Arizona Court Allows Officer to Testify as to the Field Sobriety Sests Administered by Her Deceased Colleague

In a recent decision from an Arizona appeals court, the court upheld a DUI conviction for an individual after the arresting officer’s death. The defendant was convicted of two counts of aggravated driving under the influence, two counts of aggravated driving with an illegal drug in his body, and possession of drug paraphernalia and possession of marijuana. He was sentenced to four months in prison and probation. The defendant argued that his Sixth Amendment rights were violated when the arresting officer could not testify against him after the officer’s death.

According to the court’s opinion, before the defendant was arrested, two sheriff’s officers, Deputy Davis and Deputy Gil, responded to a 911 call in Tucson and found the defendant in a stopped vehicle in the middle of the road, with the engine still running. The defendant was sleeping in the driver’s seat. Deputy Davis administered field sobriety tests, arrested the defendant, and obtained a telephonic search warrant to draw his blood. Testing showed that marijuana and oxycodone were present in the defendant’s blood.

Deputy Davis died before the defendant’s case went to trial, and Deputy Gil was the only officer to testify at the trial. While Deputy Gil was being questioned at trial, the prosecution asked her how she would administer the field sobriety tests (FSTs). Because Deputy Davis had administered the tests in this case, the defendant objected as to the relevance of Gil’s administration of FSTs. The court allowed her to demonstrate the walk-and-turn and one-leg stand FSTs despite the objection.

On appeal, the defendant argued that the demonstrations were irrelevant and prejudicial and should not have been allowed. He also argued that his Sixth Amendment rights were violated, because he claimed that his right to confront and cross-examine witnesses was violated. The defendant contended that Deputy Gil’s testimony related to the administration of the FSTs was improper because it violated his right to confront and cross-examine witnesses. He argued that Deputy Gil was testifying about Davis’s statements and opinions, and that the defendant could not confront and cross-examine Davis about those statements and opinions.

The Sixth Amendment to the U.S. Constitution gives a defendant the right “to be confronted with the witnesses against him.” Arizona courts have held that this includes the right to confront witnesses “face-to-face,” primarily through cross-examination. The appeals court, however, decided that even if the demonstrations were irrelevant and prejudicial, any error in allowing them was harmless because there was “overwhelming evidence” of the defendant’s guilt. Concerning the Sixth Amendment argument, the court found that Deputy Gil only testified about her own observations and opinions of the defendant. She testified that she observed the defendant while he was performing the FSTs and that he did poorly on the tests. Therefore, the court found that the testimony was based on Gil’s own observations, and that the defendant was able to confront Gil and cross-examine her. Therefore, the court upheld the defendant’s convictions and sentences.

Have You Been Arrested for an Arizona DUI?

If you have been arrested for driving under the influence in Arizona, you are subject to harsh penalties, even for first-time offenders. The Phoenix-based Law Office of James E. Novak has more than 13 years of experience representing individuals charged with Arizona DUI offenses and is committed to upholding the rights of those accused of DUI offenses. He represents individuals throughout Tempe and the surrounding areas of Arizona, including Mesa, Gilbert, Chandler, Phoenix, Scottsdale, and East Valley. Contact the Law Office of James E. Novak at 480-413-1499 or send us a message online to set up a free initial consultation.

Additional Resources:

• A.R.S. 28-1381 – DUI Laws
• A.R.S. 28-1382 –Extreme DUI Laws