Fuenning v. Superior Court In and For Maricopa County

• Decision Date: 15 December 1983
• Docket Number: No. 17049-SA,17049-SA
• Citation: 139 Ariz. 590,680 P.2d 121
• Parties: Kelly Richard FUENNING, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, and the Honorable Elizabeth A. Stover, a Judge thereof; and Tempe Municipal Court, City of Tempe, State of Arizona, and the Honorable Stephen Mirretti, Jr., a Judge thereof; Respondents.
• Court: Arizona Supreme Court

Page 121

680 P.2d 121

139 Ariz. 590

Kelly Richard FUENNING, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF MARICOPA, and the Honorable Elizabeth A. Stover, a Judge thereof; and Tempe Municipal Court, City of Tempe, State of Arizona, and the Honorable Stephen Mirretti, Jr., a Judge thereof; Respondents.

No. 17049-SA.

Supreme Court of Arizona, In Banc.

Dec. 15, 1983.

Reconsideration Denied Feb. 27, 1984.

John H. Ryley, Phoenix, for petitioner

Geraldine R. Mattern, Tempe City Prosecutor by James V. Emery, Asst. City Prosecutor, Tempe, for respondents.

Andy Baumert, Phoenix City Atty. by Chris D. Wilson, George H. Bonsall, Asst. City Prosecutors, Phoenix, for amicus curiae State of Arizona.

Goldenkoff & Gerry by Richard M. Gerry, Phoenix, for amici curiae Public Defender's FELDMAN, Justice.

Offices City of Scottsdale and City of Mesa.

Petitioner, the defendant below (defendant), brings this special action to contest his conviction under A.R.S. § 28-692(B) for driving "while there is 0.10 per cent or more by weight of alcohol in the ... blood." Defendant argued that we should accept jurisdiction because he has no remedy by appeal from the superior court for most of the issues argued below (see A.R.S. § 22-371 and Baca v. Don, 130 Ariz. 222, 635 P.2d 510 (App.1981)) and construction of the new drunk-driving law is a matter of statewide concern. The amici claim that the issues presented are matters of nationwide interest. We have accepted jurisdiction because we find the remedy by appeal inadequate and because we believe the case does present matters of public concern and importance; speedy decision will serve the public interest. See King v. Superior Court, 138 Ariz. 147, 673 P.2d 787, 790 n. 3 (1983). We have jurisdiction under Rule 8, Rules of Procedure for Special Actions, 17A A.R.S., and Ariz. Const. art. 6, § 5(3).

On September 29, 1982, defendant was stopped while driving in the City of Tempe by a police officer who noticed his registration tags had expired. While talking to defendant, the officer detected the smell of alcohol and gave defendant field sobriety tests. Defendant's performance was unsatisfactory. He was arrested and booked for driving while under the influence. The booking procedure, which was videotaped, included administration of an intoxilyzer test. Defendant's blood-alcohol concentration (BAC) tested at .11% indicating a volume of 11/100 of one percent of alcohol in defendant's blood.

The new drunk-driving law (A.R.S. § 28-692) passed by the Arizona State Legislature went into effect in July 1982. Insofar as is relevant to this case, it provides as follows:

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 ....

B. It is unlawful and punishable ... for any person to drive or be in actual physical control of any vehicle ... while there is 0.10 per cent or more by weight of alcohol in the person's blood.

Defendant was charged with violating subsection B; he was not charged with a violation of subsection A. Prior to trial, defendant moved to suppress all evidence relating to the results of the field sobriety tests, the opinions of the officers that defendant appeared intoxicated, the videotape of defendant's conduct during the booking procedure, and all other "non-chemical" evidence. The motion was denied and much of that evidence was admitted at defendant's trial. Also admitted, over objection for lack of foundation, was evidence of the intoxilyzer test results. Defendant produced expert testimony from a professor of analytical chemistry that intoxilyzer results are subject to three distinct types of error. The first is a margin of error of ± 10% (0.01% BAC) resulting from problems inherent in calibration of the equipment and administration of the tests. The second is a margin of error of up to 30% resulting from the adoption of a standard blood-alcohol conversion ratio. It is necessary to apply a ratio to convert the intoxilyzer result (which measures the amount of alcohol in the breath of the test subject) to a figure representing the concentration of alcohol in the subject's blood. The chemist testified that the intoxilyzer test used on defendant assumes a standard conversion ratio which represents a mean or average, while the actual figure varies by as much as 30% from individual to individual. The third type of error to which the process is susceptible is the variable rate of absorption of alcohol into the bloodstream. The speed at which the body absorbs alcohol is affected by the presence or absence of food in the stomach. When the stomach is empty of food, alcohol is absorbed much more quickly. The test can only measure the amount of alcohol in the blood at the time of the After six minutes of deliberation, the jury returned a verdict of guilty. Defendant was sentenced and appealed to the superior court. The conviction and sentence were affirmed by that court, and defendant then sought review by special action.

test, not at the time of the event. If a person has had several drinks during dinner, is arrested while driving soon afterward, and given an intoxilyzer test an hour or two later, the test is likely to show a considerably greater BAC than that which existed at the time of arrest. ¹ Based upon this testimony, the defense argued that a violation of § 28-692(B) could not be established beyond a reasonable doubt.

Defendant attacks his conviction on three theories. He claims, first, that the statute is fundamentally unconstitutional. Next, he argues that the court committed error in admitting evidence that he was "under the influence" when he was charged only with a violation of subsection B for having a BAC of .10% or more. Finally, defendant claims that the trial judge erred in admitting the intoxilyzer test results without the foundation required by statute and regulation.

CONSTITUTIONALITY OF THE STATUTE

Defendant makes multiple constitutional attacks on the statute. Many of these issues were not raised in the trial court. We have discretion to consider constitutional attacks for the first time on appeal because defendant claims the statute under which he was prosecuted is void. See State v. Junkin, 123 Ariz. 288, 290, 599 P.2d 244, 246 (App.1979). We may appropriately exercise that discretion where, as in the case at bench, the issues involve public policy or are of broad general or statewide concern. Id. We note further that the constitutional issues have been thoroughly briefed in the amici briefs filed by the prosecutor for the City of Phoenix, arguing that the statute is constitutional, and by the public defenders for the cities of Mesa and Scottsdale, who argue the contrary. We conclude, therefore, that it is appropriate to consider all of the constitutional issues raised on appeal.

Defendant and the public defenders claim the statute is unconstitutional and void for vagueness and a variety of other reasons. A similar contention was recently considered by a California court of appeals in People v. Alfaro, 143 Cal.App.3d 528, 192 Cal.Rptr. 178 (1983). Distinguishing the cases in which chemical test results provide only a presumption that the defendant was "under the influence," the court correctly noted that the California statute established a separate criminal offense which, for conviction, requires only proof of a particular blood-alcohol level. ² Id. at 533, 192 Cal.Rptr. at 182. A majority of the California court held that the statute was vague and therefore violated the due process clause. The court based its decision on the principle that statutes "must be definite enough to provide a standard of conduct for those whose activities are proscribed." Id. at 531, 192 Cal.Rptr. at 180.

The California court acknowledged that the majority rule holds similar statutes constitutional in the face of various constitutional challenges. See, e.g., State v. Franco, 96 Wash.2d 816, 639 P.2d 1320, 1324-25 (1982); State v. Hamza, 342 So.2d 80 (Fla.1977); Coxe v. State, 281 A.2d 606, 607 (Del.1971); Greaves v. State, 528 P.2d 805, 808 (Utah 1974); State v. Ball, 264 S.E.2d 844, 845 (W.Va.1980). Other cases, not cited in Alfaro, which hold the statute constitutional The Alfaro court dismisses the authorities it cites, and the majority rule in general, with the comment that they "do not in our view forthrightly address the problem of notice and consequently are of scant assistance in the present analysis." People v. Alfaro, 143 Cal.App.3d at 534, 192 Cal.Rptr. at 182. The defendant and the public defenders amici argue that the cases upholding constitutionality of the statute against the vagueness attack are based on incorrect factual and scientific assumptions. These amici also claim that the cases fail to consider procedures, supposedly mandated by the statute, which violate numerous constitutional provisions. We address these constitutional challenges first.

include Morgan v. Municipality of Anchorage, 643 P.2d 691 (Alaska App.1982) and State v. Thompson, 138 Ariz. 341, 674 P.2d 895 (App.1983).

Substantive Due Process and Equal Protection

The first argument is that the statute infringes on fundamentally protected rights, such as the right to travel and the right to maintain a driver's license, and cannot withstand attack under the due process or equal protection clauses unless such regulation is necessary to promote a compelling state interest. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). Legislative classifications bearing on fundamental rights are to be strictly scrutinized and held unconstitutional absent a compelling governmental justification. L. Tribe, American Constitutional Law § 16-7, at 1002 (1978). Assuming, without deciding, that the rights affected are fundamental, we believe the statute meets the test. We have previously remarked upon the compelling state...