State ex rel. Dean v. City Court of City of Tucson
| Decision Date | 26 March 1990 |
| Docket Number | No. CV-89-0440-PR,CV-89-0440-PR |
| Citation | 789 P.2d 180,163 Ariz. 510 |
| Parties | STATE of Arizona, ex rel., Frederick S. DEAN, City Attorney for the City of Tucson, Plaintiff/Appellant, v. The CITY COURT OF the CITY OF TUCSON, the Honorable Thomas G. Martin, a Magistrate thereof, and Mark Wilson, Edward J. Davis, Mathew Finlay, Glen Barkyoumb, James Balkow and Robert M. Perea, Real Parties in Interest, Defendants/Appellees. |
| Court | Arizona Supreme Court |
We address the admissibility of certain Intoxilyzer results. Defendant Edward J. Davis filed a petition for review asking this court to review a court of appeals decision in this matter. See State ex rel. Dean v. City Court, 163 Ariz. 366, 788 P.2d 99 (Ct.App.1989). Defendants Mark Wilson and James Balkow filed notices of joinder. The state filed a cross-petition for review. We granted review under Rule 23, Ariz.R.Civ.App.P., 17B A.R.S. We have jurisdiction in this matter pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.
Defendants 1 were stopped for traffic violations in Tucson during the month of December 1987. After investigation, each was arrested for driving under the influence (DUI) in violation of A.R.S. § 28-692(A). At the time of the arrests, the Tucson Police Department and the Tucson City Attorney's Office were engaged in a joint project to test the legal sufficiency of replicate breath testing. 2 Each defendant was given the option of providing two breath samples or a single blood sample to be examined for blood alcohol concentration. Under the usual procedure in Tucson, the DUI suspect submits to a single test on the Intoxilyzer and is then provided with a preserved breath sample, whether or not the suspect requests one. The preserved breath sample involves capture and preservation of the breath for later testing. See Baca v. Smith, 124 Ariz. 353, 604 P.2d 617 (1979).
The police advised each defendant as follows:
If you choose the [Intoxilyzer] breath test, no sample of your breath will be saved for you or your attorney for later analysis. If you choose the blood test, you will be taken to a hospital where your blood will be drawn at no expense to you. The sample of your blood will be saved and available for testing by all parties in a criminal case.
Regardless of whether you choose to give samples of your breath or blood, you are advised that you have the right to an independent test or tests by a physician or other qualified person of your own choosing at your expense.
If the suspect chose to submit a breath rather than a blood sample, a waiver was presented for the suspect to sign which stated in part:
I understand that by choosing breath tests to determine the amount of alcohol in my blood that NO SAMPLE OF MY BREATH WILL BE SAVED FOR ME OR MY ATTORNEY.
All defendants chose to submit two Intoxilyzer breath samples and all signed the waiver, thus refusing the blood test.
Prior to trial, the state filed motions in limine to determine the admissibility of the test results obtained from the replicate testing procedure. Defendants filed motions to suppress the test results. An evidentiary hearing was held, at which the state was allowed to make an offer of proof through expert testimony as to the use of replicate testing procedures. Following the evidentiary hearing, the magistrate denied the state's motion and refused to allow the results of the breath tests to be admitted at trial. The state then filed a petition for special action relief in superior court, which affirmed the magistrate's ruling.
The state appealed to the court of appeals, which reversed and remanded with directions to vacate and set aside the magistrate's order. State ex rel. Dean, 163 Ariz. at 368, 788 P.2d at 101. The court held that because the state gave defendants a choice between taking replicate breath tests, where they were advised that no Baca samples of their breath would be saved, and a single blood test, where defendants were advised that a sample of blood would be preserved for later testing by all parties, the due process requirements of Montano v. Superior Court, 149 Ariz. 385, 719 P.2d 271 (1986); McNutt v. Superior Court, 133 Ariz. 7, 648 P.2d 122 (1982); Baca v. Smith, 124 Ariz. 353, 604 P.2d 617 (1979); and Scales v. City Court, 122 Ariz. 231, 594 P.2d 97 (1979), were satisfied. State ex rel. Dean, 163 Ariz. at 368, 788 P.2d at 101.
