NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and David A. Sullivan
Isabel G. Garcia, Pima County Legal Defender By Robb P. Holmes
Ramon Hernandez-Hernandez appeals from his convictions of aggravated
driving under the influence (DUI) while his driver license was suspended, revoked, or
restricted and aggravated DUI having committed or been convicted of two or more DUI
offenses within the preceding eighty-four months. He argues the trial court erred by
denying his motion for a judgment of acquittal and by precluding him from introducing
his medical records at trial as a sanction for his failure to timely disclose them. Finding
We view the evidence in the light most favorable to sustaining the jury’s
verdicts. See State v. Haight-Gyuro
, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In
October 2009, a Pima County Sheriff’s deputy saw a car being driven by Hernandez-
Hernandez emitting “sparks coming from the passenger side” due to damage to the car.
The damage to the car also was causing the roadway to be gouged as Hernandez-
Hernandez drove. The deputy stopped the car and noted when he spoke to Hernandez-
Hernandez that he had “red, watery, bloodshot eyes” and slightly slurred speech. The
deputy then contacted the Tucson Police Department (TPD) and requested that officers
respond because “it was their jurisdiction.”
When a responding TPD officer approached the car to speak to Hernandez-
Hernandez, he had to “introduce [himself] twice . . . before [he] actually got any type of
reaction.” He noted that Hernandez-Hernandez seemed “very confused, dazed.” The
officer conducted a horizontal gaze nystagmus test and Hernandez-Hernandez exhibited
six of six cues “in addition to vertical gaze nystagmus.” Those cues indicate neurological
dysfunction, which might be caused by alcohol or other drugs, including diazepam.
Hernandez-Hernandez told the officer that he took several medications for
“back pain and for pain to his legs,” including morphine, Percocet, Neurontin, and
diazepam. Analysis of Hernandez-Hernandez’s blood found no alcohol but, consistent
with his statement about his medications, showed the presence of diazepam, nordiazepam
(a metabolite of diazepam), and morphine. The officer and a criminalist testified those
medications affect the central nervous system and cause impairment including
drowsiness, poor coordination, and the inability to concentrate. Hernandez-Hernandez
testified he had taken the medications for many years and had not been impaired.
Hernandez-Hernandez told police that a black Jeep had struck his car at a
nearby intersection earlier that evening, causing the damage. He stated that he had called
police but decided to drive home when they did not respond after approximately ninety
minutes. A TPD officer investigated the intersection and found in a dirt lot debris from
an apparent collision between a white vehicle like Hernandez-Hernandez’s and a blue
vehicle, as well as a telephone pole that the officer concluded had been struck by the
white vehicle. Hernandez-Hernandez claimed at trial that he had been “struck by another
vehicle,” black or dark blue in color, and had been “spun out in a parking lot.”
Following a two-day jury trial, Hernandez-Hernandez was convicted of the
offenses described above. The trial court sentenced him to concurrent, four-month prison
terms and placed him on a three-year term of probation. This appeal followed.
Hernandez-Hernandez first claims the trial court erred by denying his
motion for a judgment of acquittal made pursuant to Rule 20, Ariz. R. Crim. P. A motion
for judgment of acquittal shall be granted where “there is no substantial evidence to
warrant a conviction.” Ariz. R. Crim. P. 20(a). When a trial court denies a Rule 20
motion, the reviewing court must determine de novo “‘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.’” State v.
, 226 Ariz. 559, ¶ 16, 250 P.3d 1188, 1191 (2011), quoting State v. Mathers
Ariz. 64, 66, 796 P.2d 866, 868 (1990). “Substantial evidence” includes both direct and
circumstantial evidence. Id.
Further, “‘[w]hen reasonable minds may differ on
inferences drawn from the facts, the case must be submitted to the jury, and the trial
judge has no discretion to enter a judgment of acquittal.’” Id.
