Appeal from the Superior Court in Pima County No. CR20140630001 The Honorable Scott Rash, Judge The Honorable Teresa Godoy, Judge Pro Tempore
Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Kathryn A. Damstra, Assistant Attorney General, Tucson Counsel for Appellee
Steven R. Sonenberg, Pima County Public Defender By Michael J. Miller and David J. Euchner, Assistant Public Defenders, Tucson Co-Counsel for Appellant
Presiding Judge Howard authored the opinion of the Court, in which Judge Espinosa and Judge Staring concurred.
HOWARD, Presiding Judge:
¶1 After a jury trial, Luis Peraza was convicted of aggravated driving under the influence (DUI) while his license was suspended or revoked and aggravated driving with an alcohol concentration (AC) of 0.08 or more while his license was suspended or revoked. On appeal, Peraza argues that the trial court erred both by denying his motion to suppress the results of a breathalyzer test because he was deprived of his right to counsel and by improperly instructing the jury. Because the trial court committed no reversible error, we affirm.
Factual and Procedural Background
¶2 "We view the facts in the light most favorable to sustaining the verdicts." State v. Nottingham, 231 Ariz. 21, ¶ 2, 289 P.3d 949, 951 (App. 2012). A Tucson Police Department (TPD) officer stopped Peraza after observing him use a private parking lot to avoid a traffic signal. After approaching Peraza, the officer observed signs that Peraza was under the influence of alcohol and saw an open container of alcohol underneath the driver's seat of the vehicle. Peraza admitted he had been drinking. He exhibited cues of impairment on field sobriety tests, and breathalyzer tests produced results of .153 and .152 AC.
¶3 The state charged Peraza and a jury found him guilty as noted above. The trial court sentenced him to presumptive, concurrent 4.5-year prison terms. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21 and 13-4033(A)(1).
Adequacy of Access to Counsel
¶4 Peraza first argues the trial court erred by denying his motion to suppress the breathalyzer results, claiming the officer had deprived him of assistance of counsel by not providing adequate time for an attorney to return Peraza's call before the officer conducted the test. We review de novo the denial of a motion to suppress based on an alleged deprivation of counsel. State v. Rumsey, 225 Ariz. 374, ¶ 4, 238 P.3d 642, 644-45 (App. 2010). In reviewing the court's ruling, "we consider only the evidence presented at the suppression hearing and view the facts in the light most favorable to sustaining the . . . ruling." State v. Gonzalez, 235 Ariz. 212, ¶ 2, 330 P.3d 969, 970 (App. 2014).
¶5 The TPD officer stopped Peraza's car at 5:17 a.m., advised him of his Miranda rights at 5:35 a.m., and, at 5:45 a.m., formally arrested him for DUI. At 6:31 a.m., while at the station, Peraza invoked his right to counsel. The officer provided Peraza with a phone book and told him he could have ten minutes to choose an attorney. Within ten minutes,  Peraza had twice attempted to reach the law firm he chose but was only able to leave messages for the attorney to call him back at the police station.
¶6 The officer waited until 6:52 a.m. for the attorney to return the calls, then at 6:56 a.m., conducted the first breathalyzer test. He conducted the second test at 7:02 a.m. The officer testified he had conducted the two AC tests before Peraza contacted an attorney because the statutory two-hour window for the collection of such evidence was expiring.
¶7 Section 28-1381(A)(2), A.R.S., establishes the statutory two-hour window by prohibiting a driver from operating a vehicle if that driver's AC is over 0.08 within two hours of driving. If breath tests occur more than two hours after driving, the state is required to relate the results back to the relevant time for the results to be admissible. State v. Stanley, 217 Ariz. 253, ¶ 24, 172 P.3d 848, 853 (App. 2007) ("If the sample is drawn after the two-hour mark, an expert must use retroactive extrapolation to determine the blood alcohol content.").
¶8 Despite the two-hour window, a defendant is entitled to the advice of counsel when in custody, "and the state may not unreasonably restrict that right." Kunzler v. Superior Court, 154 Ariz. 568, 569, 744 P.2d 669, 670 (1987); see Ariz. R. Crim. P. 6.1(a). Accordingly, a defendant has the "right to speak to counsel before taking a breathalyzer test." State v. Sanders, 194 Ariz. 156, ¶ 6, 978 P.2d 133, 134 (App. 1998). That right, however, must give way when its exercise would "hinder an ongoing investigation." Kunzler, 154 Ariz. at 569, 744 P.2d at 670. This arises most frequently in DUI cases because of their "unique evidentiary circumstances." Montano v. Superior Court, 149 Ariz. 385, 389, 719 P.2d 271, 275 (1986).
¶9 "It is the state's burden to demonstrate that allowing the suspect to consult with counsel when requested would have disrupted the police investigation." Rumsey, 225 Ariz. 374, ¶ 8, 238 P.3d at 645. But the "defendant has no right to delay [an investigation] by demanding to consult with counsel . . . . If the lawyer cannot be reached by telephone . . . the state may continue with its ...