                            IN THE
             ARIZONA COURT OF APPEALS
                         DIVISION TWO


                     THE STATE OF ARIZONA,
                            Appellee,

                               v.

                     LUIS ARMANDO PERAZA,
                            Appellant.

                     No. 2 CA-CR 2015-0022
                     Filed January 28, 2016


         Appeal from the Superior Court in Pima County
                      No. CR20140630001
                The Honorable Scott Rash, Judge
        The Honorable Teresa Godoy, Judge Pro Tempore

                          AFFIRMED


                           COUNSEL

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
                       STATE v. PERAZA
                       Opinion of the Court



                             OPINION

Presiding Judge Howard authored the opinion of the Court, in
which Judge Espinosa and Judge Staring concurred.


H O W A R D, 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).




                                 2
                         STATE v. PERAZA
                         Opinion of the Court

                   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 Miranda1 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,2 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.



      1Miranda   v. Arizona, 384 U.S. 436 (1966).
      2At  oral argument, Peraza argued that this ten-minute window
was arbitrary and insufficient under these facts. This theory differs
markedly from the argument raised in his opening brief.
Arguments raised for the first time at oral argument are untimely
and therefore waived absent fundamental error. State v. Murdaugh,
209 Ariz. 19, ¶ 29, 97 P.3d 844, 851 (2004).


                                    3
                         STATE v. PERAZA
                         Opinion of the Court

¶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 detention procedures.” McNutt v. Superior Court, 133 Ariz.
7, 10 n.2, 648 P.2d 122, 125 n.2 (1982).

¶10           Courts have found a deprivation of counsel when police
either flatly prevented a defendant from speaking to an attorney or
in some active way impeded access to counsel. See State v. Juarez,
161 Ariz. 76, 77-79, 81, 775 P.2d 1140, 1141-43, 1145 (1989) (police did
not allow defendants to contact attorneys and read implied consent
at end of twenty-minute waiting period); see also Kunzler, 154 Ariz. at
570, 744 P.2d at 671 (remanding for reasonableness determination
where police prevented defendant from speaking to attorney during
one-hour breathalyzer warm-up period); McNutt, 133 Ariz. at 9-10,

                                   4
                         STATE v. PERAZA
                         Opinion of the Court

648 P.2d at 124-25 (police prevented defendant from having attorney
arrange independent blood test when attorney available by
telephone); State v. Penney, 229 Ariz. 32, ¶ 13, 270 P.3d 859, 862-63
(App. 2012) (police unreasonably deprived defendant of access to
phone book); Rumsey, 225 Ariz. 374, ¶¶ 9-10, 238 P.3d at 645-46
(police prevented defendant from consulting with attorney present
at station); State v. Rosengren, 199 Ariz. 112, ¶¶ 3-4, 10, 14 P.3d 303,
306-07 (App. 2000) (police prevented defendant from calling father,
an out-of-state attorney); State v. Keyonnie, 181 Ariz. 485, 485-86, 892
P.2d 205, 205-06 (App. 1995) (police did not provide defendant any
opportunity to contact attorney).

¶11          As noted above, this court concluded there had been a
deprivation of counsel in Rumsey, although on grounds different
than those cited by the trial court. 225 Ariz. 374, ¶ 10, 238 P.3d at
646. Following a motor vehicle accident, responding police officers
noticed that Rumsey appeared to be intoxicated and arrested her.
Id. ¶¶ 2-3. While still at the scene of the accident, Rumsey spoke
with her attorney by telephone for approximately six minutes.
Id. ¶ 5. The officers waited twenty minutes for the attorney to arrive
before taking Rumsey to the substation. Id. The attorney arrived at
the accident scene fifteen minutes later and agreed to follow an
officer to the substation. Id. But the attorney made a wrong turn
and arrived at the station roughly fifty-two minutes after Rumsey.
Id. By that time, Rumsey had already consented to a blood draw,
and an officer had obtained a warrant for three more blood draws.
Id. ¶¶ 5-6.

