Case Information
*1 FILED BY CLERK IN THE COURT OF APPEALS AUG 14 2012 STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO THE STATE OF ARIZONA, )
) Petitioner/Appellant, ) 2 CA-CV 2011-0197
) DEPARTMENT B v. )
) O P I N I O N JOSEPH COOPERMAN, )
)
Respondent/Appellee. )
) APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. C20117903
Honorable John S. Leonardo, Judge AFFIRMED
Michael G. Rankin, Tucson City Attorney
By Baird S. Greene and William F. Mills Tucson
Attorneys for Petitioner/Appellant City of Tucson Public Defender
By Stefan F. Niemiec Tucson and
Law Office of Nesci and St. Louis
By James Nesci Tucson
Attorneys for Respondent/Appellee Stephen Paul Barnard Tucson
Attorney for Amici Curiae Arizona Attorneys for Criminal Justice *2
V Á S Q U E Z, Presiding Judge.
In
Guthrie v. Jones
,
court held that evidence regarding breath-to-blood partition ratios is inadmissible in a prosecution for driving or being in actual physical control of a vehicle with an alcohol concentration of .08 or more within two hours of driving, in violation of A.R.S. § 28- 1381(A)(2). However, we also held that when the state uses breath-test results to establish a presumption of intoxication in a prosecution for driving under the influence of an intoxicant (DUI) while impaired to the slightest degree, see § 28-1381(A)(1) and (G), the defendant may introduce partition-ratio evidence to rebut the presumption. Id. ¶ 14. In this case involving a prosecution under both § 28-1381(A)(1) and (A)(2), the state filed a motion in limine to preclude Joseph Cooperman from introducing at his trial in the Tucson City Court partition-ratio evidence contesting the accuracy of the Intoxilyzer 8000 breath tests. The city court denied the state’s motion, and the state filed a special action challenging that ruling in the superior court. The state now appeals from the superior court’s denial of relief. Relying on Guthrie , the state contends the superior court abused its discretion by affirming the city court’s ruling. For the reasons stated below, we affirm.
*3 Factual and Procedural Background ¶3 On June 20, 2010, a Tucson police officer cited and arrested Cooperman for DUI while impaired to the slightest degree, in violation of § 28-1381(A)(1), and, based on the results of duplicate Intoxilyzer breath tests, for driving or being in actual physical control of a vehicle with an alcohol concentration of .08 or more within two hours of driving, in violation of § 28-1381(A)(2). Before trial, the state moved to preclude Cooperman from presenting
evidence of partition ratios, breath and body temperatures, breathing patterns, and radio frequency interference (RFI) to contest the accuracy of his breath-test results. At an evidentiary hearing on the motion, the city court heard conflicting testimony from the state’s expert, Michael Sloneker, and the defendant’s expert, Chester Flaxmayer, concerning the effect of using partition ratios and other physiological variables on the accuracy of breath tests. The court issued a thorough, five-page ruling denying the state’s motion, but granting an instruction limiting the relevancy of the partition-ratio evidence to the (A)(1) charge. The state then filed a petition for special action with the superior court.
The respondent judge accepted jurisdiction but denied relief, affirming the city court’s *4 ruling. The state filed this appeal. We have jurisdiction pursuant to A.R.S. §§ 12- 120.21(A)(1), 12-2101(A)(1), and Rule 8(a), Ariz. R. P. Spec. Actions.
Discussion Under Arizona’s statutory scheme, a defendant accused of drinking and driving or being in actual control of a vehicle can be charged with multiple DUI-related offenses. See A.R.S. §§ 28-1381 through 28-1383. Under § 28-1381(A)(1), the state must prove the defendant was driving or in actual physical control of a vehicle “[w]hile under the influence of intoxicating liquor . . . if the person is impaired to the slightest degree.” And, for a violation of § 28-1381(A)(2), the state must prove the defendant had “an alcohol concentration of .08 or more within two hours of driving or being in actual physical control of the vehicle.” Cooperman was charged under both subsections. Arizona’s implied consent law, A.R.S. § 28-1321(A), provides that any
person operating a motor vehicle in this state and arrested for DUI “gives consent . . . to a test or tests of [his] blood, breath, urine or other bodily substance for the purpose of determining alcohol concentration.” If the test shows the defendant’s alcohol concentration within two hours of the time of driving or being in actual physical control was .08 or more, “it may be presumed that the defendant was under the influence of intoxicating liquor” for purposes of the (A)(1) offense. § 28-1381(G)(3). The presumption, however, does not preclude the introduction of “any other competent *5 evidence bearing on the question of whether or not the defendant was under the influence of intoxicating liquor.” § 28-1381(H). “Alcohol in the breath does not cause impairment; impairment results when
alcohol enters the body, is absorbed into the bloodstream, and is transported to the central
nervous system and the brain.”
