Moss v. Superior Court In and For County of La Paz
| Decision Date | 29 July 1993 |
| Docket Number | CA-SA,No. 1,1 |
| Parties | Louis B. MOSS, and Kenneth McElwain, Petitioners, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF LA PAZ, the Honorable Michael Irwin, a judge thereof, Respondent Judge, Steven P. SUSKIN, La Paz County Attorney, Real Party in Interest. 93-0111. |
| Court | Arizona Court of Appeals |
Defendants below, Louis B. Moss and Kenneth McElwain, petition for special action relief, asserting that the trial court's denials of their motions to suppress Intoxilyzer test results taken after their arrests for aggravated driving while under the influence of intoxicating liquor ("DUI") constituted denial of due process of law. This special action challenges the constitutionality of Ariz.Rev.Stat.Ann. ("A.R.S.") section 28-692(G) and (H). We uphold the constitutionality of the statute which states that a defendant need not be given a preserved breath sample following replicate breath testing for DUI.
This court has jurisdiction to consider this special action pursuant to A.R.S. section 12-120.21(A)(4) and Rules 4(a) and 7(a) of the Arizona Rules of Procedure for Special Actions.
The relevant facts, taken from the parties' briefs as well as portions of the transcript of the evidentiary hearing of February 26, 1993, are the following.
At approximately 6:00 p.m. on November 6, 1992, Louis B. Moss ("Moss") was stopped by Department of Public Safety ("DPS") Officer Joe Deschaine ("Officer Deschaine"), after Officer Deschaine observed Moss's car weaving within its lane and crossing the center lane several times into the path of oncoming traffic. When Officer Deschaine spoke with Moss he detected a strong odor of alcohol. A driver's license check produced the information that Moss's driving privileges were suspended and revoked as a result of prior violations of A.R.S. section 28-692(A)(1). Moss submitted to field sobriety tests. Based on his performance on those tests and on his driving, Moss was taken to the DPS office in Parker, Arizona. At the DPS office, Moss submitted to replicate 1 tests of his breath on an Intoxilyzer 5000, which had no second sample collection device. The results of the tests indicated that Moss had a blood alcohol concentration ("BAC") of .147 and .150.
No sample of Moss's breath was captured or preserved by DPS or offered to Moss for independent analysis. However, prior to submitting to the breath tests, Moss was advised of his implied consent rights, was read the Duplicate Breath Test Advisory, and was given a form to sign that advised him that after completing the breath tests, he would be given a reasonable opportunity to arrange for independent testing. Moss signed the form prior to submitting to the tests, but apparently never asserted his right to any independent tests. He was subsequently transported to the La Paz County Sheriff's Office where he was charged with DUI on a suspended or revoked license while having a BAC of .10 or more in violation of A.R.S. sections 28-692(A)(1) and (A)(2).
At approximately 12:10 a.m. on November 7, 1992, DPS Officer Steve Tritz ("Officer Tritz") stopped Kenneth McElwain ("McElwain") after he observed McElwain's car weave within the roadway and then stop and reverse direction to avoid Officer Tritz after Officer Tritz had pulled his police car in behind McElwain's car. When Officer Tritz spoke to McElwain, he noted that McElwain had watery, bloodshot eyes and detected an odor of alcohol. McElwain admitted to Officer Tritz that he had consumed two or three beers. Officer Tritz administered field sobriety tests. Based on McElwain's performance on the tests and on his driving, McElwain was arrested.
During an interview with Officer Tritz, McElwain admitted to having been arrested for DUI earlier in the year. He also acknowledged that he was aware that he was currently driving with a suspended license. A check run by Officer Tritz through DPS produced the information that McElwain's license had been revoked on October 15, 1992; that a suspension of his privilege to drive was placed from October 13 through November 12, 1992, and restricted from October 19 through December 8, 1992; and that he had two prior convictions for DUI in 1992.
