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State v. City Court of City of Tucson3/26/1990
We address the admissibility of certain Intoxilyzer results. Defendant Edward J. Davis filed a petition for review asking this court to review a court of appeals decision in this matter. See State ex rel. Dean v. City Court, 163 Ariz. 366, 788 P.2d 99 (Ct.App.1989). Defendants Mark Wilson and James Balkow filed notices of joinder. The state filed a cross-petition for review. We granted review under Rule 23, Ariz.R.Civ.App.P., 17B A.R.S. We have jurisdiction in this matter pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 12-120.24.
FACTS
Defendants were stopped for traffic violations in Tucson during the month of December 1987. After investigation, each was arrested for driving under the influence (DUI) in violation of A.R.S. § 28-692(A). At the time of the arrests, the Tucson Police Department and the Tucson City Attorney's Office were engaged in a joint project to test the legal sufficiency of replicate breath testing. Each defendant was given the option of providing two breath samples or a single blood sample to be examined for blood alcohol concentration. Under the usual procedure in Tucson, the DUI suspect submits to a single test on the Intoxilyzer and is then provided with a preserved breath sample, whether or not the suspect requests one. The preserved breath sample involves capture and preservation of the breath for later testing. See Baca v. Smith, 124 Ariz. 353, 604 P.2d 617 (1979).
The police advised each defendant as follows:
If you choose the [Intoxilyzer] breath test, no sample of your breath will be saved for you or your attorney for later analysis. If you choose the blood test, you will be taken to a hospital where your blood will be drawn at no expense to you. The sample of your blood will be saved and available for testing by all parties in a criminal case.
Regardless of whether you choose to give samples of your breath or blood, you are advised that you have the right to an independent test or tests by a physician or other qualified person of your own choosing at your expense.
If the suspect chose to submit a breath rather than a blood sample, a waiver was presented for the suspect to sign which stated in part:
I understand that by choosing breath tests to determine the amount of alcohol in my blood that NO SAMPLE OF MY BREATH WILL BE SAVED FOR ME OR MY ATTORNEY.
All defendants chose to submit two Intoxilyzer breath samples and all signed the waiver, thus refusing the blood test.
Prior to trial, the state filed motions in limine to determine the admissibility of the test results obtained from the replicate testing procedure. Defendants filed motions to suppress the test results. An evidentiary hearing was held, at which the state was allowed to make an offer of proof through expert testimony as to the use of replicate testing procedures. Following the evidentiary hearing, the magistrate denied the state's motion and refused to allow the results of the breath tests to be admitted at trial. The state then filed a petition for special action relief in superior court, which affirmed the magistrate's ruling.
The state appealed to the court of appeals, which reversed and remanded with directions to vacate and set aside the magistrate's order. State ex rel. Dean, 163 Ariz. at 368, 788 P.2d at 101. The court held that because the state gave defendants a choice between taking replicate breath tests, where
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