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State v. Mendoza9/27/1990
the BAC at the time of driving was 0.10 or more. Therefore, there could be no presumption that the defendant was driving under the influence of intoxicating liquor at the time of driving. The defendant objected to the presumption instruction mandated by A.R.S. § 28-692(E)(3), and it was error for the trial court to have so instructed. This error requires reversal. Desmond, 161 Ariz. at 529, 779 P.2d at 1268.
If our inquiry were at an end, and because the evidence otherwise was sufficient to go to a jury, we would remand this matter for a retrial of the DUI charge. However, because the state was not ready to proceed to trial within 150 days, that charge must be dismissed.
IV. APPLICATION OF HINSON TO THE PRESENT CASE
In Hinson, our supreme court held that a defendant must be tried within 150 days from the date of his arrest. In this matter, the defendant was arrested on May 8, 1988. It was incumbent upon the state to be prepared to proceed to trial within 150 days of that date, excluding any delay attributable to the defendant. Shepherd v. Fahringer, 158 Ariz. 266, 269, 762 P.2d 553, 556 (1988).
Any delay occasioned by or on behalf of a defendant rightly is not charged against
the state, but is excluded from the 150-day rule. Rule 8.4(a); A.R.Crim.P. No case has interpreted Hinson as allowing for the exclusion of time when the state is simply not ready to proceed to trial.
Andre v. Tucson City Court, 165 Ariz. 160, 161, 797 P.2d 699, 700 (App.1990).
On December 2, 1988, the "firm trial" date, and the 141st day (excluding delay occasioned by the defendant), the state was not ready to proceed to trial. The trial court could have continued the trial to Monday, December 12, 1988. However, over the defendant's objection, the trial was continued to December 30, 1988. When the 150th day passed, and the defendant had not been brought to trial, the trial court should have granted the defendant's motion to dismiss.
For the foregoing reasons, the defendant's convictions are reversed.
Judges Footnotes
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