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Pharo v. Tucson City Court and Honorable Ann Bowen9/6/1990
Appellant Sandra Pharo appeals from the superior court ruling that respondent Tucson City Court magistrate Ann Bowen did not abuse her discretion in denying appellant's evidentiary motions in her prosecution for driving under the influence (DUI). We affirm.
Shortly before 9:30 p.m. on December 30, 1988, Tucson police officer Cox was working off-duty for the annual Festival of Lights in the Winterhaven subdivision in Tucson. An automobile stopped at the exit to Winterhaven, and the driver told the officer that a white or light-colored Jeep station wagon with "wood-grain" sides driven by a blonde white woman was making wide turns, driving up on curbs, stopping for no apparent reason, and driving erratically. Shortly thereafter, a second car with two females also stopped, and its occupants gave the officer similar information and handed him a paper with the license number written on it.
Cox radioed for a DUI officer and Officer Sainz of the DUI squad responded within
minutes. While Cox was giving Sainz the information he had received, the officers saw a car driving toward them that matched the description. They stopped the car. Officer Sainz testified that appellant twice attempted to shift the car from drive to park before she succeeded. He noticed that her eyes were bloodshot. Sainz asked appellant for her driver's license, and she got out of the car with a towel draped across her foot. Appellant appeared to be unaware of the towel until the officer suggested she remove it. Appellant had no difficulty in obtaining her license from the wallet in her purse in the back seat. The officer also saw that appellant's face was flushed, her speech was slurred, her breath had a strong odor of intoxicants, her balance was unsteady, and her moods varied from smiling and cooperative to argumentative and uncooperative. She admitted she had had a few drinks that evening. Appellant showed Sainz a Pima County Attorney's badge and told him she was a Pima County prosecutor. She also asked him at least twelve times why he had stopped her although he answered the question each time. After she refused to perform either field sobriety tests or the horizontal gaze nystagmus (HGN) test, appellant was advised of her Miranda rights. They talked further, and Sainz then arrested appellant and advised her of the implied consent law. She declined to submit to an intoxilyzer test. The officer then field released appellant to her mother who had been a passenger in appellant's car.
After appellant was charged with DUI, she filed a motion to suppress her statement that she had had a few drinks that evening, a motion in limine regarding her refusal to submit to a breath test, and a motion to suppress evidence about her physical condition, arguing that the officers had no reasonable suspicion to stop her or probable cause to arrest her. During the two-day evidentiary hearing, Barbara LaWall, a chief deputy in the Pima County Attorney's Office, testified that she was driving the second car that had reported appellant's erratic driving to Officer Cox. She testified that her daughter wrote the license plate number down, and they gave the paper to Cox. The city magistrate denied the motions, and appellant then filed a special action in superior court. The superior court ruled that the magistrate did not abuse her discretion in denying the motions.
On appeal, appellant contends that the stop and subsequent arrest were unlawful. She argues that the initial stop was improper because it was based on anonymous tips that were not corroborated by the police and because no driving errors were committed in the pr
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