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State v. Stuart9/18/1990
Charles E. Stuart appeals from convictions for driving while under the influence of intoxicants (DUI), DUI with a blood-alcohol content of .10 percent or more, DUI on a suspended license, and driving with a blood-alcohol level of .10 percent or more, with two prior convictions for DUI. For the reasons set forth below, we affirm Stuart's convictions but remand the matter for further hearings regarding the prior convictions.
FACTS
Viewing the evidence in the lightmost favorable to the state, State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987), the facts are as follows. At approximately 10:19 p.m. on August 22, 1988, Tucson Police Department Officer Richard Robles Garcia observed a newer-model truck parked on a residential Tucson street in a neighborhood known for substantial drug-trafficking. Officer Garcia shined his spotlight into the vehicle, whereupon he observed Stuart sitting behind the steering wheel and a female subject raise her head from Stuart's lap. The officer recognized the female as a prostitute and concluded that he had interrupted an act of prostitution. The officer then drove past Stuart's truck, turned his squad car around, pulled up behind Stuart's vehicle, and turned on his emergency equipment. Stuart started his truck and pulled forward 10 to 15 feet before stopping.
The officer approached Stuart as he exited his vehicle. Stuart displayed signs of intoxication during the horizontal gaze nystagmus (HGN) test and fared poorly on field sobriety tests. He was arrested for DUI. He registered a reading of .18 percent blood-alcohol content on an intoxilyzer test administered at a police substation. A second breath sample taken for Stuart's benefit was preserved in a silica gel tube. Stuart was informed of his right to an independent blood test and requested one. He was transported to Kino Hospital. At the hospital, Stuart was told by the police that after the blood sample was drawn it would be taken to the Tucson Police Department evidence refrigerator where it would be stored until Stuart picked it up. Stuart objected to the police keeping the sample and asked to be transported to St. Mary's Hospital. When Stuart was informed that the police intended to maintain custody of the independent blood sample in any event, Stuart decided not to have a blood sample drawn.
PROCEDURAL BACKGROUND
Stuart was indicted on four counts consisting of DUI, DUI with a blood-alcohol content of .10 percent or more, DUI on a suspended license, and driving with a blood-alcohol content of .10 percent or more. He was found guilty on all four counts and of the lesser-included offense of driving while his license was suspended. After the jury's verdict, Stuart admitted that he had two prior convictions for DUI.
ISSUES ON APPEAL
On appeal, Stuart argues that (1) he was illegally stopped and a motion to dismiss should have been granted; (2) the police interfered with the taking of an independent blood test and the case should have been dismissed on this ground; (3) because the intoxilyzer sample obtained for his benefit was unreliable, intoxilyzer results should have been suppressed; (4) the trial court erroneously failed to require the jury to deliberate further after the jury found the defendant guilty on all four counts as well as a lesser-included offense; and (5) the trial court failed to comply with Rule 17.2, Ariz. R. Crim. P., 17 A.R.S., before accepting the defendant's admission of the two prior convictions.
Legality of Stop
Stuart argues that Officer Garcia's action in shining a spotlight on Stuart constituted a violation of the Fourth Am
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