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State v. Storholm3/24/2005
th the advances in reliability and accuracy of the testing itself, that we found that due process did not require breath samples to be provided to DUI suspects. Id. We reasoned that the actual breath samples "no longer provide a 'meaningful' mode of impeaching blood alcohol test results . . .," and defendants could challenge the results by showing errors in the machine or in the operator, or extraneous conditions affecting the results. Id. at 354, 857 P.2d at 406. Our decision in Guthrie did not undermine this rationale. See Guthrie, 202 Ariz. at 275, 43 P.3d at 603.
In any event, the practical difficulty that Defendant has identified in obtaining an independent breath sample is not sufficient to create a due process violation. A DUI suspect has a due process right to gather exculpatory evidence. See Smith v. Cada, 114 Ariz. 510, 512-13, 562 P.2d 390, 392-93 (App. 1977). Due process, however, requires only that a defendant be given a "reasonable opportunity" to obtain exculpatory evidence. Van Herreweghe v. Burke ex rel. County of La Paz, 201 Ariz. 387, 390,
11, 36 P.3d 65, 68 (App. 2001) (holding that DUI defendant's constitutional and statutory right to a reasonable opportunity to obtain exculpatory evidence does not require his immediate release from jail). "Police officers are not required to take the initiative or even assist in procuring any evidence on behalf of a defendant." Id. at 10 (quoting Cada, 114 Ariz. at 512, 562 P.2d at 392). "The difficulties of obtaining an independent test do not violate a defendant's rights if those difficulties are not created by the state." Id. (citing State v. Bolan, 187 Ariz. 159, 161, 927 P.2d 819, 821 (App. 1996)).
The record here fails to show either that Defendant was totally unable to obtain a breath sample and have it tested through another source, or that any difficulties were created by the State. In support of his contention, Defendant merely asserts that the manufacturer of a particular machine, the Intoxilyzer, does not sell the machine to private persons. Moreover, the record fails to show that Defendant even attempted to obtain independent testing of his breath. Defendant did not offer any evidence that the State created the difficulty he identifies in obtaining a breath sample. Instead, the record shows that Defendant was informed of his right to seek an independent chemical test, but did not seek one. He could have obtained a blood test. Thus, the practical difficulty that Defendant identifies in obtaining an independent breath sample fails to create a due process violation. See Bolan, 187 Ariz. at 161-62, 927 P.2d at 821-22 (holding that practical difficulties in securing transportation and finding and hiring experts for blood testing and analysis do not present due process violation).
For the foregoing reasons, we affirm Defendant's conviction and sentence.
JEFFERSON L. LANKFORD, Judge
CONCURRING:
MAURICE PORTLEY, Presiding Judge
PHILIP HALL, Judge
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