¶12          This court concluded the trial court had erred in
determining Rumsey was deprived of counsel based on an officer’s
statement that she could “‘talk to [counsel] after the first blood
draw.’” Id. ¶ 7 (alteration in original). We noted that officers “had
honored [the defendant’s] request to speak with counsel at the
accident scene” and that it had been proper to proceed with the
investigation at the substation because the attorney did not follow
the officers and none “of the officers at the substation knew where
[the attorney] had gone [or] when . . . he would arrive.” Id. ¶ 9. We
instead determined officers had improperly deprived Rumsey of
counsel later, once the attorney had arrived at the substation and


                                   5
                       STATE v. PERAZA
                       Opinion of the Court

had made contact with the police but was nevertheless prevented
from speaking with the defendant before the blood draw.
Id. ¶¶ 10-11.

¶13         In this case, however, Peraza’s right to counsel was
honored. The officer notified Peraza of his right to counsel,
permitted him to call an attorney, and gave Peraza adequate time to
contact one before continuing his investigation. The officer could
not know when or if an attorney would call back. He then
conducted two breathalyzer tests at approximately twenty-five
minutes and fourteen minutes before the end of the statutory two-
hour window. See A.R.S. § 28-1381(A)(2).

¶14         The officer reasonably delayed the tests while still
avoiding the risk that they would occur after the two-hour window.
Had any delays occurred, such as those due to a suspect burping or
vomiting, the test results could have been inadmissible without
extrapolation evidence. Stanley, 217 Ariz. 253, ¶ 24, 172 P.3d at 853
(“To avoid additional evidentiary hurdles, the police typically need
to have the blood sample drawn within two hours of the arrest.”).
Causing the tests to occur outside the two-hour window would have
delayed or hindered the investigation. McNutt, 133 Ariz. at 10 n.2,
648 P.2d at 125 n.2. We conclude the officer did not interfere with
Peraza’s access to counsel.

¶15          Peraza contends, however, that the law firm he called
might have opened at about the time the officer conducted the test.
But Peraza had no right to hinder the investigation. See id. And no
evidence supports the speculation that the law firm Peraza had
chosen was open at the time of the test and no phone call was
received during the test or thereafter when the officer was still
present. In this instance, the state met its burden to show that the
police investigation would have been impeded by a further delay to
allow Peraza to speak to an attorney. See Rumsey, 225 Ariz. 374, ¶ 8,
238 P.3d at 645.

                  Refusal of Testing Instruction

¶16        Next, Peraza argues the trial court erred by instructing
the jury on the refusal to submit to a sobriety test because no


                                 6
                         STATE v. PERAZA
                         Opinion of the Court

evidence supported it. We review the decision to give a jury
instruction for an abuse of discretion. State v. Bolton, 182 Ariz. 290,
309, 896 P.2d 830, 849 (1995).

¶17           As a preliminary matter, the state argues Peraza failed
to object below and has forfeited any review except fundamental,
prejudicial error. See State v. Smith, 228 Ariz. 126, ¶ 10, 263 P.3d 675,
678 (App. 2011). When discussing this instruction, defense counsel
stated “I don’t really think we’re dealing with this because it wasn’t
a refusal. He did perform the field sobriety tests. So I don’t think
it’s really necessary. I think it could be deleted.” The prosecutor
responded “I would just prefer it stay in.             It’s an accurate
representation of what the law is and the procedure that was
followed in this case.” The trial court gave the instruction.

¶18           Although Peraza’s counsel failed to use the word
“object,” the specific word is not required to make an objection or to
preserve an issue for appeal. See State v. Rutledge, 205 Ariz. 7, ¶ 30,
66 P.3d 50, 56 (2003) (“‘The purpose of an objection is to permit the
trial court to rectify possible error, and to enable the opposition to
obviate the objection if possible.’”), quoting State v. Hoffman, 78 Ariz.
319, 325, 279 P.2d 898, 901 (1955). Here, Peraza’s counsel explained
why the instruction should not be given, and the state was given an
opportunity to respond. Thus, Peraza effectively objected to the
instruction below, and we will review the merits of his claim
accordingly. See State v. Henderson, 210 Ariz. 561, ¶ 39, 115 P.3d 601,
611 (2005) (where defendant objected below, burden is on state to
prove harmless error).

¶19          “A party is entitled to an instruction on any theory
reasonably supported by the evidence.” Bolton, 182 Ariz. at 309, 896
P.2d at 849. However, “it is improper to give an instruction which is
not clearly supported by the evidence.” State v. Smith, 113 Ariz. 298,
300, 552 P.2d 1192, 1194 (1976).

