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State v. Kuczynski2/28/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
AFFIRMED
After a jury trial, appellant Richard Kuczynski was convicted of two counts of aggravated driving under the influence (DUI) and two counts of aggravated driving with a blood alcohol concentration (BAC) of .10 or more. The trial court sentenced him to concurrent, aggravated, six-year prison terms. On appeal, Kuczynski contends the trial court er red in denying his motion to suppress and his motions for judgment of acquittal made pursuant to Rule 20, Ariz. R. Crim. P. , 17 A. R.S. Finding no r eversible er ror, we affirm.
BACKGROUND
We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining the convictions. State v. Riley, 196 Ar iz. 40, 2, 992 P. 2d 1135, (App. 1999). A police officer stopped a truck Kuczynski was driving because it matched the description of a vehicle that reportedly had left the scene of a domestic violence incident. Kuczynski was handcuffed and detained for approximately fifteen minutes while the police investigated the domestic dispute. After determining that no charges would be filed, the officer released Kuczynski and told him that " he wasn' t under arr est for anything. "
Because the officer had noticed that Kuczynski smelled of alcohol and had bloodshot eyes and a flushed face, he then asked if Kuczynski " would be willing to submit to voluntary field sobriety tests. " Kuczynski agreed, saying " no problem, I' ve only had a couple of beers." Kuczynski performed poorly on the tests, and the officer placed him under arrest for DUI. When Kuczynski refused to take any alcohol or drug tests, the officer obtained a warrant to extract a blood sample, which was drawn almost two hours after the initial stop and revealed a BAC of .109.
DISCUSSION
I. Motion to Suppress
Kuczynski first contends the trial court erred by denying his motion to suppress evidence, made on the ground that the officer did not have reasonable suspicion to detain him for a DUI investigation. We review a trial cour t' s ruling on a motion to suppress evidence for clear and manifest error, viewing the evidence presented at the suppression hearing in the light most favorable to upholding the ruling. State v. Roark, 198 Ar iz. 550, 6, 12 P.3d 225, 6 (App. 2000); State v. Soto, 195 Ar iz. 429, 7, 990 P.2d 23, 7 (App. 1999). We defer to the trial court' s factual findings, including findings as to witness credibility. State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P. 2d 776, 778 (1996). But, we review de novo mixed questions of law and fact that implicate constitutional rights. See Soto, 195 Ar iz. 429, 7, 990 P.2d 23, 7. At the hearing on the motion to suppress, both the arresting officer and Kuczynski testified. The officer testified that he had removed the handcuffs from Kuczynski, explicitly had told him he was not under arr est, and had then asked if Kuczynski would voluntarily perfor m the field sobriety tests. Kuczynski, however, testified he had not felt free to leave after the officer had removed the handcuffs and the officer had told him that he " ha to do the field sobriety tests" before he could drive away.
The trial court found the officer' s testimony credible, stating that the officer " would have been in a better position to remember what happened out there, especially since he hadn' t been drinking." Therefore, although it agreed with Kuczynski that the officer had not had the requisite reasonable suspicion to detain him for a DUI investigation, the court found no illegal detention because Kuczynski had " agreed and consen
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