State v. White, CA-CR

• Decision Date: 10 December 1987
• Docket Number: CA-CR
• Citation: 155 Ariz. 452,747 P.2d 613
• Parties: STATE of Arizona, Appellee, v. Ronnie Dale WHITE, Appellant. 110311.
• Court: Arizona Court of Appeals

Page 613

747 P.2d 613

155 Ariz. 452

STATE of Arizona, Appellee, v. Ronnie Dale WHITE, Appellant.

1 CA-CR 10311.

Court of Appeals of Arizona,

Division 1, Department A.

Dec. 10, 1987.

[155 Ariz. 453] Robert K. Corbin, Atty. Gen. by William J. Schafer III, Chief Counsel, Crim. Div., Joseph T. Maziarz, Asst. Atty. Gen., Phoenix, for appellee.

Landau & Hamilton by Lynn Hamilton, Chandler, for appellant.

OPINION

GRANT, Presiding Judge.

Appellant Ronnie Dale White (defendant) was charged by information with driving while under the influence, in violation of A.R.S. §§ 28-692(A) and 28-692(B), while his driver's license was suspended, both class 5 felonies. The state filed an allegation of dangerousness. The matter was tried to a jury, which found defendant guilty on both counts, but did not find the crimes dangerous. The court sentenced defendant to two years on each count, the sentences to run concurrently. Defendant timely filed a notice of appeal.

The facts are as follows, viewed in a light most favorable to sustaining the convictions. E.g., State v. Olivas, 119 Ariz. 22, 579 P.2d 60 (App.1978). Defendant was at a bar called the 480 Outlaws Club in Chandler, Arizona, on the night of August 9, 1985. At the end of the evening, he agreed to drive Loretta Grisham, Cheryl Grant, and one "Brian" home. Brian was dropped off. As defendant proceeded to drive Ms. Grant home, he was stopped by Officer Joel Jerale while going north on McQueen Road.

Officer Jerale had seen the defendant following another vehicle too closely and had turned around to follow the defendant. He then saw defendant do the "classic weave," ostensibly a sign of a drunk driver. Jerale stopped the defendant, and when he learned that defendant's license had been suspended, called for a backup; Officer Greg Lair responded. Jerale administered field sobriety tests to defendant while Lair watched. Based on defendant's performance on the tests and his driving, Jerale arrested defendant. Grisham was allowed to drive the car home. At the station, the field tests were readministered and videotaped. Thereafter, Jerale observed defendant for twenty minutes to make sure defendant did not ingest any matter or belch stomach contents into his mouth. Jerale then administered a breath alcohol content (BAC) test to defendant with the Intoxilyzer 5000 machine used by the Chandler Police Department. The first test was aborted, and a second test followed. The results indicated a BAC of .234.

Defendant had admitted to the police that his license had been suspended. The suspension of license was stipulated to at trial.

The first argument raised by defendant is that the trial court erred by refusing to grant a pretrial motion to dismiss the allegation of dangerousness. The state argues that since the jury found the crimes to be nondangerous, the point is moot. Defendant, however, urges that the mere allegation of dangerousness prejudiced defendant because it "conjured up images of a Hell's Angel speeding through a school zone rather than a middle-aged farmer driving home a little under the speed limit on a lightly traveled road in the middle of rural Maricopa County." We disagree.

The Arizona appellate courts have not yet ruled whether the question of dangerousness in a D.W.I. may be dismissed as a matter of law prior to trial, or whether it is always a question for the jury. ¹ We need not decide the issue, however, because it is clear, under the facts of this case, that defendant was not prejudiced by the allegation.

The jury, instructed not to reach a decision until it had heard all of the evidence, found the crime nondangerous. The jury was well aware that defendant was not a Hell's Angel. There was no prejudice from the allegation of dangerousness.

The second argument raised by defendant is that the charges should have been dismissed because pre-indictment delay was prejudicial. See Oshrin v. Coulter, 142 Ariz. 109, 688 P.2d 1001 (1984). Defendant's motion for dismissal was denied prior to trial. Defendant concedes that Hinson v. Coulter, 150 Ariz. 306, 723 P.2d 655 (1986) is not applicable to this case, but argues that it shows the Arizona Supreme Court's extreme concern about the effects of delay in DWI cases.

Defendant argues the delay prejudiced his case in three respects: (1) that if more timely charged, defendant could have discovered a copy of Officer Jerale's dispatch tape, which might have supported defendant's recollection as to his performance on the field sobriety tests; (2) defendant could have kept track of "Brian" and called him as a witness at trial; (3) defendant could have gone to a doctor after the arrest to get documentation for his ear infection, which arguably could have explained certain results in the sobriety tests both at the station and in the field.

