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State v. Kemp6/11/1991
e a separate sample for the suspect by means of a field collection unit.
124 Ariz. at 356, 604 P.2d at 620 (emphasis added). Likewise, we held in Montano that "the Due Process Clause of the Arizona Constitution guarantees to DWI suspects 'a fair chance [emphasis in original] to obtain independent evidence of sobriety essential to his defense at the only time it available. '" 149 Ariz. at 389, 719 P.2d at 275 (citation omitted) (emphasis added). We reasoned that when "the only objective evidence is inherently evanescent, is virtually dispositive of guilt or innocence, and collecting the evidence places only a slight burden upon the state, due process requires that a suspect be informed of his right to gather the evidence prior to its dissipation." Id. (emphasis added).
We believe that breath testing is significantly different than blood testing. Although a blood test, like a breath test, "is virtually dispositive of guilt or innocence, and collecting the evidence places only a slight burden upon the state," it is not "inherently evanescent." Rather, blood testing by gas liquid chromatography, the method generally used by laboratories in Arizona and the method used in this case, usually does not consume or destroy the whole sample. See generally D. Nichols, Drinking/Driving Litigation: Criminal and Civil (1985); 2 R. Ervin, Defense of Drunk Driving Cases § 17.05 (1989). Thus, the rationale used in Montano is not present in a blood testing case because blood, when properly stored and maintained, is still available for testing by the defendant at the time of trial. This availability lessens the need for law enforcement officials to advise a DWI suspect that he may obtain, for independent testing, a portion of the blood sample being tested by the law enforcement agency.
We believe that the due process clause, as applied in DWI cases, can legitimately have two standards -- one for breath testing cases and one for blood testing cases. Thus, we hold that law enforcement officers, when obtaining a blood sample pursuant to A.R.S. § 28-692(M), need
not advise the suspect of his right to obtain a portion of the same sample for independent testing, at least when the sample taken by law enforcement officers will still be available for testing by the defendant at the time of trial.
Disposition
In this case, we have discussed the differences between breath tests and blood tests. This discussion neither affirms nor rejects the rules that presently apply in breath cases. We have expressly declined to reconsider those rules in this opinion.
Because we believe the trial court correctly admitted the blood test results, we vacate the court of appeals' opinion and affirm the defendant's convictions and sentences.
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