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State v. City Court of City of Tucson10/31/1989
An essential lesson to be drawn from McNutt [v. Superior Court of State of Arizona, 133 Ariz. 7, 648 P.2d 122 (1982)], Scales [v. City Court of City of Mesa, 122 Ariz. 231, 594 P.2d 97 (1979)], and Baca [v. Smith, 124 Ariz. 353, 604 P.2d 617 (1979)] is that a defendant must be allowed to counter the state's scientific evidence of intoxication, or evidence of refusal, with the defendant's own scientific evidence.
That was done here, the appellees were given the choice of taking a blood test, instead of the breath test, at the state's expense and with a sample of the blood preserved for them. The breath test is not sacrosanct. The state can use blood tests instead of breath tests. See A.R.S. § 28-691(A) and Campbell v. Superior Court In and For Maricopa County, 106 Ariz. 542, 479 P.2d 685 (1971). A right to a sample of the breath test may be waived by the arrestee. See Mongan v. Pima County Superior Court, 148 Ariz. 486, 715 P.2d 739 (1986). The appellees waived their right to a blood sample by opting for the breath test.
The decision of the superior court is reversed with directions to vacate and set aside the order of the city magistrate.
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