                                                                    FILED BY CLERK
                            IN THE COURT OF APPEALS                     JAN 14 2005
                                STATE OF ARIZONA                        COURT OF APPEALS
                                  DIVISION TWO                            DIVISION TWO


THE STATE OF ARIZONA,                        )
                                             )          2 CA-CR 2003-0267
                                Appellee,    )          DEPARTMENT A
                                             )
                   v.                        )          OPINION
                                             )
STANLEY THOMAS TYSZKIEWICZ,                  )
                                             )
                               Appellant.    )
                                             )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                 Cause No. CR-54607

                           Honorable Edgar B. Acuña, Judge

                                     AFFIRMED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Alan L. Amann                                          Tucson
                                                                Attorneys for Appellee

Susan A. Kettlewell, Pima County Public Defender
 By Brian X. Metcalf and David McCallum, a student
    certified pursuant to Rule 38, Ariz. R. Sup. Ct.,
    17A A.R.S.                                                                 Tucson
                                                               Attorneys for Appellant


E C K E R S T R O M, Judge.
¶1            Appellant Stanley Thomas Tyszkiewicz was convicted after a jury trial of two

counts of aggravated driving under the influence of an intoxicant (DUI), sentenced to a four-

month term of imprisonment, and placed on probation for concurrent, five-year terms. He

claims that the trial court erred by admitting his breath test results without satisfying the

foundational requirements set forth in former A.R.S. § 28-695(A)(4)1 and that the state did

not present sufficient evidence of his time of driving to support his conviction under former

A.R.S. § 28-692(A)(1) and (2). See 1990 Ariz. Sess. Laws, ch. 375, § 8. We affirm.

¶2            We view the facts in the light most favorable to sustaining the conviction.

State v. Brown, 207 Ariz. 231, ¶ 2, 85 P.3d 109, 111 (App. 2004). Tucson Police Officer

Gomez was dispatched to the scene of a motor vehicle accident on September 24, 1996.

Tyszkiewicz’s vehicle was in the street and the other vehicle involved in the collision was

in a nearby parking lot. Gomez asked Tyszkiewicz to move his vehicle into the same parking

lot, a distance of approximately fifty feet. Tyszkiewicz complied with that request. When

asked for his license and registration, Tyszkiewicz produced a driver’s permit. As Gomez

investigated the collision, he noticed that Tyszkiewicz had bloodshot, watery eyes, and an

odor of alcohol was emanating from around his face. Gomez asked if Tyszkiewicz had been

drinking, and Tyszkiewicz replied that he had consumed two beers. Gomez then asked him




       1
       The foundational requirements that existed in § 28-695(A)(4) at the time Tyszkiewicz
committed the offenses were added in 1983 as § 28-692.03(A)(4). See 1983 Ariz. Sess.
Laws, ch. 279, § 8. That section was later renumbered as § 28-695(A)(4). See 1990 Ariz.
Sess. Laws, ch. 375, § 11.

                                             2
to perform some field sobriety tests and Tyszkiewicz agreed. At the conclusion of those

tests, after reading Tyszkiewicz the Miranda 2 warning and asking him some further

questions, Gomez placed him under arrest for DUI.

¶3               Officer Aussems arrived at the scene and administered breath testing with an

Intoxilyzer machine. Tyszkiewicz provided two breath samples, which, according to the

machine, correlated to a blood alcohol concentration (BAC) of .176 and .162. The Arizona

Motor Vehicle Division (MVD) custodian of records testified at trial that Tyszkiewicz’s

driver’s license had been indefinitely suspended at the time of the collision.

                                  INTOXILYZER RESULTS

¶4               Tyszkiewicz argues that the breath test results were improperly admitted into

evidence because Aussems failed to comply with the Department of Health Services (DHS)

checklist pursuant to former A.R.S. § 28-695(A)(4). Specifically, he claims that the DHS

checklist required that Aussems observe Tyszkiewicz for a fifteen-minute period before

administering the test and that this requirement was not met because Aussems testified that

Gomez performed the initial part of the observation. We must therefore determine whether

former A.R.S. § 28-695(A)(4) requires that one officer conduct the entire observation.

¶5               We review de novo questions of statutory interpretation. See State v. Siner, 205

Ariz. 301, ¶ 8, 69 P.3d 1022, 1024 (App. 2003). “In construing a statute, our primary goal

is to discern and give effect to the legislature’s intent. We first examine the plain language


       2
           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                                 3
of the statute and, if it is unclear, then consider other factors such as the statute’s context,

history, subject matter, effects and consequences, spirit, and purpose.” State v. Fell, 203

Ariz. 186, ¶ 6, 52 P.3d 218, 220 (App. 2002) (citation omitted).

