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State v. Leonard3/13/1986
[151 Ariz Page 2] Kent Alan Leonard appeals from his conviction and sentence for the crime of driving while under the influence of intoxicating liquor (DWI) with two prior similar convictions within a period of sixty months. He raises six issues on appeal, each of which require a detailed statement of facts.
Facts
On March 18, 1984, at approximately 1:00 a.m., Officer Robert McCarthy of the Department of Public Safety observed the defendant driving away from Shawn's Bar in Sedona, Arizona. The defendant's vehicle made erratic movements and its headlights flickered on and off. As the vehicle approached the officer, the headlights were off, but when the vehicle turned onto the highway, the headlights were illuminated. Officer McCarthy observed the vehicle weaving and traveling 10 to 20 miles per hour in a 40-mile-per-hour zone. The defendant executed a left turn by traveling for a short distance in the lane for oncoming traffic. At that point, Officer McCarthy turned on his emergency lights and stopped the vehicle.
Officer McCarthy noticed that the defendant was unsteady on his feet and smelled of alcohol. The defendant's face was flushed, his eyes bloodshot and watery, and his speech slurred. He failed to pass four field sobriety tests. Upon his arrest at 1:14 a.m., he was put into the back of a patrol car. He kicked the insides of the vehicle to the extent that mace and leg irons were needed to subdue him.
Officer McCarthy drove the defendant to a police sub-station in Sedona, arriving at approximately 2:00 a.m. Shortly thereafter, the defendant was read his Miranda rights. McCarthy administered two breath (intoxilyzer) tests between 2:29 and 2:33 a.m. The test results were .26 and .24 percent, respectively. The defendant admitted that he had drunk about six beers between 1:15 p.m. and 12:45 a.m. McCarthy advised the defendant that he could request a breath sample for his independent testing and an independent blood test. McCarthy secured a breath sample in a glass tube which was placed with the defendant's property. The defendant testified that he received this sample but that he later lost it.
The defendant expressed a desire to contact a physician to obtain an independent blood test. He wanted to contact a Dr. Caskey but could not find the doctor's telephone listing. He did call the number of a Dr. Hildebrand whose answering service indicated that the doctor was unavailable. He then asked if he could call a Dr. Kahle in Flagstaff and Sam Ornsby, a long-time friend and retired Department of Public Safety officer. McCarthy testified that he permitted Leonard to continue his efforts to contact a physician up until the time that he was transported to Flagstaff for booking on an outstanding trespass warrant discovered after the DWI arrest. Although the defendant testified otherwise, the trial judge accepted McCarthy's testimony on this point. At trial, McCarthy explained his reasons as follows:
I said, well, the doctors he wanted were in Flagstaff, we are going to Flagstaff, so he could call from there. . . . I finally cut it off at the end. I thought I was quite patient with him. . . . he deputy . . . said the doctor he wanted was in Flagstaff Hospital, so as long as we're going to Flagstaff it seemed reasonable he could contact him up there. . . . Then he wanted to call this Sam Ornsby the retired patrolman, and I think at this point I said, look you can make your call from Flagstaff. We made a reasonable attempt here.
McCarthy and the defendant left Sedona at 3:30 a.m.
During the approximately one-hour drive to Flagstaff, McCarthy l
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