Breath Tests Taken Before Defendant Contacted Counsel in Aggravated DUI

Categories: DUI

In this Arizona criminal case, defendant was convicted of aggravated DUI. He appealed his conviction, arguing the trial court erred in denying his motion to suppress breathalyzer test results because he was denied the right to counsel; and that the trial court improperly instructed the jury. His conviction was affirmed by the Arizona Court of Appeals. If you want to discuss more about the implications of this case, don’t hesitate to reach out to one of our expert drunk driving (DUI) lawyers.

Field Sobriety and Breathalyzer Tests in Arizona DUI

A Tucson police officer stopped Peraza after observing him drive into a private parking lot to avoid a traffic signal. There was an open container of alcohol under the driver’s seat and defendant admitted he had been drinking. He exhibited cues of impairment during field sobriety tests and his breathalyzer test results were .153 and .152 alcohol concentration (AC). Charged with Aggravated Felony DUI, he was tried by jury, convicted, and sentenced to presumptive concurrent 4.5-year prison terms.

Adequacy of Access to Legal Counsel

The defendant was stopped by police at 5:17 a.m. Given Miranda rights at 5:35 a.m. Arrested at 5:45 a.m. and taken to the police station. At 6:31 a.m. he invoked his right to counsel. Police gave defendant a telephone book and 10 minutes to place a call to the attorney of his choosing. Although he made two phone calls, he did not speak with an attorney and left call-back messages instead.

2-Hour Statutory Window for Breath Testing

The first breathalyzer test was administered at 6:56 a.m. (results were .153 AC) and the second test at 7:02 a.m. (results were .152 AC). The officer testified he could not wait any longer for defendant to contact an attorney because the two-hour statutory window for collecting breath test evidence was expiring. The rule under ARS § 28-1381(A)(2) being that “[i]f the sample is drawn after the two-hour mark, an expert must use retroactive extrapolation to determine the blood alcohol content,” or BAC.

Deprivation of Counsel or Hindered Police Investigation?

Once in custody, the suspect is entitled to advice of counsel and has the right to speak to an attorney before taking a breath test. The defendant argues his right to counsel was unreasonably restricted. However, waiting for defendant to contact a defense attorney cannot hinder an ongoing police investigation either.

The officer reasonably delayed the tests, but avoided the risk that testing would occur outside the two-hour window which “would have delayed or hindered the investigation” by law enforcement. The Arizona Court of Appeals concluded that police did not interfere with defendant’s access to counsel. Police met its burden of showing the investigation would have been impeded had the officer delayed the breath testing any further in order to allow the defendant more time within which to speak with counsel. The Court of Appeals held defendant’s right to counsel did not give defendant the right to hinder the ongoing police investigation.

Jury Instructions Were Harmless Error

First, the jury was instructed on defendant’s “Refusal to Perform Field Sobriety Tests”; said instruction encompassed tests of “blood, breath, urine, or other bodily substance for the purpose of determining alcohol concentration or drug content.” The undisputed evidence showed defendant successfully submitted to breathalyzer testing and, therefore, there was no evidence to support such a jury instruction. The officer testified that defendant consented to breath testing. In closing, neither attorney argued that defendant had refused the requested testing. The appeals court held that, because a reasonable jury would have disregarded the instruction and still found defendant guilty, the incorrect jury instruction was harmless error – that is, the error did not affect the jury’s verdict.

Second, the jury was instructed that periodic maintenance records of the breathalyzer were prima facie evidence that this equipment “was in proper operating condition at a time before and after the test” and so was “working properly.” Because the defendant failed to object to the jury instruction at trial, only a determination of fundamental, prejudicial error could result in reversal. After lengthy case law analysis, the Court of Appeals held that, “in light of all the evidence, no reasonable jury could have found that the breathalyzer was malfunctioning, and Peraza has failed to show he was prejudiced by the [jury] instruction.” The convictions and sentences were affirmed.

Read more about Arizona’s Aggravated Felony DUI law and what to look for when hiring an aggravated DUI defense attorney.

Arizona v. Peraza, No. 2 CA-CR 2015-0022 (Ariz. Ct. App. Jan. 28, 2016)

For precise language, read the court’s original opinion. Legal citations omitted.

Arizona v. Peraza