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State v. Mendoza9/27/1990
The defendant was convicted of driving while under the influence of intoxicating liquor (DUI) with two prior convictions, and driving with a blood-alcohol content of 0.10 or more with two prior convictions, class 5 felonies, in violation of A.R.S. §§ 28-692(A) and (B) and 28-692.01. The imposition of sentence was suspended and the defendant was placed on probation for three years. He was ordered to spend the minimum term of six months in prison. On appeal, he argues that:
(1) his convictions must be reversed because the state failed to present any "relation-back" evidence as required by Desmond v. Superior Court, 161 Ariz. 522, 779 P.2d 1261 (1989);
(2) the trial court should have dismissed the case because the 150-day arrest-to-trial rule of Hinson v. Coulter, 150 Ariz. 306, 723 P.2d 655 (1986), was violated.
We reach two conclusions. First, Desmond applies retroactively to all cases not final at the time Desmond was mandated. Any DUI conviction presently in the appellate court in which there was no relation-back evidence will be examined on a case-by-case basis. Finally, we hold that time is not excluded from the 150-day Hinson rule when the state obtains a continuance on the grounds that it is not ready to proceed to trial.
I. FACTS
The defendant was stopped by a police officer at approximately 1:45 a.m. because his driving was erratic. As the defendant got out of his automobile, he used the car for support. His breath carried a strong odor of alcohol. When asked to produce his driver's license, the defendant searched his wallet and passed over the license three times before the officer pointed it out to him. The officer then administered the standard field-sobriety tests and the defendant's performance was very poor.
The defendant was arrested and taken to the police station where a breath test was administered at 2:31 a.m. It indicated a blood-alcohol level of .21. The defendant admitted to the officer that he had consumed three beers and two drinks. He told the officer that he had started drinking at about 11:00 p.m.
The defendant testified at his trial that he was not drunk the night he was arrested. He told the jury that he had failed the sobriety tests because the officer had spoken quickly in English and he had not understood the officer's directions.
The state did not present any evidence at trial as to how the results of the test administered at 2:31 a.m. related back to the defendant's blood-alcohol content at 1:45 a.m. The defendant moved for a judgment of acquittal on the basis of that gap in the evidence and, when the parties settled the jury instructions, the defendant objected to the instruction on presumptions pursuant to A.R.S. § 28-692(E). The trial court denied the defendant's motion and overruled his objection to the presumption instructions.
II. RETROACTIVE APPLICATION OF DESMOND
A. The Desmond Case
In Desmond, 161 Ariz. 522, 779 P.2d 1261 (1989), the Supreme Court addressed the question of whether a defendant's blood-alcohol content (BAC) was admissible in evidence, absent an evidentiary foundation relating the BAC at the time of the test to that which existed at the time of driving. Desmond actually involved two cases consolidated for disposition. In the first case, the evidence at Desmond's DUI trial established that Desmond had consumed two or three "shots" of liquor between 12:30
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