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State v. Storholm3/24/2005
Defendant Paul Richard Storholm appeals from his conviction for aggravated driving while under the influence of intoxicating liquor and aggravated driving with an alcohol concentration of .08 or more. Defendant asserts that due process requires law enforcement to provide DUI suspects their own breath samples for independent testing. He argues that because he did not receive a sample, we should reverse his conviction and exclude breath test evidence on retrial.
Phoenix Police Officer Thomas Tieman stopped Defendant for driving without his headlights and following a vehicle too closely. The officer detected an odor of alcohol on Defendant's breath, and observed that Defendant had fumbling fingers, bloodshot and watery eyes, and slurred speech.
After Defendant failed a battery of field sobriety tests (the horizontal gaze nystagmus test, the walk-and-turn test, and the one-leg stand test), Officer Tieman arrested him for driving under the influence of intoxicating liquor. Defendant was taken to a police van, where another officer advised Defendant of his rights. Defendant agreed to take a breath test, which revealed a breath alcohol concentration of .117.
Defendant was not provided a sample of his breath, although the machine, the Intoxilyzer 5000EN, was capable of being fitted with an attachment that could preserve a sample. Defendant was informed of his right to obtain an independent chemical test, but he failed to do so.
Defendant was charged with aggravated driving while under the influence of intoxicating liquor and aggravated driving with an alcohol concentration of .08 or more in his body within two hours of driving a motor vehicle, both class 4 felonies. Defendant unsuccessfully moved to suppress the results of his breath test. At trial, Defendant stipulated that he knew, or had reason to know, that his license was suspended at the time he was arrested. A jury convicted Defendant on both charges. The court entered judgment, suspended sentence, and placed Defendant on probation for two years on each count, to run concurrently. The court also sentenced Defendant to four months of incarceration as a condition of probation on the first count.
Defendant filed a timely notice of appeal. We have jurisdiction pursuant to Arizona Constitution Article 6, Section 9, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), 13-4031 (2001), and 13-4033(A) (2001).
The sole issue on appeal is whether constitutional due process requires law enforcement to provide those accused of driving under the influence their own breath samples for independent testing. We defer to the superior court's factual findings, but we review its legal conclusions de novo. See State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (Ariz. 1996).
We have previously held that due process does not require DUI suspects to be provided their own breath samples for independent testing. See Moss v. Superior Court In and For County of La Paz, 175 Ariz. 348, 353, 857 P.2d 400, 405 (App. 1993) ("Therefore, we hold that due process does not require the state to provide DUI defendants with a separate additional breath sample for independent testing when replicate tests on an Intoxilyzer 5000 are employed as prescribed by the DHS and DPS regulations.") (following California v. Trombetta, 467 U.S. 479 (1984)).
Defendant nevertheless contends that he needs a breath sample because blood alcohol evidence is inadmissible, making breath evidence the sole evidence of alcohol content. Defendant relies on our holding in Guthrie v. Jones, 202 Ariz. 273, 43 P.3d 601 (App. 2002). He argues that Guthrie renders irrelev
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