Defendant Davis petitioned for review, asking that we determine whether due process considerations under the Arizona Constitution are met when the state refuses to give a defendant a sample of his breath test when he chooses replicate breath testing without sample preservation and rejects a blood test with sample preservation.
The state filed a cross-petition, asking that we determine whether due process is satisfied in a DUI case by offering replicate breath tests without sample preservation and without providing a blood sample, and whether we should overrule prior cases such as Baca because of the alleged unreliability of the silica gel method of preserving breath samples.
Tucson, along with the majority of jurisdictions in Arizona, uses the Intoxilyzer to test blood alcohol content. In an Intoxilyzer test, the suspect blows a sample of deep-lung air through a mouthpiece and tubing into the machine, which uses a process of infrared spectroscopy to examine the amount of ethyl alcohol present in the sample and converts this into a breath alcohol concentration reading of grams of alcohol per 210 liters of breath. 2 R. ERWIN, DEFENSE OF DRUNK DRIVING § 15.02, at 15-10 (1989).
Several factors can affect the accuracy of the test results: random error, radio frequency interference, mouth alcohol, 3 chemical interferants, insufficient alveolar sample, and operator error. However, Intoxilyzers have a number of mechanisms to guarantee the accuracy and reliability of test results. The Model 5000 Intoxilyzer used in these cases gives the operator step-by-step instructions. If the test is not administered correctly, the machine invalidates the test. The Model 5000 protects itself against radio frequency interference and also can detect chemical interferants. The machine can detect mouth alcohol, and invalidates the test when it is detected. Finally, the instrument will indicate that the sample is deficient if deep-lung air is not obtained.
The silica gel method of breath preservation is used in conjunction with the Intoxilyzer. It utilizes a glass tube with silica gel crystals in it. Silica gel is a highly absorbent substance that attracts and captures moisture. Because the Intoxilyzer does not destroy the breath sample as it is analyzed, the same breath sample used in the state's test is blown over the silica gel upon completion of the primary test. The tube is then sealed and given to the defendant for independent analysis.
The reliability of the silica gel method is disputed. See, e.g., A. Bergh, Observations on ToxTrap Silica Gel Breath Capture Tubes for Alcohol Analysis, 30 J. OF FORENSIC SCI. 186 (1985) (). The state's experts testified at the evidentiary hearing that there are a number of problems that may affect the accuracy of the test. The results may be affected by undetected mouth alcohol, faulty collection, improper storage and transportation, and deficient testing procedures.
The state's experts testified at the evidentiary hearing that replicate testing avoids the problems inherent in the silica gel method, as well as ruling out the possibility of random error that is present with a single Intoxilyzer test. Reporter's Transcript of Evidentiary Hearings Held April 6 and April 20, 1988 (filed Aug. 8, 1988), at 117, 138-40. The National Safety Council has recommended that all states adopt replicate testing and abandon requirements to capture second samples. Id. at 139; see also ERWIN, § 18.03.
Baca was the first Arizona case to require that police provide a DUI suspect with a separate sample of breath. The instrument used in Baca was a gas chromatograph intoximeter (GCI), which, unlike the Intoxilyzer but like the Breathalyzer, destroys the breath sample it tests. The issue in Baca was "whether, when a sample of a suspect's breath is consumed in the analysis, another sample must be taken and preserved for the private use of the suspect." Id. at 354, 604 P.2d at 618. The court concluded:
[T]he right to test incriminating evidence where the evidence is completely destroyed by testing becomes all the more important because the defense has little or no recourse to alternate scientific means of contesting the test results, and therefore, when requested, the police must take and preserve a separate sample for the suspect by means of a field collection unit.
Id. at 356, 604 P.2d at 620 (emphasis added).
Subsequent cases expanded the Baca requirement. In State v. City Court, the court of appeals required arresting officers to advise persons charged with driving while intoxicated of their right to have a breath sample preserved for independent testing, whether the testing device used is a Breathalyzer or an Intoxilyzer. 130 Ariz. 285, 286, 635 P.2d 878, 879 (Ct.App.1981).
Although generally the state is not obligated to assist a suspect in...
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