State v. Velasco, CV-89-0303-SA

• Decision Date: 19 September 1990
• Docket Number: No. CV-89-0303-SA,CV-89-0303-SA
• Parties: STATE of Arizona, Petitioner, v. Hon. Bernardo P. VELASCO, Judge of Superior Court, In and For the County of Pima, State of Arizona, Respondent, and Edward Anthony ALDAY, Real Party in Interest.
• Court: Arizona Supreme Court

Page 821

799 P.2d 821

165 Ariz. 480

STATE of Arizona, Petitioner, v. Hon. Bernardo P. VELASCO, Judge of Superior Court, In and For the County of Pima, State of Arizona, Respondent, and Edward Anthony ALDAY, Real Party in Interest.

No. CV-89-0303-SA.

Supreme Court of Arizona, In Banc.

Sept. 19, 1990.

Reconsideration Denied Nov. 14, 1990.

[165 Ariz. 481] Stephen D. Neely, Pima County Atty. by Jill Thorpe, Tucson, for petitioner.

Barbara C. Sattler, Tucson, for real party in interest.

Michael J. Bloom, P.C. by Michael J. Bloom and Stephen Paul Barnard, P.C. by Stephen Paul Barnard, Tucson, for amicus curiae Arizona Attys. for Crim. Justice.

Lowell D. Hamilton, Mesa City Prosecutor by Kevin R. Hays, Mesa, amicus curiae.

Roderick G. McDougall, Phoenix City Atty. by L. Michael Hamblin, Phoenix, for amicus curiae Phoenix City Prosecutor.

OPINION

FELDMAN, Vice Chief Justice.

We accepted jurisdiction of this special action ¹ to examine the requirements of due process in connection with scientific testing of breath to determine blood alcohol concentration (BAC) of those arrested for driving under the influence (DUI). The specific crime we consider is a violation of A.R.S. § 28-692(B), which forbids driving with a BAC of .10 percent or higher. The state asks us to reexamine and abolish or modify the rule requiring that a DUI defendant be given a sample of his breath for independent testing, the results of which may provide defendant with evidence to contradict the state's test results. See Baca v. Smith, 124 Ariz. 353, 604 P.2d 617 (1980); Scales v. City Court, 122 Ariz. 231, 594 P.2d 97 (1979).

We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(1), and Rules 4(a) and 7(a), Ariz.R.P.Spec.Act., 17B A.R.S.

FACTS

On November 8, 1988, defendant Edward Anthony Alday (Alday) was stopped while driving in the town of Oro Valley. Officer Buvik of the Oro Valley Police Department pulled Alday over at approximately 12:41 a.m. after observing him speeding. The officer noticed that Alday smelled of alcohol, his eyes were bloodshot and watery, his speech was slurred, and he had difficulty standing. Alday also performed poorly on the field sobriety tests. The officer informed Alday of the Implied Consent Law (A.R.S. § 28-691) and Alday agreed to submit to a breath test. Officer Buvik, a Department of Health Services (DHS) certified Intoxilyzer operator, administered the test on a DHS certified Intoxilyzer, using a DHS certified checklist. Before administering the test, the officer observed Alday for twenty minutes, as required by statute, to ensure he did not put anything into his mouth or burp or vomit alcohol into his mouth. See A.R.S. § 28-692.03(A)(3). The test results showed Alday had a .195 percent BAC. Officer Buvik informed Alday of his right to a breath sample for independent testing. At Alday's request, Officer Buvik captured the sample in a silica gel tube. Alday was then advised of his right to obtain an independent blood alcohol test.

Alday was charged with four felonies: third offense driving while under the influence, in violation of A.R.S. § 28-692(A), § 28-692.01(F); third offense BAC, in violation of A.R.S. § 28-692(B), § 28-692.01(F); DUI while license suspended cancelled, revoked, refused, or under restriction, in violation of A.R.S. § 28-692(A), § 28-692.02(A)(1); and BAC while license suspended, cancelled, revoked, refused, or under restriction, in violation of A.R.S. § 28-692(B), § 28-692.02(A)(1).

The case was assigned to respondent, the Honorable Bernardo P. Velasco, Judge of the Pima County Superior Court. Alday filed a pretrial motion to suppress the results of the breath alcohol test administered at the time of his arrest, contending that the silica gel method of capturing the breath sample to be provided to arrestees is unreliable and therefore deprived him of a crucial source of evidence to challenge the state's BAC evidence. Because of the alleged unreliability of the captured breath sample, Alday argued that the state violated the requirements for preserving evidence set out in Baca, which holds that when a sample of a suspect's breath is consumed in the analysis and a request is made, another sample must be taken and preserved for the suspect. ² 124 Ariz. at 356, 604 P.2d at 620.

