THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

(Not for Publication — Rule 111, Rules of the Arizona Supreme Court)

MEMORANDUM DECISION

DOWNIE, Judge.

¶1 Kenneth Glenn Collins appeals his convictions and sentences for two counts of aggravated DUI. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY1

¶2 At approximately 2:30 a.m., Officer Nevitt discovered Collins asleep at the wheel of a vehicle stopped at an intersection. The engine was running, and the transmission was in gear. Officer Nevitt tapped on the window to awaken Collins and told him to put the vehicle in park. After smelling alcohol on Collins' breath, Officer Nevitt called Officer Codding, who administered field sobriety tests. Collins, who did not have a valid driver's license, was arrested and taken to a DUI van, where he received Miranda2 warnings and consented to a blood draw. His blood alcohol concentration was .209.

¶3 Collins was indicted on two counts of aggravated DUI, class four felonies. A three-day jury trial ensued. Officer Codding testified that Collins told him he was driving his friend, who was passed out in the passenger seat, home. The phlebotomist testified that Collins told him he had been driving home from a club. A forensic scientist testified about Collins' blood alcohol content, and an investigator from the motor vehicle department testified that Collins' driver's license was suspended on the date of his arrest. On the third day of trial, Collins' release status was revoked because Officer Codding witnessed him driving to court.3

¶4 Collins testified that although he had been drinking on the night in question, he did not drive. He told the jury that he was waiting for someone to pick him up, that the transmission was in park, and that he was using the vehicle to keep warm while waiting. He also denied telling Officer Codding he had been driving but admitted knowing that his license was suspended.

¶5 The jury returned guilty verdicts on both counts. Collins was sentenced to five months' imprisonment and three years of supervised probation for each count. The sentences were ordered to run concurrently, with 35 days' presentence incarceration credit.

¶6 Collins timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and -4033(A).

DISCUSSION

¶7 Collins raises one issue on appeal: he contends the court erred in admitting his statements because they were involuntary. Because Collins did not raise this argument below, we review only for fundamental error.4 See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (citation omitted). "To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice." Id. "Fundamental error is error going to the foundation of the case, error that takes from the defendant a right essential to his defense, an error of such magnitude that the defendant could not possibly have received a fair trial." State v. Ruggiero, 211 Ariz. 262, 268, ¶ 25, 120 P.3d 690, 696 (App. 2005) (internal quotation marks omitted).

¶8 Collins contends for the first time on appeal that the circumstances surrounding his statements "suggested involuntariness." However, the defendant has the burden of raising any issue of voluntariness. State v. Alvarado, 121 Ariz. 485, 487, 591 P.2d 973, 975 (1979). Absent a defense request, trial courts are not required to conduct hearings to determine the voluntariness of a defendant's statement. Wainwright v. Sykes, 433 U.S. 72, 86 (1977); see also Alvarado, 121 Ariz. at 487, 591 P.2d at 975.

¶9 Collins did not request a voluntariness hearing. At no time during trial did he claim his statements were involuntary and instead denied making the statements at all.

¶10 Collins asserts that having a blood alcohol concentration of .209 made him more vulnerable to police pressure and questioning. "Proof that the accused was intoxicated at the time he made the statement will not, without more, prevent the admission of his statement." State v. Hicks, 133 Ariz. 64, 72, 649 P.2d 267, 275 (1982). "Blood alcohol level is just one factor to consider in the totality of the circumstances." Id. Collins' intoxication "may be relevant to whether he was susceptible to coercive police conduct, but it does not by itself render the confession involuntary." State v. Londo, 215 Ariz. 72, 76, ¶ 13, 158 P.3d 201, 205 (App. 2006). Further, Collins has not argued there were threats or promises by the officers — a necessary predicate for finding statements involuntary. See id. (citation omitted). Although he did not challenge the voluntariness of his statements, the court instructed the jury not to "consider any statements made by the defendant to a law enforcement officer unless you determine beyond a reasonable doubt that the defendant made the statements voluntarily." (Emphasis added.) We presume that jurors follow their instructions. State v. Velazquez, 216 Ariz. 300, 312, ¶ 50, 166 P.3d 91, 103 (2007).

CONCLUSION

¶11 We affirm Collins' convictions and sentences.

MAURICE PORTLEY, and PHILIP HALL, Judges, concurs.