State v. Kuzmanov

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

v.

HRISTO KUZMANOV, Defendant/Appellee.

No. 1 CA-CV 14-0225
FILED 5-14-2015

Appeal from the Superior Court in Maricopa County
No. LC2013-000480-001
The Honorable Jeanne M. Garcia, Judge

VACATED AND REMANDED

COUNSEL

Maricopa County Attorney’s Office, Phoenix
By Andrea L. Kever
Counsel for Plaintiff/Appellant

Law Office of Alane M. Ortega, PLLC, Phoenix
By Alane M. Ortega
Counsel for Defendant/Appellee
 STATE v. KUZMANOV
Decision of the Court

MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which Acting
Presiding Judge Kenton D. Jones and Chief Judge Diane M. Johnsen joined.

K E S S L E R, Judge:

¶1 The State appeals the superior court’s order denying relief on
its petition for special action. For the following reasons, we vacate the
superior court’s order dismissing the State’s special action, and remand this
case for a new trial.

FACTUAL AND PROCEDURAL HISTORY

¶2 The State charged Hristo Kuzmanov (“Kuzmanov”) with two
counts of driving under the influence (“DUI”), each a class 1 misdemeanor.
See Ariz. Rev. Stat. (“A.R.S.”) § 28-1381(A)(1)-(2).1 At the end of trial,
Kuzmanov moved for acquittal, arguing the State failed to meet its burden
of proof because it did not offer evidence that Kuzmanov was advised of
his right to obtain an independent blood test at the time his blood sample
was taken. See Ariz. R. Crim. P. 20(a) (“On motion of a defendant or on its
own initiative, the court shall enter a judgment of acquittal of one or more
offenses charged in an indictment, information or complaint after the
evidence on either side is closed, if there is no substantial evidence to
warrant a conviction.”). The State argued that although a defendant must
be given a reasonable opportunity to obtain an independent blood sample,
the statute does not require authorities to advise the defendant of that right.
The justice court granted Kuzmanov’s motion, and the State filed a petition
for special action with the superior court, on which the superior court
denied relief:

Despite asserting its existence, the State still has not provided
any legal authority that supports its argument made during
the trial. However, [Kuzmanov] provides authority that
answers the logical and practical question of how a person
arrested for driving under the influence would know of their
right to an independent test of their blood[:] “due process

1 Absent material revisions from the relevant date, we cite a statute’s current

version.

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Decision of the Court

requires that a suspect be informed of his right to gather the
evidence prior to its dissipation.”

¶3 The State timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, A.R.S. §§ 12-120.21(A)(1)
and -2101(A)(1), and Ariz. R. Spec. Act. 8(a).

ISSUE AND STANDARD OF REVIEW

¶4 The State argues the superior court abused its discretion in
denying its petition for special action and ruling that the justice court did
not err in granting Kuzmanov’s motion for directed verdict. “A directed
verdict of acquittal is appropriate only where there is no ‘substantial
evidence’ to support each element of the offense.” State v. Sabalos, 178 Ariz.
420, 422, 874 P.2d 977, 979 (App. 1994) (citing Ariz. R. Crim. P. 20). “We
review the trial court’s ruling on a motion for judgment of acquittal for an
abuse of discretion.” State v. McCurdy, 216 Ariz. 567, 573, ¶ 14, 169 P.3d 931,
937 (App. 2007); accord State v. Ross, 214 Ariz. 280, 283, ¶ 21, 151 P.3d 1261,
1264 (App. 2007). “A court abuses its discretion if it commits an error of
law in reaching a discretionary conclusion, it reaches a conclusion without
considering the evidence, it commits some other substantial error of law, or
‘the record fails to provide substantial evidence to support the trial court’s
finding.’” Flying Diamond Airpark, L.L.C. v. Meienberg, 215 Ariz. 44, 50, ¶ 27,
156 P.3d 1149, 1155 (App. 2007) (quoting Grant v. Ariz. Pub. Serv. Co., 133
Ariz. 434, 456, 652 P.2d 507, 529 (1982)). “In determining the sufficiency of
the evidence to withstand a Rule 20 motion, we view the evidence in a light
most favorable to sustaining the verdict.” McCurdy, 216 Ariz. at 573, ¶ 14,
169 P.3d at 937. “We review the court’s statutory interpretation de novo.”
Ross, 214 Ariz. at 283, ¶ 21, 151 P.3d at 1264. “[I]f the superior court accepts
jurisdiction and rules on the merits, as the court did here, we determine
whether it abused its discretion in granting or denying special action relief.”
Files v. Bernal, 200 Ariz. 64, 65, ¶ 2, 22 P.3d 57, 58 (App. 2001).

