The State Of Ariz. v. Rhinehart

• Decision Date: 12 October 2010
• Docket Number: NO. 2 CA-CR 2009-0379,2 CA-CR 2009-0379
• Parties: THE STATE OF ARIZONA, Appellee, v. SARAH MELISSA RHINEHART, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee,

v.SARAH MELISSA RHINEHART, Appellant.

NO. 2 CA-CR 2009-0379

COURT OF APPEALS

STATE OF ARIZONA

DIVISION TWO

FILED: October 12, 2010

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24.

MEMORANDUM DECISION

Not for Publication Rule 111, Rules of the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF GRAHAM COUNTY Cause No. CR2009182 Honorable Monica L. Stauffer, Judge

AFFIRMED

Terry Goddard, Arizona Attorney General By Kent E. Cattani and Alan L. Amann Tucson Attorneys for Appellee

Jeffrey S. Siirtola, P.C. By Jeffrey S. Siirtola Sierra Vista Attorney for Appellant

VASQUEZ, Presiding Judge.

¶1 After a jury trial, Sarah Rhinehart was convicted of driving under the influence (DUI) of any drug while impaired to the slightest degree, felony endangerment, and reckless driving. The trial court suspended the imposition of sentence and placed Rhinehart on three years' probation. As conditions of probation, the court ordered her to serve a mandatory thirty-day jail term and a concurrent 365-day jail term which would be suspended if Rhinehart successfully completed inpatient treatment.

¶ On appeal, Rhinehart contends the trial court erred in 1) denying her motion to dismiss the charges and suppress evidence, 2) allowing the state to amend the indictment with an allegation of a prior conviction, 3) convicting her of felony endangerment when the jury was not instructed on that charge, 4) admitting prior act evidence, 5) admitting blood evidence without proper foundation, 6) denying her Rule 20, Ariz. R. Crim. P., motion for judgment of acquittal, and 7) convicting her of both endangerment and reckless driving because reckless driving is a lesser-included offense of endangerment. For the reasons set forth below, we affirm.

Facts and Procedure

¶ On August 18, 2008, Thatcher Police Department Officer Larson was dispatched to the scene of a single-vehicle accident on Highway 70, near Thatcher. When he arrived, he noticed a white truck "quite a ways off the roadway in a[n] irrigation ditch" and several other vehicles parked nearby. Bystanders directed Larson to the driver of the white truck, Rhinehart, whom he knew personally. He noticed Rhinehart was "different than what she usually was"; she appeared "kind of slow and lethargic.... She was slurring her speech as she was speaking," and her responses to his questions weredelayed. Larson relayed this information to Arizona Department of Public Safety (DPS) Officer Shupe, who was dispatched to the scene about fifteen minutes later. Shupe approached Rhinehart and observed essentially the same signs of impairment. Rhinehart told Shupe that she had been driving to the hospital and somehow had lost control of her vehicle. She also admitted that she had taken one Xanax pill that morning. At Shupe's request, she agreed to go to the Thatcher police station to undergo sobriety tests.

¶ At the police station, DPS Officer Ellison administered a drug recognition evaluation (DRE), and he concluded Rhinehart was "under the influence of a depressant drug." After Officer Shupe placed her under arrest, she consented to a blood test which revealed the presence of the drugs Soma, Xanax, and Valium, all central nervous system depressants. Rhinehart was charged with DUI, endangerment, and reckless driving. The jury found her guilty of all charges, and the trial court placed her on probation as noted above. This timely appeal followed.

Discussion

I. Motion to Suppress

¶ Rhinehart first contends the trial court erred in denying her "motion to suppress evidence and dismiss charges" because the officers had lacked probable cause to arrest her and her blood was obtained without her consent or a warrant. We will not reverse a trial court's denial of a motion to dismiss or suppress in the absence of a clear abuse of discretion. State v. Chavez, 208 Ariz. 606, ¶ 2, 96 P.3d 1093, 1094 (App. 2004) (motion to dismiss); State v. Stuart, 168 Ariz. 83, 86, 811 P.2d 335, 338 (App. 1990) (motion to suppress). In reviewing the court's rulings, we consider "only the evidencepresented at the hearing on the motion," which we view "in the light most favorable to sustaining the trial court[]." State v. Gay, 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App. 2007). Although we defer to the trial court's factual findings, we review its legal conclusions de novo. State v. Sanchez, 200 Ariz. 163, ¶ 5, 24 P.3d 610, 612 (App. 2001).

