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State v. O'Dell5/30/2002
VACATED AND REMANDED
The superior court dismissed with prejudice charges of driving under the influence of an intoxicant (DUI) and driving with a blood alcohol content (BAC) of .10 or more against appellees, Terry L. O'Dell; Marcos T. Poblete; William W. Morgan; Miguel C. Avilez; Ike P. Jimmerson; Freddy E. Martinez; Eugene A. Vasquez; Rigoberto Lujan, Jr.; and Reginald C. Johnson (collectively "O'Dell"), after consolidating their cases. The court found that the state's failure to preserve and disclose memory data from the intoxilyzer used to determine their BAC violated Rule 15.1, Ariz. R. Crim. P., 16A A.R.S., the federal and state due process clauses, and the requirement of statewide uniformity for BAC testing. Because the record fails to support the superior court's factual findings and because we disagree with its conclusions of law, we vacate the trial court's order of dismissal and remand for further proceedings.
FACTUAL BACKGROUND
We view the facts in a light most favorable to sustaining the trial court's dismissal. State v. Rasch, 188 Ariz. 309, 312, 935 P.2d 887, 890 (App. 1996). The state uses the Intoxilyzer 5000 to test DUI suspects' breath for the presence of alcohol. Before and after a completed breath test of any DUI suspect, the intoxilyzer automatically runs "concurrent" calibration checks to test its own accuracy. To operate, the machine also requires that two individual breath measurements, or "subject tests," be taken between five and ten minutes apart, with results that are within .02 of each other. Additionally, every thirty-one days a routine calibration test is conducted, and every ninety days a quality assurance test is conducted. Further, the state keeps a service log for repairs to the intoxilyzer. If the intoxilyzer detects an error on a subject test, it "flags" the error and prints a card reporting the error, and the suspect is retested. After each completed breath test, the suspect is given a breath test card printed from the intoxilyzer's memory, which includes results from both subject tests and the concurrent calibration tests. The suspect is also provided with the results of the thirty-one-day calibration testing and ninety-day quality assurance testing.
Unlike earlier models of intoxilyzers, which contained only enough memory to store data from a single completed test so that the breath card could be printed, the Intoxilyzer 5000 has sufficient memory to retain data from multiple completed breath tests, calibration checks, and quality assurance procedures, as well as other data. Its memory, however, can store data from only one hundred completed breath tests. And, when the memory is full, new data begins to overwrite the oldest data.
Police can electronically transfer the data from the memory through dedicated telephone lines and a modem to Arizona Department of Public Safety (DPS) computers in Phoenix crime laboratories equipped with the Alcohol Data Acquisition Management System (ADAMS), a software database and communication package. After being transferred, the data can be sent to an Arizona Criminal Justice System mainframe computer, where it could be accessible to DUI defendants as an ADAMS report. While some law enforcement jurisdictions in the state routinely transfer the Intoxilyzer 5000 data and provide ADAMS reports to DUI defendants, Pima County has not installed the modem required to connect with the DPS mainframe and does not transfer the data. Therefore, although DUI defendants in Pima County have access to the paper records from their respective breath tests, the state cannot provide them access to ADAMS data from any other breath tests.
PROCEDURAL BACKGROUND
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