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State v. Duber7/26/1996
PER CURIAM.
The state seeks special action relief from the respondent Judge's ruling that breath test results are inadmissible in the underlying Justice court DUI trial against the real party in interest. We disagree with both the respondent Judge's reading of our decisions in Ciulla v. Miller ex rel. Ariz. Highway Department, 169 Ariz. 540, 821 P.2d 201 (App. 1991), and State v. Harrison , 157 Ariz. 184, 755 P.2d 1172 (App. 1988), and with Division One's interpretation of those cases in State ex rel. McDougall v. Superior Court (Stock) , 181 Ariz. 202, 888 P.2d 1389 (App. 1995). We conclude that the breath test results here are admissible, even though the law enforcement agency did not fully comply with Department of Health Services (DHS) regulations on testing the device because the records show the device was in proper operating condition. Because the state has no adequate remedy by appeal, we accept jurisdiction and grant relief. Ariz. R. P. Spec. Actions 1 and 3, 17B A.R.S.
Real party in interest John Thomas was arrested on April 16, 1995, for violating A.R.S. § 28-692(A)(1) and (2). He agreed to submit to an Intoxilyzer test of his breath. Trial began on October 30, and the state moved to admit certified copies of the periodic maintenance records for the Intoxilyzer as part of the foundation required for admission of the test results under A.R.S. § 28-695(A). Defense counsel objected on the ground that the quarterly function and accuracy tests required by DHS had been performed five days late. The trial Judge overruled the objection, and the trial was recessed at Thomas's request to permit him to file a special action in the Gila County Superior Court. After oral argument, the respondent Judge granted special action relief and ordered the trial Judge to sustain Thomas's objection to admission of the records.
Citing Ciulla and Robinson v. Prins , 161 Ariz. 195, 777 P.2d 693 (App.), aff'd , 161 Ariz. 198, 777 P.2d 696 (1989), the respondent Judge stated that a split of authority exists between Division One and Division Two of this court and that he was required to follow the Division Two cases, which, he wrote, hold that "failure to follow the D.H.S. standards for equipment testing is fatal to the admissibility of the intoxilyzer results." We do not agree that a split of authority exists. Moreover, Ciulla does not stand for the proposition for which it was cited.
Ciulla was an appeal from a superior court judgment affirming an administrative suspension of a driver's license for driving while under the influence. Citing both Fuenning v. Superior Court , 139 Ariz. 590, 680 P.2d 121 (1983), and Robinson , we stated that "our supreme court requires proof, in court proceedings under A.R.S. § 28-692, that an agency has complied with [the DHS] rules before intoxilyzer results can be admitted." 169 Ariz. at 542, 821 P.2d at 203. In our ruling, however, we held that the appellant's breath test results were admissible despite his hearsay objection that only an affidavit had been offered to show that the testing device was in proper operating condition. Because the law enforcement agency's compliance with DHS regulations was not in issue in Ciulla , it does not render inadmissible the breath test results in this case.
In Robinson , an appeal from a suspension of a driver's license for refusal to submit to a breath test, Division One of this court ruled that "the validity and admissibility of . . . test results in an implied consent hearing are conditioned upon compliance with the requirements of A.R.S. §§ 28-692(G) and -692.03." 161 Ariz. at 197, 777 P.2d at 695. The test results in that case were held inadmissible because the state had failed to show
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