                        NOTICE: NOT FOR OFFICIAL PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                    AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                       IN THE
                ARIZONA COURT OF APPEALS
                                   DIVISION ONE


                    STATE OF ARIZONA, Petitioner/Appellee,

                                           v.

            HONORABLE BERNARD BARNES, Respondent Judge,1

            LONNELL LEE EVANS, Real Party in Interest/Appellant.

                                No. 1 CA-CV 14-0670
                                  FILED 3-3-2016


              Appeal from the Superior Court in Maricopa County
                           No. LC2014-000162-001
                The Honorable Pamela Hearn Svoboda, Judge

              JURISDICTION ACCEPTED; RELIEF GRANTED


                                      COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Susan L. Luder
Counsel for Petitioner/Appellee

The Law Office of John Phebus, Glendale
By John A. Phebus
Counsel for Real Party in Interest/Appellant




1        The caption is amended as shown above.
                             STATE v. EVANS
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Randall M. Howe joined.


C A T T A N I, Judge:

¶1            Lonnell Lee Evans appeals from a special action proceeding
in which the superior court reversed the Arrowhead Justice Court’s order
suppressing evidence in a driving under the influence (“DUI”) case. For
reasons that follow, we treat the appeal as a special action petition and grant
relief by reversing the superior court’s order and remanding to the justice
court for further proceedings.

             FACTS AND PROCEDURAL BACKGROUND

¶2            In May 2013, Arizona Department of Public Safety Sergeant
McFarland stopped Evans for speeding and eventually arrested him for
DUI. Because Sergeant McFarland was on a motorcycle, someone else—
Officer Barahona—transported Evans to the Peoria Police Station for
processing, arriving at 9:32 p.m. While waiting for Sergeant McFarland to
arrive, Officer Barahona filled in Evans’s information on the operational
checklist necessary for a breathalyzer test. Sergeant McFarland arrived at
the station around 9:45, and both officers were present with Evans until
Officer Barahona left around 9:53.

¶3            Sergeant McFarland started the time on the breathalyzer
device at 9:55.2 Sergeant McFarland finished completing the checklist,
listing Officer Barahona as the person who conducted a 15-minute
deprivation period required by Arizona Revised Statutes (“A.R.S.”) § 28-
1323(A)(4) from 9:37 until 9:57.3 Evans took the breathalyzer test at 10:00,




2      The times related to the breath test were based on the breathalyzer
device’s clock; other time notations came from the officers’ computer-aided
dispatch reports.

3     Absent material revisions after the relevant date, we cite a statute’s
current version.


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                            STATE v. EVANS
                           Decision of the Court

showing a 0.219 blood alcohol concentration, and at 10:07, showing a 0.221
concentration.

¶4             Evans moved to suppress the breathalyzer test evidence,
asserting that neither Sergeant McFarland nor Officer Barahona conducted
a 15-minute deprivation period. At an evidentiary hearing in justice court,
both officers testified that from the time of Evans’s arrest, he did not drink
alcohol, vomit, smoke, or place anything in his mouth. Although Sergeant
McFarland wrote down that Officer Barahona performed the deprivation
period, he acknowledged that he assumed Officer Barahona had done so
and never received confirmation that Officer Barahona completed the
deprivation period. Officer Barahona testified he had not conducted a
deprivation period and stated instead that he thought Sergeant McFarland
had done so.

¶5             The justice court suppressed the breathalyzer results. The
court found that each officer believed the other had completed the
deprivation period, that neither testified he had done so, that Evans being
in the general presence of the officers for the designated period was
insufficient, and thus the deprivation period requirement had not been
satisfied.

¶6            The State sought special action review by the superior court,
which reversed, holding that the justice court had abused its discretion. The
superior court concluded that Officer Barahona began the deprivation
period when he arrived at the station with Evans at 9:32, and that Sergeant
McFarland completed the period from the time Officer Barahona left at 9:53
until the breathalyzer test took place at 10:00. Evans timely appealed.

                               DISCUSSION

¶7            This court’s jurisdiction is statutory, and we have an
independent duty to determine whether we have jurisdiction over an
appeal. See State v. Bayardi, 230 Ariz. 195, 197, ¶ 6 (App. 2012). Here, it is
unclear whether the superior court’s special action ruling is an appealable
order triggering our appellate jurisdiction under A.R.S. §§ 12-120.21(A)(1)
and -2101(A). But even assuming it is not, in our discretion, we exercise
special action jurisdiction because Evans does not have “an equally plain,
speedy, and adequate remedy by appeal.” See Ariz. R.P. Spec. Act. 1(a).