¶ 18, quoting State v. Lee
189 Ariz. 590, 603, 944 P.2d 1204, 1217 (1997) (alteration in West
Relevant here, to convict Hernandez-Hernandez of aggravated DUI, the
state was required to prove that he was driving or in actual physical control of a vehicle
while “impaired to the slightest degree” by “the influence of . . . any drug.”1 A.R.S.
§§ 28-1381(A)(1); 28-1383(A)(1), (2). Hernandez-Hernandez argues there was
insufficient evidence that he was impaired by the drugs found in his blood because the
“levels [of those drugs] were not quantified and the witnesses presented no testimony
correlating prescription medication levels with impairment.” But he cites no authority,
1Hernandez-Hernandez does not argue the state’s evidence was deficient as to any
element of aggravated DUI other than impairment.
and we find none, suggesting such testimony is required when, as here, there is ample
As we noted above, a police officer and criminalist testified that the
medications found in Hernandez-Hernandez’s bloodstream could cause impairment. And
Hernandez-Hernandez had several outward signs of impairment—most notably slurred
speech and confusion—and displayed six out of six cues on the horizontal gaze
nystagmus test. Moreover, the evidence established he recently had been involved in a
motor vehicle accident, and the jury was free to reject his claim the accident had been
caused by another vehicle. See State v. Lowery
, 230 Ariz. 536, ¶ 6, 287 P.3d 830, 833
(App. 2012) (jury free to discredit defendant’s testimony); see also State v. Clemons
Ariz. 555, 556-57, 521 P.2d 987, 988-89 (1974) (“No rule is better established than that
the credibility of the witnesses and the weight and value to be given to their testimony are
questions exclusively for the jury.”). Finally, Hernandez-Hernandez’s decision to drive a
vehicle that was so damaged as to be emitting sparks and damaging the roadway, creating
an obvious hazard, also supports a finding that he had been impaired. In light of this
evidence, the jury readily could conclude Hernandez-Hernandez was impaired and that
the drugs found in his blood caused that impairment. Cf. State ex rel. McDougall v.
, 168 Ariz. 128, 132, 811 P.2d 791, 795 (App. 1991) (defendant’s “failure to stop
at a red light and speeding coupled with his poor performance of the field sobriety tests
and physical signs of impairment constituted substantial evidence of impairment”).
Accordingly, the trial court did not err in denying Hernandez-Hernandez’s Rule 20
On the day before trial, Hernandez-Hernandez disclosed approximately
four-hundred pages of his medical records, stating those records would bolster his
testimony “about why he’s taking those medications and what they do for him.” The trial
court precluded him from introducing the records, rejecting Hernandez-Hernandez’s
argument that continuing the trial would be a proper remedy. On appeal, Hernandez-
Hernandez argues the court’s decision “deprived [him] of his right to present a complete
Pursuant to Rule 15.6(c), Ariz. R. Crim. P., all disclosure “shall be
completed at least seven days prior to trial.” To present evidence not timely disclosed by
this final deadline, a party must obtain leave from the trial court. Ariz. R. Crim. P.
15.6(d). If the court does not find the undisclosed material or information sought to be
used could not have been discovered or disclosed in compliance with the rules, “the court
may either deny leave or grant a reasonable extension to complete the disclosure and
leave to use the material or information.” Id.
A party who does not meet the requisite
burden is not subject to “automatic preclusion of the evidence whose admission is being
sought.” Ariz. R. Crim. P. 15.6 committee cmt. Rather, “the court retains discretion to
2Hernandez also suggests that his conviction is “not . . . in the interest of public
policy” because he had a prescription for the medication and he should not be required to “disregard [his] doctors’ orders and stop taking [his] prescribed medications” in order “to retain [his] license to drive and thereby continue participating fully in society.” Whether to punish or provide an exemption for those who drive while impaired by prescription medication is a question properly left to our legislature.
impose at least one of the Rule 15.7[, Ariz. R. Crim. P.,] sanctions,” including preclusion.
