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Fleming v. State Dep't of Pub. Safety

Court of Appeals of Arizona, Second Division

October 31, 2014

ROBERT FLEMING, CONSERVATOR, ON BEHALF OF THE SURVIVING MINOR CHILDREN OF FAITH MASCOLINO, Plaintiff/Appellant,
v.
STATE OF ARIZONA DEPARTMENT OF PUBLIC SAFETY, Defendant /Appellee

Appeal from the Superior Court in Pima County. No. C20095459. The Honorable Ted B. Borek, Judge.

Mercaldo Law Firm, By Ronald D. Mercaldo, Tucson and Thomas A. Zlaket, PLLC, By Thomas A. Zlaket, Tucson and Law Office of Jojene Mills, PC, By Jojene E. Mills, Tucson, Counsel for Plaintiff/Appellant.

Thomas C. Horne, Arizona Attorney General, Phoenix, By Robert R. McCright and Catherine M. Stewart, Assistant Attorneys General, Tucson, Counsel for Defendant/Appellee.

Presiding Judge Miller authored the opinion of the Court, in which Judge Espinosa and Judge Vá squez concurred.

OPINION

Page 1193

[236 Ariz. 211] MILLER, Presiding Judge:

[¶1] Robert Fleming, conservator of the minor children of Faith Mascolino, appeals from a jury verdict in favor of the Arizona Department of Public Safety (DPS) related to Mascolino's death. Appellant argues the trial court should not have permitted the jury to consider A.R.S. § 12-820.02(A)(7), which provides qualified immunity for a state entity if the injury is attributable to the claimant's violation of statutes that prohibit driving under the influence and reckless driving. He also argues the court erroneously admitted evidence of Mascolino's breath and blood alcohol test results. For the reasons that follow, we conclude the court did not err in its jury instruction or its decision to admit the evidence.

Factual and Procedural Background

[¶2] We view the facts in the light most favorable to upholding the jury's verdict, see Jimenez v. Wal-Mart Stores, Inc., 206 Ariz. 424, ¶ 2, 79 P.3d 673, 674 (App. 2003), but, as discussed later, we review de novo pure

Page 1194

[236 Ariz. 212] questions of law and mixed questions of law and fact, see Robson Ranch Mountains, L.L.C. v. Pinal Cnty., 203 Ariz. 120, ¶ 13, 51 P.3d 342, 347 (App. 2002). One evening in June 2009, Faith Mascolino had drinks with some of her coworkers and her daughter, B.D., at three different establishments. Around midnight, B.D. drove Mascolino back to her vehicle in mid-town Tucson. B.D. later testified that Mascolino " felt okay to drive" at that point. She also testified she had not noticed Mascolino drinking excessive amounts of alcohol on prior similar outings.

[¶3] At about 1:15 a.m., DPS Officer Scott Walter saw Mascolino's vehicle proceeding west on Interstate 10, drifting across lane lines, and travelling well below the posted speed limit. Officer Walter called for backup and attempted to pull the vehicle over, but Mascolino refused to yield and continued driving erratically. Eventually she came to a stop in the emergency lane, very close to a guardrail on the rising approach to a freeway overpass.

[¶4] Officer Walter got out of his cruiser and approached the vehicle. He asked Mascolino to give him her keys and to step out of the car. Mascolino had difficulty exiting, her speech was slurred, and she repeatedly said, " I'm okay, I'm okay." She had a sunken expression, a flushed face, and bloodshot eyes. She had trouble producing her driver's license when asked. Her balance was poor, and her breath smelled faintly of alcohol. She admitted she had been drinking that night, " a lot."

[¶5] Another DPS officer, Fred Rivera, attempted to administer two field sobriety tests: the horizontal gaze nystagmus test and simple balance test. Mascolino was unable to complete the tests, and the officer determined he had probable cause to arrest her for driving under the influence of alcohol (DUI). Mascolino then agreed to take a portable breath test (PBT) at Officer ...


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