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State v. Rocha3/28/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
AFFIRMED
A jury found appellant Jose Andres Rocha guilty of aggravated driving under the influence of an intoxicant (DUI) while his license was suspended or revoked, aggravated driving with a blood alcohol concentration (BAC) of .10 or greater while his license was suspended or revoked, aggravated DUI with two prior DUI convictions within sixty months, and aggravated driving with a BAC of .10 or greater with two prior DUI convictions within sixty months. The trial court suspended the imposition of sentence and placed Rocha on probation for concurrent five-year periods on condition that he serve four months in prison and 180 days in jail. On appeal, he argues that the state presented insufficient evidence showing he had driven or been in actual physical control of his vehicle and that the trial court committed fundamental error when it instructed the jury on actual physical control. We disagree and affirm Rocha's convictions.
Factual Background
We view the evidence and all reasonable inferences therefrom in the light most favorable to sustaining the convictions. State v. Riley, 196 Ariz. 40, 992 P.2d 1135 (App. 1999). At 3:25 a.m. on May 10, 2001, Pima County Deputy Sheriff William Holden observed Rocha's car parked facing the wrong direction on the shoulder of a two-lane highway. The car's parking lights were on. Holden parked his vehicle on the shoulder facing Rocha's car "nose to nose," turned on his emergency lights, and saw Rocha seated in the driver's seat. As Holden stepped out of his car and approached Rocha's, he heard loud music coming from Rocha's car stereo. He also saw that Rocha's driver's side window was down four or five inches and the engine was not running, but the key was in the ignition and the dashboard lights were illuminated. Holden testified that Rocha had been "slumped over to the right . . . appeared to be sleeping[,] . . . [and Holden had] noticed an odor of intoxicants coming from inside the car."
After Holden tried unsuccessfully to get Rocha's attention by yelling, knocking, and tapping on the window with his metal ring, he opened Rocha's unlocked car door and, again, tried unsuccessfully to rouse him verbally. When this failed, Holden began shaking Rocha's arm, but Rocha did not respond. Holden "ultimately shook harder and harder and harder until [Rocha] began to wake up and gained consciousness and became a little bit responsive." When Holden asked Rocha for his driver's license and identification, Rocha took out his wallet but could not give Holden either document, although Holden had seen them in the wallet. Holden asked Rocha to get out of his car, but Rocha "slumped back down into the seat and was non-responsive," so Holden again began shaking him.
Holden eventually helped Rocha out of his car by holding his arm to steady him. Holden then caught Rocha after he nearly fell when Holden released his arm, and Rocha became angry. Holden testified that Rocha had had watery, bloodshot eyes; a flushed face; slurred speech; unsteady balance; and a strong odor of intoxicants and that he had exhibited sudden mood swings. Holden further testified that, in his experience, these are symptoms of alcohol consumption and possible impairment. Holden asked Rocha preliminary questions before attempting to administer field sobriety tests, which Rocha was unable to perform because he was "uncooperative and unpredictable."
Holden described Rocha as verbally abusive, aggressive, agitated, and sad when Holden arrested him. After Rocha refused to take a breath test, Holden drove him to the sheriff's substation
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