State v. Aleman

109 P.3d 571, 210 Ariz. 232, 449 Ariz. Adv. Rep. 3, 2005 Ariz. App. LEXIS 52
CourtCourt of Appeals of Arizona
DecidedApril 4, 2005
Docket2 CA-CR 2003-0075
StatusPublished
Cited by33 cases

This text of 109 P.3d 571 (State v. Aleman) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Aleman, 109 P.3d 571, 210 Ariz. 232, 449 Ariz. Adv. Rep. 3, 2005 Ariz. App. LEXIS 52 (Ark. Ct. App. 2005).

Opinions

OPINION

PELANDER, Chief Judge.

¶ 1 After a jury trial, appellant Jesus Ale-man was convicted of two counts of second-degree murder, four counts of aggravated assault, and three counts of aggravated driving while under the influence of an intoxicant (DUI). The trial court sentenced him to a combination of concurrent and consecutive prison terms totaling eighteen years on the murder and aggravated assault convictions, and a consecutive, ten-year term of supervised probation, a condition of which was a four-month prison term, on the aggravated DUI convictions. Aleman received mitigated, ten-year, concurrent sentences on the [235]*235murder convictions but slightly aggravated, eight-year sentences on the aggravated assault convictions.

¶2 In the sole issue raised on appeal, Aleman contends the trial court erroneously denied his pretrial motion to suppress evidence of blood test results, arguing A.R.S. § 28-673(C) is unconstitutional and, even if it is not, the blood draw pursuant to that statute was illegal. We do not address that issue because we conclude the trial court did not err in alternatively finding the blood draw authorized under A.R.S. § 28-1388(E). We also reject Aleman’s challenge to his aggravated sentences, raised in supplemental briefing and based on Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Accordingly, we affirm.

BACKGROUND

¶ 3 “In reviewing the denial of a motion to suppress evidence, we view the facts in the light most favorable to upholding the trial court’s ruling ... [and consider] only the evidence presented at the suppression hearing.” State v. Wyman, 197 Ariz. 10, ¶ 2, 3 P.3d 392, 394 (App.2000); see also State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062, 1069 (1996). On April 29, 2000, a car driven by Aleman crossed the centerline of a two-lane highway and collided head-on with an approaching minivan. Aleman was seriously injured and two passengers in his car were killed in the collision. The four family-member occupants of the minivan, two of whom were minors, were seriously injured. Law enforcement officers who responded to the accident scene found Aleman in and out of consciousness and trapped behind his car’s steering wheel. Fire department personnel had to cut Aleman out of the car. The two passengers in Aleman’s car were pronounced dead at the scene.

¶ 4 One officer testified that he had seen open alcoholic beverage containers in the car and on the roadway and that fire department personnel had told him they had detected the odor of an intoxicating beverage on Aleman’s breath and person. Another officer testified he had seen beer cans in Aleman’s car and had smelled a “distinct strong odor” of alcohol coming from Aleman. He also testified that from just outside the car by the driver’s door, he had noticed the odor of alcohol became stronger when Aleman attempted to speak to the passenger in the front seat. A supervising officer at the scene also detected an odor of alcohol from Aleman’s car and was told by another officer that Aleman was “under the influence of alcohol.”

¶ 5 Aleman was transported to a hospital, where he became “extremely uncooperative.” A hospital phlebotomist testified that Aleman had attempted to get off of the examination table, and it had taken about eight people to hold him down. The phlebotomist considered this a severe trauma case and testified that blood draws are “mandatory” for every trauma patient seen at the hospital. The hospital’s trauma pack contained between five to seven blood vials. Regardless of the total number of vials, every pack contained two gray-topped vials that were specifically and routinely drawn for law enforcement purposes in every trauma case. The phlebo-tomist testified that she had drawn a “full trauma pack” on Aleman and that the two gray-topped vials were set aside in a locked area for law enforcement purposes.

¶ 6 Within a few hours, Officer Encisco of the Pinal County Sheriffs- Department retrieved the two gray-topped blood vials from the hospital, took them to the sheriffs office, and stored them for evidence. The supervising officer testified that he had instructed Encisco to retrieve Aleman’s blood sample from the hospital after another officer had informed the supervisor that emergency personnel had smelled an odor of alcohol on Aleman.

¶ 7 Before trial, Aleman moved to suppress evidence of the blood test results,1 arguing the blood samples had been obtained without a warrant, in violation of his Fourth Amendment rights. Following the suppression hearing, the trial court denied Aleman’s mo[236]*236tion, finding that law enforcement had properly obtained his blood sample pursuant to § 28-673(C) and, alternatively, § 28-1388(E). This appeal followed Aleman’s ensuing convictions and sentencing.

DISCUSSION

1. Motion to suppress

¶ 8 “We review the trial court’s ruling on a motion to suppress for clear and manifest error.” State v. Clary, 196 Ariz. 610, ¶ 8, 2 P.3d 1255, 1256-57 (App.2000); see also State v. Howard, 163 Ariz. 47, 49, 785 P.2d 1235, 1237 (App.1989). In his opening brief, Aleman only challenges the trial court’s reliance on § 28-673(0 as a basis for denying the motion to suppress.2 Relying on several out-of-state eases,3 he argues that the statute is unconstitutional because it does not require “probable cause to believe that a crime has been committed before conducting a [warrantless] search which involves the taking of blood from a person.” The state does not respond to Aleman’s constitutional argument at all, but rather urges us to uphold the trial court’s ruling under § 28-1388(E), which the court cited as an alternative basis for denial of the motion to suppress.

¶ 9 In his reply brief, however, Ale-man argues that § 28-1388(E) “does not apply in this case because no officer claimed to have had probable cause to arrest [Aleman] at the time Officer Encisco was requested to retrieve the blood from the hospital.” Generally, an appellant may not raise issues for the first time in the reply brief. See State v. Watson, 198 Ariz. 48, ¶ 4, 6 P.3d 752, 755 (App.2000); State v. Cohen, 191 Ariz. 471, ¶ 13, 957 P.2d 1014, 1017 (App.1998). And, if the appellant does so, “[a]n appellate court can ‘disregard [the new] substantive issues raised.’ ” Id., quoting State v. Cannon, 148 Ariz. 72, 79, 713 P.2d 273, 280 (1985).

¶ 10 Although Aleman did not challenge or otherwise address § 28-1388(E) in his opening brief, in our discretion we address the issue of whether the trial court’s ruling is supportable under that statute. See State v. Myers, 117 Ariz. 79, 87, 570 P.2d 1252, 1260 (1977); Ariz. R.Crim. P. 31.13(c)(3), 17 A.R.S. (reply brief may respond “to questions of law or fact raised by the appellee’s brief’); cf. State v. Shipman & Sweeney, 208 Ariz. 474, n. 2, 94 P.3d 1169, 1171 n. 2 (App.2004) (appellate court may consider merits of dispositive issue even if not raised in opening brief).

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Bluebook (online)
109 P.3d 571, 210 Ariz. 232, 449 Ariz. Adv. Rep. 3, 2005 Ariz. App. LEXIS 52, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-aleman-arizctapp-2005.