Guthrie
,
inadmissible in a prosecution under § 28-1381(A)(2). 202 Ariz. 273, ¶ 10, 43 P.3d at 603. Section 28-1381(A)(2) prohibits a person from driving or physically controlling a vehicle if the person has an “alcohol concentration” of .08 or more. And A.R.S. § 28- 101(2) defines alcohol concentration, when expressed as a percentage, as either “[t]he number of grams of alcohol per one hundred milliliters of blood,” or “[t]he number of grams of alcohol per two hundred ten liters of breath.” “The statutes thus permit[] either a breath alcohol reading or a blood alcohol reading to establish the element of alcohol concentration without regard to the question how the former might be converted to the latter.” Guthrie , 202 Ariz. 273, ¶ 10, 43 P.3d at 603. Accordingly, in Guthrie , we *6 reasoned that the accuracy of the 2,100:1 partition ratio was irrelevant in a prosecution under (A)(2) because “it [i]s illegal to drive or physically control a vehicle if, according to a test within two hours, the number of grams of alcohol per 210 liters of breath exceeded [.08].” Id . However, we also held that, in a prosecution under (A)(1), where the state uses the defendant’s breath-test results to establish a presumption of intoxication pursuant to § 28-1381(G), the defendant may introduce evidence challenging the accuracy of the partition-ratio calculation to rebut that presumption. Id. ¶ 14. In its petition for special action to the superior court, the state contended the
city court had abused its discretion by ruling that (1) the § 28-1381(G) presumption arises by operation of law when test results are admitted in evidence, even when the state “never sought to take advantage of the . . . statutory presumption”; (2) once the presumption arises, evidence of the variability of the partition ratio in the general population is relevant and admissible in an (A)(1) case; and (3) evidence of hematocrit, breathing patterns, and breath and body temperature—and their effect on breath tests— are relevant and admissible in both types of DUI cases. On appeal, the state essentially reurges these arguments, asserting the superior court abused its discretion by affirming the city court’s ruling, which it contends is “contrary to [the] caselaw.” We address each argument in turn.
Appellate Review When a special action initiated in the superior court is appealed to this
court, we must conduct a bifurcated review.
Bazzanella v. Tucson City Court
, 195 Ariz.
372, ¶ 3,
denial of special action relief is a discretionary decision for the superior court,”
State ex
rel. Dean v. City Court of City of Tucson
,
ratio calculation is inadmissible where “the [s]tate does not [rely on] the statutory *8 presumption of impairment.” Guthrie permits partition-ratio rebuttal evidence in a prosecution under (A)(1) when the state introduces breath-test results and thereby raises the § 28-1381(G) presumption. But the state apparently suggests that if it does not raise the presumption expressly, then partition-ratio evidence is neither relevant nor admissible. And, it asserts it does not intend to use Cooperman’s breath-test results in order to take advantage here of the statutory presumption on the (A)(1) charge. Cooperman counters that the state has misinterpreted Guthrie . He contends
Guthrie stands for the proposition that in an (A)(1) prosecution, the statutory presumption effectively is raised whenever the state introduces evidence of alcohol concentration, and a defendant is entitled to rebut that presumption by challenging the breath-to-blood partition ratio. Cooperman points to § 28-1381(H) as evidence of the legislature’s intent to ensure that defendants prosecuted for DUI are afforded their due process right to present a complete defense, which includes introducing evidence to rebut the § 28- 1381(G) presumption. The city court found there is no language in Guthrie , or § 28-1381(G),
limiting use of the presumption in the manner suggested by the state. Rather, the court concluded the presumption “will always apply” in an (A)(1) prosecution once the state introduces evidence of the Intoxilyzer results to prove the defendant was driving under *9 the influence of intoxicating liquor. In other words, the presumption “does not offer an opt out clause” for the state. The interpretation of a statute is a question of law we review de novo. State
v. Bolding
, 227 Ariz. 82, ¶ 5, 253 P.3d 279, 282 (App. 2011). Our primary goal in
interpreting a statute is to effectuate the intent of the legislature.
