Not for Publication – Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20110247001 The Honorable Deborah Bernini, Judge
Thomas C. Horne, Arizona Attorney General by Joseph T. Maziarz, Section Chief Counsel, Phoenix and Amy Pignatella Cain, Assistant Attorney General, Tucson Counsel for Appellee
Isabel G. Garcia, Pima County Public Defender by Scott A. Martin, Assistant Legal Defender, Tucson Counsel for Appellant
Presiding Judge Vásquez authored the decision of the Court, in which Chief Judge Howard and Judge Brammer  concurred.
VÁSQUEZ, Presiding Judge
¶1 After a jury trial, Michaelangelo Garcia was convicted of assault and four counts of aggravated driving under the influence (DUI). The trial court sentenced him to mitigated, concurrent prison terms, the longest of which is three years. On appeal, Garcia argues the court erred by denying his motion to dismiss on the ground that the state violated his right to counsel during the DUI investigation. For the reasons that follow, we vacate the court's criminal restitution order but otherwise affirm the convictions and sentences.
Factual Background and Procedural History
¶2 We view the evidence in the light most favorable to sustaining Garcia's convictions. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 2, 185 P.3d 135, 137 (App. 2008). After drinking alcohol at a co-worker's house late one evening in January 2011, Garcia drove his car with his wife, her friend, and her friend's son as passengers. Garcia and his wife, V.G., got into a heated argument and physical altercation about his erratic driving. V.G. pulled the keys out of the ignition and the car coasted to a stop. V.G. then attempted to get out, but Garcia restarted the engine and sped off with V.G. hanging out the door. Garcia continued driving, dragging V.G. until her friend pushed her out of the car. The friend and her son also jumped out of the car. A City of Tucson police officer was "flagged down by some citizens" who had seen Garcia driving erratically with "a female hanging out of the door." Officers later stopped Garcia's vehicle and conducted a DUI investigation.
¶3 When officers informed Garcia they intended to conduct a blood draw, Garcia stated he wanted to speak with his attorney. Officers continued the investigation while Sergeant Michael Dietsch attempted to locate a telephone number for Garcia's attorney, Rafael Gallego. Dietsch eventually located a number and placed a call to Gallego's office. Dietsch listened to a voicemail recording instructing the caller to leave a message. However, Dietsch testified he did not hear the portion of the message providing an alternate number for reaching Gallego. Garcia declined to leave a message for Gallego or to contact a different attorney. Officer Christopher Morin explained that Garcia was "extremely uncooperative" and "antagonistic" during the entire encounter, including while Dietsch was on the telephone.
¶4 Garcia was charged with aggravated assault, two counts of endangerment, and four DUI-related offenses. Before trial, he moved to "dismiss all charges with prejudice due to the [s]tate's interference with [his] right to counsel" during the DUI investigation. After a suppression hearing, the trial court denied the motion. At trial, the jury could not reach a verdict on the endangerment charges, but found Garcia guilty of assault, the lesser-included offense of aggravated assault; aggravated DUI while his license was suspended, revoked, or restricted; aggravated DUI while a minor was present; aggravated driving with an alcohol concentration of .08 or more while his license was suspended, revoked, or restricted; and aggravated driving or actual physical control while under the extreme influence of liquor (.15) while a minor was present. The court sentenced him as described above, and this appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Motion to Dismiss
¶5Garcia argues the trial court erred by denying his motion to dismiss "based on the [s]tate's interference with [his] right to counsel." He maintains that because Gallego had a twenty-four-hour alternative telephone number, Sergeant Dietsch's failure to call that number warranted dismissal of the case. We generally review a court's denial of a motion to dismiss during a suppression hearing for an abuse of discretion, State v. Mangum, 214 Ariz. 165, ¶ 6, 150 P.3d 252, 254 (App. 2007), limiting our analysis to the evidence presented at that hearing, State v. Canales, 222 Ariz. 493, ¶ 2, 217 P.3d 836, 837 (App. 2009). "We defer to the trial court's factual findings unless clearly erroneous" but review its legal conclusions de novo. State v. O'Dell, 202 Ariz. 453, ¶ 8, 46 P.3d 1074, 1077-78 (App. 2002). And, because the issues surrounding the right to counsel are "'mixed question[s] of fact and law implicating constitutional questions, '" we review ...