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State v. Campa4/19/1990
FACTS
In the early morning hours of May 29, 1988, police arrested appellant for driving while under the influence. 205 days later, on December 20, 1988, he was tried by a jury and subsequently convicted of four charges: A.R.S. § 28-692(A), driving under the influence of intoxicating liquor (DUI); A.R.S. § 28-692(B), DUI with a blood alcohol content (BAC) of .10 percent or more; A.R.S. § 28-692.02(A), DUI while his license was suspended; and A.R.S. § 28-692.02(A), DUI with BAC of .10 percent or more while his license was suspended. The trial court imposed an enhanced sentence of six years pursuant to § 13-604(A),(C) and § 28-692.01. Concurrent sentences were imposed. We note 43 days of excludable time. See Rule 8.4, 17 A.R.S., Rules of Crim.Proc.
ISSUES
Appellant contends the trial court violated his right to a speedy trial, erred in giving improper jury instructions and improperly enhanced his sentence. For the
following reasons, we reverse in part, affirm in part and remand for resentencing.
Discussion
1. Hinson.
Appellant argues that the court's failure to dismiss the state's charges, with prejudice, violated his right to a trial within 150 days of his arrest. Rule 8.2(a), 17 A.R.S., Rules of Crim.Proc.; Hinson v. Coulter, 150 Ariz. 306, 723 P.2d 655 (1986). The record indicates that the appellant failed to advise the trial court of the impending deadline imposed by Rule 8.1(d). He therefore waives his Hinson claim on appeal. Andre v. Tucson City Court, Ariz., (2 CA-CV 89-0244, filed March 13, 1990). See also State v. Guerrero, 159 Ariz. 568, 769 P.2d 1014 (1989); State v. Techy, 135 Ariz. 81, 659 P.2d 40 (App.1982). Accordingly, we find that the court did not err by proceeding with appellant's trial.
2. Desmond .
Appellant contends that the trial court erred in instructing the jury on presumptions pursuant to A.R.S. § 28-692(E) because no "relation back" testimony establishing appellant's BAC at the time he was driving was admitted into evidence. Desmond v. Superior Court, 161 Ariz. 522, 779 P.2d 1261 (1989). No objection to the instructions was made by appellant at trial.
Pending review of appellant's case, our supreme court decided Desmond v. Superior Court, supra. Desmond held that " n order for the state to receive the statutory presumption instruction in a charge under [A.R.S. § 28-692(A)] or to make a prima facie case under [A.R.S. § 28-692(B)], there must be some evidence relating the BAC back to the time of arrest." 161 Ariz. at 529, 779 P.2d at 1268 (emphasis added).
The state argues that the conviction should be upheld because appellant failed to preserve the issue for appeal and no fundamental error was involved. Second, the state argues that Desmond should not be applied retroactively.
The theory of fundamental error is inapplicable as to the charge under A.R.S. §§ 28-692(B) and 28-692.02(A). No objection to the instruction was necessary because the state failed to prove a prima facie case by not presenting evidence relating the blood-alcohol content back to the time of arrest. Desmond, supra.
As for the issue of retroactivity, the su
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