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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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.

MARK STEVEN FORISTER, Appellant. 

Nos. 1 CA-CR 15-0385; 1 CA-CR 15-0387; 1 CA-CR 15-0388

(Consolidated) 

Appeal from the Superior Court in Maricopa County 

Nos. CR2009-120779-001 DT; CR2009-170577-001 DT; CR 2013-459534-001 DT 

The Honorable Brian Kaiser, 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. FORISTER 

Decision of the Court 

2

MEMORANDUM DECISION 

Judge Kenton D. Jones delivered the decision of the Court, in which 

Presiding Judge Diane M. Johnsen and Judge Patricia A. Orozco joined. 

J O N E S, Judge: 

¶1 Mark Forister appeals his convictions and sentences for four 

counts of aggravated driving under the influence (DUI), all class four 

felonies, as well as the sentences imposed after his probation for prior 

offenses was revoked. After searching the entire record, Forister’s defense 

counsel has identified no arguable question of law that is not frivolous. 

Therefore, in accordance with Anders v. California, 386 U.S. 738 (1967), and 

State v. Leon, 104 Ariz. 297 (1969), defense counsel asks this Court to search 

the record for fundamental error. Forister was afforded an opportunity to 

file a supplemental brief in propria persona, but declined to do so. After 

reviewing the record, we find no error. Accordingly, Forister’s convictions 

and sentences are affirmed. 

FACTS1 AND PROCEDURAL HISTORY 

¶2 Around 1:25 a.m. on December 13, 2013, two uniformed 

Phoenix police officers patrolling eastbound on police motorcycles were 

stopped at an intersection when they observed a vehicle turn left from the 

designated lane into the far-right lane of the intersecting three-lane road, 

bypassing the two closer lanes. The officers followed the vehicle and 

observed as it accelerated past the speed limit and drifted into another lane. 

One of the officers initiated a stop of the vehicle by activating his emergency 

lights, but the driver did not stop until the officer also activated his siren. 

¶3 The officers made contact with the driver who identified 

himself as Forister, noticed an odor of alcohol emanating from the driver’s

breath, and observed his eyes to be watery and bloodshot. The officers 

initiated a DUI investigation based upon these observations. A horizontal 

gaze nystagmus test indicated Forister had a blood alcohol concentration 

 

1 “We view the facts in the light most favorable to sustaining the 

convictions with all reasonable inferences resolved against the defendant.” 

State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (quoting State v. 

Valencia, 186 Ariz. 493, 495 (App. 1996)). 
STATE v. FORISTER 

Decision of the Court 

3

(BAC) of at least 0.08. A check of the status of Forister’s license indicated it 

had been suspended and revoked. 

¶4 Forister was arrested and transported to a DUI processing van 

where another officer obtained his consent for a blood draw, which was 

performed at 2:28 a.m. Subsequent testing at the Phoenix Crime Lab 

revealed Forister’s BAC was 0.166. 

¶5 At trial, a representative from the Motor Vehicle Department 

testified Forister’s privilege to drive in Arizona had been suspended and 

revoked at the time of the incident and that Forister had been notified of the 

actions taken against his driver’s license. She further testified Forister’s 

motor vehicle record contained two prior DUI convictions — one for an 

offense committed on December 17, 2008, and one for an offense committed 

on February 27, 2009. 

¶6 At the close of the State’s evidence, Forister’s counsel made 

an unsuccessful motion for judgment of acquittal pursuant to Arizona Rule 

of Criminal Procedure 20(a). Forister’s treating gastroenterologist then 

testified Forister has a history of stomach problems, including abdominal 

pain, diarrhea, inflammatory bowel disease, acid reflux, and symptoms of 

Crohn’s disease. He also testified x-rays revealed Forister had previously 

undergone abdominal surgery. The doctor concluded these conditions 

could have affected Forister’s BAC at the time of the incident. 

¶7 Forister also testified on his own behalf, stating that he made 

a wide left turn on the night in question because he was going to enter the 

freeway on the right side of the road ahead. He denied exceeding the speed 

limit and claimed his vehicle always swayed back and forth because it was 

outfitted for off-road travel. He admitted he consumed alcohol at a 

fundraiser earlier in the evening. Forister also admitted two prior felony 

DUI convictions and knowing his license was either suspended or revoked. 

¶8 The jury found Forister guilty as charged and the aggravating 

circumstances — that Forister was on probation at the time of the offense 

and had two prior felony convictions — proven. The trial court sentenced 

Forister as a non-dangerous, repetitive offender to concurrent presumptive 

terms of imprisonment of ten years for each count of aggravated DUI. The 

court revoked Forister’s probation on the prior offenses and sentenced him 

to presumptive terms of 2.5 years, to run concurrently with each other and 

consecutive to the DUI sentences. The court also gave Forister credit for 

ninety-three days of presentence incarceration. Forister timely appealed, 
STATE v. FORISTER 

Decision of the Court 

4

and we have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) 

sections 12-120.21(A)(1),2 13-4031, and -4033(A)(1). 

DISCUSSION 

¶9 Our review reveals no fundamental error. See Leon, 104 Ariz. 

at 300 (“An exhaustive search of the record has failed to produce any 

prejudicial error.”). A person is guilty of aggravated DUI if the person 

“while under the influence of intoxicating liquor or drugs . . . [c]ommits a 

violation of [A.R.S. §§] 28-1381, 28-1382 or [28-1383] while the person’s 

driver license or privilege to drive is suspended, canceled, revoked or 

refused . . . as a result of [a prior DUI].” A.R.S. § 28-1383(A)(1). A person 

is also guilty of aggravated DUI if, “[w]ithin a period of eighty-four months 

[he] commits a third or subsequent violation of [A.R.S. §§] 28-1381, 28-1382 

or [28-1383].” A.R.S. § 28-1383(A)(2). Based upon the record, sufficient 

evidence was presented upon which a jury could determine beyond a 

reasonable doubt Forister was guilty of the charged DUI offenses. 

¶10 All of the proceedings were conducted in compliance with the 

Arizona Rules of Criminal Procedure. Forister was represented by counsel 

at all stages of the proceedings and was present at all critical stages except 

for one morning of one day of trial, for which his presence was voluntarily 

waived. The jury was properly comprised of eight jurors, and the record 

shows no evidence of jury misconduct. See A.R.S. § 21-102(B); Ariz. R. Crim. 

P. 18.1(a). At sentencing, Forister was given an opportunity to speak, and 

the trial court stated on the record the evidence and materials it considered 

and the factors it found in imposing sentences. See Ariz. R. Crim. P. 26.9, 

26.10. Additionally, the sentences imposed were within the statutory limits. 

See A.R.S. §§ 13-703(C), (J), -708(C). 

CONCLUSION 

¶11 Forister’s convictions and sentences are affirmed. Defense 

counsel’s obligations pertaining to Forister’s representation in this appeal 

have ended. Defense counsel need do no more than inform Forister of the 

outcome of this appeal and his future options, unless, upon review, counsel 

finds an issue appropriate for submission to our supreme court by petition 

for review. State v. Shattuck, 140 Ariz. 582, 584-85 (1984). 

 

2 Absent material changes from the relevant date, we cite a statute’s 

current version. 
STATE v. FORISTER 

Decision of the Court 

5

¶12 Forister has thirty days from the date of this decision to 

proceed, if he wishes, with an in propria persona petition for review. See Ariz. 

R. Crim. P. 31.19(a). Upon the Court’s own motion, we also grant Forister 

thirty days from the date of this decision to file an in propria persona motion 

for reconsideration.