We reject defendant's claims. Before Hinson, to prove that pre-indictment delay violated due process, the defendant had to prove that the prosecutor intended delay for tactical advantage or to harass defendant and that the defendant was actually and substantially prejudiced. United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971); State v. Torres, 116 Ariz. 377, 569 P.2d 807 (1977) As to the first part of the test, when asked by the court why there was a delay, defense counsel offered her opinion that the county attorney did not adequately staff the DWI unit. The state's attorney agreed with this assessment and also noted the paperwork involved in getting proof of the two priors before proceeding with a felony DWI prosecution. Thus, defendant has completely failed to meet the first part of the test.

Moreover, defendant has not shown actual and substantial prejudice. As to the dispatch tape, Officer Jerale testified that the tape only runs as transmissions are put out on the radio. The record does not show the radio was on as defendant performed the field test. Moreover, the microphone must be activated to transmit even if the radio is on. Therefore, we doubt that the dispatch tape would have been of any help to defendant. In addition, defendant testified to the jury that he thought he did very well on the field tests.

Defendant's actions in not securing the evidence were not reasonable. Defendant knew he had two prior offenses and could be charged with felony DWI. Officer Jerale testified the Chandler police would keep the tape if requested to do so within thirty days after the incident. If defendant had been prudent, he would have obtained a copy of the tape.

As to "Brian," testimony indicated that he was leaving for the military shortly after the incident. Thus, even if the state had charged defendant more quickly, Brian would most likely have left the area, and defendant would have faced the same problem of finding him. We do note that the defendant drove Brian "home" the night of the incident, presumably discovering where Brian lived. This would have been a starting point had defendant really wished to contact Brian. Furthermore, defendant has not made clear what Brian's testimony would have been or how it could have aided defendant. Brian was not present during the "weaving" or during the field test.

As to the effects of the ear infection, defendant told the officer about the infection. He also stated he had gone to the doctor a few days before. Defendant could have subpoenaed the same doctor to testify at trial to bolster his story. A post-incident examination by a doctor would have added little to the defense.

Defendant's next argument is that the police were required to inform defendant of his right to an independent blood test. We disagree. This court has recently held that there is no such requirement. State v. Ramos, 155 Ariz. 153, 745 P.2d 601 (App.1987). When the state conducts a test, it must preserve a sample for the defendant, if he requests it. Baca v. Smith, 124 Ariz. 353, 604 P.2d 617 (1979). Here the state gave defendant a breathalyzer test, and he requested and received a breath sample. The thrust of Baca is to allow defendant to preserve evidence which may aid him. Here evidence was preserved for independent examination by the defendant, but he, for whatever reason, did not employ it in his defense. There was no duty on the part of the police to inform him that he had the right to an independent test.

Defendant's fourth argument is that the trial court erred in not directing a verdict as to the charge under A.R.S. § 28-692(B). Preliminarily, we reject the state's contention that defendant waived the argument by failing to renew his motion for directed verdict at the close of his case. We examine the sufficiency of the evidence as part of our fundamental error review. A.R.S. § 13-4035; State v. Roberts, 138 Ariz. 230, 673 P.2d 974 (App.1983).

Defendant's argument has two parts. The first is that the BAC reading was never admitted into evidence. This argument lacks a factual predicate. Specifically, the card which showed the results of the test (Exhibit 13) was admitted into evidence.

Defendant's main argument is that there should have been a directed verdict because there was no evidence relating the .234 reading at 1:30 a.m. back to the time defendant was last driving at about 12:30 a.m. We reject this argument. It had long been the law in Arizona that relation back evidence is not necessary to admit a BAC reading into evidence in a criminal case. State v. Olivas, 77 Ariz. 118, 267 P.2d 893 (1954); State ex rel. Williams v. City Court, 15 Ariz.App. 229, 487 P.2d 766 (1971). The defendant argues that our supreme court changed the law in Fuenning v. Superior Court, 139 Ariz. 590, 680 P.2d 121 (1984), and now requires relation back.

The supreme court in Fuenning noted a Vermont holding "that expert evidence relating the test result to the time of the occurrence is necessary before the state can rely on a statutory presumption." 139 Ariz. at 598, 680 P.2d at 129 (citing State v. Dacey, 138 Vt. 491, 418 A.2d 856, 859 (1980)). But...