DISCUSSION

¶5 The State argues the superior court abused its discretion in
holding that a person arrested for driving under the influence must, in
every case, be informed of his or her right to an independent blood test.
Based upon the facts in this case, we agree.

¶6 Kuzmanov argues that the State did not properly inform him
of his right to have his blood independently drawn and tested pursuant to
A.R.S. § 28-1388(C), which states:

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The person tested shall be given a reasonable opportunity to
arrange for any physician, registered nurse or other qualified
person of the person’s own choosing to administer a test or
tests in addition to any administered at the direction of a law
enforcement officer. The failure or inability to obtain an
additional test by a person does not preclude the admission
of evidence relating to the test or tests taken at the direction
of a law enforcement officer.

Based on Kuzmanov’s argument, and relying on Montano v. Superior Court
(State), 149 Ariz. 385, 719 P.2d 271 (1986), the superior court denied the State
relief and upheld the justice court’s grant of a directed verdict. Because
Montano is distinguishable, the court’s reliance on Montano was misplaced.

¶7 This Court has consistently held “that police are not obliged
to inform DUI suspects of their right to independent testing.” State v.
Superior Court (Norris), 179 Ariz. 343, 345, 878 P.2d 1381, 1383 (App. 1994)
(citing State v. Miller, 161 Ariz. 468, 470, 778 P.2d 1364, 1366 (App. 1989);
State v. Ramos, 155 Ariz. 153, 156, 745 P.2d 601, 604 (App. 1987); State v.
White, 155 Ariz. 452, 455, 747 P.2d 613, 616 (App. 1987)). Although a DUI
suspect has a “due process right to gather exculpatory evidence,” State v.
Olcan, 204 Ariz. 181, 183, ¶ 8, 61 P.3d 475, 477 (App. 2003) (citing Van
Herreweghe v. Burke, 201 Ariz. 387, 389, ¶ 8, 26 P.3d 65, 67 (App. 2001)), due
process only requires that the defendant be given a reasonable opportunity to
obtain the exculpatory evidence, see A.R.S. § 28-1388(C). This requirement
“does not necessitate informing the suspect of his right to independent
testing.” Norris, 179 Ariz. at 347, 878 P.2d at 1385; see also Van Herreweghe,
201 Ariz. at 390, ¶ 10, 36 P.3d at 68 (“Petitioner’s lack of knowledge is not a
barrier erected by the State in the defendant’s path to independent
testing.”); Ramos, 155 Ariz. at 156, 745 P.2d at 604 (“Failure of the officer to
inform the [DUI] suspect of his right to an independent test does not
constitute interference with the ability to get an independent test.”). “Police
officers are not required to take the initiative or even assist in procuring any
evidence on behalf of a defendant.” State v. Storholm, 210 Ariz. 199, 201, ¶
14, 109 P.3d 94, 96 (App. 2005) (quoting Smith v. Cada, 114 Ariz. 510, 512,
562 P.2d 390, 392 (App. 1977)). And although the State may not
unreasonably interfere with a defendant’s efforts to obtain an independent
sample, see Ramos, 155 Ariz. at 156, 745 P.2d at 604, Kuzmanov does not
argue that law enforcement did so here, see, e.g., McNutt v. Superior Court, 133 Ariz. 7, 10-11, 648 P.2d 122, 125-26 (1982) (affirming finding of
unreasonable interference with defendant’s attempt to gather exculpatory
evidence where police did not honor defendant’s request to telephone his
attorney); Amos v. Bowen, 143 Ariz. 324, 328, 693 P.2d 979, 983 (App. 1984)

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(same where officer agreed to transport the defendant to the hospital but
delayed the trip by two hours while processing the crime scene).

