Opinion
No. 1 CA-CR 15-0218
10-29-2015
STATE OF ARIZONA, Appellee, v. CHELSEA NICHOLE EATON, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Kathryn L. Petroff Counsel for Appellant
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2013-419567-001
The Honorable Brian D. Kaiser, Judge Pro Tempore
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Kathryn L. Petroff
Counsel for Appellant
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined. WINTHROP, Judge:
¶1 Chelsea Nichole Eaton ("Appellant") appeals her convictions and subsequent placement on probation for two counts of aggravated driving while under the influence of drugs ("DUI"), each a class six undesignated felony. Appellant's counsel has filed a brief in accordance with Smith v. Robbins, 528 U.S. 259 (2000); Anders v. California, 386 U.S. 738 (1967); and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that she has searched the record on appeal and found no arguable question of law that is not frivolous. Appellant's counsel therefore requests that we review the record for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999) (stating that this court reviews the entire record for reversible error). Although this court allowed Appellant to file a supplemental brief in propria persona, she has not done so.
¶2 We have appellate jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and 13-4033(A)(1). Finding no reversible error, we affirm.
We cite the current version of the applicable statutes because no revisions material to our decision have occurred since the date of the offenses.
FACTS AND PROCEDURAL HISTORY
We view the facts in the light most favorable to sustaining the verdicts and resolve all reasonable inferences against Appellant. See State v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994).
¶3 On October 15, 2013, a grand jury issued an indictment, charging Appellant with two counts of aggravated DUI. The State alleged that on June 8, 2012, Appellant drove or was in actual physical control of a vehicle (1) while under the influence of any drug and impaired to the slightest degree, and (2) while a drug defined in A.R.S. § 13-3401 or its metabolite was in her body. See A.R.S. § 28-1381(A)(1), (3). The State further alleged that, as to both counts, Appellant's daughter, who was under fifteen years of age, was in the vehicle at the time. See A.R.S. § 28-1383(A)(3)(a).
¶4 At trial, the State presented the following evidence: At approximately 7:00 p.m. on June 8, 2012, a witness travelling on a two-lane road in Mesa observed a vehicle, later identified as a white Scion, ahead of him moving erratically into oncoming traffic, swerving in and out of lanes, spinning into the dirt on both sides of the road, and travelling at erratic speeds, which the witness estimated reached more than sixty miles per hour in a forty-five mile-per-hour zone. The witness called "911," and a police dispatcher directed him to stay in sight of the Scion from a safe distance. While following the Scion, the witness observed it bump against the curb and the barrier of an overhead freeway, and drive through a four-way stop without slowing, before police arrived and pulled it over near another intersection.
¶5 The dispatcher instructed the witness to drive to a nearby grocery store parking lot, where he provided police with a written statement. As the witness drove away, he saw the Scion's driver, later identified as Appellant, sitting with an infant in her lap.
¶6 Officer Dyas of the Gilbert Police Department responded to the 911 call and located the Scion by its description and license plate. He activated the lights of his unmarked police car and pulled the Scion over near a grocery store lot. The officer noticed that when he confronted the driver (Appellant), she seemed slumped over and relaxed, with her speech slightly slurred. While speaking with Appellant, the officer observed Appellant's two-year-old child crawling around in the rear seat of the Scion.
¶7 Appellant told the officer she had been trying to buckle the child into the safety seat while she drove the vehicle. She denied having consumed any alcohol, but admitted having taken Zoloft, a prescription medication, three hours earlier. The officer, concerned Appellant might be impaired, asked Appellant to perform DUI field tests, and she agreed to do so. As Appellant stepped away from her vehicle, she was swaying and caught hold of the side of the car once to regain her balance and avoid falling to the ground.
¶8 The officer administered horizontal gaze nystagmus ("HGN") and walk-and-turn tests. During the HGN test, Appellant exhibited two of six "clues" of impairment, including having her eye "bounce" while following a moving object. During the walk-and-turn test, Appellant exhibited six of eight clues of impairment, including losing her balance three times, keeping her hands up while walking, failing to touch her heel to her toe, taking the wrong number of steps, and pivoting in the wrong direction upon returning. The officer then stopped the testing out of concern that Appellant might fall and injure herself.
¶9 Officer Dyas placed Appellant under arrest and advised her of her rights pursuant to Miranda. At that time, Appellant advised him she had taken Xanax, rather than Zoloft. Appellant's daughter was placed in the custody of her grandmother, who had been called to the scene, and Appellant's car--which by that time had a flat rear tire on the driver's side--was towed, per departmental policy.
