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State v. Stark11/24/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
A jury found appellant Geoffrey Mark Stark guilty of aggravated driving under the influence of an intoxicant (DUI) and aggravated driving with an alcohol concentration of.10 or greater, class four felonies. The trial court suspended the imposition of sentence and placed Stark on probation for concurrent, ten-year periods, after he served 120 days in prison. On appeal, Stark challenges the trial court's: (1) admission of evidence of his breath-test results; (2) admission of statements he made during the traffic stop that led to his arrest; (3) failure to separate the issue of his prior convictions from the DUI issue, and (4) instruction on reasonable doubt. We affirm.
Stark argues two theories for why the trial court erred in admitting the breath-test results. But, because he objected below only on one theory, we address only that one. See State v. Amaya-Ruiz, 166 Ariz. 152, 169, 800 P.2d 1260, 1277 (1990) (lack of timely objection waives issue on appeal). Stark contends that the test results were inadmissible because the calibration checks performed on the testing equipment were not conducted within the thirty-one-day interval prescribed by Arizona Department of Health Services regulations. Instead, those calibration checks occurred thirty-three days apart. We review a trial court's admission of evidence for abuse of discretion. State v. Tankersley, 191 Ariz. 359, 369, 956 P.2d 486, 496 (1998).
Breath-test results are admissible when " he device used to conduct the test was in proper operating condition." A.R.S. § 28-1323(A)(5). "Records of periodic maintenance that show that the device was in proper operating condition at a time before and after the test are admissible in any proceeding as prima facie evidence that the device was in proper operating condition at the time of the test." Id. In this case, the periodic maintenance records admitted showed the Intoxilyzer used to conduct the tests on Stark was in proper operating condition seventeen days before and sixteen days after Stark's tests. This evidence was sufficient for the trial court to admit Stark's breath-test results. See State ex rel. McDougall v. Superior Court, 181 Ariz. 202, 204-06, 888 P.2d 1389, 1391-93 (App. 1995) (compliance with Department of Health Services regulations not incorporated in foundational requirements for admission of breath test results). Stark does not argue that he introduced any evidence to rebut the state's prima facie showing on the condition of the Intoxilyzer; therefore, we conclude the test results were properly admitted. See § 28-1323(A)(5).
Stark next contends that the trial court erred by informing the jury that "Stark was charged with DUI with two prior convictions." He argues that, under the reasoning in Old Chief v. United States, 519 U.S. 172, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997), Arizona's "statutory scheme basically opens the door for jurors to punish persons because of their propensity [to commit crimes], weakens the presumption of innocence, and harms the fabric of justice." Stark admits, however, that the Arizona Supreme Court has already rejected this argument. See State ex rel. Romley v. Galati, 195 Ariz. 9, , 985 P.2d 494, (1999) (prior convictions constitute elements of aggravated DUI; thus, trial court erred by bifurcating proceedings and precluding evidence of prior DUI convictions). We are bound by the decisions of the Arizona Supreme Court and have "'no authority to overrule, modify, or disregard them.'" Myers v. Reeb, 190 Ariz. 341, 342, 947 P.2d 915, 916 (App. 1997), quoting City of Phoenix v. Leroy's Liquors, Inc., 177 Ariz. 375, 378, 868 P.2d 958,
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