Desmond v. Superior Court of Maricopa County, s. CV-88-0416-S
| Decision Date | 06 April 1989 |
| Docket Number | Nos. CV-88-0416-S,CV-88-0439-SA,s. CV-88-0416-S |
| Citation | 779 P.2d 1261,161 Ariz. 522 |
| Parties | Donald Lee DESMOND, Petitioner, v. SUPERIOR COURT of MARICOPA COUNTY, and the Honorable Rudolph J. Gerber, a judge thereof; Mesa City Court, and the Honorable Harold Reeb, a judge thereof, Respondents, and STATE of Arizona, By and Through the MESA CITY PROSECUTOR, Respondent/Real Party in Interest. Robert Ward DAVID, Petitioner, v. SUPERIOR COURT of YAVAPAI COUNTY, and the Honorable Richard Anderson, a Judge thereof; Prescott City Court, and the Honorable Robert W. Kuebler, a Magistrate thereof, Respondents, and STATE of Arizona, By and Through the PRESCOTT CITY PROSECUTOR, Respondent/Real Party in Interest. |
| Court | Arizona Supreme Court |
Michael J. Dew, Phoenix, for petitioners Donald Lee Desmond and Robert Ward David.
Lowell D. Hamilton, Mesa City Prosecutor by Kevin R. Hays, Chief Asst. City Prosecutor, Mesa, for respondents/real parties in interest.
Roderick G. McDougall, Phoenix City Prosecutor by Mark L. Barry, and M. Regina Huerta, Asst. City Prosecutors, Phoenix, amicus curiae.
Frederick S. Dean, Tucson City Atty. by R. William Call, Asst. City Atty., Tucson, amicus curiae.
Roger J. Blake, Phoenix, amicus curiae.
Richard M. Gerry, P.C. by Richard M. Gerry, Phoenix, amicus curiae.
Donald Lee Desmond and Robert Ward David petitioned this court for writs of special action. We accepted jurisdiction and consolidated the two matters. We also allowed the filing of amici curiae briefs. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5 and Ariz.R.P.Sp. Act. 4.
In accepting the petitions for special action, we ordered the parties to submit supplemental briefs directed to the following issue:
Is a defendant's blood alcohol level admissible in evidence, absent evidentiary foundation relating the blood alcohol level at the time of the test to that which existed at the time of apprehension?
The facts necessary for determination of this matter are as follows:
A. Donald Lee Desmond
At about 1:30 a.m. on 19 July 1986, a police officer observed Donald Lee Desmond driving a car in Mesa, going through a red light, traveling between 90 and 100 miles per hour on the freeway, weaving in and out of traffic, and crossing three lanes of traffic to exit from the freeway. The police officer stopped Desmond and observed symptoms of intoxication including the odor of alcohol and bloodshot, watery eyes. At approximately 2:15 a.m., less than an hour after the time he was stopped, Desmond submitted to two intoxilyzer tests resulting in readings of 0.138 and 0.132 percent blood alcohol content (BAC), respectively. Desmond admitted that he had consumed two shots of peppermint schnapps between 12:30 and 1:00 a.m., within an hour of his arrest. Because of Desmond's physical disabilities, the police officer did not ask Desmond to take any field sobriety tests. Desmond was cited for violation of A.R.S. § 28-692(A) and (B) which read:
A. It is unlawful and punishable as provided in § 28-692.01 for any person who is under the influence of intoxicating liquor to drive or be in actual physical control of any vehicle within this state.
B. It is unlawful and punishable as provided in § 28-692.01 for any person to drive or be in actual physical control of any vehicle within this state while there is 0.10 or more alcohol concentration in the person's blood or breath at the time of the alleged offense.
Prior to trial, the court granted the state's motion to dismiss the charge under A.R.S. § 28-692(B).
At trial, evidence showed that the breathalyzer test machine was certified and that the officer was qualified to administer the test. Evidence also showed that the officer followed the required checklist in administering the intoxilyzer breath test. See A.R.S. § 28-692.03(A)(4). The state introduced the breath test results pursuant to the statutory method of introduction provided by A.R.S. § 28-692.03(A) and (B). On cross-examination of Thomas Frank Simonick, a criminalist for the City of Mesa Police Department and an "expert in the field of ... blood alcohol testing," the defense elicited testimony concerning Desmond's BAC at the time he was stopped.
drink and I would think that would probably put him somewhere in the order of around a 0.03.
This was the only testimony regarding Desmond's BAC at the time he was stopped. Over defense counsel's objections, the court gave the following instruction to the jury:
If there was at the time of the defendant's driving 0.10 per cent or more by weight of alcohol in the defendant's blood, it may be presumed that the defendant was under the influence of intoxicating liquor.
The trial judge did, however, further instruct the jury as requested by Desmond concerning the nonconclusiveness of the presumption:
The fact that the defendant's blood alcohol is .10 or higher does not conclusively establish or imply that the defendant was driving under the influence of alcohol. The burden of proving beyond a reasonable doubt that the defendant was driving under the influence of alcohol is the sole responsibility of the State, and the statutory limit of .10 does not relieve them of that burden.
Desmond was convicted by a jury of the violation of A.R.S. § 28-692(A). He appealed the conviction and the Maricopa County Superior Court affirmed. Desmond then sought relief in this court by the instant petition for special action.
Petitioner Robert Ward David was charged with violating A.R.S. § 28-692(A) and (B) and was convicted of both offenses in the Prescott City Court.
The state's only witness was the arresting officer. The officer testified that he saw David run a stop sign at about 1:00 a.m. The officer stopped David and observed that his walk was unsteady, and that there was the smell of alcohol on his breath. David admitted to having had three drinks at a local bar prior to being stopped and a six-pack of beer earlier that afternoon around 3:00 p.m. Based upon this evidence, David was arrested and taken to the Yavapai County Sheriff's Office where he submitted to an intoxilyzer test.
The arresting officer was also the operator of the machine. At trial, the judge admitted into evidence the officer's operating permit, the certification of the test machine and a certified copy of the intoxilyzer log book. The results of the intoxilyzer test taken approximately an hour after David was stopped indicated a BAC of 0.13 percent. A second test taken approximately five minutes later indicated a BAC of 0.12 percent. Defense counsel attempted to qualify the officer as an expert. David weighed 215 pounds, and the officer was asked the following questions:
Q BY MR. LARSON [DEFENDANT'S ATTORNEY]. And insofar as three drinks for a 215 pound man, that'd be like one and a half drinks for a 100 pound person, right?
A That's correct.
* * * * * *
Q. ... Ignoring the alcohol that he might have ingested at Matt's which he told you he did, from the time of the afternoon alcohol ingestion would it be about ten hours?
A Yes. Q And you learned, did you not, in your alcohol training at the academy that a person burns off alcohol at a given rate?
A That's correct.
Q And that's usually phrased as somewhere in the area of one drink or...
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