[78 Ariz. 2] Marshall W. Haislip, Phoenix, for appellant.
Ross F. Jones, Atty. Gen., and John R. Elliott, Asst. to the Atty. Gen., for appellee.
Defendant Warren G. Childress was convicted by a jury in the Superior Court of Maricopa County of the crime of driving a vehicle while under the influence of intoxicating liquor, contrary to the statute, Ch. 3, Sec. 54, Laws 1950, 1st S.S., now appearing as Section 66-156, 1952 Cum.Supp. As a second offender he was sentenced to serve five months in the county jail, and from this judgment he now appeals. The trial court granted bail pending its determination.
The State's evidence showed that on the 22nd day of October, 1953, defendant was observed by an Arizona highway patrolman
driving an automobile southeast on Grand Avenue in Maricopa County at an excessive speed, and weaving from side to side on his own half of the highway. He was stopped by the officer, who testified that defendant's speech was blurred, eyes bloodshot, and his actions were those of an intoxicated person. An Air Force policeman riding with the highway patrolman testified that he observed the same facts, as did a senior highway patrol officer called to the scene by the arresting officer. Defendant at that time admitted having drunk ten beers and two shots of whiskey. He was taken to the [78 Ariz. 3] Memorial Hospital in Phoenix where he gave written permission for a sample of his blood to be taken for purposes of conducting a blood-alcohol test. The hospital technician testified that the results of the test showed defendant's blood contained alcohol in the amount of 0.20 percent by weight.
Defendant offered no evidence but moved for dismissal, which motion was denied. Defendant thereupon objected to the instructions proposed to be given to the jury, in particular objecting to the instructions which paraphrased section 66-156, supra, telling the jury that upon proof of certain alcoholic content of the blood, certain presumptions arose. The instructions were nevertheless given, and such action of the trial court is here assigned as error.
Omitting the usual stock instructions, we believe it will be helpful to set out pertinent parts of other instructions given by the court.
'The statute in this state provides that it is unlawful for any person who is under the influence of intoxicating liquor to drive or be in actual physical control of any vehicle within this state. The statute further provides that in any criminal prosecution for a violation of this statute relating to driving a vehicle while under the influence of intoxicating liquor, the amount of alcohol in the defendant's blood at the time alleged as shown by chemical analysis of the defendant's blood, urine, breath, or other bodily substance, shall give rise to the following presumptions.
'One, if there was at that time 0.05 percent or less by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was not under the influence of intoxicating liquor.
'Two, if there was at that time in excess of 0.05 percent but less than 0.15 percent by weight of alcohol in the defendant's blood, such fact shall not give rise to any presumption that the defendant was or was not under the influence of intoxicating liquor, but such fact may be considered with other competent evidence in determining the guilt or innocence of the defendant.
'Three, if there was at that time 0.15 percent or more by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was under the influence of intoxicating liquor.
'The statute further provides that the foregoing provisions shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of intoxicating liquor.
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