State v. Hubbard11/21/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
After a jury trial, appellant was convicted of aggravated driving while under the influence of intoxicants (DUI) and aggravated driving with a blood alcohol content (BAC) of.08 or more, both while his license was suspended. He was sentenced to concurrent, presumptive prison terms of 4.5 years on each count. On appeal, appellant challenges the trial court's denial of his motion in limine in which he sought to preclude introduction of the results of a horizontal gaze nystagmus (HGN) test administered by the arresting officer on the ground that his consent to administering the test was not voluntary. We affirm.
Appellant's argument arises from a ruling by the trial judge at a hearing on his motion in limine, just before commencement of the first day of trial. No testimony was taken at this hearing, and no evidence was offered, other than the avowals of counsel. Appellant did not object later when the HGN test evidence was introduced at trial. But a motion in limine is sufficient to preserve the issue for appeal, even if no objection is made when the evidence is introduced. State v. Briggs, 112 Ariz. 379, 382, 542 P.2d 804, 807 (1975).
On appeal, we view the evidence in the light most favorable to sustaining the jury's verdict. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). We review rulings on the admission of evidence for abuse of discretion. See State v. Paxson, 203 Ariz. 38, , 49 P.3d 310, (App. 2002). We conclude that the trial court did not abuse its discretion.
A field sobriety test, such as an HGN test, "is a search within the meaning of the fourth amendment." State ex rel. Hamilton v. City Court, 165 Ariz. 514, 516, 799 P.2d 855, 857 (1990). The voluntariness of a person's consent to a search is a question of fact to be ascertained from the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 248-49, 93 S. Ct. 2041, 2059, 36 L. Ed. 2d 854, 875 (1973); State v. Paredes, 167 Ariz. 609, 612, 810 P.2d 607, 610 (App. 1991).
Appellant's argument at the motion hearing was that the arresting officer had tricked appellant into taking the HGN test because the officer only asked "to look at [appellant's] eyes" and did not explain appellant's right to refuse before conducting the HGN test. Appellant argues that he wished to refuse all field sobriety tests and that he was never told that the HGN test was part of the field sobriety tests. The state argued that the arresting officer looked into appellant's eyes and performed the tests only after obtaining appellant's consent.
The trial court did not abuse its discretion in admitting evidence of the HGN test. In determining voluntariness, proof of whether a defendant knew that he or she could withhold consent is one factor to be considered, but it is not a controlling element. Schneckloth, 412 U.S. at 249, 93 S. Ct. at 2059, 36 L. Ed. 2d at 875; State v. Smith, 123 Ariz. 231, 241, 599 P.2d 187, 197 (1979). The state is not required to prove that appellant knew of his right to refuse consent. Schneckloth; Smith.
In his opening brief, appellant relies upon evidence adduced during the subsequent trial. Generally, we may not consider trial evidence in reviewing a ruling on a pretrial motion that essentially seeks to suppress evidence. Rather, we are limited to the evidence presented at a suppression hearing. See State v. Spears, 184 Ariz. 277, 284, 908 P.2d 1062, 1069 (1996). But again, there was no such evidence, only counsel's avowals. Given the nature of those avowals, we cannot say the court abused its discretion. Cf. State v. Wyman, 197 Ari
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