Opinion No. 55
from the District Court of the Fourth Judicial District,
State of Idaho, Ada County. Hon. Deborah A. Bail, District
Judge. Judgment of conviction, affirmed.
D. Fredericksen, State Appellate Public Defender; Brian R.
Dickson, Deputy Appellate Public Defender, Boise, for
Lawrence G. Wasden, Attorney General; Kenneth K. Jorgensen,
Deputy Attorney General, Boise, for respondent.
Lucy Belle Diaz appeals from the judgment of conviction
entered after a jury found her guilty of driving while under
the influence of drugs (DUI). Diaz argues the State elicited
improper testimony from two witnesses resulting in
prosecutorial misconduct. Diaz further asserts this
misconduct rises to the level of fundamental error. Because
the testimony from the two witnesses was admissible and not
improper, Diaz has not established either prosecutorial
misconduct or fundamental error. Consequently, we affirm the
district court's judgment of conviction.
FACTUAL AND PROCEDURAL BACKGROUND
police officer stopped Diaz because the officer suspected
Diaz was driving under the influence of alcohol or controlled
substances. A second officer arrived at the scene shortly
thereafter. Diaz stepped out of her car and stated that she
was taking prescription medications.
second officer had Diaz perform field sobriety tests (FST).
Diaz failed the tests. As a result, the FST officer
determined Diaz was operating her motor vehicle while under
the influence of some substance. The FST officer explained to
Diaz that she was under arrest for suspicion of DUI, and the
officer performed an alcohol breath test on Diaz. The test
results did not indicate any breath alcohol. Because the FST
officer suspected Diaz was under the influence of a
controlled substance, he transported Diaz to the police
station to complete a drug recognition evaluation (DRE). A
different officer performed the DRE on Diaz. The DRE officer
suspected Diaz was under the influence of drugs and asked
Diaz to submit to a urinalysis test at the jail. Diaz agreed.
was handcuffed and transported from the police station to
jail. On the way to the jail, Diaz became unconscious and was
taken to the hospital where she was asked to provide a urine
sample. Diaz voluntarily provided an initial sample, but the
amount of urine was insufficient to test. Ultimately, a urine
sample was obtained that indicated the presence of various
controlled substances in Diaz's system. The State charged
Diaz with felony DUI, Idaho Code §§ 18-8004,
18-8005(6), and misdemeanor driving without privileges (DWP),
I.C. § 18-8001(3).
trial, the State called the FST officer and the DRE officer
to testify. The State asked the FST officer to explain the
discussion he had with Diaz regarding obtaining a fluid
sample for drug testing. The officer testified that because
he was a male officer he was not permitted to collect a urine
sample from Diaz and no female officer was present at the
police station to do so. The State then asked: "So what
was the discussion--was there a further discussion with Ms.
Diaz about things at that point?" The FST officer
answered: "There was. There was a discussion of whether
she would submit to a blood draw having Meridian Fire and
Paramedics come take a blood sample from her. She did not
consent to that, but she did agree to provide a [urine]
sample at the jail." Diaz made no contemporaneous
objection to the prosecutor's question of the FST officer
or his response.
the State asked the DRE officer whether Diaz was impaired.
Diaz objected to the prosecutor's question of the DRE
officer on the basis that the DRE officer had not been
qualified as an expert. The objection was overruled. The
State asked the DRE officer: "Based on all the data that
you gathered, going through your checklist, looking at your
matrix, comparing all of that, what if any opinion would you
be able to form about whether Ms. Diaz was impaired by any
drugs that night?" The DRE officer testified:
Well, I came to the determination that she was impaired while
she was operating that vehicle. And just under the DRE status
is a drug defined as any substance that when taken into the
human body can impair the ability of a person who can operate
a vehicle safely. You know, I felt operating the vehicle at
that time at the stop, she was impaired. I came to the
conclusion she was impaired on CNS depressants, CNS
stimulants and narcotic analgesics.
jury found Diaz guilty of felony DUI and misdemeanor DWP.
After the jury returned its verdict, Diaz admitted to two
sentencing enhancements. For the DUI, the district court
imposed a unified sentence of fifteen years, with three years
determinate, and retained jurisdiction. For the DWP, Diaz was
sentenced to ninety days of jail with credit for time served,
to run concurrently with the DUI sentence. Diaz timely
STANDARD OF REVIEW
State v. Perry, 150 Idaho 209, 245 P.3d 961 (2010),
the Idaho Supreme Court clarified the fundamental error
doctrine as it applies to allegations of prosecutorial
misconduct. Where a defendant demonstrates that prosecutorial
misconduct has occurred, and such misconduct was followed by
a contemporaneous objection by defense counsel, such error
shall be reviewed for harmless error in accordance with
Chapman. Where a constitutional violation occurs at
trial, and is followed by a contemporaneous objection, a
reversal is necessitated, unless the State ...