A. Arrest

¶ Rhinehart appears to argue that a "de facto arrest" without probable cause occurred when the officer transported her to the police station.¹ "Whether a defendant has been arrested 'turns upon an evaluation of all the surrounding circumstances to determine whether a reasonable person, innocent of any crime, would reasonably believe [s]he was being arrested.'" State v. Acinelli, 191 Ariz. 66, 69, 952 P.2d 304, 307 (App. 1997), quoting State v. Winegar, 147 Ariz. 440, 448, 711 P.2d 579, 587 (1985). And, probable cause to arrest exists "if the collective knowledge of the officers establishes that they had 'reasonably trustworthy information of facts and circumstances which are sufficient in themselves to lead a reasonable [person] to believe an offense... has been committed and that the person to be arrested... did commit it.'" State v. Aleman, 210 Ariz. 232, ¶ 15, 109 P.3d 571, 576 (App. 2005), quoting State v. Richards, 110 Ariz. 290, 291, 518 P.2d 113, 114 (1974).

¶ In her motion below, Rhinehart argued "[t]he mere fact of a single lane violation to go off-road driving, by a pick-up truck, does not create reasonable suspicion to detain [or probable cause to] arrest a driver without a warrant." Conceding on appeal the possibility that "an initial detention... was warranted," Rhinehart argues "the police did not [subsequently] find anything to support [her] arrest." We disagree.

¶ At the suppression hearing, Shupe testified that when he transported Rhinehart to the police station, he knew she had been the driver in a single-vehicle rollover accident, and both Larson and he had observed signs of impairment. When he first made contact with Rhinehart, Shupe noticed "she had red eyes. Her speech was extremely slurred.... Her movements were really slow and methodic and her responses to questions took a long time." When Rhinehart tried to walk, "she was swaying front and back and side to side. And she put her... right hand against the vehicle... to keep her balance. [He] noticed when she started to walk she was pretty unsteady on her feet." He also stated he had chosen not to administer field sobriety tests at that time because Rhinehart "couldn't stand up."

¶ Shupe also had excluded other potential causes of the accident. See State v. Quinn, 218 Ariz. 66, ¶ 10, 178 P.3d 1190, 1193-94 (App. 2008) (depending on circumstances, unexplained erratic driving may give rise to probable cause for DUI). He confirmed it had not been raining when the accident occurred. Rhinehart also told him that she did not know how or why she had lost control of the vehicle. Given theunexplained cause of the accident, together with Rhinehart's inability to perform any field sobriety tests and the numerous and obvious signs of impairment, the information available to Shupe was sufficient for a reasonable person to conclude that Rhinehart had been driving while impaired to the slightest degree. State v. White, 155 Ariz. 452, 453, 747 P.2d 613, 614 (App. 1987) (approving without comment arrest of defendant based on erratic driving and inadequate performance on field sobriety tests). Cf. State ex rel. McDougall v. Albrecht, 168 Ariz. 128, 132, 811 P.2d 791, 795 (App. 1991) (defendant's "failure to stop at a red light and speeding coupled with his poor performance of the field sobriety tests and physical signs of impairment constituted" sufficient evidence to support jury's finding of guilt beyond reasonable doubt on DUI charge). Therefore, even assuming Rhinehart was under arrest when the officer transported her to the police station, that arrest was supported by probable cause.

B. Blood Draw

¶ Rhinehart next argues the trial court erred in denying her motion to dismiss because she did not give valid consent to the blood draw and no warrant was obtained to authorize the draw. Rhinehart relies on Carillo v. Houser, 222 Ariz. 463, ¶ 19, 232 P.3d 1245, 1248-49 (2010), in which our supreme court held that to obtain a suspect's blood in the absence of a warrant, "the arrestee must unequivocally manifest assent to the testing by words or conduct." And she contends that she did not unequivocally consent, despite having signed a form consenting to the blood draw, because evidence at the suppression hearing suggested she was unaware of the nature of the form when she had signed it.

¶ In Carillo, the defendant was arrested for DUI and other related offenses. Id. ¶ 3. The officers then informed Carillo they were going to draw his blood, and he apparently consented to the draw. Id. ¶ 4. Carillo later filed a motion to suppress the blood evidence, arguing he had not consented to the draw, but merely had acquiesced to the officers' authority. Id. At the hearing, there was conflicting evidence concerning whether Carillo, who spoke only Spanish, had understood the officers' intentions. Id. The officers testified that Carillo had held his arm out when they told him they were going to draw his blood; he testified he had not consented but also had not resisted the blood draw out of fear. Id. The municipal court denied Carillo's motion, concluding his conduct did not suggest he had refused to consent to the test, and the superior court affirmed that ruling. Id. ¶ 5. The court of appeals accepted special action jurisdiction, granted relief, holding that a suspect's blood may not be drawn without a warrant unless he or she has expressly consented to the blood draw, and remanded for the trial...