¶6             The provision at issue, former § 28-695(A)(4), requires the state to show the

following before the results of a breath test may be admitted into evidence: “The operator

who conducted the test followed an operational checklist approved by the department of

health services for the operation of the device used to conduct the test. The testimony of the

operator is sufficient to establish this requirement.” The pertinent portion of the checklist

states, “[i]mmediately preceding the administration of the tests, the subject underwent a 15-

minute deprivation period from ____ to ____ by ____________________.” Ariz. Admin.

Code Tit. 9, ch. 14, art. 4, ex. X.

¶7             We agree with the state that nothing in the plain language of either the statute

or the DHS regulations required that Aussems personally supervise the entire deprivation

period. To the contrary, the regulation’s use of the passive voice and the request for the

name of the observer after the operator has previously signed his or her name are clear

indications that the operator need not be the same person as the observer. Moreover,

Tyszkiewicz has not explained how a deprivation period conducted sequentially by two

officers would be inferior to a deprivation period conducted wholly by one officer in securing

a scientifically reliable breath test.




                                               4
¶8            Tyszkiewicz also argues that the state did not lay adequate foundation that

Gomez had actually conducted the first portion of the deprivation period. Aussems testified

generally that he had complied with the applicable DHS checklist and specifically that

Gomez had supervised the first portion of the deprivation period. According to the plain

language of the statute, such testimony would be sufficient to satisfy former § 28-695(A)(4).

But, because Aussems testified that he was not yet at the scene of the investigation when

Gomez would have been overseeing the first part of the deprivation period, such testimony

was clearly based on hearsay. Although Gomez himself testified, the state never elicited that

he had overseen any part of the deprivation period.

¶9            But Tyszkiewicz raised no hearsay objection to that portion of Aussems’s

testimony avowing that Gomez had supervised the first portion of the deprivation period.

Rather, Tyszkiewicz merely objected that the breath test should be inadmissible because

Aussems did not have “personal knowledge” that Gomez had overseen the deprivation

period, a complaint that did not seek the preclusion of Aussems’s testimony but which

challenged the sufficiency of that evidence. Thus, Tyszkiewicz’s broader challenge to

admissibility of the breath test was not adequate to raise or preserve a hearsay challenge to

Aussems’s testimony. See State v. Tarango, 182 Ariz. 246, 250, 895 P.2d 1009, 1113 (App.

1994) (objection to evidence on one ground not sufficient to preserve objection to evidence

on another ground), aff’d, 185 Ariz. 208, 914 P.2d 1300 (1996). Because Aussems testified

generally that Gomez had overseen the first portion of the deprivation period and because



                                             5
that testimony was admitted without objection, the state presented adequate evidence that it

had complied with the foundational requirements of former § 28-695(A)(4).

                                   TIME OF DRIVING

¶10           Tyszkiewicz argues that the state failed to prove the second element of the

offense, that he had a BAC of .10 or more within two hours of driving his vehicle because

there was no appropriate evidence presented that he had had actual physical control of his

vehicle any time in the two hours before he had submitted to the breath test. Former § 28-

692(A)(2) (emphasis added). When reviewing the sufficiency of the evidence to support a

criminal conviction, we determine whether the evidence could reasonably support a finding

of guilt beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct.

2781, 2788-89, 61 L. Ed. 2d 560, 573 (1979). “[T]he relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.” Id. at 319,

99 S. Ct. at 2789, 61 L. Ed. 2d at 573.

¶11           Aussems administered the breath tests at 7:09 p.m. and 7:15 p.m. Therefore,

the state was required to present evidence that Tyszkiewicz had driven his vehicle at 5:09

p.m. or later to convict him of the offense. Although Tyszkiewicz essentially concedes that

he drove within the two-hour time frame when he moved his vehicle at the request of Gomez,

he asserts that it would be a violation of his due process rights to penalize him for complying




                                              6
with an officer’s instructions. We review constitutional questions de novo. See State v.

Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d 303, 307 (App. 2000).

¶12           At the outset, nothing in Title 28 suggests that a defendant is entitled to

immunity from prosecution merely because the defendant committed the underlying criminal

act at the direction of a law enforcement officer. Although A.R.S. § 13-402(B)(2) provides

an affirmative defense to defendants who maintain that they reasonably believed that their

illegal actions were authorized to assist officers in the performance of their duties,

Tyszkiewicz did not raise that defense at trial. But see State v. Fell, 203 Ariz. 186, ¶ 1, 52

P.3d 218, 219 (App. 2002) (Title 13 defenses not necessarily applicable to Title 28 offenses).

