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State v. Campa6/27/1991
STATEMENT OF THE CASE
Humberto Camillo Campa (defendant) was arrested for driving a motor vehicle while under the influence of intoxicating liquor (DUI). Because his driver's license had been previously suspended, and because he had prior driving offenses, he was ultimately indicted for and convicted of four separate class 5 felonies. Specifically, defendant was charged with and convicted of the two felonies of DUI and driving with a blood alcohol content (BAC) of .10 percent or more while driving on a suspended license. See A.R.S. § 28-692.02 (A) (1). Defendant was also charged with and convicted of the two additional felonies of DUI and driving with a BAC of .10 percent or more while having two DUI convictions in the preceding sixty
months. See A.R.S. § 28-692.01(F). With respect to each of the four offenses, the state filed an allegation of two prior felony convictions pursuant to A.R.S. § 13-604(C). The two prior felony convictions were also for driving offenses.
After the jury found defendant guilty of the current offenses, defendant waived a jury trial on the prior convictions and admitted that he had been convicted of two prior driving felonies within sixty months of the present offenses. At sentencing, the trial court used the prior felony convictions to impose an aggravated term of six years on each count, with all four sentences to run concurrently.
On appeal, the court of appeals first vacated the convictions on the two counts relating to driving with a BAC of .10 percent or more. We originally granted review of that portion of the court of appeals' opinion to consider the retroactivity of the rule announced in Desmond v. Superior Court, 161 Ariz. 522, 779 P.2d 1261 (1989). We now vacate the Desmond portion of our order granting the petition for review.
With respect to the two DUI charges (DUI with prior convictions and DUI with a suspended license), the court of appeals affirmed the convictions but remanded for resentencing, holding that the trial court could not enhance defendant's sentences by reason of his prior felony convictions. We also granted review of that portion of the opinion and have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. § 12-120.24. We vacate that portion of the court of appeals' opinion because we conclude that the trial court properly enhanced defendant's sentences on the DUI counts.
ISSUE
Whether driving offenses that are defined as felonies in Title 28 are subject to enhanced punishment under A.R.S. § 13-604 by reason of similar prior felony convictions.
Discussion
Dismissal of Desmond Retroactivity Issue
In Desmond v. Superior Court we held that:
Evidence of a driver's blood alcohol content taken within a reasonable period of time after arrest is admissible if A.R.S. § 28-692.03 is complied with. Such evidence, however, standing alone, does not make a prima facie case of a violation of either subsection A or subsection B of A.R.S. § 28-692. In order for the state to receive the statutory presumption instruction in a charge under subsection A or to make a prima facie case under subsection B, there must be some evidence relating the BAC back to the time of arrest.
161 Ariz. at 528-29, 779 P.2d at 1267-68.
In this case, the appeals court held that Desmond is r
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