State v. Olquin

• Decision Date: 21 August 2007
• Docket Number: No. 1 CA-CR 05-1270.,1 CA-CR 05-1270.
• Citation: 165 P.3d 228,216 Ariz. 250
• Parties: STATE of Arizona, Appellee, v. Fermin Cabanas OLQUIN, Appellant.
• Court: Arizona Court of Appeals

165 P.3d 228

216 Ariz. 250

STATE of Arizona, Appellee, v. Fermin Cabanas OLQUIN, Appellant.

No. 1 CA-CR 05-1270.

Court of Appeals of Arizona, Division 1, Department E.

August 21, 2007.

Terry Goddard, Attorney General By Randall M. Howe, Chief Counsel, Criminal Appeals Section and Jessica L. Quickle, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Richard D. Coffinger, Glendale, Attorney for Appellant.

OPINION

OROZCO, Judge.

¶ 1 Fermin Cabanas Olquin (Defendant) appeals his convictions on two counts of aggravated driving under the influence of alcohol (DUI), each a class 6 felony. Defendant argues that the trial court erred by denying his motion to suppress his blood alcohol concentration test results. Defendant also contends that there was insufficient evidence to support his convictions and the trial court erred in instructing the jury. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 Around 9:20 p.m. on the evening of the April 22, 2005, a driver observed a pickup truck driving very erratically. Concerned that the truck might cause an accident, the driver called 9-1-1 and followed the truck while reporting its location to the 9-1-1 operator until it stopped in front of a residence.

¶ 3 Officers Cameron Weidenbach and Derrick Gallii arrived shortly after the truck stopped. The truck was parked on the wrong side of the street, crooked, with one wheel halfway up on the sidewalk. When the officers approached the truck, they observed Defendant sitting in the driver's seat with the key in the ignition and engine still running. In the backseat of the truck's extended cab were three small children. The oldest wore a seatbelt and appeared to be between ages five and nine. The two younger children-one an infant and the other a toddler between two and four years old-were secured in car seats.

¶ 4 The officers could smell a strong odor of alcohol coming from Defendant. They also noted his eyes were bloodshot and watery and he staggered while walking to the point that he had to use the truck for support. Officer Weidenbach asked Defendant how much he had to drink, and Defendant replied one beer. Based on the obvious signs of intoxication, Officer Weidenbach placed Defendant under arrest for DUI and transported him to the station for processing.

¶ 5 At the station, Defendant spoke only Spanish. Although he had some training in Spanish, Officer Weidenbach was not a certified Spanish speaking officer. Accordingly, he had Defendant read departmental forms with the Miranda¹ warnings and the Admin Per Se/Implied Consent Affidavit printed in Spanish. After Defendant signed the forms, Officer Weidenbach tested Defendant's blood alcohol concentration (BAC) using an Intoxilyzer 8000. The first test at 10:27 p.m showed a BAC of .199. A second test at 10:35 p.m. indicated a BAC of .185.

¶ 6 Defendant was charged with two counts of aggravated DUI and one count of aggravated extreme DUI as follows: count one, driving while under the influence of intoxicating liquor or drugs while his three children, all persons under the age of fifteen, were in the vehicle; count two, driving with a BAC of .08 or greater within two hours of driving, while his three children, all persons under the age of fifteen, were in the vehicle; and count three, driving with a BAC of .15 or greater within two hours of driving, while his three children, all persons under the age of fifteen, were in the vehicle.

¶ 7 Prior to trial, Defendant filed motions to suppress certain statements he made to the police and the BAC test results, claiming he had not been adequately advised of his Miranda rights or the right to obtain an independent blood alcohol test. Following an evidentiary hearing, the trial court denied the motions.

¶ 8 A jury found Defendant guilty on all three counts as charged. At sentencing, the trial court vacated the jury verdict as to count two on the grounds that it was a lesser-included offense of count three and placed Defendant on three years' probation on the two remaining counts. Defendant timely appealed. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1 (2003), 13-4031 (2001), and -4033.A.1 (2001).

DISCUSSION

A. Motion to Suppress

¶ 9 Defendant argues the trial court abused its discretion by denying his motion to suppress the BAC test results because he was not advised of his right to obtain an independent test. He also contends the Department of Public Safety (DPS) failed to collect and preserve a sample of his breath.²

¶ 10 We will not disturb a trial court's ruling on a motion to suppress absent an abuse of discretion.³ State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062, 1069 (1996). Moreover, we do not impose our own determination as to the credibility of witnesses. State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996). Accordingly, we will defer to the trial court's assessment of witness credibility because the trial court is in the best position to make that determination. State v. Estrada, 209 Ariz. 287, 292, ¶ 22, 100 P.3d 452, 457 (App.2004).

