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State v. McCoy9/11/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
Appellant Sean Michael McCoy was convicted after a jury trial of aggravated driving under the influence of an intoxicant (DUI) while his license was suspended, possession of marijuana, and possession of drug paraphernalia. The trial court found that he had one prior felony conviction and sentenced him to presumptive, concurrent prison terms of 4.5 years for the DUI and 1.75 years for each of the drug offenses. Appellant contends the trial court erred by (1) denying his request for a new jury panel, (2) allowing the state to use horizontal gaze nystagmus (HGN) test results to quantify his alcohol concentration, and (3) sentencing him to prison for the drug offenses.
We view the facts 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. 2000). Tucson Police Officer Brotherton observed appellant's vehicle making a wide turn into the wrong lane of traffic. He continued in the wrong lane until he was forced into the proper lane by oncoming traffic. Officer Brotherton stopped appellant's vehicle. Appellant told the officer that he had drunk a few beers before driving and that his license was suspended. Brotherton detected a strong odor of alcohol on appellant's breath and noted that his pupils were restricted, he was swaying as he stood, and he was perspiring profusely.
Officer New performed an HGN test on appellant and saw all six cues of neurological dysfunction. She testified that one reason a person may exhibit six cues is alcohol impairment. Officer New also noticed that appellant's pupils were constricted, that his eyes were bloodshot and watery, that his face was flushed, that he was noticeably swaying as he was standing, and that he smelled strongly of alcohol.
Officer Sullivan of the DUI task force also witnessed appellant's behavior and appearance that night. He noticed the same things as did Officer New and, in addition, noted that appellant seemed to be suffering from mood swings.
Appellant was arrested, and in searching his vehicle, officers discovered a baggie of marijuana, rolling papers, a plastic smoking pipe, and a bottle of rubbing alcohol with a marijuana plant inside. Appellant also had a "roach clip" in the front breast pocket of his shirt.
Officer Sullivan advised appellant on the implied consent law, and when appellant refused to take a breath, blood, or urine test, he was taken to Kino Hospital. Officers obtained a search warrant, and samples of appellant's blood and urine were taken, which showed that his blood alcohol concentration (BAC) was.094, and his urine contained both amphetamine and cannabinoid metabolites. The state's expert witness, Mr. Spirk, testified that the mixture of drugs and alcohol can cause stronger physical effects than just alcohol alone. A custodian of records from the Motor Vehicle Department testified that appellant's license had been revoked and suspended on numerous occasions and that he did not have a valid driver's license on the night he was arrested.
Motion for New Jury Panel
During voir dire of the prospective jurors, the trial court read the names of potential witnesses and asked if any members of the panel knew them. The court informed the prospective jurors that one of the potential witnesses worked "at the Adult Probation Department." Defense counsel objected to the reference to the witness's employment and asked for a new panel on the ground that the court's comment had suggested to the jury that appellant might be on probation.
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