¶8 As the superior court noted, Montano states that “due process
requires that a suspect be informed of his right to gather [blood] evidence
prior to its dissipation.” 149 Ariz. at 389, 719 P.2d at 275. The principle
from Montano is limited to a specific situation—when the State does not
invoke the implied consent statute: “Our decision that [DUI] suspects must
be informed of their right to an independent chemical alcohol test at their
own expense when the state chooses not to invoke the implied consent statute is
a logical step in the evolution of [DUI] cases.” Id. (emphasis added).
However, “due process has never required and still does not require police
to inform DUI suspects of their right to procure an independent blood
alcohol test when implied consent has been invoked.” Norris, 179 Ariz. at 345-
46, 878 P.2d at 1383-84 (emphasis added) (recognizing Montano as
“exception to the general rule [that] has been consistently limited to its facts
in subsequent cases”); see also Mack v. Cruikshank, 196 Ariz. 541, 546, ¶ 14, 2
P.3d 100, 105 (App. 1999).

¶9 In his supplemental brief, Kuzmanov argues that while the
general rule is that due process does not require the State to inform the
defendant of his rights to independent testing when the State invokes the
implied consent law, the State is obligated to inform the defendant of such
rights when there are unique conditions. Kuzmanov does not identify any
such unique conditions in this case. Accordingly, we will not further
address that argument.

¶10 To the extent that Kuzmanov argues the legislature intended
the independent test advisory to be a statutory requirement, our
interpretation of the statute is consistent with that in Norris, 179 Ariz. at 346-
47, 878 P.2d at 1384-85. We see nothing in the statute requiring all DUI
suspects be advised of their right to independent testing. “Had the
legislature intended to create such a requirement, we are confident that it
would have done so.” Id. at 347, 878 P.2d at 1385; see, e.g., A.R.S. § 28-
1321(B) (“After an arrest a violator shall be requested to submit to and
successfully complete any test or tests [encompassed within the driver’s
implied consent] and if the violator refuses the violator shall be informed that
the violator’s license or permit to drive will be suspended or denied . . . .”
(emphasis added)); A.R.S. § 28-1381(F) (2012) (“At the arraignment, the
court shall inform the defendant that the defendant may request a trial by
jury . . . .” (emphasis added)). As we stated in Norris, “[i]n the absence of
this type of specific language, we decline to create a requirement that police

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must inform all DUI suspects of their right to procure independent testing.”
179 Ariz. at 347, 878 P.2d at 1385.

¶11 Moreover, notwithstanding Kuzmanov’s argument, it
appears from the transcript of the proceedings, as the State attests in its
supplemental brief, that although the signed advisory to independent
testing was never offered into evidence, an officer testified that Kuzmanov
signed the form:

Q. Okay. And once you were at the station, what did you do?

A. Read him his admin per se.

Q. What’s the admin per se?

A. It’s basically a form that states that by driving you’re
agreeing to take tests for law enforcement officials for DUI
investigation.

Q. Did you -- so you explained that test to him --

A. Yes.

Q. -- that form to him?

A. Yes.

Q. You read it to him?

A. Yes.

Q. Did he say that he understood?

A. Yes.

Q. Did he sign the form?

A. Yes. Well, he didn’t sign the admin per se, but he had
signed the independent test.

¶12 Kuzmanov argues that signing the independent test form
does not amount to informing the defendant of his right to independent
testing. He also contends that the officer’s testimony was that he explained
the admin per se form to Kuzmanov, but Kuzmanov did not say he
understood it and that Kuzmanov has a language problem because English

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is not his first language. The record does not support those arguments. The
consent form used in implied consent DUI cases expressly informs a
defendant of his right to independent testing. Moreover, the officer asked
Kuzmanov if he understood the form and the answer was yes. The record
cited by Kuzmanov does not show that his knowledge of English was
limited.

¶13 Consequently, based on the specific facts of this case and the
applicable case law, Kuzmanov’s rights were not violated. Given our
holding, we need not address the other arguments the State raises on
appeal.

CONCLUSION

¶14 For the foregoing reasons, we vacate the superior court’s
order dismissing the State’s special action, and remand this case for a new
trial.

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