 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
State v. Kutwa10/1/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
Appellant Alex Akala Kutwa was convicted by a jury of aggravated driving under the influence of an intoxicant (DUI) while his license was suspended; aggravated driving with an alcohol concentration of.08 or more while his license was suspended; aggravated DUI with two or more prior DUI convictions; and aggravated driving with an alcohol concentration of.08 or more with two or more prior DUI convictions. The trial court suspended the imposition of sentence and placed Kutwa on probation for three years on condition he spend four months in the Arizona Department of Corrections and sixty days in the Pima County Jail.
We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining the convictions. State v. Herrera, 203 Ariz. 131, 51 P.3d 353 (App. 2002). Tucson Police Department Officer Haller stopped Kutwa's vehicle after she noticed erratic driving and a broken tail light. When Haller asked Kutwa for his driver's license, registration, and proof of insurance, he was only able to produce a bill of sale. Haller noticed an odor of intoxicants coming from Kutwa's breath. Officer Damanico arrived and noticed that Kutwa had a problem with his balance. Damanico attempted to conduct a horizontal gaze nystagmus (HGN) test, but Kutwa kept moving his head and failing to follow the instructions, so the test was never completed. During his contact with Kutwa, Damanico also noticed a strong odor of alcohol; bloodshot, watery eyes; and balance problems. After Damanico's unsuccessful attempt to conduct an HGN test, Haller asked Kutwa to perform a walk-and-turn test and a one-leg-stand test. He performed poorly on both. Kutwa submitted to two breath tests conducted by Officer Sullivan. The test results showed his alcohol concentration (AC) was.190 and.193.
On appeal, Kutwa contends the trial court committed fundamental error by permitting Sullivan to quantify the percentage of people who perform poorly on field sobriety tests who are also found to have AC levels above the permitted limit. Sullivan testified that test studies show ninety percent of the people who do poorly on standardized field tests also have AC levels above the permitted limit. Kutwa objected to the request for this testimony only on the ground of relevancy, noting Sullivan had not participated in the test studies. Fundamental error is error that deprives a defendant of a right essential to his or her defense or that goes to the very foundation of the defendant's theory of the case. State v. Valenzuela, 194 Ariz. 404, 984 P.2d 12 (1999).
The state's questions to Sullivan were improper. The state cannot present evidence about a defendant's performance on field sobriety tests as correlating to an AC above the permitted limit. Herrera. The error, however, was harmless. The testimony about Kutwa's symptoms of intoxication and the results of his breath tests rendered the impermissible evidence cumulative. Accordingly, we find no fundamental error.
Affirmed.
M. JAN FLUREZ, Judge
CONCURRING:
J. WILLIAM BRAMMER, JR., Presiding Judge
JOSEPH W. HOWARD, Judge
|