State v. Nihiser

• Decision Date: 30 September 1997
• Docket Number: No. 2,CA-CR,2
• Citation: 191 Ariz. 199,953 P.2d 1252
• Parties: , 252 Ariz. Adv. Rep. 40 The STATE of Arizona, Appellee, v. Bart Eugene NIHISER, Appellant. 97-0070.
• Court: Arizona Court of Appeals

Page 1252

953 P.2d 1252

191 Ariz. 199, 252 Ariz. Adv. Rep. 40

The STATE of Arizona, Appellee, v.Bart Eugene NIHISER, Appellant.

No. 2 CA-CR 97-0070.

Court of Appeals of Arizona Division 2, Department A.

Sept. 30, 1997.

Review Denied April 21, 1998.

Grant Woods, the Attorney General by Paul J. McMurdie and Toni Marie Valadez, Phoenix, for Appellee.

Isabel G. Garcia, Pima County Legal Defender by Joy Athena, Tucson, for Appellant.

OPINION

BRAMMER, Judge.

Bart Nihiser was convicted of one count each of aggravated driving under the influence of intoxicating liquor (DUI) and aggravated driving with a blood alcohol concentration of 0.10 or more while his license was suspended, revoked or in violation of a restriction, both class four felonies.A.R.S. §§ 28-692and28-697(A)(1).The trial court suspended Nihiser's sentence and placed him on probation for four years.As a condition of probation, the court imposed a mandatory four-month prison sentence.§ 28-697(E).Nihiser contends the trial court erred in admitting the results of his blood alcohol concentration (BAC) test and in failing to offset two days of presentence incarceration against his prison time.We affirm the convictions but modify the sentence.

Facts and Procedural History

We view the evidence in the light most favorable to sustaining the verdicts and resolve all inferences against appellant.State v. Atwood, 171 Ariz. 576, 832 P.2d 593(1992).Following Nihiser's arrest for driving under the influence, and after he refused to submit to a breath test, the arresting officers obtained a search warrant to collect a sample of his blood, which they subsequently obtained from him at a local hospital.Nihiser moved to suppress the blood test results because the state had failed to disclose the name and qualifications of the person who had drawn the blood.The court denied the motion, determining that, although § 28-692(F) requires that the individual drawing the blood be "a physician, registered nurse or another qualified person," proof of the person's qualifications is not a foundational prerequisite for admitting the BAC test results.

Suppression of BAC Results

A.Vague and ambiguous statute

Nihiser first contends that § 28-692(F) is comprised of two contradictory sentences that render it unconstitutionally vague and ambiguous.The subsection reads as follows:

If blood is drawn under the provisions of § 28-691, only a physician, a registered nurse or another qualified person may withdraw blood for the purpose of determining the alcohol concentration or drug content therein.The qualifications of the individual withdrawing the blood and the method used to withdraw the blood shall not be foundational prerequisites for the admissibility of any blood alcohol content determination made pursuant to this subsection.

Nihiser argues the statute is ambiguous because it first grants the defendant"the right to have blood extracted by someone authorized by law [but then] the right is emasculated with the second sentence because the state need not show its compliance with that right."He claims that the rule of lenity applies, dictating that any doubt as to the statute's meaning be resolved in his favor, citing State v. Pena, 140 Ariz. 545, 683 P.2d 744(App.1983).Accordingly, he argues the trial court was required to declare void the second sentence of the subsection and deny admission of the blood test evidence.Because the legislative intent behind the statute is discernable, we find that the rule of lenity, if otherwise appropriate, is inapplicable in this context.Seeid. at 549, 683 P.2d at 748(court applied the rule of lenity "absent any expression of legislative intent" as to the meaning of the statute at issue);see alsoState v. Ramos, 155 Ariz. 468, 747 P.2d 629(App.1987).

When construing a statute, our goal "is to fulfill the intent of the legislature that wrote it."State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133(1993).In determining legislative intent, we first consider the statute's language because it is "the best and most reliable index of a statute's meaning."Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223(1991).When the statute's language is not clear, we determine legislative intent by reading the statute as a whole, giving meaningful operation to all its provisions, and by considering factors such as the statute's context, language, history, subject matter, effects and consequences, and spirit and purpose.Wyatt v. Wehmueller, 167 Ariz. 281, 806 P.2d 870(1991).

