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State v. Rivera1/30/2004
Appellant Daniel Heriberto Rivera was convicted after a jury trial of driving while under the influence of an intoxicant (DUI) with a minor present; aggravated driving with a blood alcohol concentration of .10 or greater with a suspended, revoked, or restricted license; aggravated driving with a blood alcohol concentration of .10 or greater with two or more prior DUI convictions; and two counts of endangerment. [FN1] The trial court suspended imposition of sentence and placed Rivera on concurrent, three-year terms of probation for each conviction. On appeal, he challenges the three DUI-based convictions, contending the state violated his due process rights by trying him both on the theory that he had been the driver and on the alternative theory that he had been a passenger in temporary but actual control of **71 *71 the vehicle, when the grand jury had indicted him only on the former theory. We affirm.
FN1. The statute was later amended to reduce the legal blood alcohol concentration to under .08. A.R.S. § 1381(A)(2); 2001 Ariz. Sess. Laws, ch. 95, § 5.
I.
2 The evidence, viewed in the light most favorable to supporting the verdicts, State v. Nihiser, 191 Ariz. 199, 953 P.2d 1252 (App.1997), revealed the following. Shortly after midnight on April 7, 2001, Rivera fled on foot from a car that had come to rest after veering off the road and onto a raised median. The accident damaged the car, uprooted a traffic sign, and showered debris onto oncoming traffic. A civilian stopped to assist and encountered Rivera's girlfriend, E., and her eight-year-old daughter, A.E. told the civilian she had not been driving. When police officers arrived, E. told Deputy Krygier that Rivera, her live-in boyfriend, had been driving the car after they had left a bowling alley where he had been drinking beer. She gave the deputy their nearby home address, and officers found Rivera there a short time later. He admitted he had been in an accident but stated, "You guys can't prove I was driving." Rivera was arrested for DUI, and his blood was drawn at 1:35 a.m., a sample of which was later shown to have an alcohol concentration of .161. Rivera's driver's license was revoked at that time, and he had previously been convicted of two other DUI offenses committed in 1997 and 1998.
3 One of the responding officers relayed a condensed version of the foregoing evidence to the grand jury on April 13, 2001. Although the evidence presented to the grand jury identified Rivera as being the driver, the pertinent counts of the indictment alleged that he "drove or was in actual physical control of [the] vehicle" (emphasis added). This language mirrored the DUI statute on which those charges were based, A.R.S. § 28-1381(A), which provides, "It is unlawful for a person to drive or be in actual physical control of a vehicle in this state under any of the following circumstances ...." (Emphasis added).
4 Subsequently, in a letter he apparently received on July 16, Rivera's counsel learned that E. was claiming that she, not Rivera, had been driving the car at the time of the incident. [FN2] Based on that letter, counsel filed a motion dated August 10 to dismiss the case for lack of probable cause to arrest Rivera. The trial court denied the motion after a hearing on August 27 at which E. testified that she had been driving and that Rivera had caused the accident by grabbing the steering wheel.
FN2. The record is conflicting as to whether defense counsel received the letter on July 16 or whether the letter was dated July 16 and he learned of it sometime before August 10.
5 Anticipating a discrepancy in trial testimony over who had been driving, the state interviewed A. for the first time on the afternoon of August 29, the day before trial, and le
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