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State v. Velasco9/19/1990
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We therefore grant the ultimate relief requested by the state: the minute order of July 3, 1989 suppressing the Intoxilyzer result is vacated; the stay is dissolved; the case may proceed in a manner consistent with this opinion.
MOELLER, Justice, specially concurring.
The trial court held that the use of the silica gel method to capture the second sample violated the defendant's due process rights. Accordingly, the trial court suppressed the intoxilyzer results, believing suppression to be required by our cases. The validity of this suppression order is the single issue presented in this special action. In section D of the opinion, the majority holds, correctly I believe, that defendant's due process rights were not violated by use of the silica gel method. This holding disposes of the case. I would have the opinion say no more, recognizing the accuracy of the majority's observation that " his court's immersion in the subculture of DUI practice has not been entirely
satisfactory." Majority op. at 487, 799 P.2d at 828.
Once the single issue in this case is resolved, there is no reason to add to the opinion, unless the court wishes to accept the parties' invitation to reexamine and perhaps overrule our earlier cases on this subject in light of later cases such as Youngblood and Trombetta. I agree with the majority that " othing in the facts before us makes it necessary to decide today whether those cases [ Oshrin and Montano ], plus Baca and Scales, need be overruled." Majority op. at 489, 799 P.2d at 830. Because the majority and I are in agreement that we should not reach such issues in this case, I note my position that the statements and observations contained in section E of the majority opinion are dicta having no application to this or any other case.
In conclusion, because the record shows that the defendant's due process rights were not violated, I agree that the order of suppression should be reversed.
CORCORAN, Justice, dissenting:
Since this is not an adversarial proceeding in that both parties have concluded that the silica gel test is unreliable, I believe we should dismiss review as improvidently granted and deny the petition for review. I note that the majority points out in footnote 3 that this court has recently declined jurisdiction in two cases in which the "reliability" issue has been adversarially presented.
In addition, I believe we should review the continued vitality of Baca in light of Trombetta when that issue is presented in an appropriate case.
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