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State v. Thompson9/2/2004
o call as a witness to cast doubt upon the reliability of the Intoxilyzer machine and the blood alcohol readings obtained from the machine. Appellant made no attempt to secure the attendance of another criminalist, who presumably could testify as to the same scientific principles and/or infirmities inherent in the breath analysis process. The record also reveals that no subpoenas were issued to compel the attendance of Chester Flaxmayer. This fact indicates that Appellant's trial counsel was not serious in securing Flaxmayer's attendance at trial, or that he was not essential to the defense. Finally, the particular facts of this case indicating that Appellant was literally "falling down drunk" and unable to stand unassisted, indicate that the testimony of an expert casting doubt on the Intoxilyzer machine would be of little trial utility, given the strength of Officer Brett's personal observations and Appellant's own admissions on the issue of guilt.
*3 The remaining issue raised by the Appellant concerns the sufficiency of the evidence to warrant the finding of guilt. Specifically, Appellant contends that insufficient evidence was submitted on the "(A)(2) charge". [FN12] However, the record reveals that Appellant was not found guilty, nor was a judgment of guilt entered, as to this charge. It was dismissed. A judgment of guilt was entered only as to the charge of Extreme DUI. Even construing this argument as applying to the Extreme DUI charge, Appellant's trial counsel stipulated to the admission in evidence of the results of the Intoxilyzer, including the Intoxilyzer's two read-outs of .198 and .186. Given the substantial other evidence of Appellant's guilt, this Court finds clear and substantial evidence exists to support the finding of guilt, and no error.
FN12. A.R.S. Section 28-1381(A)(2), Driving With a Blood Alcohol Content of .08 or Greater.
IT IS THEREFORED ORDERED affirming the judgment of guilt and sentence imposed by the Glendale Justice Court in this case.
IT IS FURTHER ORDERED remanding this case back to the Glendale Justice Court for all further and future proceedings in this case.
IT IS FURTHER ORDERED designating this opinion for publication pursuant to Rule 9.11, Maricopa County Superior Court Local Rules of Practice.
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