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Isbell v. Miller8/30/1990
Appellant, Marion William Isbell, III, appeals from the superior court's affirmance of an administrative order which suspended his driver's license for driving under the influence of an intoxicating beverage. He raises the following issues for our review.
1) Whether A.R.S. § 28-694 requires an administrative hearing officer (ALJ) to consider extrapolation evidence;
2) if the ALJ is not required to consider extrapolation evidence, whether section 28-694 is unconstitutional because it lacks a rational basis; and
3) whether the ALJ was required to consider the inherent error in breath testing equipment.
Isbell was stopped and arrested for driving while under the influence of an intoxicating beverage on February 16, 1988. He was transported to the police station where, approximately one hour after his arrest, he was given a Breath Intoxilyzer Test. The test indicated that his blood alcohol level (BAC) was .10. The instrument used to test Isbell had received regular
maintenance on February 8, 1988. The maintenance report indicated that there was no differential or a .001 higher reading than the alcohol sample used to calibrate it. The machine was then adjusted. It was serviced again on February 18, 1988. The maintenance report from that service indicates that there was no differential or a .004 lower reading than the alcohol sample used to calibrate it. No adjustments were made. Isbell requested that a sample of his breath be preserved for independent testing, which was done by his expert witness, Lucien Haag.
Haag found Isbell's breath sample to be .096. Defense counsel submitted a report from Haag at the administrative suspension hearing. It stated the results Haag obtained from his independent testing and extrapolated the test results to the time of driving. The extrapolation results indicated that if Isbell had taken the Breath Intoxilyzer Test contemporaneous with his arrest, his blood alcohol would have been below both the .10 found by the police officer and the .096 found by Haag's independent testing because Isbell would have been in the alcohol absorptive phase at the time of driving. Haag also stated that the margin of error in forensic alcohol measurements was at least plus or minus 10% and that in the region of .09 and .10 BAC, such a margin of error would translate to plus or minus 0.01 blood alcohol percentage units.
Haag's report was admitted into evidence at the administrative hearing. The ALJ did not comment on Haag's statement that the margin of error in any blood or breath test was at least 10%. However, the ALJ did find that the police department had established that the Breath Intoxilyzer was working properly both before and after the test. The ALJ stated that he did not consider the extrapolation evidence provided by Haag because section 28-694 required him to consider the Breath Intoxilyzer Test result, not Isbell's BAC when he was driving. The ALJ sustained the suspension of Isbell's driver's license.
a. Extrapolation.
The ALJ correctly disregarded the extrapolation evidence presented by Haag because section 28-694 requires that a driver's BAC be .10 or more at the time of a test, not at the time he or she was driving. State of Arizona v. Nance, 165 Ariz. 286, 798 P.2d 1295 (1990); Knapp v. Miller, 165 Ariz. 527, 799 P.2d 868 (Ct.App.1990).
In Nance, the respondent was arrested for driving while intoxicated. He submitted to a breath test appr
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