¶13           “The touchstone of due process under both the Arizona and federal

constitutions is fundamental fairness.” State v. Melendez, 172 Ariz. 68, 71, 834 P.2d 154,

157 (1992). “[W]here a defendant has reasonably relied upon affirmative assurances that

certain conduct is lawful, when those assurances are given by a public officer or body

charged by law with responsibility for defining permissible conduct with respect to the

offense at issue[, t]he defense is a due process defense.” Miller v. Commonwealth, 492

S.E.2d 482, 486-87 (Va. Ct. App. 1997) (discussing due process defense derived from trilogy

of United States Supreme Court cases).

¶14           But here Gomez made no explicit assurances to Tyszkiewicz that the latter’s

driving necessarily would be lawful. At the time Gomez directed Tyszkiewicz to move his

car, Gomez had not witnessed any signs of intoxication and thus, had no reason to believe


                                              7
that Tyszkiewicz was impaired by alcohol. Moreover, Tyszkiewicz had not advised Gomez

of any of the factual circumstances that would render his driving a criminal act. For this

reason, Tyszkiewicz could not have reasonably believed that Gomez’s request implicitly

authorized him to commit any crime. In short, Tyszkiewicz cannot claim that his due process

rights were violated on the ground that he had relied on assurances, either explicit or implicit,

that his conduct would be lawful.

¶15           Tyszkiewicz also relies on Melendez and State v. Leavitt, 27 P.3d 622 (Wash.

App. 2001), to argue that the state has violated his due process rights by criminalizing his

decision to comply with an officer’s request. Both cases are readily distinguishable. In

Melendez, the state attempted to use a defendant’s statements to an inmate representative

against him in a murder trial after the state had encouraged the defendant, by regulation and

advice, to seek inmate representation and had thereafter facilitated the discussion between

the defendant and the fellow inmate. 172 Ariz. at 71, 834 P.2d at 157. Our supreme court

suppressed the statements on state due process grounds, concluding that it was fundamentally

unfair for the state to offer inmate representation to the defendant as a right and then

transform it into a trap for collecting inculpatory evidence against him. Id. at 73, 834 P.2d

at 159. In the instant case, however, the defense presented no evidence that Gomez had any

awareness that he would later investigate Tyszkiewicz for DUI, let alone any evidence that

Gomez intended to set a trap by requesting that Tyszkiewicz move his car.              Nor was

Tyszkiewicz punished for exercising an affirmative regulatory right offered by the state.



                                               8
¶16           In Leavitt, the Washington Court of Appeals reversed the defendant’s

convictions for unlawful possession of a firearm because a prior trial court had failed to

comply with a statute’s mandate to advise Leavitt that his misdemeanor conviction prohibited

him from possessing a firearm. 27 P.3d at 628. But here, Gomez was under no statutory

obligation to advise Tyszkiewicz that driving while impaired by alcohol was a crime before

he requested that Tyszkiewicz move his car. Cf. Persaud v. City of New York, 762 N.Y.S.2d

641, 643 (2003) (police officer not negligent for failing to ask passenger in motor vehicle

whether she could drive before instructing her to move vehicle from no parking zone).

¶17           The Melendez and Leavitt opinions found due process violations when the state

penalized the respective defendants for the state’s own failure to comply with explicit or

implicit duties to the defendant. Here, Tyszkiewicz has not identified any affirmative duty

to him that the state breached when Gomez instructed him to move his car. Although the

situation unquestionably placed Tyszkiewicz in a difficult position, it did not rise to the level

of fundamental unfairness necessary to constitute a due process violation. Cf. Commonwealth

v. Herb, 852 A.2d 356, 360 (Pa. Super. Ct. 2004) (court rejected proposition that because

officer gave defendant permission to move vehicle from illegal parking place defendant was

relieved from criminal responsibility for driving with suspended license). We therefore

conclude that Tyszkiewicz’s movement of his vehicle at Gomez’s request established that

Tyszkiewicz drove within two hours of the time he was given the breath tests.




                                               9
¶18           Tyszkiewicz’s final argument is that the state did not show that Tyszkiewicz

drove or was in actual physical control of a vehicle while under the influence of an

intoxicant. But we have already concluded that it was not a violation of Tyszkiewicz’s due

process rights for the state to use the evidence that Tyszkiewicz drove at Gomez’s request

to satisfy the time element of § 28-692. For the same reasons, we conclude that this evidence

was sufficient to establish the driving element of the statute.

¶19           We affirm Tyszkiewicz’s conviction and sentence.




                                               ____________________________________
                                               PETER J. ECKERSTROM, Judge

CONCURRING:




____________________________________
JOSEPH W. HOWARD, Presiding Judge




____________________________________
J. WILLIAM BRAMMER, JR., Judge




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