NOT FOR PUBLICATION

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.

MEMORANDUM DECISION

ECKERSTROM, Chief Judge.

¶ 1 Following a jury trial, appellant Richard Poethig was convicted of two counts of aggravated driving under the influence of an intoxicant (DUI) in violation of A.R.S. § 28-1383(A)(1). On appeal, he challenges only the denial of his motion to suppress the results of his breath test or, in the alternative, to dismiss the charges against him. We affirm for the reasons that follow.

Factual and Procedural Background

¶ 2 When reviewing a trial court's ruling on a motion to dismiss or suppress, we consider only the materials presented at the evidentiary hearing, which we view in the light most favorable to sustaining the trial court's order. See State v. Moran, 232 Ariz. 528, ¶ 2, 307 P.3d 95, 98 (App. 2013); State v. Rosengren, 199 Ariz. 112, ¶ 2, 14 P.3d 303, 306 (App. 2000). In lieu of testimony, the parties here stipulated to the admission of a police video recording and report to resolve the issues presented in the motion. The report indicates that in the early morning hours of July 7, 2012, an officer of the University of Arizona Police Department arrested Poethig on suspicion of DUI. Poethig consented to a breathalyzer test that indicated his blood alcohol concentration (BAC) was .16. When Poethig requested an independent test to determine his BAC, the officer transported him to the University of Arizona Medical Center (UMC).

¶ 3 Hospital officials allowed Poethig to use the restroom and provided him with a urine specimen container, which he proceeded to fill. He stated, however, that he wanted to take a breathalyzer test. The hospital exclusively "uses blood specimens to determine alcohol content"; it "does not test urine for BAC." When a nurse informed Poethig that no breathalyzer test was available at the hospital and instead offered to draw his blood, Poethig refused. He then signed a form acknowledging he had refused a blood test and "only want[ed] another Intoxilyzer test." The hospital subsequently discarded the urine sample, and the arresting officer transported Poethig to jail.

¶ 4 On this record, the trial court found Poethig had been provided with and had refused a reasonable opportunity to obtain independent, potentially exculpatory evidence of his BAC. The court therefore found no violation of Poethig's statutory or due process rights and denied the motion. This appeal followed the judgment and disposition.

Discussion

¶ 5 Poethig raises an argument not presented to the trial court as a ground for suppression or dismissal. In his motion and at the hearing that followed, he sought relief based on the police officer's failure to facilitate an independent breath test, as Poethig specifically had requested. The motion also argued, in passing, that the officer had "unreasonably interfered" with Poethig's right to an independent test "by handcuffing and removing [him] from the UMC emergency room before the urine test was completed," advancing a theory that is both unsupported and contradicted by the record.1 Poethig now contends the officer had an affirmative duty to seize and preserve the urine sample for Poethig's own testing, "even if not requested to do so."

¶ 6 "[T]he general law in Arizona [is] that a party must timely present his legal theories to the trial court so as to give the trial court an opportunity to rule properly." Payne v. Payne, 12 Ariz.App. 434, 435, 471 P.2d 319, 320 (1970); accord State v. Deschamps, 105 Ariz. 530, 533, 468 P.2d 383, 386 (1970). "Suppression issues" in particular "will be waived where not timely treated." State v. Griffin, 117 Ariz. 54, 56, 570 P.2d 1067, 1069 (1977); accord State v. Baggett, 232 Ariz. 424, n.10, 306 P.3d 81, 85 n.10 (App. 2013); see Ariz. R. Crim. P. 16.1(c). When a party fails to raise a legal theory below, we review only for fundamental error. State v. Tarkington, 218 Ariz. 369, ¶ 6, 187 P.2d 94, 95 (App. 2008). "Fundamental error is `error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.'" State v. Newell, 212 Ariz. 389, ¶ 34, 132 P.3d 833, 842 (2006), quoting State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005). To be entitled to appellate relief under this standard, a defendant carries the burden of showing an error occurred, it was fundamental, and it resulted in prejudice. State v. Valverde, 220 Ariz. 582, ¶ 12, 208 P.3d 233, 236 (2009).

¶ 7 Here, Poethig fails to demonstrate any error. Although he characterizes his duty argument as a "logical step in the evolution of DUI case[law]," he does not explain why a police officer would have an affirmative duty to seize an existing sample of a defendant's bodily fluids for the latter's own testing when the defendant specifically has waived his right to such testing. Indeed, as the state points out, we have held that "`[p]olice officers are not required to take the initiative or even to assist in procuring any evidence on behalf of a defendant.'" Van Herreweghe v. Burke, 201 Ariz. 387, ¶ 10, 36 P.3d 65, 68 (App. 2001), quoting Smith v. Cada, 114 Ariz. 510, 512, 562 P.2d 390, 392 (App. 1977); accord State v. Nevarez, 687 Ariz. Adv. Rep. 6, ¶ 20 (Ct. App. May 30, 2014) (defendant responsible for arranging test); State v. Olquin, 216 Ariz. 250, ¶ 17, 165 P.3d 228, 231 (App. 2007) (state not required to preserve sample, but need only provide reasonable opportunity to arrange independent test). Thus, Poethig's novel duty argument does not logically extend our jurisprudence, but rather substantially departs from it.

¶ 8 Furthermore, assuming arguendo that a DUI arrestee has a statutory right under A.R.S. § 28-1388(C)2 to choose the means of testing for BAC, a denial of the preferred testing method does not necessarily rise to the level of fundamental error. Due process guarantees a defendant "`a fair chance'" to collect and independently test ephemeral evidence of his BAC, State v. Montano, 149 Ariz. 385, 389, 719 P.2d 271, 275 (1986), quoting Smith v. Ganske, 114 Ariz. 515, 517, 562 P.2d 395, 397 (App. 1977), and that right was afforded here. Poethig could have preserved independent evidence of his BAC either by taking a blood test, as the nurse had offered, or by asking hospital officials to store his urine sample for later testing. Although Poethig asserts in his opening brief that he was "deprived of his right to a fair trial" by being "deprived of the opportunity to test for potentially exculpatory evidence," he acknowledges in his reply brief that he "is not arguing that he was not given a reasonable opportunity to obtain an independent sample." The alleged negligence of the police officer in failing to seize and preserve the urine sample did not take away a right essential to Poethig's defense or deny him the possibility of a fair trial. Accordingly, we find no basis to disturb the trial court's ruling.

Disposition

¶ 9 For the foregoing reasons, the judgment and disposition are affirmed.