The STATE of Arizona, Appellee, v. Burt Eugene NIHISER, Appellant.
No. 2 CA-CR 97-0070.
Court of Appeals of Arizona, Division 2, Department A.
Sept. 30, 1997.
Review Denied April 21, 1998.
953 P.2d 1252
BRAMMER, Judge.
The fact that the victim was in court at all was a direct result of defendant‘s crime. She did not “choose” to attend the hearings as a disinterested bystander might, but because she was the victim of defendant‘s actions and, thus, unavoidably entwined in the criminal proceedings. But for defendant‘s criminal actions, the victim certainly would not have been present at the proceedings. It is a direct result of a crime that the victim attends the hearings and thus suffers wage loss. We believe it makes no difference whether the victim attended pursuant to subpoena or not.
To deny a victim the right to reimbursement for wages lost in attending court proceedings which he or she may attend by right would be tantamount in some instances to denying that individual the opportunity to exercise that right. Pursuant to the Victim‘s Bill of Rights, a victim has the right “[t]o be present at ... all criminal proceedings where the defendant has the right to be present.”
The victim‘s lost wages in attending court proceedings in this case were a direct result of defendant‘s actions. We affirm the trial court‘s order requiring defendant to reimburse the victim in the amount of $140 for wages lost because of attendance at court hearings.
The trial court‘s order of restitution in the amount of $65 for damages to the victim‘s wallet is affirmed. The order of restitution for lost wages in the amount of $140 is also affirmed. The order of restitution in the amount of $100 for the victim‘s lost bracelet and ring is vacated.
THOMPSON, P.J., and TOCI, J., concur.
Isabel G. Garcia, Pima County Legal Defender by Joy Athena, Tucson, for Appellant.
OPINION
BRAMMER, Judge.
Bart Nihiser was convicted of one count each of aggravated driving under the influence of intoxicating liquor (DUI) and aggravated driving with a blood alcohol concentration of 0.10 or more while his license was suspended, revoked or in violation of a restriction, both class four felonies.
Facts and Procedural History
We view the evidence in the light most favorable to sustaining the verdicts and resolve all inferences against appellant. State v. Atwood, 171 Ariz. 576, 832 P.2d 593 (1992). Following Nihiser‘s arrest for driving under the influence, and after he refused to submit to a breath test, the arresting officers obtained a search warrant to collect a sample of his blood, which they subsequently obtained from him at a local hospital. Nihiser moved to suppress the blood test results because the state had failed to disclose the name and qualifications of the person who had drawn the blood. The court denied the motion, determining that, although
Suppression of BAC Results
A. Vague and ambiguous statute
Nihiser first contends that
If blood is drawn under the provisions of
§ 28-691 , only a physician, a registered nurse or another qualified person may withdraw blood for the purpose of determining the alcohol concentration or drug content therein. The qualifications of the individual withdrawing the blood and the method used to withdraw the blood shall not be foundational prerequisites for the admissibility of any blood alcohol content determination made pursuant to this subsection.
Nihiser argues the statute is ambiguous because it first grants the defendant “the right to have blood extracted by someone authorized by law [but then] the right is emasculated with the second sentence because the state need not show its compliance with that right.” He claims that the rule of lenity applies, dictating that any doubt as to the statute‘s meaning be resolved in his favor, citing State v. Pena, 140 Ariz. 545, 683 P.2d 744 (App.1983). Accordingly, he argues the trial court was required to declare void the second sentence of the subsection and deny admission of the blood test evidence. Because the legislative intent behind the statute is discernable, we find that the rule of lenity, if otherwise appropriate, is inapplicable in this context. See id. at 549, 683 P.2d at 748 (court applied the rule of lenity “absent any expression of legislative intent” as to the meaning of the statute at issue); see also State v. Ramos, 155 Ariz. 468, 747 P.2d 629 (App.1987).
When construing a statute, our goal “is to fulfill the intent of the legislature that wrote it.” State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133 (1993). In determining legislative intent, we first consider the statute‘s language because it is “the best and most reliable index of a statute‘s meaning.” Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991). When the statute‘s language is not clear, we determine
Nihiser interprets the second sentence of
The logical interpretation of the statute is that the legislature intended evidence to be presented that someone trained in blood withdrawal—a physician, nurse, or other qualified person—actually drew the blood, but does not require evidence of the individual‘s professional qualifications or credentials or of the method used to withdraw the blood. Hence, if the state presents evidence that a statutorily qualified person drew the defendant‘s blood, the foundational requirement under the statute is met. Accordingly, we reject Nihiser‘s claim that
B. Separation of Powers
Nihiser next contends that
The state contends that the qualifications of the person who draws the blood and the method used to draw it are not relevant and are thus inadmissible because they have no tendency to prove the defendant‘s BAC, an ultimate issue.