State v. Ross
, 214 Ariz.
280, ¶ 22,
to that statute, the defendant’s alcohol concentration—as determined by an analysis of his blood, breath, or other bodily substance taken within two hours of driving or being in actual physical control of a vehicle—“gives rise” to certain presumptions. And, contrary to the state’s position, the statutory presumption of intoxication is raised in a prosecution for an (A)(1) offense whenever the state introduces evidence that a defendant had an alcohol concentration of .08 or more. We find nothing in the statute’s language to support the state’s argument that the presumption applies only when expressly invoked by the state. Our interpretation of the statute is consistent with Guthrie which, as the *10 city court points out, “carefully never implies that the [s]tate could choose not to use the presumption” despite introducing alcohol-concentration evidence in an (A)(1) prosecution. Trial courts have a duty to instruct the jury on the general principles of law
that pertain to a criminal offense.
State v. McAlvain
,
General Partition-Ratio Evidence Next, we consider the state’s argument that “any defendant who wishes to
challenge the ‘standard’ or ‘generally accepted’ [partition] ratio on which the Intoxilyzer (5000 or 8000) is based, must present evidence of his own ratio at the time of the test.” The state maintains that “the logic [and language] of Guthrie ” compel that result and “[t]he probative value of any other evidence (such as a ‘hypothetical’ person) is substantially outweighed by the danger of unfair prejudice.” In response, Cooperman 978 P.2d 654, 658 (App. 1998) (“Defendant is always free to prove . . . his [alcohol concentration] . . . and will be entitled to the benefit of the presumptions as they apply.”). *11 argues that Guthrie “d[oes] not preclude a defendant from introducing studies or other evidence about variations in the population.” For purposes of our review, we treat the state’s motion in limine as a
motion to suppress,
State v. Rodriguez
,
partition-ratio evidence is relevant and admissible in an (A)(1) but not an (A)(2)
prosecution. Although dictum in
Guthrie
may suggest otherwise, we did not address
specifically whether a defendant is limited to evidence of his own partition ratio, or
whether he may show generally that partition ratios vary from person to person, and even
from moment to moment for the same person. Noting that
Guthrie
does not provide
*12
definitive guidance on this issue, the city court relied on cases from other jurisdictions,
namely,
State v. Hanks
, 772 A.2d 1087 (Vt. 2001), and
People v. McNeal
, 46 Cal. 4th
1183 (2009). And, based on those cases, the court concluded that if “the [s]tate has relied
upon or will rely upon an [I]ntoxilyzer result in any way to argue impairment, evidence
of the variability of the partition ratio in the general population is relevant and
admissible” to challenge the presumption of intoxication in an (A)(1) case. It noted that,
because an individual’s partition ratio constantly varies, a calculation of his ratio at some
later time would not be relevant to discredit the earlier Intoxilyzer test or the partition
ratio it employed. The court concluded that the general variability of partition ratios
makes the evidence relevant and that, although “questions can be raised in individual
cases about whether th[e] assum[ed ratio] tends to underestimate most people’s result, the
defense has a right to raise the issue, and cast doubt upon the theory” that the Intoxilyzer
results accurately demonstrate the defendant’s impairment. We agree with the court’s
reasoning and conclusion. To be relevant, evidence need only have “any tendency to
make a fact more or less probable than it would be without the evidence.” Ariz. R. Evid.
401. And our supreme court has observed that “[t]his standard . . . is not particularly
high.”
State v. Oliver
,
partition-ratio evidence is admissible.
partition ratio at the time of the breath test is to conduct simultaneous blood and breath tests because “[p]artition ratio is blood divided by breath.” The state nonetheless maintains that evidence regarding variances in
partition ratios generally should be precluded because it “could only serve to confuse the issue and[/]or mislead the jury.” Rule 403 provides that relevant evidence can be excluded if “its probative value is substantially outweighed by a danger of . . . unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” As did the city court, we find Hanks and McNeal instructive. In Hanks , the
Vermont Supreme Court concluded general partition-ratio evidence was admissible in a
prosecution for DWI, similar to our (A)(1) DUI offense, because “any evidence raising a
doubt as to defendant’s condition . . . is relevant.”