McElwain was also subjected to replicate breath tests on an Intoxilyzer 5000. His tests registered a BAC of .137 at 1:01 a.m. and a BAC of .121 at 1:08 a.m. As with Moss, no additional sample of McElwain's breath was captured or preserved or offered to him for independent testing. Prior to administering the replicate tests, McElwain was also advised of his implied consent rights, read the Duplicate Breath Test Advisory and was given a form that informed him that, after completing the breath tests, he would be given a reasonable opportunity to arrange for an independent testing by a physician, registered nurse or other qualified professional of his own choosing. Like Moss, McElwain signed the form before submitting to the breath tests but did not assert his right to independent testing. He too was ultimately transported to the La Paz County Sheriff's Office and charged with DUI.
Moss filed a motion to suppress the results of his breath tests, contending that failure to provide him with a sample of his breath for independent testing violated his due process rights. McElwain joined in Moss's motion to suppress. Following an evidentiary hearing in La Paz County Superior Court the motions to suppress were denied. In individual orders filed on March 8, 1993, the trial court found that A.R.S. sections 28-692(G) and (H), the regulatory procedures adopted to implement the statute and the replicate testing procedures met the due process requirements of the Arizona Constitution and that each defendant was afforded reasonable opportunity to obtain independent testing.
Defendants then filed this special action asking this court to reverse the trial court's denial of the motions to suppress and to find that A.R.S. section 28-692(G) and (H) violates due process and equal protection guarantees of the United States and Arizona Constitutions. Defendants also argue that they did not waive their rights to additional independent tests under A.R.S. section 28-692(H) but that no "reasonable opportunity" to obtain independent tests was afforded them.
The state also asks us to accept jurisdiction of this special action. The state argues that the statutory procedures established by A.R.S. section 28-692(G) and (H) and by the Department of Health Services rules promulgated in accordance with that statute have significant statewide impact on law enforcement officers and defendants in DUI cases. The state urges us to take jurisdiction in the interests of judicial economy to ensure the prompt determination of the constitutionality of A.R.S. section 28-692(G) and (H) and to avoid a back-log of cases brought under the newly enacted statute.
The Maricopa County Attorney's Office has filed an amicus brief in which it joins in the response filed by the La Paz County Attorney's Office urging us to accept special action jurisdiction to resolve the question of the constitutionality of the statute.
The issue of the constitutionality of newly enacted A.R.S. section 28-692(G) and (H), is one of statewide importance affecting numerous cases. State v. Velasco, 165 Ariz. 480, 482, 799 P.2d 821, 823 (1990). Additionally, it is an issue of first impression that turns on a question of law justifying special action jurisdiction. Vo v. Superior Court, 172 Ariz. 195, 198, 836 P.2d 408, 491 (App.1992).
By order we accepted jurisdiction and denied relief, indicating that an opinion would follow. This is that opinion.
First, we note that at least one of these cases is before us as the result of a "test case" established by the Arizona Department of Public Safety in La Paz County to test the constitutionality of new A.R.S. section 28-692(G) and (H).
In each of these cases, no argument was made that the breath tests were improperly administered or that proper testing procedures, such as the "deprivation period" required by Department of Health Services rules, were not followed by DPS. Nor did any arguments call into question the functioning of the Intoxilyzer 5000 or the accuracy of the test results obtained. For purposes of this opinion, therefore, we assume that the reliability of the machines--and thus of the test results in this case--is without question.
(1) Constitutionality of A.R.S. Section 28-692(G) and (H)
Defendants challenge the constitutionality of A.R.S. section 28-692(G) and (H), as enacted by the legislature on September 30, 1992. The newly enacted statute eliminated the state's duty to provide DUI suspects with samples of their breath for independent testing when replicate breath tests are performed. The statute requires only that a reasonable opportunity to arrange for an independent test at a suspect's own expense be provided. The challenged statute reads as follows:
(G) If a law enforcement officer administers a duplicate breath test and the person tested is given a reasonable opportunity to arrange for an additional test pursuant to subsection H of this section a sample of the person's breath does not have to be collected or preserved.
(H) The person tested shall be given a reasonable opportunity to arrange for any physician, registered nurse or other qualified person of his own choosing to administer a test or tests in addition to any administered at the direction of a law enforcement officer. The failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test...
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