State ex rel. Dean v. City Court of City of Tucson, 2
| Decision Date | 31 October 1989 |
| Docket Number | No. 2,CA-CV,2 |
| Citation | 788 P.2d 99,163 Ariz. 366 |
| 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. 89-0040. |
| Court | Arizona Court of Appeals |
Frederick S. Dean, Tucson City Atty. by Christopher L. Straub, Tucson, for plaintiff/appellant.
David M. Gerson, Tucson, for appellee Wilson.
Dunscomb & Shepherd, P.C. by Paul J. Gattone, Tucson, for appellee Davis.
Christopher M. O'Connell, Tucson, for appellee Finlay.
Martin & Mohling by T. Andrew Mohling, Tucson, for appellee Barkyoumb.
Gaila Davis, Tucson, for appellee Balkow.
Stephen Bergsten, Tucson, for appellee Perea.
This is an appeal from the denial of special action relief. The state filed a motion in limine to determine the admissibility of the breath test administered to the appellees in order to permit the state to use the results at trial. The appellees filed motions to suppress. After taking evidence the magistrate denied the state's motion to permit the use of the intoxilyzer breath results at trial. The state then filed a complaint for special action relief in the superior court which eventually affirmed the magistrate.
In December 1987, appellees were arrested for driving under the influence. At the time the Tucson Police Department and the City Attorney's Office were engaged in a joint project to test the legal sufficiency of a replicate breath testing procedure. This meant that no breath samples were to be captured or preserved although the machine used was capable of preserving a breath sample. Instead, each was given the option of providing two breath samples If you choose the 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.
[163 Ariz. 367] or a single blood sample to be examined for blood alcohol concentration. The appellees were advised by police officers as follows:
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.
All the appellees chose to submit to two breath samples and all signed a waiver which stated in part:
I understand that by choosing breath test to determine the amount of alcohol in my blood that NO SAMPLE OF MY BREATH WILL BE SAVED FOR ME OR MY ATTORNEY.
Each of the results, except those of appellee Finlay, exceeded .10 percent of blood-alcohol content, and the variance from the replicate test was less than .02 percent blood-alcohol content. 1
At an evidentiary hearing before Chief Magistrate Thomas G. Martin, the state was allowed to make an offer of proof through its expert witnesses as to use of the replicate procedure. These witnesses testified that the system presently utilized, i.e. the preservation of a breath sample, is subject to a number of problems not encountered in the replicate procedure. The saved breath sample contained in a silica gel tube may be contaminated by mouth alcohol recently brought up by the stomach and this would result in an artificially high result on both the original reading and the retest. Also, inconsistent results may occur when a defendant's sample is either improperly collected or improperly stored by him or when the retest procedure used by the defendant's chosen analyst falls short of generally accepted standards. Since these pitfalls are not encountered in the replicate procedure, these experts considered the replicate procedure superior to the present system and more accurate since the replicate tests must agree within .02 percent. There was also evidence that the National Safety Council has recommended that all states adopt replicate testing and abandon the practice of capturing and preserving second breath samples.
The state contends that it offered the appellees due process under the Fourteenth Amendment to the United States Constitution because (1) due process only requires that an arrestee be informed of the choices that allow him to test the state's evidence at a later date; (2) its procedures complied with the requirements set forth in Oshrin v. Coulter, 142 Ariz. 109, 688 P.2d 1001 (1984); (3) replicate breath testing without providing a sample to the arrestee has been upheld by the United States Supreme Court in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); (4) other jurisdictions have abandoned sample preservation in light of the Trombetta case.
The appellees contend: (1) The Trombetta case is factually distinguishable from the case sub judice because the machine used by the California court was not designed to preserve a breath sample; (2) the Arizona Supreme Court has distinguished Trombetta based on the separate due process guarantee of the Arizona Constitution and (3) if the city wants to utilize replicate testing it can do so and still provide the arrestee with a breath sample.
In Oshrin v. Coulter, supra, the defendant was arrested for driving while under the influence and given an intoximeter breath test. He requested that a separate sample be preserved for his own use. After eight hours in custody, the charges were dropped and he was released. The defendant made no effort to have his breath sample tested and the state subsequently destroyed the sample. Four months later, driving under the influence charges were filed which included a charge under A.R.S. § 28-692(B), driving with a blood-alcohol content of .10 percent. The defendant moved to suppress the evidence and dismiss the charges because his breath...
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State v. Vannoy, 1
...to counter the state's scientific evidence of intoxication with scientific evidence of his own. State ex rel. Dean v. City Court, 163 Ariz. 366, 368, 788 P.2d 99, 101 (App.1989), approved, 163 Ariz. 510, 789 P.2d 180 (1990). By failing to preserve a breath sample in the present case, the st......
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State ex rel. Dean v. City Court of City of Tucson
...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. ......
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State v. Kemp
...test at the state's expense and the sample is preserved and available for independent testing. See State ex rel. Dean v. City Court, 163 Ariz. 366, 368, 788 P.2d 99, 101 (App.1989), approved 163 Ariz. 510, 789 P.2d 180 (1990).4 This defendant, at the hearing on his motion to suppress, faile......
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State v. Superior Court In and For County of Yavapai, 1
...is simply a codification of the language from Montano which we viewed as the key to our decision in State ex rel. Dean v. City Court of Tucson, 163 Ariz. 366, 788 P.2d 99 (App.1989), and which we still regard as the foundation of any discussion on this issue: "An essential lesson to be draw......