. See State v. Miller, 226 Ariz. 190, ¶ 10, 245 P.3d 454, 456 (App.2011) (impaired judgment from alcohol consumption could violate statute; evidence of bad driving unnecessary to establish DUI). Although Moran contends his medical conditions and other circumstances could have accounted for some of the apparent signs of impairment observed by Officer Sanchez, we conclude a reasonably cautious person would find it probable that Moran was driving while impaired by alcohol to the slightest degree. Accordingly, we find no error in the trial court's denial of the motion to suppress evidence.

Prior Convictions

¶ 12 As he argued below, Moran next contends his prior DUI convictions from Nevada cannot be used as prior convictions for the purpose of establishing aggravated DUI under A.R.S. § 28–1383(A)(2). This statute is triggered when a person

[w]ithin a period of eighty-four months ... is convicted of a violation of section 28–1381, section 28–1382 or this section and has previously been convicted of ... acts in another jurisdiction that if committed in this state would be a violation of section 28–1381, section 28–1382 or this section.

¶ 13 Before trial, Moran filed two motions to dismiss the allegations of his prior convictions from Nevada, arguing there were numerous ways a person could be guilty of DUI in that state without violating any of Arizona's DUI laws. The state filed a response opposing the motion along with a supplement that included copies of the Nevada complaints and Moran's most recent guilty plea. The complaints cited only Nevada's general DUI laws, but they contained allegations that specifically described subsection (1) of Nevada Revised Statutes (“N.R.S.”) § 484.379 (2005).³ At the hearing that followed, the state maintained the general differences between the states' DUI statutes were...