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Prosecutors Attempt to Limit Defenses

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.

About James Nesci

James Nesci
James Nesci often defends cases well into the .30 blood-alcohol range. He has caught more than one police officer lying during cross-examination and some police officers have even refused to grant pretrial interviews to him without a prosecutor or their own counsel present. He was one of the lead attorneys on the Intoximeters® RBT-IV breath-testing issue in Southern Arizona which resulted in the suppression of breath tests in over 7,000 cases and the removal of the RBT-IV from the streets of Arizona. He also spear-headed the effort to obtain the manufacturer’s source code and software for the CMI Intoxilyzer 8000. Although the source code was never obtained, he almost single-handedly ground 90% of all DUI prosecutions within the City of Tucson to a halt for nearly three years and obtained breath test suppressions and dismissals in hundreds of DUI cases. In addition to “traditional” DUI cases which involve alcohol, Mr. Nesci is a recognized expert on the defense of DUI/Drugs cases. Whether they be legal-over-the-counter-medications, prescription medications or illicit drugs, such DUI cases are far more complex and present cutting-edge issues for the courts. He is qualified to administer Standardized Field Sobriety Tests under National Highway Traffic Safety Administration & International Association of Chiefs of Police Guidelines. In 2006, he was appointed Regent of the National College for DUI Defense, Inc. He was formerly the chair of the Curriculum Committee for the NCDD. Currently, he is the State Delegate Coordinator, a member of the Amicus Committee, Treasurer of the NCDD, Member of the Executive Committee and served as an oral argument judge for the Board Certification Committee. Mr. Nesci is the author of Arizona DUI Defense: The Law & Practice, a legal treatise written for DUI defense attorneys and published by Lawyers and Judges Publishing Company (now in its third edition) [www.lawyersandjudges.com]. In 1999 Mr. Nesci became a Sustaining Member of the National College for DUI Defense [www.NCDD.com]. In 2001, he was Board Certified by the National College for DUI Defense, Inc., which is a is recognized by the American Bar Association. He is one of only three Board Certified attorneys in the State of Arizona, and one of less than fifty Board Certified attorneys in the nation (as of January, 2012). Mr. Nesci has lectured from coast-to-coast for such organizations as The University of Arizona James E. Rogers College of Law, Arizona State University College of Law Alumni Association, University of Mississippi CLE Department, South Texas College of Law CLE Department, Arkansas Association of Criminal Defense Lawyers, Arizona Attorneys for Criminal Justice, Arizona Public Defenders Association, California Attorneys for Criminal Justice, City of Phoenix Public Defender's Office, Colorado Criminal Defense Bar, Florida Association of Criminal Defense Lawyers, Indiana Public Defender’s Council, Kansas Association of Criminal Defense Lawyers, Louisiana Association of Criminal Defense Lawyers, Maricopa County Bar Association, Maricopa County Public Defender's Office, Maryland Criminal Defense Attorneys Association, the Mexican-American Bar Association at Loyola, the National Association of Criminal Defense Lawyers, the National College for DUI Defense, the Nebraska Criminal Defense Attorney’s Association, the Nevada State Bar Association, the New York State Bar Association, the Ohio Association of Criminal Defense Lawyers, the Pima County Bar Association, the Pima County Bar Association Young Lawyer’s Division, the Texas Criminal Defense Lawyers Association, the Tucson City Public Defender’s Office, the Tulare County (California) Public Defender’s Association, the Utah Criminal Defense Lawyers Association, and the Washington Foundation for Criminal Justice. He has taught seminars on the subjects of Ethics, 4th Amendment Law, Drug Recognition Evaluations (DUI-Drugs/DRE), Cross-Examination, Trial Tactics, Jury Selection, Field Sobriety Testing, Driving Behavior, Blood Alcohol Calculations, Opening & Closing Arguments, Source Code Litigation, Frye & Daubert Challenges, Intoxilyzer 8000 Operator’s Course, Headspace Gas Chromatography, Blood and Breath Testing. He has represented former Supremes lead singer Diana Ross and Tampa Bay Buccaneers' Tight-End Jerramy Stevens on Extreme DUI charges and fitness guru Richard Simmons on an assault charge. Mr. Nesci lives in Tucson with his wife and twin daughters. He is an honorably discharged veteran of the U.S. Navy where he spent much of his time working as an electrician in the Philadelphia Naval Shipyards. His interests are traveling, fine wines, vintage port and fast cars. He is an amateur race car driver, an accomplished mechanic, and a Corvette fanatic.

If you would like to contact the author, please visit: http://www.azdefense.com/


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