 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Nihiser9/30/1997
BRAMMER, Judge
Bart Nihiser was convicted of one count each of aggravated driving under the influence of intoxicating liquor (DUI) and aggravated driving with a blood alcohol concentration of 0.10 or more while his license was suspended, revoked or in violation of a restriction, both class four felonies. A.R.S. §§ 28-692 and 28-697(A)(1). The trial court suspended Nihiser's sentence and placed him on probation for four years. As a condition of probation, the court imposed a mandatory four-month prison sentence. § 28-697(E). Nihiser contends the trial court erred in admitting the results of his blood alcohol concentration (BAC) test and in failing to offset two days of presentence incarceration against his prison time. We affirm the convictions but modify the sentence.
Facts and Procedural History
We view the evidence in the light most favorable to sustaining the verdicts and resolve all inferences against appellant. State v. Atwood, 171 Ariz. 576, 832 P.2d 593 (1992). Following Nihiser's arrest for driving under the influence , and after he refused to submit to a breath test, the arresting officers obtained a search warrant to collect a sample of his blood, which they subsequently obtained from him at a local hospital. Nihiser moved to suppress the blood test results because the state had failed to disclose the name and qualifications of the person who had drawn the blood. The court denied the motion, determining that, although § 28-692(F) requires that the individual drawing the blood be "a physician, registered nurse or another qualified person," proof of the person's qualifications is not a foundational prerequisite for admitting the BAC test results.
Suppression of BAC Results
A. Vague and ambiguous statute
Nihiser first contends that § 28-692(F) is comprised of two contradictory sentences that render it unconstitutionally vague and ambiguous. The subsection reads as follows:
If blood is drawn under the provisions of § 28-691, only a physician, a registered nurse or another qualified person may withdraw blood for the purpose of determining the alcohol concentration or drug content therein. The qualifications of the individual withdrawing the blood and the method used to withdraw the blood shall not be foundational prerequisites for the admissibility of any blood alcohol content determination made pursuant to this subsection.
Nihiser argues the statute is ambiguous because it first grants the defendant "the right to have blood extracted by someone authorized by law [but then] the right is emasculated with the second sentence because the state need not show its compliance with that right." He claims that the rule of lenity applies, dictating that any doubt as to the statute's meaning be resolved in his favor, citing State v. Pena, 140 Ariz. 545, 683 P.2d 744 (App. 1983). Accordingly, he argues the trial court was required to declare void the second sentence of the subsection and deny admission of the blood test evidence. Because the legislative intent behind the statute is discernable, we find that the rule of lenity, if otherwise appropriate, is inapplicable in this context. See id. at 549, 683 P.2d at 748 (court applied the rule of lenity "absent any expression of legislative intent" as to the meaning of the statute at issue); see also State v. Ramos, 155 Ariz. 468, 747 P.2d 629 (App. 1987).
When construing a statute, our goal "is to fulfill the intent of the legislature that wrote it." State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133 (1993). In determining legislative intent, we first consider the statute's language because it is "the best and most reliable index of a statute's meani
Page 1 2 3 4 5 Arizona DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|