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Desmond v. Superior Court of Maricopa County4/6/1989
pert witness" can be a police officer or the operator of the machine if properly certified and in addition possesses superior knowledge, experience and expertise on the question.
VI. DISPOSITION
A. Donald Lee Desmond
In Desmond, there was sufficient evidence of impaired driving to go to the jury even though the state's expert testified that Desmond's BAC was only 0.03 percent at the time of the arrest. There was, however, no expert testimony that the BAC at the time of the arrest was 0.10 percent or more. Therefore, there could be no presumption that Desmond was driving under the influence of intoxicating liquor "at that time." The trial judge's instruction on the presumption mandated by A.R.S. § 28-692(E)(3) was in error, and this error was not cured by giving Desmond's requested instruction on the conclusiveness of the presumption and the burden of proof. As to Donald Lee Desmond, we reverse the conviction and remand for a new trial.
B. Robert Ward David
In David, the state merely introduced into evidence the result of the breath test pursuant to A.R.S. § 28-692.03 and rested. As to subsection A of A.R.S. § 28-692 (driving while under the influence), it was error to instruct the jury as to the presumption of the statute without expert testimony relating the BAC back to the time of arrest. The conviction under Section A is reversed and a new trial granted.
As to subsection B of A.R.S. § 28-692 (BAC of 0.10 percent or more), there was no attempt to relate the reading back to the time of the arrest. There was insufficient evidence to establish a prima facie case of a violation of subsection B. David's motion for a directed verdict should have been granted. We reverse the conviction under subsection B as not being supported by the evidence.
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