; see also State v. Scott
, 24 Ariz. App. 203, 205, 537 P.2d 40, 42 (1975) (trial court has
discretion to determine appropriate relief for Rule 15 violation). “The decision whether
to impose sanctions and the choice of sanctions for a discovery violation is within the
sound discretion of the trial court.” State v. Delgado
, 174 Ariz. 252, 256, 848 P.2d 337,
341 (1993). And, “[a]bsent a showing of prejudice, the trial court’s decision will not be
We find no abuse of discretion. There is no question that Hernandez-
Hernandez disclosed the medical records well after the deadlines imposed by the rules of
criminal procedure. See
Ariz. R. Crim. P. 15.2(d), 15.6(c). And he did not, as required
by Rule 15.6(d), seek leave of the court to disclose and use the additional material.
Hernandez-Hernandez offered no reason for the late disclosure, acknowledging he had
the records “for some[ ]time.” See State v. Fenton
, 21 Ariz. App. 193, 194, 517 P.2d
1086, 1087 (1974) (reason for late disclosure relevant to sanction). We recognize that
preclusion is “rarely an appropriate sanction,” Delgado
, 174 Ariz. at 257, 848 P.2d at
342, and that a continuance would have been a less onerous sanction for Hernandez-
Hernandez. But he already had sought and obtained two continuances of the trial. The
state has an interest in “the efficient administration of justice,” United States v. Ruiz
U.S. 622, 631 (2002), and it should not be forced to endure delays occasioned only by the
defendant’s lack of diligence. Furthermore, any continuance would have placed a
significant burden on the state to review voluminous medical records and determine
whether to retain an expert to either review those records before trial or testify about the
contents of those records. See Fenton
, 21 Ariz. App. at 194, 517 P.2d at 1087 (prejudice
to opposing party relevant to sanction).
In any event, Hernandez-Hernandez has not demonstrated resulting
prejudice. See Delgado
, 174 Ariz. at 256, 848 P.2d at 341. Although the medical records
would have corroborated his testimony that he had been prescribed the medications for
medical conditions and had taken them for many years, those facts were not in dispute.
Additionally, he does not suggest those records would have demonstrated he had a
tolerance or resistance to the prescribed medications. Thus, as the trial court pointed out,
the records would not have meaningfully bolstered his defense.
Hernandez-Hernandez cites several cases for the proposition that a
continuance is the appropriate sanction for his late disclosure. Those cases do not
support his argument. Indeed, one of them, State v. Krone
, 182 Ariz. 319, 897 P.2d 621
(1995), further supports our conclusion that preclusion of the evidence is an appropriate
remedy. The court there noted that preclusion is appropriate when the late disclosure
“would have caused hardship.” Id.
at 322, 897 P.2d at 624. The remaining cases cited by
Hernandez-Hernandez are readily distinguishable. See State v. Smith
, 140 Ariz. 355, 359,
681 P.2d 1374, 1378 (1984) (continuance appropriate when undisclosed witness “vital to
the defendant”; late disclosure occurred because “defendant’s attorney honestly believed
[witness] was not available and could not be located”); State v. Castaneda
, 111 Ariz. 264,
266, 528 P.2d 608, 610 (1974) (denial of motion in limine appropriate when “[d]efense
counsel did not allege that [defendant]’s case was prejudiced by granting a continuance
rather than precluding the evidence entirely”).
For the reasons stated, Hernandez-Hernandez’s convictions and sentences
/s/ Michael Miller MICHAEL MILLER, Judge
Milne/Kelvin Grove School District 91 MEDICATION AUTHORIZATION Please Note: Only one medication per form . (All information in this section must be completed) STUDENT NAME________________________________ Date of Birth _________Grade _____ ALLERGIES (Please List)_________________________ Current weight of Student_________ Purpose of Medication _______________________________
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