State v. Branin ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MICHAEL BRANIN, Appellant.
No. 1 CA-CR 16-0496
FILED 4-4-2017
Appeal from the Superior Court in Maricopa County
No. CR2015-129010-001
The Honorable David V. Seyer, 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 Jeffrey L. Force
Counsel for Appellant
STATE v. BRANIN
Decision of the Court
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Peter B. Swann and Judge Donn Kessler joined.
C A T T A N I, Judge:
¶1 Michael Branin appeals his convictions of two counts of
aggravated driving under the influence (“DUI”) and the resulting
sentences. Branin’s counsel filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969),
certifying that, after a diligent search of the record, he found no arguable
question of law that was not frivolous. Branin was given the opportunity
to file a supplemental brief, but did not do so. Counsel asks this court to
search the record for reversible error. See State v. Clark, 196 Ariz. 530, 537,
¶ 30 (App. 1999). After reviewing the record, we affirm Branin’s
convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND
¶2 Early one morning in April 2015, Phoenix Police Officer Nosal
pulled Branin over for a traffic violation. Officer Nosal noticed Branin had
bloodshot eyes and an odor of alcohol coming from his breath. After Branin
failed three field sobriety tests, he was arrested and transported to a police
checkpoint. There, Branin was read his Miranda1 rights and informed of
Arizona’s implied consent law under Arizona Revised Statutes (“A.R.S.”) §
28-1321,2 and he consented to a blood draw. Testing showed he had a blood
alcohol concentration (“BAC”) of 0.164.
¶3 Branin’s driver’s license was suspended at the time because
of a DUI in December 2014. During the proceedings for that offense, Branin
was informed that his license would be suspended for at least 90 days, and
that reinstatement would require compliance with several requirements.
Over the next few months, the Motor Vehicle Division sent Branin three
notices of suspension advising him of the reinstatement requirements.
1 Miranda v. Arizona, 384 U.S. 436 (1966).
2 Absent material revisions after the relevant date, we cite a statute’s
current version.
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STATE v. BRANIN
Decision of the Court
Although the initial 90-day period had passed, Branin had not completed
the reinstatement requirements, so his license remained suspended at the
time of the instant DUI.
¶4 The State charged Branin with two counts of aggravated DUI:
(1) driving while impaired with a suspended license and (2) driving with a
BAC of 0.08 or more with a suspended license. A.R.S. §§ 28-1381(A)(1)
(“impaired to the slightest degree”), (A)(2) (“alcohol concentration of 0.08
or more within two hours of driving”), -1383(A)(1) (DUI committed “while
the person’s driver license or privilege to drive is suspended”); see also State
v. Williams, 144 Ariz. 487, 489 (1985) (noting the additional requirement that
“the driver knew or should have known that the license has been
suspended”). Branin testified at trial and admitted that he had been driving
while impaired by alcohol, and he did not contest that his BAC level was
above .08. He claimed, however, that he did not know at the time that his
license was suspended.
¶5 A jury found Branin guilty as charged. The superior court
sentenced Branin to concurrent terms of four months’ imprisonment
followed by two years’ probation, with credit for one day of presentence
incarceration. Branin timely appealed.
DISCUSSION
¶6 We have read and considered counsel’s brief and have
reviewed the record for reversible error. See Leon, 104 Ariz. at 300. We find
none.
¶7 Branin was present and represented by counsel at all stages
of the proceedings against him. The record reflects that the superior court
afforded Branin all his constitutional and statutory rights, and that the
proceedings were conducted in accordance with the Arizona Rules of
Criminal Procedure. The court conducted appropriate pretrial hearings,
and the evidence presented at trial and summarized above was sufficient
to establish the elements of both charges, including that Branin knew or
should have known that his license was suspended. Branin’s sentences fall
within the range prescribed by law, with proper credit given for
presentence incarceration.
CONCLUSION
¶8 Branin’s convictions and sentences are affirmed. After the
filing of this decision, defense counsel’s obligations pertaining to Branin’s
representation in this appeal will end after informing Branin of the outcome
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STATE v. BRANIN
Decision of the Court
of this appeal and his future options, unless counsel’s review reveals an
issue appropriate for submission to the Arizona Supreme Court by petition
for review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984). On the court’s
own motion, Branin has 30 days from the date of this decision to proceed,
if he desires, with a pro se motion for reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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