366 P.3d 1030
Ariz. Ct. App.2016Background
- Tucson PD stopped Luis Peraza at 5:17 a.m. after observing driving behavior; officer observed signs of intoxication and an open container; Peraza admitted drinking.
- Field sobriety cues indicated impairment; breath tests produced AC .153 and .152. Peraza was arrested and charged with aggravated DUI and aggravated DUI with AC ≥ .08 while his license was suspended or revoked; jury convicted and court imposed concurrent 4.5-year presumptive prison terms.
- At the station Peraza invoked his right to counsel and was given a phone book and ten minutes to call an attorney; he left messages but the attorney did not reach him before testing.
- Officer waited for callbacks but conducted breath tests approximately 25 and 14 minutes before the statutory two-hour window from driving would expire, citing the need to avoid evidence becoming inadmissible or requiring retroactive extrapolation.
- Peraza moved to suppress the breath results as a deprivation of counsel and challenged two jury instructions at trial (an instruction about refusal to perform tests and one stating maintenance records are prima facie evidence the device worked).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Peraza was deprived of his right to counsel when breath tests were administered after he requested counsel | State: Officer honored request, gave phone book and time; delay would have pushed tests past the two-hour window and impeded investigation | Peraza: Officer cut off meaningful access by testing before attorney returned call; ten-minute window was insufficient | Court: No deprivation — officer provided opportunity and reasonably balanced counsel right against need to preserve timely AC evidence (state met its burden) |
| Whether giving a jury instruction on "refusal to perform field sobriety tests" was supported by evidence | State: Instruction accurate statement of law and procedure | Peraza: No evidence of refusal; he performed and consented to breath tests | Court: Instruction unsupported by evidence and erroneous but harmless beyond a reasonable doubt (jury likely disregarded it and verdict would be same) |
| Whether instruction that maintenance records are prima facie evidence the breath device worked unconstitutionally shifted burden | State: Instruction reflects A.R.S. § 28-1323(A)(5) and is a permissive inference | Peraza: Creates an evidentiary presumption forcing burden on defendant | Court: Instruction is a permissible prima facie inference (not mandatory) and constitutional; no fundamental prejudice shown |
| Whether any instructional error required reversal of convictions | Peraza: Combined instructional errors undermined verdict | State: Any error harmless; evidence of impairment and AC was strong | Court: No reversible error; convictions and sentences affirmed |
Key Cases Cited
- Rumsey v. State, 225 Ariz. 374 (App. 2010) (state bears burden to show allowing counsel consult would disrupt investigation)
- Kunzler v. Superior Court, 154 Ariz. 568 (1987) (custodial right to counsel may be limited when it would hinder an ongoing investigation)
- McNutt v. Superior Court, 133 Ariz. 7 (1982) (no right to delay investigation if lawyer cannot be reached by phone)
- Stanley v. State, 217 Ariz. 253 (App. 2007) (breath samples taken after two hours require retroactive extrapolation)
- Nottingham v. State, 231 Ariz. 21 (App. 2012) (standard of review: view facts in light most favorable to sustaining verdict)
- O'Haire v. State, 149 Ariz. 518 (App. 1986) (A.R.S. provision allowing maintenance records as prima facie evidence supports instruction)
- Turner v. United States, 396 U.S. 398 (1970) (statutory prima facie evidence can create a permissive inference that does not shift burden of persuasion)