¶8             A trial court’s ruling on a motion to suppress is reviewed for
an abuse of discretion, but its interpretations of law are reviewed de novo.
See State v. Brown, 233 Ariz. 153, 156, ¶ 4 (App. 2013). A decision without
substantial support in the record or an error of law may constitute an abuse


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                            Decision of the Court

of discretion. State v. Cowles, 207 Ariz. 8, 9, ¶ 3 (App. 2004). Appellate
courts defer to the trial court’s determination of facts and witness
credibility, viewing the evidence presented at the suppression hearing in
the light most favorable to sustaining the trial court’s ruling. See State v.
Bennett, 237 Ariz. 356, 358, ¶ 8 (App. 2015); Brown, 233 Ariz. at 156, ¶ 4.

¶9            Under A.R.S. § 28-1323(A)(4), the results of a breath test are
admissible (without expert witness testimony) if the operator who
conducted the test followed an administratively approved operational
checklist. The checklist—the applicable version of which is set forth in title
13, chapter 10, article 1, Exhibit G-1 of the Arizona Administrative Code
(“A.A.C.”)—requires a 15-minute deprivation period immediately before
the breath test is conducted, “during which period the subject has not
ingested any alcoholic beverages or other fluids, eaten, vomited, smoked or
placed any foreign object in the mouth.” A.A.C. R13-10-101(8). “[B]ecause
the statutory method permits admission of a breath test without testimony
from an expert witness, ‘the requirements of the statute must be scrupulously
met so that there will be a uniform, statewide basis of testing to vouch for
accuracy and reliability.’” State ex rel. McDougall v. Johnson, 181 Ariz. 404,
408 (App. 1994) (citation omitted).

¶10            The justice court ruled that although Evans was in the officers’
general presence for the 15-minute period, the State did not establish that
the officers complied with the statutory requirement because each officer
believed the other had conducted the deprivation period and neither
testified to having done so. Because there was “no clear testimony from
either officer that the required Deprivation Period was conducted by any
single person,” the justice court suppressed the breath evidence.

¶11           Acting in its appellate capacity, the superior court reversed,
finding that the justice court had misapplied the law because multiple
officers can each conduct part of the deprivation period. See State v.
Tyskiewicz, 209 Ariz. 457, 459, ¶ 7 (App. 2005). The superior court further
found that “all the requirements of a deprivation were met by [Officer
Barahona’s] observations” that Evans did not eat, drink, smoke, or ingest
anything during the deprivation period. The court concluded that, between
the two officers’ observations, Evans had been continuously observed for
over an hour, and that this was sufficient.

¶12           In holding that the justice court abused its discretion, the
superior court focused on the phrasing in the justice court’s finding that a
“single” officer had not completed the deprivation period. But the justice
court did not rely solely on that finding; the court also relied on the fact that


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                              STATE v. EVANS
                             Decision of the Court

neither officer testified to completing even a portion of the 15-minute
period. Although the testimony of the operator is sufficient to establish that
the operational checklist was followed, see A.R.S. § 28-1323(A)(4), and
although there was evidence from which the justice court could have
concluded that the deprivation period was completed, the court did not
abuse its discretion by finding that neither officer completed even a portion
of the deprivation period in light of each officer’s testimony that someone
else had done so.

¶13             In reaching a contrary conclusion, the superior court did not
defer to the justice court’s factual findings, and instead improperly
reweighed the evidence. See Stant v. City of Maricopa Emp. Merit Bd., 234
Ariz. 196, 201, ¶ 15 (App. 2014) (noting that when the superior court
conducts appellate review, it “does not reweigh the evidence or resolve
conflicts in it”); see also Quigley v. City Court, 132 Ariz. 35, 37 (App. 1982) (“A
difference in judicial opinion is not synonymous with ‘abuse of
discretion.’”).

¶14           The facts in this case are anomalous, and our decision does
not dictate that the deprivation period requirement can only be satisfied by
one officer observing an arrestee and not performing other tasks. Our
decision simply affirms that to the extent it is necessary to determine if the
required deprivation period was properly conducted, the trial court is
responsible for weighing and assessing the evidence. See Brown, 233 Ariz.
at 156, ¶ 4.

¶15           Because the justice court did not misapply the law, and
because substantial evidence supported its ruling, the court did not abuse
its discretion by finding that the requirements of the statute were not
“scrupulously met.” See Cowles, 207 Ariz. at 9, ¶ 3; Johnson, 181 Ariz. at 408
(citation and emphasis omitted).




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                          STATE v. EVANS
                         Decision of the Court

                           CONCLUSION

¶16          For the foregoing reasons, we reverse the superior court’s
ruling and remand for further proceedings.




                                :ama




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