Evidence on the variability of partition ratios would simply reveal to the jury that the breath-test result is based on a statutorily accepted conversion rate that tends to favor defendants, but that the result is not unassailable with respect to demonstrating impairment. We fail to see how such evidence would be confusing to the jury or unduly prejudicial to the State; to the contrary, not allowing defendants to reveal these scientifically recognized facts would make it difficult, if not impossible, for a defendant to challenge a test result that is admissible in generic [DUI] prosecutions only as a permissive inference on the ultimate question of impairment.
Id.
at 1093. Similarly, in
McNeal
, the California Supreme Court approved the use of
general partition-ratio evidence, explaining that all evidence tending to rebut the
presumption of intoxication is admissible.
general partition-ratio evidence usually will be low,
Accordingly, we hold that when a defendant is charged with DUI under
§ 28-1381(A)(1) and the state introduces evidence of his breath-alcohol concentration at
trial, he may offer evidence explaining how partition ratios vary within an individual and
among the general population and how that variability may result in breath-test results
that overstate a defendant’s actual level of intoxication. It is then for the jury to decide
the weight to be given such evidence in the particular case.
See State v. Williams
, 209
Ariz. 228, ¶ 6, 99 P.3d 43, 46 (App. 2004) (“Although the record contains some
conflicting evidence, it was for the jury to weigh the evidence and determine the
relied on”);
State v. Carver
,
The trial court’s gatekeeping function is not intended to replace the adversary system. Cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.
A trial court’s ruling finding an expert’s testimony reliable does not necessarily mean that contradictory expert testimony is not reliable. The amendment is broad enough to permit testimony that is the product of competing principles or methods in the same field of expertise. Where there is contradictory, but reliable, expert testimony, it is the province of the jury to determine the weight and credibility of the testimony.
Ariz. R. Evid. 702 cmt. 2012 amend.
credibility of the witnesses.”). We also reaffirm Guthrie ’s holding that partition-ratio evidence is inadmissible in an (A)(2) case and agree with the city court that the state is entitled to a limiting instruction to that effect. We find no abuse of discretion in the superior court’s denial of relief.
Hematocrit, Breathing Patterns, and Breath and Body Temperature Finally, the state argues that evidence of the possible effect on breath tests of hematocrit, breathing patterns, and breath and body temperature should be excluded in both (A)(1) and (A)(2) cases unless the defendant can offer evidence of his own physiology at the time of the test. The state maintains the possibility these factors could affect the breath test is not relevant because it “has no basis in fact—as applied to this defendant.” To support its argument, the state asserts the experts agreed that “blood hematocrit (blood concentration) was irrelevant to the issue of what might affect the differences between contemporaneous breath and blood tests”; a properly administered test—one in which the subject is instructed to take a deep breath and blow into the machine as long as he can—would “negate” any potential effect breathing patterns could have on the test results; and one study had found “no direct correlation shown between *17 body temperature, breath temperature and the effect it would have on simultaneous breath and blood tests for alcohol concentration.”
¶27
But quoting
State ex rel. McDougall v. Superior Court
,
more or less probable.” Ariz. R. Evid. 401. In reaching its conclusion that evidence of
these physiological variables is relevant and admissible in both types of cases—even
without defendant-specific evidence—the city court necessarily rejected the opinion of
the state’s expert and, instead, relied upon the testimony of defense expert Flaxmayer.
Although Sloneker testified that hematocrit “doesn’t make any difference in the
simultaneous breath/blood comparisons” based on the results of one study, Flaxmayer
opined that “hematocrit can change [either breath or blood alcohol concentration] by
about plus or minus five percent” based on the results of a different study. Where the
experts’ testimony differed, it was within the court’s discretion to reject Sloneker’s
opinion.
