State Ex Rel. Dean v. City Court

Citations: 788 P.2d 99; 163 Ariz. 366Docket: 2 CA-CV 89-0040

Court: Court of Appeals of Arizona; February 6, 1990; Arizona; State Appellate Court

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An appeal was filed by the State of Arizona against the Tucson City Court and several defendants regarding the denial of special action relief concerning the admissibility of breath test results in DUI cases. The state sought to use intoxilyzer breath test results at trial, but the magistrate denied this after the defendants filed motions to suppress. The events stemmed from a December 1987 incident where the defendants were arrested for DUI during a joint project by the Tucson Police Department and the City Attorney's Office to evaluate a new breath testing procedure that did not preserve breath samples. Instead, defendants could choose between two breath samples or a blood sample, with the caveat that breath samples would not be saved. Each defendant signed a waiver acknowledging this limitation.

At an evidentiary hearing, expert witnesses for the state testified that the replicate breath testing procedure was superior to traditional methods because it avoided issues such as contamination of saved breath samples and inconsistencies in sample collection and storage. The breath test results for the defendants, except for one, exceeded a .10 percent blood-alcohol concentration, with variances being less than .02 percent. The superior court affirmed the magistrate's decision, maintaining the denial of the state's motion to admit the breath test results at trial.

The National Safety Council has advised states to adopt replicate testing for breath samples and discontinue the preservation of second breath samples. The state argues that it provided due process under the Fourteenth Amendment by informing arrestees of options to test state evidence later, citing compliance with the standards in **Oshrin v. Coulter**, and asserting that replicate testing without preserving samples is permissible under **California v. Trombetta**. Conversely, the appellees contend that **Trombetta** is factually different since the machine involved did not preserve samples and that the Arizona Supreme Court has differentiated **Trombetta** regarding Arizona's constitutional due process. They argue that the city can implement replicate testing while still providing a breath sample.

In **Oshrin**, the defendant was arrested for DUI and requested preservation of his breath sample, which was destroyed by the state after charges were dropped. Later, when new charges were filed, he sought to suppress the evidence due to the destruction of his sample, but the trial court denied the motion. The Arizona Supreme Court remanded the case to suppress the breathalyzer results for the charges under A.R.S. 28-692(B) but allowed trial under A.R.S. 28-692(A) based on other evidence. The state relied on **Trombetta**, which held that due process does not mandate preservation of breath samples. However, the Arizona Supreme Court found critical distinctions: the intoxilyzer in **Trombetta** did not preserve samples, the case did not involve evidence destruction, and California law provided suspects with choices for testing that included preservation of samples, unlike the situation in **Oshrin**.

Further jurisprudence indicates that defendants must be allowed to counter the state's intoxication evidence with their own, and the appellees were given the option of a blood test at state expense, which included sample preservation. The court clarified that breath tests are not the only method available; blood tests can be utilized instead. The appellees waived their right to a blood sample by choosing the breath test. The superior court's decision is reversed, instructing to vacate the order from the city magistrate.