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State v. Tyszkiewicz1/14/2005
Appellant Stanley Thomas Tyszkiewicz was convicted after a jury trial of two counts of aggravated driving under the influence of an intoxicant (DUI), sentenced to a four-month term of imprisonment, and placed on probation for concurrent, five-year terms. He claims that the trial court erred by admitting his breath test results without satisfying the foundational requirements set forth in former A.R.S. § 28-695(A)(4) and that the state did not present sufficient evidence of his time of driving to support his conviction under former A.R.S. § 28-692(A)(1) and (2). See 1990 Ariz. Sess. Laws, ch. 375, § 8. We affirm.
We view the facts in the light most favorable to sustaining the conviction. State v. Brown, 207 Ariz. 231, 2, 85 P.3d 109, 111 (App. 2004). Tucson Police Officer Gomez was dispatched to the scene of a motor vehicle accident on September 24, 1996. Tyszkiewicz's vehicle was in the street and the other vehicle involved in the collision was in a nearby parking lot. Gomez asked Tyszkiewicz to move his vehicle into the same parking lot, a distance of approximately fifty feet. Tyszkiewicz complied with that request. When asked for his license and registration, Tyszkiewicz produced a driver's permit. As Gomez investigated the collision, he noticed that Tyszkiewicz had bloodshot, watery eyes, and an odor of alcohol was emanating from around his face. Gomez asked if Tyszkiewicz had been drinking, and Tyszkiewicz replied that he had consumed two beers. Gomez then asked him to perform some field sobriety tests and Tyszkiewicz agreed. At the conclusion of those tests, after reading Tyszkiewicz the Miranda warning and asking him some further questions, Gomez placed him under arrest for DUI.
Officer Aussems arrived at the scene and administered breath testing with an Intoxilyzer machine. Tyszkiewicz provided two breath samples, which, according to the machine, correlated to a blood alcohol concentration (BAC) of .176 and .162. The Arizona Motor Vehicle Division (MVD) custodian of records testified at trial that Tyszkiewicz's driver's license had been indefinitely suspended at the time of the collision.
INTOXILYZER RESULTS
Tyszkiewicz argues that the breath test results were improperly admitted into evidence because Aussems failed to comply with the Department of Health Services (DHS) checklist pursuant to former A.R.S. § 28-695(A)(4). Specifically, he claims that the DHS checklist required that Aussems observe Tyszkiewicz for a fifteen-minute period before administering the test and that this requirement was not met because Aussems testified that Gomez performed the initial part of the observation. We must therefore determine whether former A.R.S. § 28-695(A)(4) requires that one officer conduct the entire observation.
We review de novo questions of statutory interpretation. See State v. Siner, 205 Ariz. 301, 8, 69 P.3d 1022, 1024 (App. 2003). "In construing a statute, our primary goal is to discern and give effect to the legislature's intent. We first examine the plain language of the statute and, if it is unclear, then consider other factors such as the statute's context, history, subject matter, effects and consequences, spirit, and purpose." State v. Fell, 203 Ariz. 186, 6, 52 P.3d 218, 220 (App. 2002) (citation omitted).
The provision at issue, former § 28-695(A)(4), requires the state to show the following before the results of a breath test may be admitted into evidence: "The operator who conducted the test followed an operational checklist approved by the department of health services for the operation of the device used to conduct the test. The testimony of the operator is sufficient to establish this requireme
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