 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Desmond v. Superior Court of Maricopa County4/6/1989
I. JURISDICTION
Donald Lee Desmond and Robert Ward David petitioned this court for writs of special action. We accepted jurisdiction and consolidated the two matters. We also allowed the filing of amici curiae briefs. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5 and Ariz.R.P.Sp. Act. 4.
II. QUESTION PRESENTED
In accepting the petitions for special action, we ordered the parties to submit supplemental briefs directed to the following issue:
Is a defendant's blood alcohol level admissible in evidence, absent evidentiary foundation relating the blood alcohol level at the time of the test to that which existed at the time of apprehension?
III. FACTS
The facts necessary for determination of this matter are as follows:
A. Donald Lee Desmond
At about 1:30 a.m. on 19 July 1986, a police officer observed Donald Lee Desmond driving a car in Mesa, going through a red light, traveling between 90 and 100 miles per hour on the freeway, weaving in and out of traffic, and crossing three lanes of traffic to exit from the freeway. The police officer stopped Desmond and observed symptoms of intoxication including the odor of alcohol and bloodshot, watery eyes. At approximately 2:15 a.m., less
than an hour after the time he was stopped, Desmond submitted to two intoxilyzer tests resulting in readings of 0.138 and 0.132 percent blood alcohol content (BAC), respectively. Desmond admitted that he had consumed two shots of peppermint schnapps between 12:30 and 1:00 a.m., within an hour of his arrest. Because of Desmond's physical disabilities, the police officer did not ask Desmond to take any field sobriety tests. Desmond was cited for violation of A.R.S. § 28-692(A) and (B) which read:
A. It is unlawful and punishable as provided in § 28-692.01 for any person who is under the influence of intoxicating liquor to drive or be in actual physical control of any vehicle within this state.
B. It is unlawful and punishable as provided in § 28-692.01 for any person to drive or be in actual physical control of any vehicle within this state while there is 0.10 or more alcohol concentration in the person's blood or breath at the time of the alleged offense.
Prior to trial, the court granted the state's motion to dismiss the charge under A.R.S. § 28-692(B).
At trial, evidence showed that the breathalyzer test machine was certified and that the officer was qualified to administer the test. Evidence also showed that the officer followed the required checklist in administering the intoxilyzer breath test. See A.R.S. § 28-692.03(A)(4). The state introduced the breath test results pursuant to the statutory method of introduction provided by A.R.S. § 28-692.03(A) and (B). On cross-examination of Thomas Frank Simonick, a criminalist for the City of Mesa Police Department and an "expert in the field of . . . blood alcohol testing," the defense elicited testimony concerning Desmond's BAC at the time he was stopped.
Q: Mr. Simonick, the defendant had a shot of Schnapps or shot of liquor at 12:30 in the morning, a.m. I'm talking about after midnight. And a double shot at one o'clock in the morning and then was seen driving 20 minutes later, is there any way that you could tell this jury what that defendant's blood alcohol level was at the time of driving given the fact that he had a breath test of [0.13] an hour after the driving?
A: Just so I foll
Page 1 2 3 4 5 6 7 Arizona DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|