State v. Juarez

775 P.2d 1137, 161 Ariz. 73, 20 Ariz. Adv. Rep. 36, 1988 Ariz. App. LEXIS 343
CourtCourt of Appeals of Arizona
DecidedOctober 4, 1988
DocketNo. 2 CA-CR 88-0074
StatusPublished
Cited by1 cases

This text of 775 P.2d 1137 (State v. Juarez) 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. Juarez, 775 P.2d 1137, 161 Ariz. 73, 20 Ariz. Adv. Rep. 36, 1988 Ariz. App. LEXIS 343 (Ark. Ct. App. 1988).

Opinion

OPINION

PER CURIAM.

Appellant was charged by indictment with a total of six counts, three counts involving driving under the influence of intoxicating liquor and three counts involving driving while there was .10 percent or more by weight of alcohol in his blood, all class 5 felonies, under A.R.S. §§ 28-692.-02(A)(1), -692.02(A)(2) and -692.02(A)(3). A jury found him guilty as charged and the court sentenced appellant to concurrent, maximum prison terms of four years. The [74]*74court found as aggravating circumstances appellant’s eight prior DUI convictions and the fact that he consciously posed a risk to others by deciding to drive while intoxicated and without a license. Additionally, the court pointed out that pursuant to one of appellant’s prior convictions, he had been sentenced to two years in prison.

Appellant raises two issues on appeal. He argues that the trial court erred in entering judgments convicting him of more than two counts as charged, and he further contends that the court erred in refusing to dismiss the charges because of the arresting officer’s interference with his right to counsel.

Appellant was arrested on July 14, 1987, just before 7:00 p.m. in Cochise County near the Arizona-New Mexico border. Department of Public Safety Officer Matthew Janton stopped appellant in his truck after observing that the truck had only one headlight operating and was traveling four miles over the posted 65 mile-per-hour speed limit. After the stop, as Officer Janton approached the driver’s window, he smelled an odor of intoxicants. Appellant stated, “I am under arrest,” and when asked why he said so, explained to the officer that he had not yet gotten his driver’s license back. Offered the choice of having his truck towed or recovered by family members, appellant requested that the officer telephone appellant’s father. After waiting approximately one hour, Officer Janton finally called for a tow truck and, when the tow truck arrived, Janton and the appellant left for Willcox, the closest police station with an intoxilyzer machine. Officer Janton testified that they arrived at the Willcox police department at approximately 8:40 p.m., and he immediately began the mandatory 20-minute observation period prior to administering the intoxilyzer test. In requesting appellant’s consent to submit to the intoxilyzer, Officer Janton read the following:

Arizona law requires you to submit to a breath test to determine the alcoholic content of your blood. If you refuse to submit to this test, your license or permit to drive will be suspended for twelve months. You are therefore requested to submit to a breath test.
Unless you expressly agree to take the test, I will consider you are refusing. You will not be allowed to call an attorney before deciding if you will take this test. However after you take the test, you may then telephone an attorney or friend if you choose.
If you decide not to take the test, you will still be allowed to telephone an attorney, but your refusal will still result in suspension of your license or permit to drive for twelve months.. •
Will you submit to the test I have offered?

The intoxilyzer test was administered at 9:05 p.m., more than two hours after appellant’s arrest, and showed a blood alcohol content of .179 percent.

Appellant has numerous prior drunk driving convictions. The most recent, in 1983, was a conviction and sentence to a two-year prison term for driving while under the influence of alcohol while his license was suspended, revoked or refused, a class 5 felony. He had six other misdemeanor drunk driving convictions between 1971 and 1983.

The indictment charged appellant with two counts—driving under the influence and driving with a blood alcohol content of .10 percent or more—under each of the subsections of A.R.S. § 28-692.02, which defines certain felony drunk driving offenses. Specifically, the statute provides as follows:

A. A person is guilty of a class 5 felony if the person does any of the following:
1. Commits a violation of § 28-692 while the person’s operator’s or chauffeur’s license is suspended, cancelled, revoked or refused or in violation of a restriction placed on an operator’s or chauffeur’s license as a result of violating § 28-692.
2. Commits a second violation of § 28-692 and has not applied for or obtained an Arizona operator’s or chauffeur’s license within five years preceding the violation.
3. Commits a second violation of § 28-692 and has not reapplied for or obtained an Arizona operator’s or chauf[75]*75feur’s license after suspension; cancellation, revocation or refusal of a license pursuant to § 28-691 or 28-692 or pursuant to an act committed in another state which if committed in this state would be a violation of § 28-691 or 28-692.

At trial, the parties read the following stipulation to the jury:

THAT ON JULY 14,1987, THE DEFENDANT’S LICENSE WAS REVOKED; THAT THE REVOCATION WAS THE RESULT OF A VIOLATION OF ARIZONA REVISED STATUTES SECTION 28-692; THAT ON JULY 14, 1987, THE DEFENDANT KNEW THAT HIS LICENSE WAS REVOKED; AND HE HAD NOT REAPPLIED FOR OR OBr TAINED AN ARIZONA OPERATOR’S OR CHAUFFEUR’S LICENSE; HE HAD NOT APPLIED FOR OR OBTAINED AN OPERATOR’S LICENSE WITHIN THE PREVIOUS FIVE YEARS OF THAT DATE, JULY 14, 1987; AND THAT HE HAS A PRIOR CONVICTION FOR A VIOLATION OF ARIZONA REVISED STATUTE SECTION 28-692.

On appeal, counsel acknowledges that the issue now raised by appellant was not raised in the trial court. In fact, as we have just quoted, appellant stipulated to the operative facts of all three violations specified in A.R.S. § 28-692.02(A)(l), (2) and (3). There is nothing in the record to indicate the date that appellant’s license had been suspended. The only facts before us are those stipulated in the record: that appellant’s license was under suspension on the date of the offense, that he had not reapplied for or obtained the license after suspension, and that he had not applied for or obtained a license within the five years preceding the date of the offense. A single consolidated judgment and concurrent sentences have been imposed. The trial court specifically noted that A.R.S. § 13-116 required a single punishment for the six felonies arising from the single occasion. In the future, the convictions entered in this case will be treated as one offense for purposes of enhancement. See A.R.S. §§ 13-604(H), 28-692.01(E) and (F). We find no grounds for dismissal of all but the charges under § 28-692.02(A)(l).

Appellant next contends that the form used by the DPS officer to request that he submit to the intoxilyzer test interfered with his right to counsel.

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Related

State v. Juarez
775 P.2d 1140 (Arizona Supreme Court, 1989)

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Bluebook (online)
775 P.2d 1137, 161 Ariz. 73, 20 Ariz. Adv. Rep. 36, 1988 Ariz. App. LEXIS 343, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-juarez-arizctapp-1988.