State v. O'DELL

Decision Date30 May 2002
Citation46 P.3d 1074,202 Ariz. 453
PartiesThe STATE of Arizona, Appellant, v. Terry Lynn O'DELL; Marcos T. Poblete; William W. Morgan; Miguel Canedo Avilez; Ike Paul Jimmerson; Freddy E. Martinez; Eugene A. Vasquez; Rigoberto Lujan, Jr.; and Reginald C. Johnson, Appellees.
CourtArizona Court of Appeals

Barbara LaWall, Pima County Attorney, by Elizabeth Hurley and Bradley Roach, Tucson, for Appellant.

Susan A. Kettlewell, Pima County Public Defender, by Dean J. Brault, Tucson, for Appellees O'Dell, Poblete, Morgan, Avilez, Jimmerson, Martinez, Lujan, and Johnson.

Zohlmann Law Offices, by Robert J. Zohlmann, Amado, for Appellee Vasquez.


HOWARD, Presiding J.

¶ 1 The superior court dismissed with prejudice charges of driving under the influence of an intoxicant (DUI) and driving with a blood alcohol content (BAC) of .10 or more against appellees, Terry L. O'Dell; Marcos T. Poblete; William W. Morgan; Miguel C. Avilez; Ike P. Jimmerson; Freddy E. Martinez; Eugene A. Vasquez; Rigoberto Lujan, Jr.; and Reginald C. Johnson (collectively "O'Dell"), after consolidating their cases. The court found that the state's failure to preserve and disclose memory data from the intoxilyzer used to determine their BAC violated Rule 15.1, Ariz.R.Crim.P., 16A A.R.S., the federal and state due process clauses, and the requirement of statewide uniformity for BAC testing. Because the record fails to support the superior court's factual findings and because we disagree with its conclusions of law, we vacate the trial court's order of dismissal and remand for further proceedings.


¶ 2 We view the facts in a light most favorable to sustaining the trial court's dismissal. State v. Rasch, 188 Ariz. 309, 312, 935 P.2d 887, 890 (App.1996). The state uses the Intoxilyzer 5000 to test DUI suspects' breath for the presence of alcohol. Before and after a completed breath test of any DUI suspect, the intoxilyzer automatically runs "concurrent" calibration checks to test its own accuracy. To operate, the machine also requires that two individual breath measurements, or "subject tests," be taken between five and ten minutes apart, with results that are within .02 of each other. Additionally, every thirty-one days a routine calibration test is conducted, and every ninety days a quality assurance test is conducted. Further, the state keeps a service log for repairs to the intoxilyzer. If the intoxilyzer detects an error on a subject test, it "flags" the error and prints a card reporting the error, and the suspect is retested. After each completed breath test, the suspect is given a breath test card printed from the intoxilyzer's memory, which includes results from both subject tests and the concurrent calibration tests. The suspect is also provided with the results of the thirty-one-day calibration testing and ninety-day quality assurance testing.

¶ 3 Unlike earlier models of intoxilyzers, which contained only enough memory to store data from a single completed test so that the breath card could be printed, the Intoxilyzer 5000 has sufficient memory to retain data from multiple completed breath tests, calibration checks, and quality assurance procedures, as well as other data. Its memory, however, can store data from only one hundred completed breath tests. And, when the memory is full, new data begins to overwrite the oldest data.

¶ 4 Police can electronically transfer the data from the memory through dedicated telephone lines and a modem to Arizona Department of Public Safety (DPS) computers in Phoenix crime laboratories equipped with the Alcohol Data Acquisition Management System (ADAMS), a software database and communication package. After being transferred, the data can be sent to an Arizona Criminal Justice System mainframe computer, where it could be accessible to DUI defendants as an ADAMS report. While some law enforcement jurisdictions in the state routinely transfer the Intoxilyzer 5000 data and provide ADAMS reports to DUI defendants, Pima County has not installed the modem required to connect with the DPS mainframe and does not transfer the data. Therefore, although DUI defendants in Pima County have access to the paper records from their respective breath tests, the state cannot provide them access to ADAMS data from any other breath tests.


¶ 5 O'Dell and the other appellees were charged in Pima County Superior Court with DUI and/or driving with a BAC of .10 or more.1 The state disclosed O'Dell's breath test card, which included the concurrent calibration checks and O'Dell's test results, and also disclosed results from the thirty-one-day calibration checks and the ninety-day quality assurance test. However, in keeping with routine procedure, the intoxilyzer memory, which contained data from O'Dell's breath test and other individual breath tests which preceded and followed O'Dell's, was not electronically transferred. Accordingly, this data was eventually overwritten in the intoxilyzer memory.

¶ 6 In a "Motion for Disclosure" filed pursuant to Rule 15.1, Ariz.R.Crim.P., and an additional motion for sanctions, O'Dell moved to suppress his breath test results and dismiss his case, arguing the state impermissibly had allowed the data in the memory of the intoxilyzer used for his breath test to be erased. The court consolidated the other appellees' cases with O'Dell's for the limited purpose of resolving this issue.2 In his motions, O'Dell argued that his breath test results should be suppressed and his case dismissed because the intoxilyzer data was exculpatory and the state was required to disclose it under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). He further argued that dismissal was required because the state had acted in bad faith in failing to preserve the data. The state responded that neither preservation nor disclosure of the data was necessary because it was not exculpatory. It also contested the claim of bad faith.


