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State v. Robles5/7/1992
497 (1980). Robles does not contest the Conclusion that the officers' observations of him, coupled with the prior report, then provided a sufficient basis for detaining him for purposes of the field sobriety tests which, in turn, provided probable cause for arrest. Because there was no seizure of Robles until the officers had reasonable grounds, and no arrest without probable cause, the trial court erred in dismissing the charges on this ground.
Assuming, however, that the initial encounter was indeed a seizure, we nevertheless find it was supported by sufficient grounds. Relying on Pharo, Robles argues that the facts in this case were insufficient to support an investigative stop because the officers did not personally observe any erratic driving, and the description given to them was insufficient to permit them to rely on the observations of others. In Pharo, supra, this court upheld a stop based on the independent observation by two witnesses of the defendant's erratic driving, coupled with a description of the defendant as well as the vehicle and its license plate. The officers saw the vehicle and confirmed this description shortly after receiving the reports but prior to stopping the vehicle in question.
In this case, the police had only a description of the vehicle given apparently by only one witness almost half an hour prior to the time Officer Tena spotted Robles. The fact that there was only one report of erratic driving, rather than two as in Pharo, is not a critical distinction, nor is the fact that the police had neither a license number nor a description of the driver. The description of the vehicle was sufficiently distinctive that this, coupled with the time of day and the likely absence of a significant amount of traffic, provided an objective basis for the officers to conclude that Robles' vehicle was the truck described in the dispatcher's report. Pharo v. Tucson City Court, supra. As in Pharo, Officer Tena ascertained that the truck he observed matched the description he had received, and Robles does not challenge the accuracy or reliability of the report. We
therefore conclude that even assuming that the officers' conduct in approaching Robles and asking questions was an investigatory stop, the officers had reasonable grounds for making such a stop.
Robles also argued that dismissal was mandated by State v. Zavala, supra, because he had voluntarily pulled his car off the road and turned off the ignition. In Zavala, a patrolman found the defendant passed out in his truck, which had been pulled completely off the highway. Although the key was in the ignition, the motor had been turned off. Concluding that the defendant was not "in actual physical control" of the truck within the meaning of A.R.S. § 28-692(A), the supreme court reasoned:
The interpretation we place on the legislature's imprecise language is compelled by our belief that it is reasonable to allow a driver, when he believes his driving is impaired, to pull completely off the highway, turn the key off and sleep until he is sober, without fear of being arrested for being in control. To hold otherwise might encourage a drunk driver, apprehensive about being arrested, to attempt to reach his destination while endangering others on the highway.
136 Ariz. at 359, 666 P.2d at 459. Whatever the merits of this public policy, Zavala is not applicable to the present case. It pertained solely to the issue of "actual physical control" and not the issue of whether the defendant was driving. Whereas in Zavala there was "no dispute that the defendant's truck was motion
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