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State v. Velasco9/19/1990
a § 28-692(B) prosecution are not merely "potentially useful" evidence. A person may not be convicted of a violation of subsection (B) without evidence of chemical analysis of blood, breath, or urine showing a BAC in the proscribed range. State v. Superior Court, 149 Ariz. at 279, 718 P.2d at 181 (1986).
Nor do we believe our cases are necessarily in conflict with Trombetta. Trombetta concluded that due process was not violated by the state's failure to capture and preserve the breath discharged from the Intoxilyzer in the context of the procedure used in California DUI cases. We recently held that a similar methodology in Arizona satisfies due process. See State ex rel. Dean v. City Court, 163 Ariz. 510, 789 P.2d 180 (1990) (due process was not
violated where defendant was given choice between replicate breath test with no sample saved and blood test at state expense); see also Oshrin, 142 Ariz. at 113, 688 P.2d at 1005.
We have no doubt that other methodologies might also pass muster under the due process clause. For instance, the state argues that replicate testing
using an Intoxilyzer is so fundamentally reliable and accurate that concepts of fundamental fairness would require nothing further and no independent sample would be needed. However, mere capture and delivery to the defendant of a sample in the state's possession that otherwise would be discharged and dissipated is not an onerous burden on the state. Although the state may be correct in arguing that due process does not require an independent sample when the primary test consists of replicate testing on the Intoxilyzer, we will leave decision on that issue to the day it is presented.
Finally, we distinguished and commented on Trombetta in Oshrin, 142 Ariz. at 112-13, 688 P.2d at 1004-05, and Montano, 149 Ariz. at 390 n. 3, 719 P.2d at 276 n. 3. Nothing in the facts before us makes it necessary to decide today whether those cases, plus Baca and Scales, need be overruled. Those cases do not hold that due process requires the police to prepare the defendant's case and to collect and preserve evidence for the defendant. Although it might be more fair if, in investigating crime, the police collected and preserved all evidence, due process does not require the police to follow the most fair method; it only prohibits methods that are fundamentally unfair. However, it is one thing to say that the police need not prepare the defendant's case, and it is quite another to say that principles of fundamental fairness permit the police to knowingly destroy or dissipate that which they systematically obtain for their own testing and evidentiary use, especially when they may keep such evidence without any significant burden and are aware the evidence may be of value to the defense.
Conclusion
Under the present state of scientific knowledge, the silica gel preservation method to capture a DUI defendant's breath specimen and preserve it for independent testing is not so unreliable that its use violates due process of law. In general, with a proper foundational showing, results of the test of the sample preserved by the silica gel methodology would be admissible under the Frye test and the Harrison rule. The trial court's conclusion that the silica gel testing method was inherently "invalid" is therefore unsupported, and the consequent suppression of the Intoxilyzer results was an abuse of discretion.
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