¶20          The jury instruction in question read:

             Refusal to Perform Field Sobriety Tests




                                   7
                         STATE v. PERAZA
                         Opinion of the Court

             A person who operates a motor vehicle
             within this state gives consent to a test or
             tests of his blood, breath, urine, or other
             bodily substance for the purpose of
             determining alcohol concentration or drug
             content if arrested for any offense arising
             out of acts alleged to have been committed
             by a person who was driving or in actual
             physical control of a motor vehicle while
             under the influence of intoxicating liquor
             or drugs.

             A failure to expressly agree to the test or
             successfully complete the test is deemed a
             refusal.

Although this instruction’s title refers to “field sobriety tests,” the
instruction itself discusses blood, breath, and urine tests.

¶21           The undisputed evidence showed that Peraza
successfully submitted to two breathalyzer tests.             The state
presented no evidence that he had refused the testing, and on the
contrary, the officer testified that Peraza had consented to the
breathalyzer. Thus, because no evidence supported the instruction,
the trial court erred by giving it. See Smith, 113 Ariz. at 300, 552 P.2d
at 1194.

¶22         When the trial court gives incorrect instructions, we
apply a harmless error analysis. State v. Rodriguez, 192 Ariz. 58, ¶ 27,
961 P.2d 1006, 1011 (1998). “If the state can show beyond a
reasonable doubt that the error did not affect the verdict, the error is
harmless.” Nottingham, 231 Ariz. 21, ¶ 17, 289 P.3d at 956.

¶23          The jury here was instructed that, after determining the
facts, it might find “that some instructions no longer apply.” And
we presume the jury follows its instructions. See State v. Newell, 212
Ariz. 389, ¶ 68, 132 P.3d 833, 847 (2006). The jury heard uncontested
testimony that Peraza consented to and subsequently completed the
tests. Neither attorney argued in closing that Peraza had refused the
tests. Finally, the instruction did not describe any consequences for


                                   8
                        STATE v. PERAZA
                        Opinion of the Court

refusing the test. A reasonable jury would have disregarded the
instruction.

¶24           Moreover, the instruction was not significantly related
to an element of the offense and was unnecessary to convict Peraza.
The state was required to prove that Peraza had an AC above .08
within two hours of driving a vehicle while his license was
suspended or revoked. See § 28-1381(A)(2). At trial, the evidence
demonstrated that Peraza was pulled over while driving a vehicle at
5:17 a.m. Within two hours, his AC levels were .153 and .152. Even
had the trial court not given the complained-of instruction, a rational
jury would have found Peraza guilty beyond a reasonable doubt
under the facts of this case. Thus, because the jury would have
found Peraza guilty, regardless of the instruction, the error was
harmless. See Nottingham, 231 Ariz. 21, ¶ 17, 289 P.3d at 956.

                 Breath-Testing Device Instruction

¶25          Finally, Peraza argues the trial court erred when it
instructed the jury that records of periodic maintenance were prima
facie evidence that the breathalyzer was working properly. Because
Peraza failed to object to the instruction at trial, he has forfeited
review for all but fundamental, prejudicial error. See Smith, 228
Ariz. 126, ¶ 10, 263 P.3d at 678; Henderson, 210 Ariz. 561, ¶¶ 19-20,
115 P.3d at 607. To prevail on a fundamental error claim, Peraza
must “prove error” and that the error was both fundamental and
prejudicial. Henderson, 210 Ariz. 561, ¶¶ 20, 23, 26, 115 P.3d at
607-08. We review the decision to give a jury instruction for an
abuse of discretion, but we review constitutional issues and whether
the jurors were properly instructed de novo. State v. Dann, 220 Ariz.
351, ¶¶ 27, 51, 207 P.3d 604, 613, 616-17 (2009).

¶26         Peraza first argues the statute on which the jury
instruction was based dealt with admissibility, not evidentiary
presumptions. The instruction stated:

            The State has introduced evidence of
            periodic maintenance through records
            which show that the quantitative breath
            testing device was in proper operating


                                  9
                         STATE v. PERAZA
                         Opinion of the Court

             condition at a time before and after the test.
             Such records are prima facie evidence that
             the device was in the proper condition at
             the time of the test.

