State of Arizona v. Cooperman

Citations: 230 Ariz. 245; 282 P.3d 446; 641 Ariz. Adv. Rep. 14; 2012 WL 3324227; 2012 Ariz. App. LEXIS 134Docket: 2 CA-CV 2011-0197

Court: Court of Appeals of Arizona; August 14, 2012; Arizona; State Appellate Court

Original Court Document: View Document

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The Court of Appeals of Arizona affirmed the ruling of the Tucson City Court, which allowed Joseph Cooperman to introduce partition-ratio evidence in his DUI trial. Cooperman was charged with DUI while impaired (A.R.S. 28-1381(A)(1)) and with having an alcohol concentration of .08 or more (A.R.S. 28-1381(A)(2)). The state sought to preclude this evidence, citing the precedent set in Guthrie v. Jones, which deemed breath-to-blood partition ratios inadmissible for the .08 charge but permissible to rebut presumptions of intoxication for the impaired charge. 

The Tucson City Court denied the state’s motion, allowing the introduction of partition-ratio evidence while limiting it to the impaired charge. The state then filed a special action in superior court, challenging this decision, but the superior court affirmed the city court's ruling. During the evidentiary hearing, conflicting expert testimonies were presented regarding the influence of partition ratios and other factors on breath-test accuracy. The state conceded that radio frequency interference (RFI) should not have been included in its motion but later sought to replace it with hematocrit, which the city court permitted. Hematocrit is relevant as it may impact breath-test results.

The state has initiated an appeal, asserting jurisdiction based on A.R.S. 12-120.21(A)(1), 12-2101(A)(1), and Rule 8(a), Ariz. R. P. Spec. Actions. Under Arizona law, specifically A.R.S. 28-1381 through 28-1383, a defendant can face multiple DUI charges, including A.R.S. 28-1381(A)(1), where the state must prove driving under the influence to any degree, and A.R.S. 28-1381(A)(2), which requires proof of an alcohol concentration of .08 or more within two hours of driving. Cooperman was charged under both provisions.

Arizona’s implied consent law, A.R.S. 28-1321(A), mandates that individuals operating vehicles consent to tests for alcohol concentration upon DUI arrest. If test results indicate an alcohol concentration of .08 or higher, a presumption of intoxication arises for the (A)(1) charge, but this does not exclude other evidence regarding intoxication (A.R.S. 28-1381(H)). 

The document references that while alcohol in breath does not directly cause impairment, breath alcohol readings correlate to blood alcohol levels using a 2,100:1 ratio established by the legislature. This ratio is an estimation affected by various individual factors. In the case of Guthrie, the court ruled that evidence regarding the accuracy of this partition ratio is not admissible for prosecutions under A.R.S. 28-1381(A)(2), as the statute allows for either breath or blood readings to demonstrate alcohol concentration without consideration of conversion accuracy. However, in prosecutions under A.R.S. 28-1381(A)(1), if breath-test results are used to establish a presumption of intoxication, defendants may present evidence contesting the partition ratio's accuracy to rebut that presumption.

In its special action petition to the superior court, the state argued that the city court abused its discretion by (1) ruling that the A.R.S. 28-1381(G) presumption arises automatically when test results are admitted, regardless of whether the state intended to utilize the presumption; (2) allowing evidence of the variability of the partition ratio in the general population to be relevant and admissible in an (A)(1) case once the presumption arises; and (3) admitting evidence related to hematocrit, breathing patterns, and breath/body temperature in both types of DUI cases. On appeal, the state reiterated these points, claiming that the superior court's affirmation of the city court's ruling was contrary to existing case law. 

The appellate review entails two steps: assessing the superior court's jurisdiction acceptance and evaluating the merits of its decision. The superior court accepted jurisdiction, finding no adequate remedy through appeal, a conclusion both parties agreed with. The denial of special action relief is at the superior court's discretion, but legal interpretations are reviewed de novo. The superior court supported its denial by stating the city court’s order was well-reasoned and aligned with the evidentiary record and case law, a conclusion that the appellate court found to be well-supported.

Regarding the statutory presumption, the state contended that the partition-ratio calculation evidence is inadmissible if the state does not invoke the statutory presumption. However, Cooperman argued that the presumption is raised whenever evidence of alcohol concentration is introduced, allowing defendants to challenge the breath-to-blood partition ratio. He cited A.R.S. 28-1381(H) to emphasize that the legislature intended to grant defendants the right to present a full defense, including the ability to contest the A.R.S. 28-1381(G) presumption.