Consequently, if the wording of the statute was so broad as to eliminate entirely all foundation for this evidence, the statute would indeed be unconstitutional. That is not the case here, however, because the proponent of the blood test results must present
The trial court reached this same conclusion in denying Nihiser‘s motion to preclude the BAC test results, finding that “the blood was drawn at a hospital [and] there‘s a presumption that hospitals are not in the business of allowing unqualified persons to draw blood.” We believe common experience supports this presumption.
We view presumptions as procedural, rather than evidentiary, concepts. Morris K. Udall et al., Arizona Law of Evidence § 143 at 322 (3d ed. 1991). The role of presumptions in the law is not to supplant the rules of evidence, but rather to provide a framework within which evidence is admitted. As is the case here, presumptions based on fact are defined as those in which “the basic fact has sufficient value as evidence to support a rational inference as to the presumed fact[s].” Id. § 142 at 321 n. 3, quoting Silva v. Traver, 63 Ariz. 364, 373, 162 P.2d 615, 619 (1945), overruled on other grounds, Reed v. Hinderland, 135 Ariz. 213, 660 P.2d 464 (1983). The opponent can overcome these presumptions by disproving either the factual basis underlying the presumptions or the existence of the presumed facts. Id. § 143 at 322. As such, the presumptions shift the burden of going forward to the party opposing admission, but the burden of persuasion remains on the proponent of the evidence. Both sides are entitled to the presumptions.1
Given these considerations, once the state establishes a prima facie case for the admission of certain evidence, which is predicated on a reasonable presumption of validity, the law places the onus of challenging the admissibility of such evidence on the defendant. See State v. Hyde, 186 Ariz. 252, 921 P.2d 655 (1996), cert. denied, 519 U.S. 1153, 117 S.Ct. 1091, 137 L.Ed.2d 224 (1997) (A defendant must present sufficient evidence to dispel a search or arrest warrant‘s presumption of regularity); State ex rel. McDougall v. Superior Court, 181 Ariz. 202, 888 P.2d 1389 (App.1995) (state need not prove compliance with all Department of Health Services regulations to establish prima facie evidence that a breath test device was in proper operating condition at time test was administered.) In the present context, a defendant has the opportunity to present evidence that the individual who drew the blood was not qualified or the blood was drawn improperly to rebut the statutory presumptions that the samples were drawn by a qualified person in a reliable manner.
Having found that the statutory scheme provides an adequate basis for assuring the accuracy and reliability of the blood samples, we conclude that
Nor do we find that the court erred in ruling that the state complied with the statute‘s foundational requirements in this case. The first police officer stated that the person who drew the blood sample was a member of the hospital staff. The second officer testified that the person had told him he was a doctor and the person‘s name tag identified him as a doctor. The second officer also testified that he had provided the
C. Equal Protection
Nihiser next contends that the Arizona statutes violate his state and federal equal protection rights because they impermissibly create two standards for DUI offenders. He argues that those whose BAC is determined through blood collection fail to receive the same foundational protections as those whose BAC is determined through breath collection. Specifically, “those whose breath is collected under
Section
Presentence Incarceration Credit
The trial court sentenced Nihiser to four months in prison as a condition of probation as required by
We agree that Nihiser is entitled to a credit for his two days of presentence custody. State v. Mathieu, 165 Ariz. 20, 795 P.2d 1303 (App.1990) (defendants convicted of felony DUI who receive a mandatory prison term as a condition of probation are statutorily entitled to credit against that term for time spent in presentence incarceration). Although the state urges us to follow State v. Brodie, 127 Ariz. 150, 618 P.2d 644 (App.1980), we decline to do so because that case is distinguishable from both Mathieu and the present case. Brodie held that persons who receive mandatory jail time as a condition of probation are not statutorily entitled to credit for their time spent in presentence incarceration. While acknowledging Brodie‘s holding in the context of probationary jail time, the Mathieu court found that defendants who receive mandatory probationary prison time are entitled to a credit pursuant to
We affirm the convictions and modify the sentence.
FLOREZ, J., concurs.
DRUKE, Chief Judge, specially concurring.
I concur, but write separately on the two days’ presentence incarceration credit. When a trial court grants probation to a defendant, such as appellant, who has been convicted of violating
For these reasons, I find Mathieu unpersuasive and would adopt a rule that would require a trial court to credit the defendant with presentence incarceration under but three circumstances. First, the court must give credit if it sentences the defendant to prison rather than placing the defendant on probation. State v. Williams, 128 Ariz. 415, 626 P.2d 145 (App.1981). Second, if the court places the defendant on probation, it must give credit if it collectively imposes, at any time during the probationary period, the maximum period of incarceration (prison and/or jail) permitted as a condition of probation. In this instance, that maximum would be one year under
Accordingly, I concur with the result in this case because the majority does not now order the trial court to give the defendant two days’ presentence incarceration credit against the four month prison sentence imposed as a condition of probation pursuant to