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State v. Garcia9/20/1990
Defendant was convicted by a jury of aggravated assault, a dangerous felony; driving under the influence (DUI); and, driving with a blood-alcohol content (BAC) of .10% or above, class 1 misdemeanors. He was sentenced to the presumptive term of seven and one-half years imprisonment for aggravated assault and six months incarceration for each misdemeanor. All sentences were ordered to run concurrently. On appeal, he claims that:
(1) the state failed to present "relationback" evidence in violation of Desmond v. Superior Court, 161 Ariz. 522, 779 P.2d 1261 (1989);
(2) the aggravated assault cannot be a dangerous felony under State v. Orduno, 159 Ariz. 564, 769 P.2d 1010 (1989);
(3) the prosecutor improperly argued to the jury that the charge against defendant was evidence; and
(4) he received ineffective assistance of counsel.
For the reasons below, we affirm.
FACTS
The defendant met with three acquaintances at a bar sometime after 5:00 p.m. From that time until approximately 8:00 p.m., the defendant and his party ordered fifteen "shots" of liquor and several rounds of beer. By his own admission, defendant consumed at least two, twenty-four ounce cans of beer and one shot of liquor. Other evidence indicated that defendant had consumed more alcohol than he admitted. At one point the waitress, concerned about defendant's condition, asked him if she could call him a cab; he said, "sure", and at her request, gave her his address. She called a cab but defendant left with his friend who told the waitress he was going to drive defendant home. Within minutes after leaving the bar, defendant collided with a disabled vehicle. The disabled vehicle, its warning flashers on, was being pushed by the victim. The impact severed both of the victim's legs. She lost almost two-thirds of her blood volume and her life was threatened.
Defendant was transported to the hospital where he consented to withdrawal of his blood. Blood was drawn from the defendant about one hour after the accident. The tests indicated that defendant's BAC was .16%.
Defendant was charged with recklessly causing serious physical injury. The state relied upon the seriousness of the physical injury as the aggravating factor for the assault. The state also alleged the crime was dangerous because it was committed with a dangerous instrument, defendant's automobile, pursuant to A.R.S. § 13-604. Defendant was also charged with driving while under the influence and driving with a BAC of .10% or more. Other facts are recited where necessary to a resolution of the issues raised.
"RELATION-BACK" EVIDENCE
In Desmond, our supreme court addressed the question of whether a defendant's BAC was admissible in evidence, absent an evidentiary foundation relating the BAC at the time of the test to the time of driving. Desmond actually involved two cases consolidated for purposes of disposition. In Desmond's case the evidence at his DUI trial established that he had two or three "shots" of liquor between 12:30 a.m. and 1:00 a.m. Twenty minutes later he was stopped by police and arrested. About forty-five minutes later police administered a breath test and determined that Desmond's BAC was .13%. An expert testified that Desmond's BAC at the time of driving "would probably put him somewhere in the order of around a 0.03." Desmond, 161 Ariz. at 524-25, 779 P.2d at 1263-64. The state presented no evidence that Desmond's
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