                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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, Appellee,

                                        v.

                   KEVIN RYAN CHANDLER, Appellant.

                             No. 1 CA-CR 15-0483
                               FILED 6-2-2016


           Appeal from the Superior Court in Maricopa County
                        No. LC 2015-000144-001
                    The Honorable Crane McClennen

                                  AFFIRMED


                                   COUNSEL

City of Tempe Prosecutor’s Office, Tempe
By Andrew M. Davidson
Counsel for Appellee

Law Offices of Neal W. Bassett, Phoenix
By Neal W. Bassett
Counsel for Appellant
                           STATE v. CHANDLER
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Patricia A. Orozco delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Kenton D. Jones joined.



O R O ZC O, Judge:

             Kevin Ryan Chandler appeals the superior court’s judgment
affirming his convictions in Tempe Municipal Court of two charges of
driving while under the influence. He argues the municipal court erred by
denying his request to personally testify that his blood alcohol content
(BAC) was below .08%. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

             Officer Casey Marsland of the Tempe Police Department
stopped Chandler after he saw his vehicle make an improper right-hand
turn. Officer Marsland noticed Chandler’s eyes were bloodshot and
watery, his “speech was heavily slurred as he spoke,” and there was an
“odor of alcohol coming from the vehicle.”

             At trial, Officer Marsland testified that when he asked
Chandler to step out of the vehicle, Chandler “seemed very unsteady” and
“used his hands on the door [of the vehicle] for support as he stood up
completely to his feet.” Chandler refused to perform field sobriety exercises
and was arrested for driving under the influence (DUI).

             After Chandler was transported to the Tempe Police
Department, he submitted to a breathalyzer test using the Intoxilyzer 8000.
Officer Marsland obtained two samples from Chandler. The results from
Chandler’s breath tests indicated blood alcohol content (BAC) at .162 and
.157.

              Prior to trial, Chandler filed a motion in limine requesting he
be allowed to testify as “to his blood alcohol level at the time of the arrest.”
The trial court denied the motion, finding that Chandler lacked the requisite
expertise to testify about his BAC at the time of the arrest, but ordered
Chandler could testify that “he felt that he was not impaired.”




                                       2
                            STATE v. CHANDLER
                             Decision of the Court

               At trial, Chandler testified that on the evening of his arrest, he
drank two glasses of beer at a restaurant and thereafter had an energy drink
at a party. Chandler also called an expert witness, Erik Brown, who testified
that he is trained in blood alcohol and breath alcohol analysis and is
certified as an operator and a quality assurance specialist for the Intoxilyzer
8000. Brown testified that based upon the time Chandler said he consumed
alcohol, the standard size of the drinks he admitted drinking and the
elapsed time until the breathalyzer test, Chandler should not have had any
alcohol in his system at the time the test was administered.

               The jury found Chandler guilty of (1) driving or being in
actual physical control of a vehicle while under the extreme influence of
intoxicating liquor, (2) driving or actual physical control of a vehicle while
under the influence, and (3) the lesser-included offense of driving while
under the influence with a BAC of .08 or more within two hours or driving.
Chandler appealed to the superior court. The superior court held the trial
court did not err in denying Chandler’s motion in limine, affirmed
Chandler’s first two convictions, but vacated the third conviction.
Chandler timely appealed. We have jurisdiction pursuant to Article 6,
Section 9, of the Arizona Constitution, and Arizona Revised Statutes
(A.R.S.) sections 12-120.21.A.1, 13-4031 and -4033.A.1 (West 2016).1 Finding
no reversible error, we affirm.

                                DISCUSSION

               Chandler contends that Arizona’s DUI statutes violate his
state and federal constitutional right to testify that he was innocent because
the trial court did not allow him to testify as to his specific BAC.

               The constitutionality of a statute is a matter of law which we
review de novo. State v. Gilfillan, 196 Ariz. 396, 402 (App. 2000). The United
States Supreme Court has held that a defendant has a fundamental right to
testify under the Constitution. Rock v. Ark., 483 U.S. 44, 51 (1987) (“The right
to testify on one’s own behalf at a criminal trial has sources in several
provisions of the constitution. It is one of the rights that are essential to due
process of law in a fair adversary process.’”) (quoting Faretta v. Cal., 422 U.S.
806, 819 n.15 (1975)); see also State v. Gulbrandson, 184 Ariz. 46, 64 (1995). The




1     We cite the current version of applicable statutes when no revisions
material to this decision have since occurred.



                                        3
                           STATE v. CHANDLER
                            Decision of the Court

right of the accused to testify on his own behalf is also guaranteed by the
Arizona Constitution. Ariz. Const. art. 2, § 24

              Although a defendant has a constitutional right to testify,
such right is not without limitation and may, in appropriate cases, be
subordinated to accommodate the legitimate interests in the criminal trial
process. Rock, 483 U.S. at 55; accord Gilfillan, 196 Ariz. at 402. Although
Chandler argues the DUI statutes are unconstitutional insofar as they did
not permit him to testify, the legal basis for the denial of his motion in
limine is Rule 701, Arizona Rules of Evidence, not the DUI statutes.

                In creating a rule of evidence that may limit a defendant’s
constitutional right to testify, the state must assess whether the limitation is
justified by the interests served by the rule. Rock, 483 U.S. at 56. Rule 701,
Arizona Rules of Evidence, allows a lay witness such as Chandler to testify
only to opinions that are “(a) rationally based on the witness’s perception,
(b) helpful to clearly understanding the witness’s testimony or to
determining a fact in issue; and (c) not based on scientific, technical, or other
specialized knowledge within the scope of Rule 702.” Chandler has no
expertise in BAC or BAC testing, and his own subjective perception of how
he felt at the time of his arrest could not rationally serve as the basis for any
testimony he might give of his exact BAC. See Ariz. R. Evid. 701; see also
Fuenning v. Super. Ct., 139 Ariz. 590, 598 (1983) (finding that
“[p]ragmatically, there may be no way for a particular drinker to know the
precise moment he reaches the physiologic point at which driving or
controlling a vehicle will violate the law.”).

                Chandler was permitted to testify that he felt he was not
impaired, because that opinion was rationally based on his own perception.
See Ariz. R. Evid. 701(a). However, the opinion Chandler sought to offer
regarding his exact BAC at the time of arrest is of the nature of testimony
that may be admitted only upon proper foundation under Rule 702. See
State ex rel. McDougall v. Johnson, 181 Ariz. 404, 407 (App. 1994). Under Rule
702, “[a] witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an opinion.” In
the present case, Chandler does not purport to meet the requirements to
qualify as an expert under Rule 702, so he could not testify as to his exact
BAC. Therefore, the court properly limited Chandler’s testimony to his lay
opinions rationally related to his own perception.




                                       4
                         STATE v. CHANDLER
                          Decision of the Court

                             CONCLUSION

              We find that the trial court did not err in refusing to allow
Chandler’s testimony as to his exact BAC. For the foregoing reasons, we
affirm the superior court’s judgment affirming Chandler’s convictions.




                                 :AA




                                       5