¶ 7 After the hearing, the trial court, in its minute entry dismissing O'Dell's case, entered factual findings and legal conclusions,3 including the fact that the intoxilyzer data was exculpatory "as a whole" and that the state had violated Rule 15.1, Ariz.R.Crim.P., and Brady in failing to preserve it. The court further concluded that dismissal was required under Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), and State v. Youngblood, 173 Ariz. 502, 844 P.2d 1152 (1993), because the state had acted in bad faith when it "intentionally or at least knowingly allowed evidence that is, in general terms, clearly exculpatory to be systematically destroyed." The state appeals the trial court's ruling.

¶ 8 "Generally, a trial court's ruling on a motion to dismiss the indictment or to suppress evidence will not be overturned absent an abuse of discretion." State v. Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d 303, ¶ 9 (App.2000). We defer to the trial court's factual findings unless clearly erroneous. Mack v. Cruikshank, 196 Ariz. 541, ¶ 6, 2 P.3d 100, ¶ 6 (App.1999). But we are not bound by its legal conclusions. State v. Hackman, 189 Ariz. 505, 508-09, 943 P.2d 865, 868-69 (App.1997). We also review any due process claims de novo. Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d 303, ¶ 9.

RULE 15.1(e)

¶ 9 The trial court based the dismissal, in part, on Rule 15.1(e), Ariz.R.Crim.P., which provides as follows:

Upon motion of the defendant showing that he or she has substantial need in the preparation of his or her case for additional material or information not otherwise covered by Rule 15.1, and that the defendant is unable without undue hardship to obtain the substantial equivalent by other means, the court in its discretion may order any person to make it available to him or her. The court may, upon the request of any person affected by the order, vacate or modify the order if compliance would be unreasonable or oppressive.

This rule does not, by its own terms, provide for dismissal. And the record in this case contains no prior order requiring any additional disclosure. Consequently, the trial court could not dismiss the case against O'Dell without having entered a prior order with which the state had failed or refused to comply.4 See Rule 15.7, Ariz.R.Crim.P. (providing for sanctions for failure to disclose). Furthermore, although O'Dell moved for "disclosure" under Rule 15.1(e), the intoxilyzer data no longer existed, a fact that O'Dell acknowledged in his disclosure motion. Rule 15.1(e) simply cannot apply to evidence that no longer exists. Accordingly, the trial court improperly dismissed the charges under Rule 15.1(e).


¶ 10 The trial court further dismissed the charges pursuant to Brady, and under Rule 15.1(a)(7), Ariz.R.Crim.P., which codifies Brady. See Ariz.R.Crim.P. 15.1(a)(7), cmt. Brady is rooted in the due process clause and its purpose is to protect a defendant's "right to a fair trial by ensuring the reliability of the verdict against him." United States v. Coppa, 267 F.3d 132, 138 (2nd Cir.2001). Under Brady, the state is required to disclose all plainly exculpatory evidence within its possession and violates due process if it fails to do so, irrespective of its good or bad faith. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218; see also Arizona v. Youngblood, 488 U.S. at 57, 109 S.Ct. at 337, 102 L.Ed.2d at 289; State v. Youngblood, 173 Ariz. at 506, 844 P.2d at 1156.

¶ 11 As O'Dell stated in his motion for disclosure and as the court itself recognized, the state had not preserved the intoxilyzer data. Hence, the state did not violate Brady by failing to disclose evidence it no longer had. And the state had never possessed the data in any useable form. Moreover, the remedy for a Brady violation is a retrial, not dismissal, since Brady presupposes the exculpatory...

To continue reading

Request your trial
40 cases
  • State Of Ariz. v. Womble
    • United States
    • Arizona Supreme Court
    • July 12, 2010
    ...have exculpated a defendant is insufficient to establish a due process violation.” State v. O'Dell, 202 Ariz. 453, 458 ¶ 13, 46 P.3d 1074, 1079 (App.2002).5 The detectives understood what evidence they were required to preserve, and nothing suggests that they failed to preserve tapes of the......
  • State v. Speer
    • United States
    • Arizona Supreme Court
    • July 24, 2009
    ...540 U.S. 544, 549, 124 S.Ct. 1200, 157 L.Ed.2d 1060 (2004) (per curiam); see also State v. O'Dell, 202 Ariz. 453, 458 ¶ 13, 46 P.3d 1074, 1079 (App.2002) (stating that the mere possibility that destroyed evidence might be exculpatory does not establish a constitutional violation). Youngbloo......
  • State v. Jackson
    • United States
    • Arizona Court of Appeals
    • May 28, 2004
    ...unless they are clearly erroneous or unsupported by any reasonable evidence, but we review any legal conclusions de novo. State v. O'Dell, 202 Ariz. 453, ¶ 8, 46 P.3d 1074, 1077-78 (App.2002); Escobar-Mendez, 195 Ariz. 194, ¶ 15, 986 P.2d at 230. We cannot say the trial court clearly erred ......
  • State v. Glissendorf
    • United States
    • Arizona Court of Appeals
    • October 23, 2013
    ...the failure to preserve evidence does not violate due process. See Youngblood, 173 Ariz. at 506–07, 844 P.2d at 1156–57;see also State v. O'Dell, 202 Ariz. 453, ¶ 26, 46 P.3d 1074, 1081 (App.2002) (recognizing Willits instruction may be appropriate in particular cases, notwithstanding lack ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT