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State v. City Court of City of Tucson10/31/1989
This is an appeal from the denial of special action relief. The state filed a motion in limine to determine the admissibility of the breath test administered to the appellees in order to permit the state to use the results at trial. The appellees filed motions to suppress. After taking evidence the magistrate denied the state's motion to permit the use of the intoxilyzer breath results at trial. The state then filed a complaint for special action relief in the superior court which eventually affirmed the magistrate.
FACTS
In December 1987, appellees were arrested for driving under the influence . At the time the Tucson Police Department and the City Attorney's Office were engaged in a joint project to test the legal sufficiency of a replicate breath testing procedure. This meant that no breath samples were to be captured or preserved although the machine used was capable of preserving a breath sample. Instead, each was given the option of providing two breath samples
or a single blood sample to be examined for blood alcohol concentration. The appellees were advised by police officers as follows:
If you choose the breath test, no sample of your breath will be saved for you or your attorney for later analysis. If you choose the blood test, you will be taken to a hospital where your blood will be drawn at no expense to you. The sample of your blood will be saved and available for testing by all parties in a criminal case.
Regardless of whether you choose to give samples of your breath or blood, you are advised that you have the right to an independent test or tests by a physician or other qualified person of your own choosing at your expense.
All the appellees chose to submit to two breath samples and all signed a waiver which stated in part:
I understand that by choosing breath test to determine the amount of alcohol in my blood that NO SAMPLE OF MY BREATH WILL BE SAVED FOR ME OR MY ATTORNEY.
Each of the results, except those of appellee Finlay, exceeded .10 percent of blood-alcohol content, and the variance from the replicate test was less than .02 percent blood-alcohol content.
At an evidentiary hearing before Chief Magistrate Thomas G. Martin, the state was allowed to make an offer of proof through its expert witnesses as to use of the replicate procedure. These witnesses testified that the system presently utilized, i.e. the preservation of a breath sample, is subject to a number of problems not encountered in the replicate procedure. The saved breath sample contained in a silica gel tube may be contaminated by mouth alcohol recently brought up by the stomach and this would result in an artificially high result on both the original reading and the retest. Also, inconsistent results may occur when a defendant's sample is either improperly collected or improperly stored by him or when the retest procedure used by the defendant's chosen analyst falls short of generally accepted standards. Since these pitfalls are not encountered in the replicate procedure, these experts considered the replicate procedure superior to the present system and more accurate since the replicate tests must agree within .02 percent. There was also evidence that the National Safety Council has recommended that all states adopt replicate testing and abandon the practice of capturing and preserving second breath samples.
CONTENTIONS OF THE PARTIES
The state contends that it offered the appellees due process under the Fourteenth Amendment to the United States Constitution because (1) due process only req
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