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State v. Ricke4/25/1989
The sole issue raised in this appeal is whether a numerical estimate of blood alcohol content resulting from a horizontal gaze nystagmus test may be admitted at trial to corroborate a challenged breath test result in a prosecution under A.R.S. § 28-692(B) or as independent evidence of intoxication in a prosecution under A.R.S. § 28-692(A).
FACTS
Defendant Michael V. Ricke was arrested and charged with driving while intoxicated and with driving with a blood alcohol content of .10% or greater. The arresting officer performed a horizontal gaze nystagmus test on the defendant. The test indicated that the defendant had a blood alcohol content of greater than .10%. A subsequent breath test revealed a blood alcohol content of .16%. The defendant informed the state that he intended to challenge the accuracy of the breath test at trial.
The defendant filed two motions in limine in Phoenix Municipal Court challenging the admissibility of the breath test result and the horizontal gaze nystagmus test result. The municipal judge denied the defendant's motion regarding the breath test result and granted the motion regarding the horizontal gaze nystagmus result. Concerning the horizontal gaze nystagmus result, the municipal judge ruled that the arresting officer could only testify that the defendant's performance on the test provided him with probable cause to arrest. The ruling expressly prohibited the officer from testifying that the test disclosed that the defendant's blood alcohol content was in excess of .10%.
Thereafter, the state filed a special action in Maricopa County Superior Court requesting reversal of the municipal judge's ruling. The superior court judge granted the relief requested and held that in a prosecution under A.R.S. § 28-692(B), the results of a horizontal gaze nystagmus test were admissible to corroborate any disputed breath test results and that the person who administered the test could testify that the test revealed that the defendant's blood alcohol content was greater than .10%. The judge also held that in a prosecution under A.R.S. § 28-692(A), the nystagmus test results were admissible as independent evidence that the defendant was driving under the influence of alcohol. The defendant has filed this appeal challenging that ruling.
Discussion
The question of whether a horizontal gaze nystagmus test result may be admitted at trial has been exhaustively discussed by our supreme court in State v. Superior Court In and For Cochise County (Blake), 149 Ariz. 269, 718 P.2d 171 (1986). Blake held that horizontal gaze nystagmus results may be relied upon to establish probable cause to arrest. Blake, 149 Ariz. at 276, 718 P.2d at 178. The supreme court also held that the horizontal gaze nystagmus test is reliable under Frye v. United States, 293 Fed. 1013 (D.C.Cir.1923), and is therefore admissible at trial, subject to certain limitations, on the issue of a defendant's blood alcohol level. Blake, 149 Ariz.
at 279, 718 P.2d at 181. The supreme court limited its holding concerning the admissibility of nystagmus test results in a prosecution under A.R.S. § 28-692(B). In such a prosecution, nystagmus test results are admissible only to corroborate a disputed blood alcohol content obtained by a breath, blood or urine test. Id. The court further held that the horizontal gaze nystagmus test may not be used as independent evidence to trigger the presumption provided by A.R
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