Nihiser interprets the second sentence of § 28-692(F) as nullifying completely the first sentence limiting those who may draw blood for testing.We do not believe the legislature intended to create a statute with no effect or consequence.SeeCity of Mesa v. Killingsworth, 96 Ariz. 290, 394 P.2d 410(1964)(courts presume the legislature did not intend to do a futile thing by including a provision that is not operative).Nor do we find that the legislature intended to eliminate all foundational evidence that those who draw blood are within the authorized group described in the statute.Otherwise, it would not have included the first sentence requiring that only physicians, registered nurses, or other qualified persons draw the blood.

The logical interpretation of the statute is that the legislature intended evidence to be presented that someone trained in blood withdrawal--a physician, nurse, or other qualified person--actually drew the blood, but does not require evidence of the individual's professional qualifications or credentials or of the method used to withdraw the blood.Hence, if the state presents evidence that a statutorily qualified person drew the defendant's blood, the foundational requirement under the statute is met.Accordingly, we reject Nihiser's claim that § 28-692(F) is unconstitutionally vague and ambiguous, finding that the statute's language clearly evidences the legislative intent that only individuals who have been trained in the practice of blood withdrawal may draw blood for BAC testing.SeeState v. Tocco, 156 Ariz. 116, 119-20, 750 P.2d 874, 877-78(1988)(court will not declare as void for vagueness every statute it believes "could have been drafted with greater precision");Fuenning v. Superior Court, 139 Ariz. 590, 598, 680 P.2d 121, 129(1983)("Due process requires neither perfect notice, absolute precision nor impossible standards.").

B.Separation of Powers

Nihiser next contends that § 28-692(F) violates the separation of powers doctrine because it eliminates foundational safeguards for admitting blood test results, thereby invading the judiciary's evidentiary rule-making authority.The legislature cannot create a statutory rule that "conflict[§ with] or ... tends to engulf a general rule of admissibility" adopted by the court pursuant to its exclusive power to make evidentiary rules.State ex rel. Collins v. Seidel, 142 Ariz. 587, 591, 691 P.2d 678, 682(1984);see alsoBarsema v. Susong, 156 Ariz. 309, 751 P.2d 969(1988).It can, however, create " 'statutory arrangements which seem reasonable and workable' and which supplement the [supreme court's] rules."Seidel, 142 Ariz. at 591, 691 P.2d at 682, quotingAlexander v. Delgado, 84 N.M. 717, 718, 507 P.2d 778, 779(1973).We find § 28-692(F) to be such a statute because the presentation of evidence that a qualified person drew the blood establishes a reasonable and fair presumption that the sample was drawn properly.

The state contends that the qualifications of the person who draws the blood and the method used to draw it are not relevant and are thus inadmissible because they have no tendency to prove the defendant's BAC, an ultimate issue.Ariz.R.Evid. 402, 17A A.R.S.("Evidence which is not relevant is not admissible.").The state thus concludes there are no foundational prerequisites to consider.We disagree.Evidence is "relevant" if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."Rule 401.Because the qualifications of, and the method used by, the person drawing the blood have a tendency to show that the blood samples are reliable, they are relevant in authenticating the test results and are thus admissible.

Consequently, if the wording of the statute was so broad as to eliminate entirely all foundation for this evidence, the statute would indeed be unconstitutional.That is not the case here, however, because the proponent of the blood test results must present evidence that a person described in the statute drew the blood.Once this foundational showing is made, the individual's qualifications and the validity of the method used are presumed.

The trial court reached this same conclusion in denying Nihiser's motion to preclude the BAC test results, finding that "the blood was drawn at a hospital [and] there's a presumption that hospitals are not in the business of allowing unqualified persons to draw blood."We believe common experience supports this presumption.

We view presumptions as procedural, rather than evidentiary, concepts.Morris K. Udall et al., Arizona Law of Evidence § 143at 322(3d ed. 1991).The role of presumptions in the law is not to supplant the rules of evidence, but rather to provide a framework within which evidence is admitted.As is the case here, presumptions based on fact are defined as those in which " 'the basic fact has sufficient value as evidence to support a rational inference as to the presumed fact[s].' "Id.§ 142at 321 n. 3, quotingSilva v. Traver, 63 Ariz. 364, 373, 162 P.2d 615, 619(1945), overruled on other grounds, Reed v. Hinderland, 135 Ariz. 213, 660 P.2d 464(1983).The opponent can overcome these presumptions by disproving either the factual basis underlying the presumptions or the existence of the presumed facts.Id.§ 143at 322.As such, the...