Judge Velasco granted the motion to suppress, stating:

IT IS THE FINDING OF THE COURT that where the State takes a test which it believes to be valid and reliable, advises the Defendant of his right to have his own test, provides him with a sample of the State's test, but which is otherwise deficient for testing purposes, that under those circumstances, the Defendant is entitled to suppression of the State's test for the following reasons:

1) The invalid test is an inducement to forego what could be a valid independent test; and

2) That where the State assumes an obligation to provide a sample for comparison, it must provide a valid sample.

Minute Entry, July 3, 1989.

The state filed this original special action proceeding, asking us to accept jurisdiction and hold that Judge Velasco abused his discretion in granting the motion to suppress the results of the Intoxilyzer test. The state also asks that we modify or overrule Baca v. Smith.

JURISDICTION

Special action relief generally is available only when the petitioner does not have an adequate remedy by appeal. Although the state concedes that it may appeal from an order suppressing evidence (A.R.S. § 13-4032), it contends that this is not an adequate remedy in the present case, where the reliability of the silica gel method of breath preservation is under attack. Silica gel preservation is the method used in much of the state, with the notable exceptions of Phoenix and Mesa, to comply with the mandates of Baca.

The state claims there has been a "flood" of motions to suppress breath alcohol results, with the majority of these being granted. The state opposes these motions, and suppression orders are being appealed through superior court and the court of appeals. Given the number of cases affected, we believe the legal issue is of statewide importance and principles of judicial efficiency require that it be decided in a single proceeding and as quickly as possible. We therefore accepted jurisdiction and stayed further proceedings in the trial court. See Rules 5 and 7, Ariz.R.P.Spec.Act., 17B A.R.S.

BREATH CAPTURE PROCEDURES IN ARIZONA

A. Methods of Breath Testing

1. Primary Breath Testing Instruments

Arizona law enforcement agencies use three types of primary breath testing in struments to determine breath alcohol pursuant to the Implied Consent Law, A.R.S. § 28-691: the Breathalyzer, the Gas Chromatograph Intoximeter (GCI), and the Intoxilyzer. The majority of jurisdictions in Arizona use the Intoxilyzer. All three primary breath testing devices test the breath at the time the specimen is taken. The devices are labeled as "primary" simply because the sample is captured and tested immediately.

The Intoxilyzer is the device used in this case. In an Intoxilyzer test, the suspect blows a sample of deep lung air through a mouthpiece and tubing into the machine, which uses infrared spectroscopy to examine the amount of ethyl alcohol present and converts this into a breath alcohol concentration reading of grams of alcohol per 210 liters of breath. The results are converted into BAC. Technically, the test does not consume the specimen. Although the original devices discharged the specimen into the air, the silica gel system used in this case captures and preserves the specimen for later retesting. The results of the retest may be compared with the results of the original Intoxilyzer test to verify the state's results.

2. Breath Preservation Methods

Breath preservation testing differs from primary testing methods in that the devices employed capture and preserve the breath for later testing. Two breath preservation methods are certified for use in Arizona: silica gel and indium. Silica gel is the method that was used in this case. The silica gel method utilizes a glass tube containing silica gel crystals. Silica gel is a highly absorbent substance that attracts and captures moisture. Because the Intoxilyzer does not destroy the breath sample as it analyzes it, the same specimen of breath analyzed in the state's test is blown over the silica gel on completion of the primary test. The tube is then sealed and given to the defendant for later, independent analysis.

3. DHS Regulation

DHS promulgated a series of regulations intended to guarantee the accuracy and reliability of breath testing instruments used in Arizona. See A.A.C., DHS Regulations, Art. 4: Determination of Blood Alcohol Content, R9-14-401 to R9-14-412 (supplemented and renumbered March 31, 1987). To be certified, all primary breath testing instruments must initially be able to meet a plus or minus five percent error factor. DHS Regulation R9-14-404(B)(3). The state must demonstrate that the instrument was working properly and accurately before and after the suspect's test for the results to be admissible. A.R.S. § 28-692.03. Subsequent to certification, DHS also requires that each machine be calibrated to a ten percent error factor every one hundred subjects or monthly. DHS Regulation R9-14-405(A)(3). A more involved Function and Accuracy check is required quarterly. Id. The records establishing compliance with these requirements are available to a defendant for checking and, if necessary, evidentiary use.

In addition to the regulations designed to guarantee the accuracy and reliability of the instrument itself, operators of the instruments must be certified pursuant to A.R.S. § 28-692.03 and DHS Regulation R9-14-407 and must follow the checklist developed by DHS for each instrument for the test results to be admissible in court. DHS Regulation R9-14-405(B) and (C). To establish admissibility, the operator must observe a DUI suspect for twenty minutes before performing a breath...