Mack v. Cruikshank

• Decision Date: 16 September 1999
• Docket Number: No. 2 CA-SA 99-0040, No. 2 CA-SA 99-0034, No. 2 CA-SA 99-0057.
• Citation: 2 P.3d 100,196 Ariz. 541
• Parties: Nanci MACK, Petitioner, v. Hon. Michael J. CRUIKSHANK, Judge of the Superior Court of State of Arizona, in and for the County of Pima, Respondent, and The State of Arizona, Real Party in Interest. Robert Marmion, Petitioner, v. Hon. Michael J. Cruikshank, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and The State of Arizona, Real Party in Interest. State of Arizona ex rel. Thomas J. Berning, Attorney, for the City of Tucson, Petitioner, v. Hon. Michael Brown, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Glenda Hawkins, Real Party in Interest.
• Court: Arizona Court of Appeals

2 P.3d 100

196 Ariz. 541

Nanci MACK, Petitioner, v. Hon. Michael J. CRUIKSHANK, Judge of the Superior Court of State of Arizona, in and for the County of Pima, Respondent, and The State of Arizona, Real Party in Interest.

Robert Marmion, Petitioner, v. Hon. Michael J. Cruikshank, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and The State of Arizona, Real Party in Interest.

State of Arizona ex rel. Thomas J. Berning, Attorney, for the City of Tucson, Petitioner, v. Hon. Michael Brown, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and Glenda Hawkins, Real Party in Interest.

Nos. -0034, -0040, -0057.

Court of Appeals of Arizona, Division 2, Department A.

September 16, 1999.

Review Denied May 23, 2000.

Law Office of Trezza & McDonald, P.C. By Al McDonald and Stephen M. Trezza, Tuscon, Attorneys for Petitioner Mack.

Charles P. Davies, Tucson Public Defender By Reed Palmer, Tucson, Attorneys for Petitioner Marmion.

Thomas J. Berning, Tucson City Attorney By R. William Call and M.J. Raciti and Michael G. Rankin, Tuscon, Attorneys for Petitioner and Real Party in Interest State of Arizona.

Law Offices of Stephen Paul Barnard, P.C. By Stephen Paul Barnard and Kelly C. Knop, Tuscon, Attorneys for Real Party in Interest Hawkins.

OPINION

FLÓREZ, Judge.

¶ 1 In these consolidated special action proceedings, petitioners Nanci Mack and Robert Marmion and real party in interest Glenda Hawkins (collectively, the defendants) were each charged in the underlying criminal proceedings with violating former A.R.S. § 28-692(A)(1), driving while under the influence of intoxicating liquor (DUI), and former § 28-692(A)(2), driving with an alcohol concentration of 0.10 or more.¹ After discovering that the Intoximeter RBT-IV used to test the defendants' breath was unreliable, the state voluntarily dismissed the (A)(2) charges and agreed not to introduce evidence of the defendants' breath test results. The issue presented here is whether the state's use of a breath-testing device ultimately determined to be unreliable also requires dismissal of the (A)(1) charges. Because petitioners have no right to appeal, A.R.S. § 22-375; because the issue presented is a matter of law, State ex rel. McDougall v. Superior Court, 172 Ariz. 153, 835 P.2d 485 (App.1992); and because the lower courts have entered conflicting rulings based on State v. Sanchez, 192 Ariz. 454, 967 P.2d 129 (App.1998), we accept jurisdiction. Ariz. R.P. Special Actions 1(a), 17B A.R.S.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 Each defendant was arrested for DUI. Mack was arrested on February 5, 1997; Marmion on July 15, 1996; and Hawkins on October 23, 1996. Each submitted to a breath test on an Intoximeter RBT-IV breath-testing device. The state later stipulated in each case that the RBT-IV was unreliable in calculating blood alcohol concentration (BAC) and dismissed the (A)(2) charges. The state also agreed not to use the breath test results for any purpose.

¶ 3 The defendants then moved to dismiss their (A)(1) charges, claiming the state's use of the RBT-IV to test their breath violated their due process rights. In each case, a city court magistrate granted the defendant's motion, based on our holding in Sanchez. The state appealed to superior court in Mack and Marmion and filed a petition for special action in superior court in Hawkins. Respondent Judge Cruikshank reversed the magistrates' rulings in Mack and Marmion, concluding that Sanchez did not apply because Mack and Marmion were arrested before the date established in Sanchez as the first notice the state had that the RBT-IV was an unreliable machine and that suppression of the breath tests was an adequate remedy. Respondent Judge Brown denied the state relief in Hawkins, agreeing with the magistrate there that dismissal of the (A)(1) charge was the appropriate sanction. These special action petitions followed.

DUE PROCESS VIOLATION

¶ 4 The defendants argue that our holding in Sanchez requires dismissal of the (A)(1) charges, contending that the state knew or should have known the RBT-IV was unreliable when it was used to test their breath and, thus, that the state denied them due process because it unreasonably interfered with their constitutional right to obtain potentially exculpatory evidence. In addition, Hawkins asserts that the repair history of the particular RBT-IV at issue in Sanchez is irrelevant, contending the state's subsequent, voluntary dismissal of the (A)(2) charge in every case in which the RBT-IV was used reflects both the unreliability of the machine in general and the breadth of our holding in Sanchez.

¶ 5 The state counters that the respondent judge in Mack and Marmion properly refused to dismiss the (A)(1) charges, arguing that the dismissal in Sanchez was based on the finding that the state had knowingly interfered with Sanchez's due process rights. The state maintains that, in Sanchez, the state was on notice that the particular machine was flawed before the officer used it to test Sanchez's breath and that, in these cases, nothing in the record supports the defendants' claim that the state knew the machines were unreliable when it conducted their breath tests.

¶ 6 Because the defendants' due process claims are issues of law, our review is de novo. Little v. All Phoenix South Community Mental Health Center, 186 Ariz. 97, 919 P.2d 1368 (App.1996). We are, however, bound by the magistrates' findings of fact unless the findings are clearly erroneous. Lee Development Co. v. Papp, 166 Ariz. 471, 803 P.2d 464 (App.1990).

¶ 7 In Sanchez, the trial court ruled after a hearing that the breath test results were inaccurate and inadmissible at trial. The parties then stipulated that the RBT-IV was unreliable, the state dismissed the (A)(2) charge, and Sanchez successfully moved to dismiss the (A)(1) charge. On appeal, this court affirmed the trial court's dismissal of the (A)(1) charge, based on the trial court's conclusions that Sanchez's due process rights had been violated by the state's use of an unreliable breath-testing machine, that the state should have known the machine was unreliable, and that Sanchez had not waived his right to an independent test.

¶ 8 Stating that "[d]ue process requires that defendants have a `"fair chance"' to obtain potentially exculpatory evidence," we cited the trial court's findings that, shortly before Sanchez's test, the machine had been removed from service and sent to the manufacturer for repairs because of erroneously high readings, that it was returned without any explanation or accompanying repair record, and that it was nevertheless restored to service the day before his test. Sanchez, 192 Ariz. 454, ¶ 5, 967 P.2d 129, ¶ 5, quoting Montano v. Superior Court, 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). In addition, we relied on the trial court's findings, based on hearings it had held, that the state had been on notice no later than March 1997, two months before Sanchez's arrest, that the RBT-IV failed to accurately test alveolar air and that the machine did not meet either the state regulations for breath-testing devices or the minimal standards required by Frye v. United States, 293 F. 1013 (D.C.Cir.1923). Although we acknowledged that the trial court had not expressly found that the state had acted in bad faith, we concluded the court's statements were tantamount to such a finding, thus warranting dismissal of the (A)(1) charge, because the state had knowingly interfered with Sanchez's "constitutional right to obtain exculpatory evidence ... at the only time it was available." Sanchez, 192 Ariz. 454, ¶ 11, 967 P.2d 129, ¶ 11.

¶ 9 The crux of our decision in Sanchez was that the evidence supported the trial court's findings of fact and conclusions of law, not only on the state's conduct in having had Sanchez's breath tested on a particular machine of dubious reliability but also on the appropriate remedy for that conduct. We did not intend by that decision to state a general rule applicable to all (A)(1) charges in cases in which the state used an Intoximeter RBT-IV breath-testing device. Nor did we intend to impose a blanket rule that, by March 1997, the state was on notice that all RBT-IVs were unreliable; instead, we upheld the trial court's finding, based on the evidence it had heard in the case, that the state was on notice by March 1997 that the RBT-IV was unreliable. In other words, we applied the appropriate standard of review, see State v. Stotts, 144 Ariz. 72, 695 P.2d 1110 (1985), and concluded that the evidence supported the trial court's findings of fact, including the implicit finding that the state had acted in bad faith.

¶ 10 Nonetheless, we conclude that the state violated the defendants' due process rights in these cases by asking them to submit to a breath test on a machine the state later determined did not accurately ascertain BAC. In reaching this conclusion, however, we examine the nature of the due process right involved.

¶ 11 The state asked the defendants to submit to a test to determine their BAC pursuant to the implied consent law, former A.R.S. § 28-691, now A.R.S. § 28-1321. Under that statute, a person who operates a motor vehicle in Arizona, if arrested for a DUI offense, consents to submit to a test of his or her "blood, breath, urine or other bodily substance" to determine BAC or drug content. Although a DUI suspect does not have a "right" to refuse to submit to a test, he or she does have the "physical power" to refuse. Campbell v. Superior Court, 106 Ariz. 542, 549, 479 P.2d 685, 692 (1971). Refusal results in suspension of the person's driver's license for twelve months; former § 28-691, now § 28-1321; and admission of the refusal into evidence at the DUI trial. Former § 28-692(I), now § 13-1381(N).

¶ 12 Because DUI cases "are...