 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Alvarez11/14/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
After a jury trial, Manuel Buenamea Alvarez was convicted of four counts of aggravated driving under the influence of intoxicants (DUI). On appeal, Alvarez contends the trial court denied him his constitutional right to present a defense by limiting the scope of his crossexamination of the arresting officer; that the court committed fundamental error by erroneously instructing the jury; that the court erred by denying his motion for judgment of acquittal under Rule 20(a), Ariz. R. Crim. P., 17 A.R.S.; and that the court erred when it ordered him to pay separate fines for each DUI count because they arose from the same incident. We modify the court's imposing separate fines, an error the state concedes, but affirm Alvarez's convictions.
Facts and Procedural History
"We view the facts and reasonable inferences therefrom in the light most favorable to sustaining the verdicts." State v. Herrera, 203 Ariz. 131, , 51 P.3d 353, (App. 2002). Alvarez entered a convenience store and attempted to purchase beer. The clerk, believing Alvarez to be intoxicated, refused to sell him the beer. Shortly thereafter, an unidentified man entered the store and attempted to purchase the same brand and quantity of beer. Because the clerk had witnessed the man exchanging money with Alvarez, she suspected that he was purchasing the beer for Alvarez, and refused to sell him the beer as well. The clerk then saw Alvarez unsuccessfully attempt to start his car. She called the police.
Officer James Johnston responded to the call and, when he approached Alvarez, noted that Alvarez was off balance, smelled of alcohol, and displayed other visible signs of intoxication. Johnston asked Alvarez if he had been drinking and, after Alvarez answered affirmatively, read him the Miranda warnings. Alvarez told Johnston that he had driven to the convenience store from his friend's house.
Officer Steve Smith went to the scene as a backup officer. Smith was certified to perform the horizontal gaze nystagmus (HGN) test, which detects impairment through eye movement. When Alvarez took the HGN test, he exhibited all six of the test's indicators of impairment. After Smith performed the HGN test, Johnston had Alvarez perform three field sobriety tests (FST's). Alvarez failed all three. At a pretrial hearing, Johnston testified that, initially, he was going to release Alvarez. However, based on his observations and Alvarez's performance on the FST's, Johnston decided to arrest Alvarez.
After Alvarez was arrested, Johnston read him the Miranda warnings for a second time and transported him to a police substation. At the substation, Johnston read Alvarez a standard "admin per se form," informing Alvarez that if he did not submit to either a blood or breath test, his license would be suspended automatically. Alvarez consented to a breath test, which showed he had a blood alcohol content (BAC) of.279. Eight minutes later, he was re-tested and registered a.282 BAC.
A grand jury indicted Alvarez on four counts of aggravated DUI: driving under the influence with a suspended license, driving with a suspended license and a BAC in excess of.10, driving under the influence with two or more DUI convictions within the previous sixty months, and driving under the influence with two or more DUI convictions within sixty months and a BAC of.10 or more. At trial, Alvarez and the state stipulated to Alvarez's two DUI convictions within the previous sixty months and his suspended license. The prosecutor moved to preclude Alvarez from cross-examining Johnston on whether Johnston initially had
Page 1 2 3 4 Arizona DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|