State v. Ellison
,
instrument changes the reading that you obtain on the instrument. It changes your breath *18 alcohol concentration.” As to temperature, he stated that “[t]he amount of alcohol that leaves the blood is a function of [body] temperature”; that studies have shown a statistically significant difference in the breath temperature among participants; that breath machines were calibrated to thirty-four degrees centigrade and that one degree above or below that level could result in a six-to-eight-percent change in the breath-test result. He stated:
[T]emperature affects the amount of alcohol in your breath.
Your breathing affects the amount of alcohol in your breath, regardless [of] if you then take the additional step to use [the] partition ratio to make the calculation. It changed what was in your breath. The city court noted that Sloneker “did not address this exact issue” of how
breathing patterns and temperature may affect breath alcohol readings, other than to state that these factors were related to the partition ratio. And although Flaxmayer agreed that if an individual takes a deep breath and blows into the machine as instructed it should cancel out the potential physiological effects, he also testified “you can’t always tell if somebody’s breathing exactly as instructed.” In sum, Cooperman presented competent expert testimony that these physiological factors, apart from partition-ratio evidence, can impact the ability of the machine to accurately register a defendant’s breath alcohol concentration, which is relevant to both charges. The court thus did not abuse its discretion in concluding the evidence had some tendency to make a fact in issue more or less probable. Cf. State v. Storholm , 210 Ariz. 199, ¶¶ 11-12, 109 P.3d 94, 96 (App. 2005) (defendant has right to obtain blood test to “cast doubt on the validity of the breath alcohol concentration results”); Moss v. Superior Court , 175 Ariz. 348, 352, 857 P.2d *19 400, 404 (App. 1993) (accuracy of breath readings means due process does not require state to preserve breath sample for independent testing; “focus inherently shifts from the breath sample to the machine itself and its proper operation”).
Disposition For the reasons stated above, the superior court’s ruling is affirmed.
/s/ Garye L. Vásquez GARYE L. VÁSQUEZ, Presiding Judge CONCURRING:
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge
/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Judge
Notes
[1] Partition ratios are used to correlate the amount of alcohol in a person’s breath
into the amount of alcohol in the person’s blood.
Guthrie v. Jones
,
[2] At the evidentiary hearing, the state conceded that RFI should not have been included in its motion in limine because RFI is a proper “subject for attack anytime you’re using an Intoxilyzer.” However, the state requested permission to modify its motion to replace RFI with hematocrit as a factor it sought to preclude, and the city court granted that request. Hematocrit is “a device for separating the cells and other particulate elements of the blood from the plasma,” Stedman’s Medical Dictionary 558 (3d unabridged lawyers’ ed. 1972), and Cooperman maintains that it can affect breath-test results.
[3] If the defendant has an alcohol concentration of .05 or less, it may be presumed he was not under the influence; if it is in excess of .05 but less than .08, that fact raises no presumption. § 28-1381(G)(1)-(2).
[4] Because the superior court essentially adopted the city court’s reasoning, we likewise consider it in deciding the issues on appeal.
[5] Even if the state did not intend to request that the jury be informed of the statutory presumption of intoxication, it nonetheless must introduce the breath-test results into evidence in order to prove the (A)(2) charge; otherwise, it would have no other evidence of Cooperman’s alcohol concentration. See State v. Superior Court , 149 Ariz. 269, 279-80, 718 P.2d 171, 181-82 (1986) (cannot convict defendant under (A)(2) without analysis of blood, breath, or urine showing alcohol concentration).
[6] Either party can introduce evidence of the defendant’s alcohol concentration,
thereby triggering the statutory presumption.
See State v. Klausner
,
[7] Language in Guthrie arguably supports both parties’ positions. For example, in Guthrie , we said, “the municipal court erred by precluding Guthrie’s effort to establish that his particular partition ratio on the date in question differed significantly from the norm,” which tends to support the state’s argument that only defendant-specific,
[9] The state also argues, in passing, that the expert’s testimony “is scientifically
invalid and fails to meet the foundational requirements of Rule 702[, Ariz. R. Evid.].”
This argument was not raised in the state’s motion in limine or in its petition for special
action; accordingly, it is waived on appeal.
State v. Lopez
,
[10] Our holding is consistent with evidentiary rulings in other cases allowing
general, as opposed to case-specific, evidence.
See
,
e.g.
,
State v. Chapple
,