AZ Supreme Court Shoots Down Attack on Breath Testing Defenses

Arizona Supreme Court Unanimously Shoots Down Prosecution’s Attack on Breath Testing Defenses

What started as a seemingly routine motion to prevent the defense from telling the truth about breath testing in the Tucson City Court, grew into a two-and-a-half year battle which was played out in the Arizona Supreme Court on May 21st and affects the defenses of every DUI prosecution with a breath test in Arizona.

In order to understand the ruling, one must first understand the defenses. 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, random uncertainty, and maintenance. The Supreme Court ruling does not affect defenses related to machine variables.

Human Variables are the things which vary within human beings and include end-expired breath temperature, breathing patterns, hematocrit, lung physiology and partition ratio.

The Tucson City Prosecutor’s Office asked the trial 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. Each of these variables can affect the report breath test result by a specific amount. For example, breathing patterns can account for a 15% difference, while temperature can account for 17.2%, hematocrit another 5% and partition ratio can affect it by as much as 50%. It would be impossible for the defense to prove that such factors affected the test because the breath tester used in Arizona (CMI Intoxilyzer 8000) does not measure or record end-expired breath temperature (some devices do). Although the Intoxilyzer measures breath volume, that data is erased from the Intoxilyzer’s computer memory once the test has been completed. The only way to measure partition ratio and hematocrit is by a blood analysis, in which case the police might was well do a blood-alcohol test as opposed to a breath test.

Clearly, requiring the defense to prove that the factors affected the test result stands due process on its head as it is not the defense which must prove that a breath estimate is wrong. It is the prosecution which must prove that it is right, by proof beyond every reasonable doubt. So what was the real reason for bringing the motion? 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 as had been the case for at least two years in Southern Arizona. It is important to note that the courts in sthe Phoenix-area and northern parts of Arizona routinely granted similar prosecution motions, limiting the defense. Thus, there was a split in the state and those people arrested north of the Baseline Road in Arizona had less legal protections from prosecution than those arrested south of the Baseline Road. The Tucson City Prosecutor’s Office was attempting to expand the poor legal rulings to the rest of the state.

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 dismissed the private case to prevent Nesci and St. Louis from having a hand in the matter, but James Nesci (author of this article) volunteered to co-counsel the Cooperman case, free of charge. Stefan Niemic, a law school classmate of James Nesci and who now works at the Tucson City Public Defender’s Office, wrote a stellar brief on the issue. James Nesci was the attorney for the Tucson City Court hearing where he cross-examined the state’s expert witness, DPS Criminalist Mike Sloneker, and presented the defense witness, Chester Flaxmayer. Nesci’s law partner, Joseph P. St. Louis sat as second-chair.

After a day-long hearing, Tucson City Magistrate Wendy Million 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 freely by the defense 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, the prosecutors asked the Arizona Supreme Court for review. The Court accepted jurisdiction on the partition ratio issue, only, leaving the Court of Appeal decision untouched. Arguments were heard on Tuesday, May 21st at 9:30 a.m. in the Supreme Court, in Phoenix, Arizona and in a unanimous ruling, the Arizona Supreme Court upheld the rights of the defense to tell the truth to a jury about breath testing in State v. Joseph Cooperman, 2013 WL 3970212, August 5th, 2013.

What this means is that breathing patterns, temperature and hematocrit may be used freely by the defense to show reasonable doubt. Coupled with random uncertainty, a breath estimate can have as much as 47.2% variance from the number printed by an accurate and properly working breath testing device.

“Partition Ratio” is the ratio of alcohol in one’s blood to the amount on one’s breath. Previous to the ruling, partition ratio was only available to the prosecution as a sword to convict people. If the prosecution wanted to use it, they could do so, but the defense was not allowed to use it where it benefitted the accused. The Arizona Supreme Court ruling in the Cooperman case now allows the defense to use partition ratio as a defense.