This jury instruction is based on A.R.S. § 28-1323(A) which provides
that the results of a breathalyzer test are admissible as evidence
upon establishing five requirements. The fifth requirement, which is
the source of the at-issue jury instruction, allows the results of a
breathalyzer test to be admitted so long as the “device . . . was in
proper operating condition.” § 28-1323(A)(5). The statute further
provides that “[r]ecords of periodic maintenance that show that the
device was in proper operating condition are admissible in any
proceeding as prima facie evidence that the device was in proper
operating condition.” Id.

¶27          This court has already ruled that this instruction
correctly states the law. State v. O’Haire, 149 Ariz. 518, 521, 720 P.2d
119, 122 (App. 1986). Although § 28-1323(A)(5) does pertain to
admissibility, prima facie evidence of a fact is a higher standard than
required for admissibility. See Ariz. R. Evid. 402 (relevant evidence
admissible). Based on the statute’s plain language, it allows
admission of the evidence as prima facie evidence the equipment
was functioning properly.

¶28          Peraza next contends the instruction created an
evidentiary presumption for the jury, burdening the defense with
proving the instrument was not working properly, which amounted
to unconstitutional burden-shifting. “To determine the constitutionality
of any given presumption, we must first determine whether the
presumption is permissive or mandatory.” State v. Platt, 130 Ariz.
570, 574, 637 P.2d 1073, 1077 (1981). Mandatory presumptions
represent an impermissible burden shift when “they relieve the State
of the burden of persuasion on an element of an offense.” Francis v.
Franklin, 471 U.S. 307, 314 (1985). “A mandatory presumption
instructs the jury that it must infer the presumed fact if the State
proves certain predicate facts.” Id.

¶29          In contrast, “[a] permissive inference suggests to the
jury a possible conclusion to be drawn if the State proves predicate


                                  10
                        STATE v. PERAZA
                        Opinion of the Court

facts, but does not require the jury to draw that conclusion.” Id. The
permissive inference “allows—but does not require—the trier of fact
to infer the elemental fact from proof by the prosecutor of the basic
one and which places no burden of any kind on the defendant.”
Cty. Court of Ulster Cty. v. Allen, 442 U.S. 140, 157 (1979). In such
cases “the basic fact may constitute prima facie evidence of the
elemental fact.” Id. These permissive inferences do not rise to the
level of unconstitutional burden shifting because they “leave[] the
trier of fact free to credit or reject” them. Id. “A permissive
inference violates the Due Process Clause only if the suggested
conclusion is not one that reason and common sense justify in light
of the proven facts before the jury.” Francis, 471 U.S. at 314-15.

¶30          Turner v. United States is instructive as an example. 396
U.S. 398 (1970). There, the jury was instructed “‘the absence of
appropriate taxpaid stamps from narcotic drugs shall be prima facie
evidence of a violation of this subsection by the person in whose
possession the same may be found.’” Id. at 402 n.2, quoting 26 U.S.C.
§ 4704(a). The Court concluded the jury “was not required by the
instructions to find [the defendant] guilty” but instead allowed to
make an inference that “did not require the defendant to present
evidence.”    Id. at 406.     The court determined the statutory
presumption was constitutional. Id. at 417-18. And although the
court in Turner did not use the phrase “permissive presumption,”
the court in Ulster cited to Turner as an example of a constitutional
permissive inference. Ulster, 442 U.S. at 157.

¶31          Peraza relies on Norton v. Superior Court, to support his
claim that the instruction in this case is unconstitutional. 171 Ariz.
155, 829 P.2d 345 (App. 1992). In that case, this court considered
former A.R.S. § 12-2458(B), which provided: “Proof of the failure by
such parent to furnish reasonable support for his or her child is
prima facie evidence that such failure to furnish reasonable support
is wilful and without lawful excuse.” Id. at 157, 829 P.2d at 347. The
state conceded that the statute was unconstitutional. Id. at 158.
Based on that concession, we concluded that section created an
unconstitutional mandatory presumption because, upon proof of a
certain fact, it forced the jury to presume that a defendant
“possesse[d] the requisite intent for the offense.” Id. at 157-58.