¶ 11 Due process requires the police inform a DUI suspect of the right to obtain an independent blood alcohol test. Montano v. Superior Court, 149 Ariz. 385, 389, 719 P.2d 271, 275 (1986). Defendant argues that because he was not informed of this right by a Spanish speaking officer or interpreter, he was denied due process and is entitled to suppression of the BAC test results. However, none of the cases relied on by Defendant in support of his claim of error, all of which deal with waiver of other rights,⁴ hold that a suspect must be orally advised of his rights in his native language. Indeed, "[t]here is no requirement as to the precise manner in which the police communicate the required warnings to one suspected of crime. The requirement is that the police fully advise such a person of his rights." Bell v. U.S., 382 F.2d 985, 987 (9th Cir.1967); see also U.S. v. Sledge, 546 F.2d 1120, 1122 (4th Cir.1977) (holding that it is "not essential" that rights be given in oral rather than written form). In Bell, the Ninth Circuit rejected as "absurd" a claim that the police were obliged to advise a defendant of his Miranda rights orally rather than in writing. 382 F.2d at 987. In other words, all the State must show is that the suspect was informed of his rights in a manner sufficient to make him aware of his rights. Id.; see also State v. Rivera, 152 Ariz. 507, 513, 733 P.2d 1090, 1096 (1987) (holding that to satisfy Miranda, "the State must show that defendant understood his rights").

¶ 12 In this case, the trial court found Defendant was properly advised in Spanish of his right to obtain an independent blood alcohol test and denied the motion to suppress. We hold there was sufficient evidence in the record to support this finding and affirm the trial court's denial of Defendant's motion to suppress.⁵

¶ 13 Officer Weidenbach testified about the procedures he followed to ensure Defendant was informed of his rights. Officer Weidenbach is not a certified Spanish speaking officer, but completed two years of Spanish in high school and one semester in college and is able to give some commands in Spanish. Because he was not fluent in Spanish, Officer Weidenbach had Defendant read the Miranda warnings, the admin per se advisory, and the independent blood alcohol test advisory from departmental forms with the advisories printed in Spanish. At no time did Defendant ever tell the officer that he could not read or that he did not understand what he had read.⁶

¶ 14 Officer Weidenbach testified he asked Defendant to read the form advising Defendant of his right to obtain an independent blood alcohol test, and then asked Defendant, speaking in Spanish, if Defendant understood the form and Defendant responded he did. After asking Defendant if he understood the form, Officer Weidenbach asked him to sign his name on the form, which Defendant did.

¶ 15 At the suppression hearing, Defendant testified he signed the forms, even though he was not able to read them because Officer Weidenbach told him to sign them. Defendant testified he is unable to read either Spanish or English and only has two or three years of education. However, Defendant admitted he never told Officer Weidenbach he could not read Spanish, nor requested a Spanish speaking officer. Defendant denied Officer Weidenbach asked him if he understood the forms he signed or informed him of his right to an independent blood alcohol test.

¶ 16 Under these circumstances, Defendant's testimony to the contrary notwithstanding, the trial court could reasonably find that Defendant was properly informed of, and understood, his right to an independent blood alcohol test. See U.S. v. Gonzales, 749 F.2d 1329, 1336 (9th Cir.1984) (noting that even if an officer spoke "very poor Spanish" and appellant spoke "very poor English," a written Spanish-language waiver form "would have conveyed to appellant a sufficient understanding of his rights"). Thus, the trial court acted within its discretion in denying Defendant's motion to suppress.

¶ 17 We also do not find error in denying Defendant's motion to suppress based on DPS's failure to collect and preserve a sample of Defendant's breath. As the State points out, DPS was not statutorily required to preserve a sample of Defendant's breath because it administered duplicate breath tests, see supra ¶ 5, and gave Defendant a reasonable opportunity to arrange for an independent test. See A.R.S. § 28-1388.-B, .C (2004).

B. Sufficiency of Evidence

¶ 18 Pursuant to A.R.S. § 28-1383.A.3 (Supp.2006), a person is guilty of aggravated DUI when the person commits a violation of A.R.S. §§ 28-1381 (Supp.2006) or -1382 (Supp.2006) "[w]hile a person under fifteen years of age is in the vehicle." In charging Defendant with aggravated DUI under A.R.S. § 28-1383.A.3, the state...