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State v. Velasco9/19/1990
We accepted jurisdiction of this special action to examine the requirements of due process in connection with scientific testing of breath to determine blood alcohol concentration (BAC) of those arrested for driving under the influence (DUI). The specific crime we consider is a violation of A.R.S. § 28-692(B), which forbids driving with a BAC of .10 percent or higher. The state asks us to reexamine and abolish or modify the rule requiring that a DUI defendant be given a sample of his breath for independent testing, the results of which may provide defendant with evidence to contradict the state's test results. See Baca v. Smith, 124 Ariz. 353, 604 P.2d 617 (1980); Scales v. City Court, 122 Ariz. 231, 594 P.2d 97 (1979).
We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(1), and Rules 4(a) and 7(a), Ariz.R.P.Spec.Act., 17B A.R.S.
FACTS
On November 8, 1988, defendant Edward Anthony Alday (Alday) was stopped while driving in the town of Oro Valley. Officer Buvik of the Oro Valley Police Department pulled Alday over at approximately 12:41 a.m. after observing him speeding. The officer noticed that Alday smelled of alcohol, his eyes were bloodshot and watery, his speech was slurred, and he had difficulty standing. Alday also performed poorly on the field sobriety tests. The officer informed Alday of the Implied Consent Law (A.R.S. § 28-691) and Alday agreed to submit to a breath test. Officer Buvik, a Department of Health Services (DHS) certified Intoxilyzer operator, administered the test on a DHS certified Intoxilyzer, using a DHS certified checklist. Before administering the test, the officer observed Alday for twenty minutes, as required by statute, to ensure he did not put anything into his mouth or burp or vomit alcohol into his mouth. See A.R.S. § 28-692.03(A)(3). The test results showed Alday had a .195 percent BAC. Officer Buvik informed Alday of his right to a breath sample for independent testing. At Alday's request, Officer Buvik captured the sample in a silica gel tube. Alday was then advised of his right to obtain an independent blood alcohol test.
Alday was charged with four felonies: third offense driving while under the influence, in violation of A.R.S. § 28-692(A), § 28-692.01(F); third offense BAC, in violation of A.R.S. § 28-692(B), § 28-692.01(F); DUI while license suspended,
cancelled, revoked, refused, or under restriction, in violation of A.R.S. § 28-692(A), § 28-692.02(A)(1); and BAC while license suspended, cancelled, revoked, refused, or under restriction, in violation of A.R.S. § 28-692(B), § 28-692.02(A)(1).
The case was assigned to respondent, the Honorable Bernardo P. Velasco, Judge of the Pima County Superior Court. Alday filed a pretrial motion to suppress the results of the breath alcohol test administered at the time of his arrest, contending that the silica gel method of capturing the breath sample to be provided to arrestees is unreliable and therefore deprived him of a crucial source of evidence to challenge the state's BAC evidence. Because of the alleged unreliability of the captured breath sample, Alday argued that the state violated the requirements for preserving evidence set out in Baca, which holds that when a sample of a suspect's breath is consumed in the analysis and a request is made, another sample must be taken
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