What started as a seemingly routine and innocuous motion by the prosecutors in the Tucson City Court has now grown into a major breath-testing battle which will be played out in the Arizona Supreme Court and will affect the admissibility of every breath test in Arizona.
Estimated breath test results are subject to many variables–which is why they are “estimates” and not hard numbers. Variables can be divided into two major categories: Machine Variables and Human Variables.
Machine Variables are things that are particular to the machine and include such things as Radio Frequency Interference (RFI), calibration issues, and maintenance.
Human Variables are the things which vary within human beings and include end-expired breath temperature, breathing patterns, hematocrit, lung physiology and partition ratio.
In a routine motion (which, previously, had been routinely denied), the Tucson City Prosecutor’s Office asked the court to exclude any information about breathing patterns, temperature, hematocrit levels and partition ratio, unless the defense could prove that such things actually affected the test result. Clearly, this stands due process on its head as it is not the defense which must prove that a breath test is wrong, it is the prosecution which must prove that it is right, but proof beyond every reasonable doubt. In other words, the prosecutors were losing too many cases because their testing method left too much room for reasonable doubt.
What made this routine motion not so routine, is that the prosecutor asked for a hearing on the issue rather than letting a judge simply deny their motion. The client, Mr. Cooperman was being defended by the Tucson City Public Defender’s Office. The Law Office of Nesci and St. Louis PLLC joined a similarly situated client to the public defender case. The prosecutor promptly dropped the private case to prevent Nesci and St. Louis from having a hand in the matter, but James Nesci volunteered to co-counsel the Cooperman case, free of charge. Stefan Niemic, from the Public Defender’s Office wrote a stellar brief on the issue and James Nesci was the attorney for the hearing where he cross examined the state’s expert witness, DPS Criminalist Mike Sloneker, and presented the defense witness, Chester Flaxmayer.
The trial court ruled that the defense could use breathing patterns, temperature and hematocrit to show reasonable doubt as to the accuracy of the breath test result. Moreover, partition ratio could be used to show that the Mr. Cooperman’s actual blood alcohol concentration (not breath) may have been under the limit, thus he may not have been impaired.
The prosecutor’s office appealed this decision to the Pima County Superior Court and they were soundly defeated.
They then took an appeal to Division II of the Arizona Court of Appeals, and they were once again soundly defeated, but this time it resulted in a statewide precedent being set (State v. Joseph Cooperman, 230 Ariz. 245, 282 P.3d 446 (Ariz. App. Div. II, 2012)).
Next, they asked the Arizona Supreme Court for review. The Court has accepted jurisdiction on the partition ratio issue, only. Arguments are set for Tuesday, May 21st at 9:30 a.m. in the Supreme Court, in Phoenix, Arizona.
What this means is that breathing patterns, temperature and hematocrit may be used freely by the defense to show reasonable doubt. Partition Ratio, however, may have some restrictions on it.
Presently, partition ratio is only admissible if the prosecution asks that it be linked to impairment. In other words, the prosecutors can use it to speculate that Mr. Cooperman is impaired, but Mr. Cooperman cannot use it to cast doubt on impairment. The prosecutors may use partition ratio as a sword to convict people, but if you are accused of DUI, you may not use the same numbers and the same science as shield to defend yourself. State v. Cooperman will give us a definite answer to this dilemma.
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