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Isbell v. Miller8/30/1990
s intoxication.").
Isbell relies on Barcott v. State of Alaska, 741 P.2d 226 (1987) in arguing that the ALJ should have considered the margin of error inherent in the breath testing equipment. Joseph Barcott's breath test indicated that his BAC was 0.10. Id. at 227. The control test performed immediately before Barcott took his breath test provided a reading of 0.001 percent higher than the control sample and the control test performed immediately after produced a reading of 0.006 percent lower than the control sample. Id. Based on the driver's right to procedural due process, the Alaska Supreme Court held that Barcott's driver's license could not be suspended on the basis of his breath test result. Id. at 229. The court reasoned that if the device measured 0.001 percent higher than it should have, then Barcott's BAC would have been below 0.10, the statutory minimum. Id. In addition, the court noted that the ten percent margin of error inherent in any breath testing device could have reduced Barcott's BAC below the statutory minimum. Id. at n. 3.
There was no suggestion in Barcott that the Alaska legislature either anticipated or approved a ten percent margin of error in its breath testing devices. In contrast, here the director of the Department of Health Services has defined a breath testing device to be in proper operating condition if it includes as much as a 10% margin of error. See R9-14-405(A)(3).
Isbell also argues that Arizona should require, as other states have, that the operator of a breath testing device perform control tests immediately before and after the driver takes the breath test. Isbell's argument should be addressed to the Arizona Legislature, not to this court.
Based on the foregoing, we affirm.
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