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State v. Orduno11/26/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
After a jury trial, appellant Constantino Orduno was convicted of aggravated driving under the influence of an intoxicant and aggravated driving with an alcohol concentration of 0.08 or more, both while his license was suspended or revoked. After finding that Orduno had two prior felony convictions, the trial court imposed a mitigated sentence of eight years' imprisonment. Orduno contends the trial court abused its discretion in requiring him to wear leg restraints during trial, in denying his motions for judgment of acquittal, and in admitting evidence of his driver's license revocations and suspensions. He also contends we should vacate one of his convictions, claiming the statutory presumption on impairment is unconstitutional. We affirm.
Background
We view the facts in the light most favorable to upholding the convictions. State v. Herrera, 203 Ariz. 131, , 51 P.3d 353, (App. 2002). While patrolling a Tucson street just after midnight, Pima County Deputy Sheriff Terry Parish noticed a car driving twelve miles per hour in a twenty-five-mile-per-hour zone. Parish watched the car make a tight, right turn and then noticed that its right tires were on the shoulder of the road instead of the pavement. Even after Parish turned on his overhead lights and siren, the car continued moving at ten miles per hour for approximately three blocks. After the car finally stopped, Parish approached the driver, later identified as Orduno, smelled a strong odor of alcohol emanating from his mouth, and saw open bottles of malt liquor on the floor in front of the passenger's seat. Orduno did not produce his license, registration, or proof of insurance and told Parish he did not have a driver's license because it had been suspended. Orduno also told Parish he had consumed "four or five" drinks that night.
Two other deputies joined Parish. One of them, Deputy Arizpuru, conducted field sobriety tests, during which Orduno again admitted he had been drinking alcohol earlier that night. One deputy arrested Orduno and took him to a law enforcement substation where his blood was drawn at 2:04 a.m. and tested for its alcohol concentration, which was determined to be 0.164.
Leg Restraint
Orduno contends that the trial court "violated state and federal rights to due process by forcing him to wear restraints without a particularized basis for doing so." He argues the risk that the jurors would notice the restraints and draw improper inferences about him deprived him of his right to a fair trial.
Although the decision to physically restrain a defendant in the presence of the jury is within the sound discretion of a trial court, State v. Stewart, 139 Ariz. 50, 54, 676 P.2d 1108, 1112 (1984), the record must demonstrate some necessity for doing so. State v. Reid, 114 Ariz. 16, 22, 559 P.2d 136, 142 (1976); see also State v. Henry, 189 Ariz. 542, 550, 944 P.2d 57, 65 (1997) (record must provide some support for imposition of restraints). As our supreme court has observed:
It was a rule at common law that a defendant being tried for a criminal offense had the right to make his appearance in court free from all shackles. Manacling a person when there is no necessity to do so, and bringing him into court in the presence of the jury could not be too strongly condemned.
Stewart, 139 Ariz. at 54, 676 P.2d at 1112 (emphasis added), quoting Reid, 114 Ariz. at 22, 559 P.2d at 142. Factors a trial court may consider in shackling a defendant may include the defendant's past felony convictions for crimes of violence and any record of th
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