State ex rel. Hamilton v. Lopresti

787 P.2d 1099, 163 Ariz. 303, 47 Ariz. Adv. Rep. 61, 1989 Ariz. App. LEXIS 301
Court of Appeals of Arizona·Decided November 14, 1989·No. No. 1 CA-CV 88-372·Published·Cited by 1 cases

Opinion

OPINION

BROOKS, Judge.

This is an appeal from the superior court’s ruling permitting the state to introduce horizontal gaze nystagmus (HGN) test results in the absence of a chemical analysis of the defendant’s blood alcohol content to prove that the defendant violated A.R.S. section 28-692(A) by driving while under the influence of alcohol.1 Defendant argues on appeal that HGN test results may not be admitted in the absence of a chemical analysis for the following reasons:

1) the evidence necessary to establish a foundation for admitting the results will cause unfair prejudice, confuse the issues, and mislead the jury;
2) the results will impermissibly quantify the defendant’s blood alcohol content; and
3) the results will not meet the appropriate standard for scientific reliability.

We find that none of these reasons requires that HGN test results be excluded in the absence of a chemical analysis.

Defendant was arrested for driving while under the influence of alcohol in violation of section 28-692(A) and for several unrelated offenses. At the time of his arrest, he submitted to an HGN test but refused to submit to any other field sobriety test or to a blood alcohol test. The state filed a motion in limine in Mesa Municipal Court, asking that it be allowed to present evidence at trial that defendant’s performance on the HGN test was consistent with that of a person who was under the influence of alcohol. The municipal court denied the state’s motion on the ground that HGN test results were not admissible in the absence of a chemical analysis of defendant’s blood alcohol content. The state then filed a petition for special action relief from the municipal court’s ruling in Maricopa County Superior Court. The superior court granted the requested relief, ruling that [305] the state was entitled to introduce HGN test results to prove that defendant was driving while under the influence of alcohol. The court noted, however, that State v. Superior Court (Blake), 149 Ariz. 269, 718 P.2d 171 (1986), precluded the state from introducing any evidence that would “quantify” the defendant’s blood alcohol content. Defendant appeals from this ruling.

Before HGN test results may be admitted into evidence, the state must lay a proper foundation for their admission by showing that the officer who tested the defendant was qualified to administer the test and that he conducted it properly. Id. at 279-80, 718 P.2d at 181-82. The officer in the present case maintained a log of HGN test results which reflected the percentage of times that his estimation as to whether a person’s blood alcohol content was above or below .10% corresponded to the person’s actual blood alcohol content as determined by a subsequent chemical analysis.

Defendant predicts that the officer would testify that he has accurately estimated whether a person’s blood alcohol content was above or below .10% in a high percentage of cases. Defendant argues that this foundational testimony would cause the jury to assume, in the absence of a chemical analysis, that the officer also estimated that his blood alcohol content exceeded .10% and that this estimation was accurate. Citing Rule 403, Arizona Rules of Evidence, defendant contends that this will unfairly prejudice him, confuse the issues, and mislead the jury. However, defendant’s concerns rest upon his assumption that the state would not be permitted to introduce evidence that his blood alcohol content exceeded .10% in the absence of a chemical analysis. As we will explain, this assumption is incorrect.

Defendant argues that there are only two possible reasons to admit HGN test results into evidence: 1) to corroborate or challenge the accuracy of a chemical analysis of the defendant’s blood alcohol content and 2) to quantify the defendant’s blood alcohol content. He concludes that the results would never be admissible in cases in which there was no chemical analysis in evidence, because the only possible reason to admit them in such cases would be to quantify the defendant’s blood alcohol content—a use that our supreme court specifically prohibited in Blake.

In Blake, our supreme court held that HGN test results were admissible in section 28-692(A) prosecutions to prove that the defendant was driving while under the influence of alcohol. Blake, 149 Ariz. at 280, 718 P.2d at 182. The court also held, however, that the results were not admissible in any criminal prosecution as direct, independent evidence to quantify a defendant’s blood alcohol content. Id.

In State ex rel. McDougall v. Ricke, 161 Ariz. 462, 778 P.2d 1358 (Ct.App.1989), we examined the scope of Blake’s prohibition against using HGN test results for quantification purposes. We concluded that when the supreme court stated that the results were not admissible to “quantify” a defendant’s blood alcohol content, it meant that they were not admissible to independently establish that the defendant’s blood alcohol content equaled a specific percentage. Ricke, 161 Ariz. at 463, 778 P.2d at 1359. We held that Blake did not preclude testimony by the officer who administered the test that the defendant’s blood alcohol content exceeded .10%. Id. We further held that with proper foundation, this evidence was admissible as independent proof that the defendant was driving while under the influence of alcohol in violation of section 28-692(A). Id. at 464, 778 P.2d at 1360. We therefore reject defendant’s contention that the use of HGN test results for any purpose other than that of corroborating or challenging the accuracy of a chemical analysis constitutes an impermissible quantification of the defendant’s blood alcohol content.

Defendant attempts to distinguish Blake from the present case on the ground that there was a chemical analysis in evidence in Blake. He contends that Blake’s holding that HGN test results are admissible in section 28-692(A) cases is limited to those [306] cases in which there is a chemical analysis in evidence. We disagree.

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State ex rel. Hamilton v. Lopresti, 787 P.2d 1099, 163 Ariz. 303, 47 Ariz. Adv. Rep. 61, 1989 Ariz. App. LEXIS 301 (Ark. Ct. App. 1989).

787 P.2d 1099 (State ex rel. Hamilton v. Lopresti) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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