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State v. Garduno6/27/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
AFFIRMED
Following a jury trial, appellant Peter Garduno was convicted of one count of aggravated driving under the influence (DUI) and one count of aggravated driving with an alcohol concentration of.10 or more. Pursuant to A.R.S. § 13-604, the trial court found that Garduno was a repetitive offender and accordingly sentenced him to two, concurrent, presumptive prison terms of ten years. On appeal, Garduno contends the trial court abused its discretion in denying his motion for a continuance and in admitting testimony about the dates when Garduno's driver's license suspension and revocation began. Finding no reversible error, we affirm.
BACKGROUND
Although the pertinent facts are not in dispute, we view the evidence and all reasonable inferences therefrom in the light most favorable to sustaining the convictions. State v. Powers, 200 Ariz. 123, , 23 P.3d 668, (App. 2001). In June 2000, a police officer stopped a car Garduno was driving because he had been speeding and making "erratic lane changes." After smelling intoxicants and after Garduno voluntarily performed some field sobriety tests, which he performed poorly, the officer arrested Garduno for DUI.
A blood test performed at a hospital where the arresting officer had taken Garduno revealed a blood alcohol concentration (BAC) of.164. That BAC equated to the presence of eight standard drinks in Garduno's system at the time of the blood draw. Garduno testified at trial, however, that he had drunk only two beers on the day of his arrest. Garduno also claimed that he had been assaulted before he drove that day and that his injuries from the fight, rather than any alcohol he had drunk, had caused him to perform poorly on the field sobriety tests. The jury ultimately found Garduno guilty on both of the charged counts.
DISCUSSION
A. Denial of Motion for Continuance
On the morning of the first day of trial, Garduno orally moved for a continuance in order to allow defense counsel to "investigate" two matters that Garduno had first mentioned to him the day before. Although represented by counsel, Garduno directly told the trial court that he did not "have an adequate defense" because he and counsel had only had "two brief discussions on this whole case," he was "from Tempe," he recently had been incarcerated in Maricopa County, and he had not "had a phone call." Garduno's attorney then explained to the court that Garduno "brought up yesterday [some issues] which he never brought up before," specifically, the existence of certain medical records and witnesses. According to counsel, the medical records "may have some bearing on the case" because Garduno "was beat up the night of this DUI incident." Counsel also mentioned "possible witnesses that saw [Garduno], what he may have drank that night which wouldn't correlate with the BAC." Garduno's counsel further stated that had he known about the medical records or the witnesses earlier, he "would have probably looked into [them]," but that based on the information he had, he was ready to proceed with the trial that day. The prosecutor briefly opposed the requested continuance, and the trial court denied Garduno's motion.
A trial court's discretionary denial of a motion for continuance will be disturbed only upon a showing of a clear abuse of that discretion and resulting prejudice to the defendant. State v. Amaya-Ruiz, 166 Ariz. 152, 164, 800 P.2d 1260, 1272 (1990). A continuance is warranted "only upon a showing that extraordinary circumstances exist and that delay is indispensable to the interests
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