State v. May6/3/2005
After a jury trial, appellant Kenneth May was convicted of aggravated driving under the influence of an intoxicant (DUI) while a person under fifteen years of age was in the vehicle. See A.R.S. § 28-1383(A)(3). The trial court sentenced him to a presumptive prison term of 3.75 years. May raises six issues on appeal, but we find one dispositive. He argues, inter alia, the trial court erred in admitting hearsay evidence. We agree and, because that evidence was significant and prejudicial, we reverse his conviction on that ground. We also preliminarily address a suppression issue because it is likely to recur on remand.
BACKGROUND
We view the facts in the light most favorable to sustaining the verdict and resolve all reasonable inferences against the appellant. See State v. Riley, 196 Ariz. 40, 2, 992 P.2d 1135, 1137 (App. 1999). Late one evening in November 2002, a Pima County sheriff's deputy saw May driving in excess of the speed limit. He pulled behind May's vehicle, saw it temporarily veer off the road, and directed May to stop. In May's car were two passengers, an adult female and a minor male.
Another officer arrived on the scene and arrested May for DUI after observing symptoms of intoxication. During the investigation, an adult male appeared on the scene and told the arresting officer the male passenger was his thirteen-year-old son. With May's consent, Deputy Curtin, a sheriff's department phlebotomist, drew a sample of May's blood at the scene. Testing showed he had a .195 percent alcohol concentration.
MOTION TO SUPPRESS
May first challenges the trial court's denial of his motion to suppress evidence, claiming the seizure of his blood violated the Fourth Amendment to the United States Constitution. In reviewing this issue, we consider only the evidence presented at the suppression hearing and view that evidence and reasonable inferences therefrom in the light most favorable to upholding the court's ruling. State v. Livingston, 206 Ariz. 145, 3, 75 P.3d 1103, 1104 (App. 2003); State v. Crowley, 202 Ariz. 80, 7, 41 P.3d 618, 621 (App. 2002). We will not reverse the ruling absent an abuse of discretion. Livingston, 206 Ariz. 145, 3, 75 P.3d at 1104. "We defer to the trial court's factual findings that are supported by the record and not clearly erroneous." State v. Rosengren, 199 Ariz. 112, 9, 14 P.3d 303, 307 (App. 2000). We review questions of law de novo. State v. Estrada, 209 Ariz. 287, 2, 100 P.3d 452, 453 (App. 2004).
May specifically argues the procedure used to take his blood sample was not "performed in a reasonable manner" and thus violated his Fourth Amendment right against unreasonable search and seizure, citing Schmerber v. California, 384 U.S. 757, 771, 86
S.Ct. 1826, 1836, 16 L.Ed. 2d 908, 920 (1966). In Schmerber, the Court ruled that a blood sample "taken by a physician in a hospital environment according to accepted medical practices" was reasonable. Id. at 771-72, 86 S.Ct. at 1836, 16 L.Ed. 2d at 920. The Court further stated, albeit in dicta:
We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment--for example, if it were administered by police in the privacy of the station house. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.
Id.
Although May relies on that language, Schmerber "did not attempt to set any specific rules for blood tests conducted outside the hospital s
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