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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.

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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) []. In 1999 Mr. Nesci became a Sustaining Member of the National College for DUI Defense []. 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.

6 Responses

  1. Greetings,

    I am Robert Allen Walker and I am fighting for my life. In the Superior Court of Coconino County AKA Flagstaff, AZ. I have been charged with DUI and have been fighting my case for a year and a half. Can you say “6th amendment?” Your article on the Intoxilyzer 8000 and recent cases is great, and thank you for your objective reporting.

    I have since the beginning been railroaded, my constitutional rights denied, and have now found new hope with the flaws in the Intoxilyzer machine. I have fired the court appointed council, they say that is your right, and yet it took over five months to do so. I am alone, untrained as a lawyer, and being held to the exact same standards as a lawyer, and am up against a team of lawyers and their helpers and clerks and so forth.

    Any case law you can provide, that’s the only thing they will accept in court, would be appreciated, that and any more current articles on the subject would be greatly appreciated.

    I intend to fight to the bitter end, and to bring a class action suit that will set aside all such cases in my area and or state. When you see how they treat people, the coercion and threats and intimidation it makes a fella motivated. That, or an inmate.

    Why test someone’s breath to measure blood alcohol? To save money? To buy a $7,000 machine to save money on simple blood tests? I think not, it is a money making machine, literally.

    Thanks again, my trial is Tuesday and I look forward to upcoming appeals.


    Robert Allen Walker
    (928) 699-6799

  2. OK. I just Googled the case law sited above and wow, yay, wow, hell ya, and thank you. Still, one can not be too sure, so any other case law that totally help and are relevant would be helpful. Something tells me these guys are not going to like this, and will fight it anyway.

    Thanks again.


    1. Scott,
      There is no time limit to suppress evidence assuming the judge’s deadlines have not expired and your case has not yet been resolved. I suggest you consult with a lawyer in your state. If you don’t have one, please contact me at 865-249-7200 and I will refer you to a knowledgeable lawyer. Steve Oberman

  3. My brother was tested with the 8000 intoxilyzer three times different readings no blood test was sentence to 4 yrs prison. They used a past domestic violence he had already served to boost a aggrivated dui. What we do at this point? There are several other being done the same way in kingman az Mohave cty.

    1. Ms. Huerta, The best thing for your brother at this point is to hire a good lawyer well versed in the area of DUI defense. I strongly recommend the law firm of Nesci & St. Louis in Tucson (520) 622-1222 (regular contributors to this blog). If they can’t assist for some reason, they will refer you to someone who can. Best of luck to you, Steve Oberman

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