                                 11
                         STATE v. PERAZA
                         Opinion of the Court

¶32           Here, the state has argued the statute is constitutional
and the issue is properly presented for decision. We agree the
instruction in this case is permissive under Ulster and Turner and
distinguishable from Norton. The presumption that records of
periodic breathalyzer maintenance are in fact evidence that the
breathalyzer was working properly did not relieve the state of the
burden of persuasion on any element of the offense. See Francis, 471
U.S. at 314; see also § 28-1381(A)(2). The instruction only informed
the jury that they should construe evidence of successful ongoing
maintenance as prima facie evidence that the machine was working
properly. Such an “evidentiary presumption . . . does not detract
from the ultimate question of whether” the results actually were
accurate. State v. Laughter, 128 Ariz. 264, 267 n.3, 625 P.2d 327,
330 n.3 (App. 1980). The instruction invited the jury to infer the
existence of one kind of evidence from another kind of evidence.
See Ulster, 442 U.S. at 157; cf. Norton, 171 Ariz. at 157-58, 829 P.2d at
347-48. The jury was instructed further that the state bore the
burden of proof of every element of the offense beyond a reasonable
doubt and the defendant was not required to produce any evidence.

¶33          We also note that other state courts have found
statutory presumptions permissive where they only establish prima
facie evidence and therefore do not shift the burden of proof or
otherwise violate the constitution. See, e.g., People v. Goldsmith, 326
P.3d 239, 245, 247 (Ca. 2014) (statute establishing prima facie
admissibility on certain evidentiary showing constituted only
permissive presumption and did not shift burden of proof); State v.
Rolle, 560 So. 2d 1154, 1154, 1157 (Fla. 1990) (In DUI AC context,
court “interpreted the language ‘shall be prima facie evidence’ . . . as
creating a[ permissive] inference.”); State v. Kriss, 654 P.2d 942, 946
(Kan. 1982) (“‘A prima facie evidence provision is nothing more or
less than a rule of evidence which governs the sufficiency of the
evidence to take the case to the jury.’”), quoting State v. Haremza, 515
P.2d 1217, 1222 (Kan. 1973); State v. Lindsey, 491 So. 2d 371, 375 (La.
1986) (“terms such as . . . ‘prima facie evidence’ in criminal cases
have been interpreted to create only permissive inferences”); Brown




                                   12
                         STATE v. PERAZA
                         Opinion of the Court

v. State, 910 A.2d 571, 584 (Md. Ct. Spec. App. 2006) 3 (statutory
inference that AC created prima facie evidence of impairment only
permissive inference); People v. Galindo, 17 N.E.3d 1121, 1123-24
(N.Y. 2014) (statutory inference establishing prima facie evidence of
unlawful intent created only permissive inference); Commonwealth v.
Murray, 749 A.2d 513, ¶¶ 4, 23-25 (Pa. Super. Ct. 2000) (statutory
inference that AC created prima facie evidence of impairment only
permissive inference); State v. Raddeman, 618 N.W.2d 258, ¶¶ 6, 10
(Wis. Ct. App. 2000) (statutory inference that AC created prima facie
evidence of impairment only permissive inference).

¶34           The instruction at issue did not require the jury to reach
any specific conclusions, and they were expressly charged that it is
the purview of the jurors to “determine the importance to be given
to the evidence.”4 Even after the state had presented evidence of
periodic maintenance, the jury was still free, as defense counsel
suggested at trial, to find that the state had not met its burden in
proving that the machine was properly functioning. In sum, the
instruction did not “shift[] the burden of persuasion to defendant on
[a] crucial element” of the offense. Norton, 171 Ariz. at 158, 829 P.2d
at 348.


      3At  oral argument, Peraza noted that the court in Brown cited
Briscoe v. State, 479 A.2d 1385 (Md. Ct. Spec. App. 1984) as an
example of an unconstitutional instruction even when the
underlying statutory presumption is constitutional. The Briscoe
court found the instruction-based presumption violated defendant’s
rights not because the presumption itself was improper, but because
the blood draw in that case was conducted by a medical professional
as part of a medical procedure, and Maryland state law only
provided a statutory presumption for law enforcement initiated
blood draws, not medically initiated ones. Id. at 1386-87, 1386 n.1.
Thus, the instruction was unconstitutional because it created a
presumption which was not supported by statute in the case,
thereby violating the defendant’s rights. Id. at 1387.
      4 Although
               we find the instruction here was not erroneous,
adding language specifically addressing the effect of the
presumption would avoid any potential burden-shifting issues.