Miranda v. Arizona, 384 U.S. 436 (1966).
¶10 Appellant was transported to the police station, and Officer Dyas, a qualified phlebotomist, drew two vials of her blood at 8:36 p.m. At approximately this time, Appellant advised the officer that she was also taking an anti-depressant drug, which he heard to be "A Surgeline." On a scale of one to ten, with one being completely sober and ten being completely "intoxicated" by medication, Appellant gave herself a "two." Officer Dyas asked Appellant to submit to an additional voluntary forty-five-minute drug recognition exam, but she declined and was released.
Based on the record, it appears Appellant stated she was taking Sertraline.
¶11 Two criminalists testified for the State. Each had tested a sample of Appellant's blood and detected the presence of Benzodiazepine, a central nervous system depressant or sedative, typically found in anti-anxiety drugs. The first criminalist, Kimberly Guerra, noted the specific Benzodiazepine derivatives detected were Diazapam, Lorazepam, and Nordiazapam. The second criminalist, Giang Phan, analyzed Appellant's blood sample to confirm the presence of Benzodiazepine and found twenty-one nanograms per milliliter of Diazepam, also known as Xanax; forty-one nanograms per milliliter of Lorazepam, also known as Ativan; and forty-five nanograms per milliliter of Nordiazepam, a metabolite of Diazepam. Phan conceded the levels of the drugs detected in Appellant's blood were within or below the therapeutic range, but opined that even when used in the correct therapeutic range, the drugs could be similar in effect to alcohol, producing drowsiness, poor coordination, slurring of speech, and lack of divided attention, which could be manifested as an inability to both control speed and stay within a given lane at the same time. Phan could not say with certainty what effect the active chemicals would have had on Appellant on the day she was arrested.
Diazepam, Lorazepam, and Nordiazepam are included as dangerous drugs under A.R.S. § 13-3401(6)(d)(xvi), (xxxiv), and (l), respectively. --------
¶12 Appellant presented two witnesses whose testimony indicated she may have been using prescription medications on the date she was arrested. A records custodian at Banner Health Hospital testified that on June 5, 2012, Appellant was seen as an emergency room patient and given Ativan and Bactrim by the pharmacy. A family nurse practitioner, Mary Quihuis, testified that on March 24, 2012, she wrote Appellant a prescription for Sertraline, the generic equivalent of Zoloft, which is often prescribed for anxiety, obsessive compulsive disorder, depression, or other psychological problems. Although Sertraline may cause dizziness, nausea, headaches, wakefulness, drowsiness, or anxiousness, Quihuis said there are typically no warnings to avoid driving associated with Sertraline/Zoloft because the medicine is not a controlled substance known to cause undue drowsiness in everyone. She conceded, however, that she did not regularly review the caution labels on prescription bottles because she had not learned of any new warnings coming out regarding Zoloft.
¶13 Quihuis also stated somebody who suffers from anxiety might be prescribed both Zoloft and Ativan. Quihuis agreed she did not know what drugs Appellant had taken on the evening in question, and although there was no expected interaction between Zoloft and Ativan and they were commonly used together, it was possible a person taking them in combination could experience dizziness, drowsiness, and blurred vision.
¶14 The jury found Appellant guilty of both counts as charged. The trial court placed Appellant on concurrent terms of eighteen months' supervised probation and ordered that the offenses be undesignated felonies. Appellant filed a timely notice of appeal.
ANALYSIS
¶15 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537, ¶ 30, 2 P.3d at 96. The evidence presented at trial was substantial and supports the verdicts, and the periods of probation were within the statutory limits. See A.R.S. § 13-902(B)(2). Appellant was represented by counsel at all stages of the proceedings and allowed to speak at sentencing. The proceedings were conducted in compliance with her constitutional and statutory rights and the Arizona Rules of Criminal Procedure.
¶16 After filing of this decision, defense counsel's obligations pertaining to Appellant's representation in this appeal have ended. Counsel need do no more than inform Appellant of the status of the appeal and of her future options, unless counsel's review reveals an issue appropriate for petition for review to the Arizona Supreme Court. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Appellant has thirty days from the date of this decision to proceed, if she desires, with a pro per motion for reconsideration or petition for review.
CONCLUSION
¶17 Appellant's convictions and probation are affirmed.