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State v. Freeland5/27/1993
In a collision caused by an intoxicated driver, the victim's injuries were enhanced because he was not wearing his seat belt. In this combined appeal and petition for review, we consider among other issues whether the victim's failure to wear a seat belt constitutes an intervening, superseding cause that relieves the intoxicated driver of criminal responsibility for the victim's enhanced injuries. We conclude that it does not.
I
On March 28, 1987, while attending a baseball game, defendant drank at least five beers. After the game, while driving a car at the posted speed limit, defendant reached to the passenger side floor to retrieve a pack of cigarettes. As he did so, defendant permitted his car to drift to the right; then, over-correcting, he swerved leftward into oncoming traffic and collided head-on with another car.
The oncoming driver, not wearing a seat belt, was ejected in the collision and sustained multiple injuries including a broken neck, fractured pelvis, facial fractures, and eleven broken ribs. His injuries left him quadriplegic.
Defendant was indicted for aggravated assault, a class three felony; driving under the influence of intoxicating liquor ("DUI") while his driver's license was suspended, canceled, revoked, or refused, a class five felony; and driving with a blood alcohol content ("BAC") of .1% or more while his driver's license was suspended, canceled, revoked, or refused, a class five felony. The State alleged for purposes of sentence enhancement that all offenses were dangerous felonies (committed while using a dangerous instrumentality -- an automobile), that they were committed while defendant was on probation, and that defendant had a prior felony conviction.
At trial, the treating doctor testified that a seat belt might have prevented some but not all of the victim's serious injuries. Over defendant's objection, the State requested and the court gave the following jury instructions:
1. Contributory negligence on the part of the victim is not a defense in this case.
2. Arizona law does not require that seat belts be used by adults.
Defendant was convicted on all counts. For aggravated assault, a dangerous offense, the trial court gave defendant the statutorily mandated sentence of life imprisonment without possibility of release for twenty-five years. For the offenses of DUI and driving with an elevated BAC, defendant was ultimately sentenced to concurrent two-year prison terms.
Upon the jury's finding that all three offenses were dangerous, the trial Judge had initially given defendant concurrent life sentences on each of the three counts. After defendant was first sentenced, however, our supreme court decided that automobiles cannot be characterized as dangerous instruments for sentence enhancement purposes in prosecutions for DUI or elevated BAC. State v. Orduno, 159 Ariz. 564, 566-67, 769 P.2d 1010, 1012-13 (1989). After reviewing this holding in a post-conviction relief proceeding, the trial Judge modified defendant's sentences on the DUI and BAC counts to concurrent two-year terms.
At the resentencing hearing on the DUI and BAC counts, defendant presented testimony by Dr. Thomas Taber, Jr., an orthopedic surgeon, that the victim probably would have escaped serious injury if he had worn his seat belt. Defendant then moved for a new trial so that he could argue a "seat belt defense" to the charge of aggravated assault. The court denied defendant's motion for a new trial and denied his various claims for post-conviction relief other than the sentence r
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