State v. Whittle

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) JEREMY OWEN WHITTLE, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 11-16-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-CR 10-0035 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. CR2008-1403 The Honorable Rick A. Williams, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Jill L. Evans, Mohave County Appellate Defender Attorney for Appellant Kingman O R O Z C O, Judge ¶1 Jeremy Owen Whittle (Defendant) appeals his convictions and sentences imposed for two counts of aggravated driving while under the influence (DUI). The convictions are class four felonies in violation of Arizona Revised Statutes (A.R.S.) sections 28-1383.A.1. (Supp. 2010) and -1381 (Supp. 2010).1 ¶2 Defendant s counsel has filed this appeal in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). After searching the entire record on appeal, Defendant s counsel found no arguable question of law that is not frivolous and requests that we review the record for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999) (stating that this reversible error ). court reviews the entire record for Although this court granted Defendant the opportunity to file a supplemental brief in propria persona, he has not done so. ¶3 of We have jurisdiction pursuant to Article 6, Section 9, the Arizona Constitution, (2003), 13-4031 (2010), and and A.R.S. -4033.A. §§ (2010). 12-120.21.A.1. Finding no reversible error, we affirm. FACTS AND PROCEDURAL HISTORY ¶4 When reviewing the record, we view the evidence in the light most favorable to supporting the verdict. State v. Torres-Soto, 187 Ariz. 144, 145, 927 P.2d 804, 805 (App. 1996). 1 We cite the current versions of applicable statutes because no revisions material to this decision have since occurred. 2 ¶5 At trial, Kingman police officer D.C. (Officer C.) testified he stopped Defendant for driving a motorcycle without a license smelled plate. alcohol watery. While and Defendant talking noticed with Defendant, Defendant s admitted to Officer eyes C. Officer were that drinking and his driver s license was suspended. he red had C. and been Defendant was given a horizontal gaze nystagmus exam, and Officer C. found six cues from the exam that would indicate Defendant was impaired. ¶6 Officer C. decided the area was not appropriate for further field sobriety tests. Defendant was placed under arrest and transported to a DUI command post. At the command post, Defendant sobriety refused Intoxilyzer to Instrument submit to testing field (breath test). testing or Consequently, Officer C. obtained a search warrant for a sample of Defendant s blood. ¶7 E.R., a forensic scientist at the Arizona Department of Public Safety Crime Lab, tested Defendant s blood sample and testified his resulting blood alcohol level at the time of his arrest was 0.148 percent. D.R., the phlebotomist who drew Defendant s blood sample, Officer C., and E.R. all testified that standard operating procedures were followed in obtaining, handling, and testing of Defendant s blood sample. ¶8 The jury convicted Defendant of aggravated driving while under the influence of intoxicating liquor and aggravated 3 driving with a blood alcohol content of 0.08 percent or more. Defendant was charged with Aggravated DUI, because he driving with a suspended license at the time of arrest. was A.R.S. § 28-1383.A.1. DISCUSSION ¶9 We have carefully searched reversible error and found none. 2 P.3d at 100. the entire record for Clark, 196 Ariz. at 541, ¶ 49, Defendant was present and represented by counsel at all critical stages of the proceedings, and he was given an opportunity forgo to speak and probation sentence. at the The court sentencing. court also presentence incarceration. compliance with the Defendant imposed granted a requested legally credit for to appropriate one day of The proceedings were conducted in Arizona Rules of Criminal Procedure and substantial evidence supported the jury s findings of guilt. CONCLUSION ¶10 For the foregoing reasons, Defendant s convictions and sentences are affirmed. ¶11 Counsel s representation in obligations this appeal pertaining have ended. to Defendant s Counsel need do nothing more than inform Defendant of the status of the appeal and his future options, unless counsel s review reveals an issue appropriate for submission petition for review. to the Arizona Supreme Court by State v. Shattuck, 140 Ariz. 582, 584-85, 4 684 P.2d 154, 156-57 (1984). Defendant has thirty days from the date of this decision to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review.2 /S/ ____________________________________ PATRICIA A. OROZCO, Judge CONCURRING: /S/ _________________________________ MAURICE PORTLEY, Presiding Judge /S/ _________________________________ MARGARET H. DOWNIE, Judge 2 Pursuant to Rule 31.18.b, Defendant or his counsel have fifteen days to file a motion for reconsideration. On the Court s own motion, we extend the time to file such a motion to thirty days from the date of this decision. 5

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