IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. PAUL RICHARD STORHOLM, Appellant. ) ) ) ) ) ) ) ) ) ) 1 CA-CR 04-0027 DEPARTMENT B OPINION AMENDED BY ORDER FILED 4/21/05
Appeal from the Superior Court in Maricopa County Cause No. CR 2003-008591-001 DT The Honorable M. Jean Hoag, Judge AFFIRMED Terry Goddard, Attorney General By Randall M. Howe, Chief Counsel, Criminal Appeals Section and Michael T. O’Toole, Assistant Attorney General Attorneys for Appellee Law Offices of Craig W. Penrod By Jeremy L. Phillips Attorneys for Appellant L A N K F O R D, Judge ¶1 Defendant Paul Richard Storholm appeals from his Phoenix
Tempe
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. ¶2 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. ¶3 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. ¶4 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. ¶5 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. 2 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. convicted Defendant on both charges. A jury
The court entered judgment,
suspended sentence, and placed Defendant on probation for two years on each count, to run concurrently. Defendant to four months of The court also sentenced as a condition of
incarceration
probation on the first count. ¶6 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). ¶7 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 See State
findings, but we review its legal conclusions de novo.
v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (Ariz. 1996). ¶8 DUI We have previously held that due process does not require 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 3
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)). ¶9 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 irrelevant the
results of blood alcohol concentration tests in a prosecution under A.R.S. § 28-1381(A)(2) (Supp. 2004) in which the prosecution elects to use breath alcohol concentration to prove its case.
Accordingly, he contends, an opportunity to obtain a blood test does not help him because the results of such tests are
inadmissible in a breath result prosecution.
Defendant further
argues that because the manufacturer of the Intoxilyzer 5000EN does not sell the machine to private persons, he is precluded from obtaining an independent breath sample to contest the results obtained by police. Defendant reasons that the statutes, A.R.S. §
28-1388(B) and (C) (2004), which relieve police of the obligation to provide a breath sample so long as the person tested is given a reasonable opportunity to arrange additional testing whether or not he is able to obtain the testing, are unconstitutional.
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¶10 Guthrie. partition
Defendant misconstrues the statutes and our holding in In Guthrie, we held that evidence on variations in ratios, the ratio of alcohol in a person’s breath
translated into the amount of alcohol in a person’s blood, was irrelevant in a prosecution under A.R.S. § 28-1381(A)(2). Guthrie, 202 Ariz. at 277, 43 P.3d at 605. See
Because A.R.S. § 28-
101(2) (Supp. 2004) permits alcohol concentration to be shown either by breath or blood, we held that it is irrelevant in a prosecution under § 28-1381(A)(2) whether the defendant’s partition ratio at the time of the breath test varied from the standard 2100:1 ratio because of individual idiosyncracies or environmental factors. See id. Cf. A.R.S. § 28-1381(G) (permitting proof of
alcohol concentration by “blood, breath or other bodily substance” in cases of driving while impaired under § 28-1381(A)(1)). ¶11 of blood Guthrie does not stand for the proposition that evidence alcohol under concentration § by itself is irrelevant breath in a
prosecution
28-1381(A)(2)
using
alcohol
concentration.
Cf. A.R.S. § 28-1381(H) (stating that § 1381(G)
“does not limit the introduction of any other competent evidence bearing on the question of whether or not the defendant was under the influence of intoxicating liquor.”) ¶12 Nor did we preclude such evidence in State v. Esser, 205
Ariz. 320, 325 n.7, ¶ 13, 70 P.3d 449, 454 n.7 (App. 2003), in which we cited Guthrie for the proposition that any lack of 5
correlation between blood and breath results is irrelevant in a prosecution under § 28-1381(A)(2). n.7, ¶ 13, 70 P.3d at 454 n.7. See Esser, 205 Ariz. at 325
Guthrie held that the correlation
need not be proved because the statute defines the proscribed alcohol content by either blood or breath alcohol concentration. Id. We did not hold that blood test results are irrelevant or Defendant is entitled to use blood test evidence to Blood alcohol under § 28-
inadmissible.
rebut a DUI charge based on breath test results. concentration may be relevant in a prosecution
1381(A)(2) to cast doubt on the validity of the breath results. Any disparity between the two could cast doubt on the breath alcohol concentration results. The prosecutor in this case
recognized as much in the trial court.
Thus, a defendant can still
obtain a blood alcohol sample and use the test results in his defense. ¶13 Moreover, our decision in Moss that defendants are not
entitled to receive breath samples did not rely on the availability of independent testing. 06.1 See 175 Ariz. at 352-54, 857 P.2d at 404-
In Moss, we agreed with Trombetta that the evidence in a per
se DUI case based on breath alcohol concentration is “not the breath itself but rather the Intoxilyzer results obtained from the
In Moss, we did not reach the issue of whether defendants were denied a reasonable opportunity to obtain independent testing, because they had not requested independent testing at the time. Id. at 354, 857 P.2d at 406. 6
1
breath samples.”
Moss, 175 Ariz. at 353-54, 857 P.2d at 405-06.
It was because of this, in conjunction with 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. See
Our decision in Guthrie did not undermine this rationale. Guthrie, 202 Ariz. at 275, 43 P.3d at 603. ¶14 identified
In any event, the practical difficulty that Defendant has in obtaining an independent breath sample is not
sufficient to create a due process violation.
A DUI suspect has a See Smith v. Due a
due process right to gather exculpatory evidence.
Cada, 114 Ariz. 510, 512-13, 562 P.2d 390, 392-93 (App. 1977). process, however, requires only that a defendant be
given
“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 7
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)). ¶15 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).
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¶16
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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