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State v. Alvarez11/14/2003
accept it as proof of the defendant's guilt beyond a reasonable doubt. Id. If reasonable minds could differ on the inferences to be drawn from the evidence, the trial court must deny a motion for judgment of acquittal and submit the case to the jury for resolution. State v. Mosely, 119 Ariz. 393, 581 P.2d 238 (1978). We review the denial of a Rule 20(a) motion for an abuse of discretion, viewing the facts in the light most favorable to upholding the verdict. State v. Sullivan, 187 Ariz. 599, 931 P.2d 1109 (App. 1996).
Here, there was substantial evidence both that Alvarez was in actual physical control of his vehicle and that he had a BAC over.10 within two hours of driving to the convenience store. As mentioned previously, Dawley held that an individual is in actual physical control of a vehicle if, under the totality of the circumstances, his potential use of the vehicle presents a danger to himself or others. On this record, the jury could have reasonably concluded that, because Alvarez had attempted to start the car and had raised the hood, presumably to repair the car, he physically controlled the car and his potential use of it created a danger. Simply because he had not yet been successful in starting the car prior to being arrested does not necessarily negate his physical control of it.
Further, although other evidence that Alvarez had driven within two hours of registering a BAC over.10 is largely circumstantial, it raises inferences that a jury may accept. The jury must decide how to judge Johnston's credibility, who testified that both Alvarez and his girlfriend admitted that Alvarez had driven to the store. See State v. Paoletto, 133 Ariz. 412, 652 P.2d 151 (App. 1982) (jury must assess credibility of witnesses and determine weight of their testimony). Although no one observed Alvarez driving the car, there is more than a scintilla of evidence suggesting he did and that it was within the two hours of having a BAC of.10. It was for the jury to determine whether that element of the offense had been established beyond a reasonable doubt. Mosely. Accordingly, we affirm the trial court's denial of Alvarez's motion for judgment of acquittal.
Separate Fines
Finally, Alvarez argues that the trial court erred in imposing four $250 fines, one for each of the DUI convictions. The state concedes error. Under Arizona law, "when an individual has been convicted of multiple felonies arising from one act of driving, in violation of [DUI laws], the individual may only be assessed a single felony penalty." State v. Sheaves, 155 Ariz. 538, 543, 747 P.2d 1237, 1242 (App. 1987). Here, all of Alvarez's charges stemmed from the single incident. Consequently, the court erred in imposing multiple fines. We therefore modify Alvarez's sentence and order him to pay a single $250 fine.
Conclusion
We affirm Alvarez's convictions and prison sentence, but reduce his monetary penalty to a single $250 fine.
J. WILLIAM BRAMMER, JR., Presiding Judge
CONCURRING:
M. JAN FLOREZ, Judge
JOSEPH W. HOWARD, Judge
Page 1 2 3 4 Arizona DUI Attorneys
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