                                  13
                         STATE v. PERAZA
                         Opinion of the Court

¶35          Thus, the evidentiary presumption was permissive and
constitutional so long as “there [was] a rational connection between
the predicate and the presumed facts.” Platt, 130 Ariz. at 574, 637
P.2d at 1077. And, a rational jury could infer from records of
periodic maintenance that the breathalyzer was operating properly,
particularly without further evidence to the contrary. Therefore, this
instruction did not violate Peraza’s due process rights and
consequently was not error.

¶36           Peraza additionally argues that the instruction was
erroneous because it “required the jury to find that the breath
analyzer was operating properly when the state introduced the
evidence, preventing independent evaluation of argument that it
was not.” This requirement would, according to Peraza, violate the
Arizona Constitution, which prohibits judges from “commenting on
the evidence.” State v. Roque, 213 Ariz. 193, ¶ 66, 141 P.3d 368, 388
(2006); see also Ariz. Const. art. VI, § 27. Article VI, section 27 does
indeed prevent judges from interfering with an independent
evaluation of the evidence, Roque, 213 Ariz. 193, ¶ 66, 141 P.3d at
388, but also exhorts judges to “declare the law,” Ariz. Const. art. VI,
§ 27. The subject instruction does not fall under article VI, section
27’s prohibition, however, because it is a correct instruction on the
law and not a judicial comment. See Roque, 213 Ariz. 193, ¶¶ 67-68,
141 P.3d at 388 (concluding judicial comment that testimony stricken
for “not being reliable” not judicial interference); see also O’Haire, 149
Ariz. at 521, 720 P.2d at 122 (no error in giving questioned
instruction “taken almost verbatim” from § 28-1323(A)(5)).

¶37          Further, even assuming arguendo that giving the
instruction was fundamental error, Peraza would fail to establish
any actual prejudice. See State v. Joyner, 215 Ariz. 134, ¶ 31, 158 P.3d
263, 273 (App. 2007). Peraza bears the burden to show he was
prejudiced by the instruction, and because “[f]undamental error
review involves a fact-intensive inquiry . . . the showing required to
establish prejudice . . . differs from case to case.” Henderson, 210
Ariz. 561, ¶ 26, 115 P.3d at 608. Prejudice results only when, “but for
the error, a reasonable fact-finder ‘could have reached a different
result.’” Joyner, 215 Ariz. 134, ¶ 31, 158 P.3d at 273, quoting
Henderson, 210 Ariz. 561, ¶ 27, 115 P.3d at 609.


                                   14
                        STATE v. PERAZA
                        Opinion of the Court

¶38           Even had the jury instruction not been given, a
reasonable jury would still have found Peraza guilty on both counts.
The officer testified Peraza exhibited four of eight cues of
impairment during the field sobriety tests and admitted he had been
drinking. The state presented two breathalyzer test results which
showed Peraza was above the statutory AC limit. The state also
presented evidence that the officer had conducted proper pre-test
procedures to ensure accuracy, as well as evidence of successful
calibration, and expert testimony that the machine was working
properly at the time of Peraza’s AC test. No evidence indicated that
the breathalyzer results were inaccurate or that the machine was
malfunctioning. Instead Peraza only cross-examined the officer and
the state’s expert, and speculated in closing arguments5 the machine
could have been malfunctioning. Thus, in light of all the evidence,
no reasonable jury could have found that the breathalyzer was
malfunctioning, and Peraza has failed to show he was prejudiced by
the instruction. See Joyner, 215 Ariz. 134, ¶ 31, 158 P.3d at 273.

                            Disposition

¶39          For the foregoing        reasons,   we   affirm   Peraza’s
convictions and sentences.




      5 We note that closing arguments of the attorneys are not
evidence. See State v. Gonzales, 105 Ariz. 434, 437, 466 P.2d 388, 391
(1970).


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