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State v. City Court of City of Mesa10/11/1990
Leonard Joseph LoPresti (defendant) petitioned for review of a court of appeals' opinion affirming the superior court's grant of special action relief to the State. The superior court's ruling permits the State to introduce horizontal gaze nystagmus (HGN) test results, in the absence of a chemical analysis of defendant's blood alcohol content (BAC), as proof defendant violated A.R.S. § 28-692(A), which provides:
It is unlawful and punishable as provided in § 28-692.01 for any person who is under the influence of intoxicating liquor
to drive or be in actual physical control of any vehicle within this state.
Because this is an issue of statewide importance, we granted review to clarify State v. Superior Court (Blake), 149 Ariz. 269, 718 P.2d 171 (1986), as it applies to cases involving a charge under § 28-692(A) only, where no chemical analysis of defendant's blood, breath, or urine was conducted. See Rule 23(f), Ariz.R.Civ.App.P., 17B A.R.S. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.
FACTS AND PROCEDURAL HISTORY
A Mesa police officer arrested defendant on September 15, 1987 for violating A.R.S. § 28-692(A) and for other unrelated traffic citations. Defendant refused to submit to a blood test offered by the officer for determination of BAC and refused to perform most field sobriety tests. No other chemical test was offered, and no chemical analysis was made of defendant's blood, breath, or urine. Defendant, however, did submit to a HGN test administered by the police officer, and was arrested on the basis of that test.
The State filed a motion in limine in Mesa City Court seeking to have the HGN test results admitted at defendant's jury trial. The court denied the motion and the State challenged the ruling in a special action filed in superior court. The court granted relief, ruling that the city judge abused his discretion in denying the motion in limine. The court concluded that, pursuant to Blake, the State was entitled to introduce the HGN evidence, "together with other evidence of the defendant's behavior to prove the defendant was 'under the influence' of alcohol . . . . However, pursuant to Blake, the state is precluded from admitting any evidence that would quantify the defendant's blood alcohol content (BAC)." Defendant appealed and the court of appeals affirmed. 163 Ariz. 303, 787 P.2d 1099 (App.1989).
The court of appeals first noted that Blake holds that HGN test results are admissible to prove a violation of A.R.S. § 28-692(A), but not as direct independent evidence to quantify BAC. The court, citing State ex rel. McDougall v. Ricke, 161 Ariz. 462, 778 P.2d 1358 (App.1989), interpreted Blake to hold that although HGN test results are not admissible to establish a specific percentage of BAC, neither Blake nor Ricke precluded testimony by the officer administering the test that defendant's BAC exceeded 0.10%. The court reasoned that Ricke held such testimony, with proper foundation, is not the "quantification" precluded by Blake and therefore is admissible as evidence a suspect was under the influence of alcohol. The court of appeals further held that HGN testing met the Frye standard of scientifically reliable evidence. See Frye v. United States, 293 F. 1013 (D.C.Cir.1923) (standard is whether the technique is generally accepted by the re
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