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Caretto v. Arizona Department of Transportation2/17/1998
ires that we examine section 28-695(A)(3) as well as review other potentially applicable DUI statutes.
We begin with section 28-695(A), which provides that breath test results are admissible in evidence upon establishing the foundational requirements prescribed therein. As previously noted, section 28-695(A)(3) indicates that either duplicate breath testing with BAC results that are within .02 alcohol concentration of each other or a single test preceded by a twenty-minute observation period will satisfy the standard for admissibility.
While it is true that this subsection is phrased in the disjunctive, the statute overall is directed at the foundational prerequisites for admissibility, not at the question of what or how many tests are authorized. In the process of statutory construction, we would not seek legislative intent regarding what tests are authorized in a statute unrelated to that subject. State v. Anway, 87 Ariz. 206, 209, 349 P.2d 774, 776 (1960) (holding that courts will not stretch a statute to matters not falling within its express provisions). Consequently, we decline to read the disjunctive phrasing in subsection (A)(3) as a limitation on a testing officer's authorization to administer the breath testing methods described therein.
The statute directly dealing with an officer's authorization for seeking testing is section 28-691(B). This section authorizes a request for submission to "any test or tests" prescribed in subsection (A) of the same statute. Subsection (A), which is the implied consent provision, directs that a person operating a motor vehicle is deemed to give consent to a "test or tests." These passages, which are part of a larger and comprehensive testing protocol established by the legislature, certainly indicate that the legislature contemplated that an officer might have occasion to administer more than one test to a suspect. Cf. State v. Rodriguez, 173 Ariz. 450, 454, 844 P.2d 617, 621 (App. 1992) (administering three tests during duplicate testing in order to obtain results within acceptable parameters held permissible under statute authorizing "tests").
It is true that subsection (A)'s reference to multiple tests is followed by a specification that the tests may be of blood, breath or urine. However, we do not believe that this language should be read to authorize an additional test only if it is of a different bodily product than the first test. In construing statutes, we attempt to ascertain and give effect to the legislature's intent behind the statutes. State v. Moerman, 182 Ariz. 255, 260, 895 P.2d 1018, 1023 (App. 1994). Among the legislature's purposes in enacting the DUI statutes are removing impaired drivers from Arizona's highways, easing the state's burden of proving intoxication, and increasing the certainty that impaired drivers are penalized even if they refuse testing. Schade v. Department of Transp., 175 Ariz. 460, 462-63, 857 P.2d 1314, 1316-17 (App. 1993). In furtherance of these purposes, the legislature has imposed on law enforcement officers the duty to obtain BAC evidence from suspected impaired drivers.
In discharging this duty, an officer's primary concerns must be to obtain evidence that is accurate and obtain it in such a way that it is admissible in court. To accomplish these objectives, the officer must have some flexibility in determining how best to collect such evidence. By construing sections 28-691(A) and (B) to authorize more than one type of breath test, we provide the necessary flexibility and, at the same time, further the legislature's legitimate purposes. A contrary Conclusion which required an officer to choose between the tests described in section 28-695(A)(3) would enha
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