The city court determined that there is no limitation in the language of Guthrie or A.R.S. 28-1381(G) regarding the presumption of intoxication in DUI prosecutions. It ruled that the presumption automatically applies in an (A)(1) case once the state presents evidence from the Intoxilyzer showing the defendant's blood alcohol concentration (BAC). The court found that the statute does not provide the state an option to refrain from invoking this presumption when evidence of intoxication is introduced.

The interpretation of this statute is a legal matter subject to de novo review, with the focus being on the legislature's intent as indicated by the statute's clear language. The court concluded that A.R.S. 28-1381(G) is unambiguous, establishing that a BAC of .08 or higher raises a presumption of intoxication in (A)(1) prosecutions. There is no statutory support for the state's claim that the presumption only applies if explicitly invoked.

Moreover, trial courts are obligated to instruct juries on relevant legal principles in criminal cases. Failing to provide such instruction on a crucial aspect of the defendant's rights constitutes fundamental error, regardless of instruction requests. Although the presumption in A.R.S. 28-1381(G) is deemed permissive, the trial judge must still inform the jury about this principle when BAC evidence is presented.

Lastly, the state argued that a defendant challenging the Intoxilyzer’s partition ratio must provide their own evidence at the time of testing. It contended that the logic from Guthrie supports this view, asserting that other evidence is generally less probative and potentially prejudicial. In contrast, Cooperman maintained that Guthrie does not prevent defendants from presenting studies or evidence regarding population variations.

The state’s motion in limine is treated as a motion to suppress, focusing solely on evidence from the suppression hearing, viewed favorably towards the city court’s ruling. A trial court possesses broad discretion regarding evidence admissibility, conducting a balance of probative value against prejudicial effect under Rule 403, Ariz. R. Evid. The review considers evidence in a light that maximizes its probative value and minimizes prejudice.

The court finds the state’s interpretation of the Guthrie case overly broad. While Guthrie indicates that partition-ratio evidence is relevant for an (A)(1) DUI prosecution, it does not clarify whether a defendant can present evidence of general variability in partition ratios. The city court looked to precedents from other jurisdictions, concluding that if the state relies on an Intoxilyzer result to argue impairment, evidence of partition ratio variability is relevant to challenge intoxication presumptions in (A)(1) cases.

The city court determined that an individual’s partition ratio varies constantly, rendering calculations at later times irrelevant to discredit earlier Intoxilyzer results. It affirmed that the variability of partition ratios makes such evidence pertinent, allowing the defense to question the reliability of Intoxilyzer results. The evidence must have any tendency to affect the probability of a fact, a standard that is not stringent.

Thus, when charged with DUI under A.R.S. 28-1381(A)(1) and the state presents breath-alcohol concentration evidence, defendants may introduce evidence about partition ratio variability affecting breath-test results. The jury decides the weight of this evidence. The court also upholds Guthrie’s ruling that partition-ratio evidence is inadmissible for (A)(2) cases and agrees that the state deserves a limiting instruction on this matter, finding no abuse of discretion in the superior court’s denial of relief.

The state contends that evidence regarding the effects of hematocrit, breathing patterns, and body temperature on breath tests should be excluded unless the defendant provides specific evidence of their physiology at the time of the test. The state argues that these factors lack relevance since they claim the expert consensus indicates that hematocrit does not impact breath-to-blood test discrepancies. They assert that a properly administered breath test would mitigate any influence from breathing patterns and that no correlation exists between body and breath temperature and alcohol concentration in tests.

In contrast, the defendant, Cooperman, cites State ex rel. McDougall v. Superior Court, asserting that defendants can challenge breathalyzer accuracy on various grounds, including inherent error margins. He argues that temperature and breathing patterns are always relevant to A.R.S. 28-1381(A)(2) charges, and requiring the defendant to provide specific evidence of physiological variables is an improper burden shift.

The city court found evidence of these physiological factors relevant and admissible in both case types, rejecting the state’s expert's opinion in favor of defense expert Flaxmayer's testimony. Flaxmayer indicated that hematocrit could alter breath or blood alcohol concentration by approximately five percent, and highlighted that breathing technique influences breath alcohol readings. He also explained that body temperature affects the alcohol concentration in breath, noting that even slight deviations in calibration temperature could lead to significant changes in test results.

The city court observed that Sloneker did not specifically address how breathing patterns and temperature impact breath alcohol readings, only linking these factors to the partition ratio. Flaxmayer acknowledged that a deep breath taken as instructed should mitigate physiological effects, but he also noted that it is not always possible to determine if someone is breathing correctly. Cooperman provided expert testimony indicating that these physiological factors, independent of the partition ratio, can affect the accuracy of breath alcohol measurements, which is pertinent to the charges at hand. Consequently, the court concluded that the evidence presented was relevant and had the potential to influence the determination of a fact in issue. The superior court's ruling was therefore affirmed.