DUI Law - Arizona Court Explains Right to Free Breathalyzer Expert

In State of Arizona v. Manuel, Not Reported in P.3d, 2011 WL 3210664 (Ariz.App. Div. 2), the defendant appealed his conviction for Aggravated DUI Based upon the failure to be provided with indigent funds to hire an expert of his choosing, namely Chester Flaxmeyer. The Pima County Office of Court Appointed Counsel (OCAC) refused to provide public funds sufficient for him to retain a particular expert. Instead, he was provided with expert Chuck LaRoue. On appeal, after receiving an 8 year sentence, he complained that he should have been given the expert of his own choosing.

Describing the state (and the underlying federal law) law in this area, the Arizona court wrote:

“The denial of expert witness assistance to a criminal defendant can violate the Due Process Clause of the Fourteenth Amendment.” Jones v. Sterling, 210 Ariz. 308, ¶ 27, 110 P.3d 1271, 1277 (2005). But “the appointment of an expert witness [is required] only when ‘such assistance is reasonably necessary to present a defense adequately at trial or sentencing.’ “ Id. ¶ 29, quoting Ariz. R.Crim. P. 15.9(a); see also A.R.S. § 13–4013(B). “The unique facts of each case will determine what is ‘reasonably necessary’ for an indigent to adequately present a defense.” State v. Bocharski, 200 Ariz. 50, ¶ 61, 22 P.3d 43, 55 (2001). And, because the mere denial of a request for appointment of an expert witness, much less an expert of the defendant's choosing, does not necessarily render a criminal trial an unreliable vehicle for determining guilt or innocence, the structural error standard of review does not apply. Cf. State v. O'Dell, 202 Ariz. 453, ¶ 13, 46 P.3d 1074, 1079 (App.2002) (showing of prejudice required to establish due process violation).

However, the court found that the defendant had failed to bring OCAC's refusal to provide funding to the trial court, and so the error was waived, except to the extent that it could constitute "a fundamental error." The court stated:

"Manuel initially sought funding through OCAC to retain Chester Flaxmeyer as an expert to testify regarding the accuracy of the Intoxilyzer 8000, the device used to measure Manuel's blood alcohol levels. OCAC denied Manuel's request because Flaxmeyer's fee exceeded the amount OCAC could authorize, and Flaxmeyer would not agree to reduce his fee. Thus, it was OCAC that made the funding decision Manuel argues was error, not the trial court. And, as we noted above, Manuel never challenged that decision before the court. Instead, he retained another expert, Charles Laroue, through funding approved by OCAC."

Concluding that no fundamental error occurred, the court wrote:

"Although the state filed a motion arguing Laroue lacked the qualifications to testify as an expert and should be precluded from testifying at trial, the trial court denied the motion, finding it was untimely filed. On appeal, Manuel points out that, despite its ruling, the court stated that if the state objected on foundation grounds to Laroue's testimony at trial, the court might sustain the objection. Manuel acknowledges, however, that Laroue testified at trial and the state did not object. To the extent Manuel challenges the qualifications of his own expert, we reject that argument.

"A witness may be qualified as an expert by “knowledge, skill, experience, training, or education.” Ariz. R. Evid. 702. At trial, Laroue stated he had testified as an expert witness in more than two hundred cases in Arizona. Laroue was a second-year law student with a bachelor of science degree in paralegal studies. Additionally, he stated he has logged hundreds of hours of training and experience with the Intoxilyzer 8000, has become an instructor for that device through a program approved by the United States Department of Transportation, and teaches classes on “a national basis for both the Intoxilyzer 5000 and the Intoxilyzer 8000.” “Whether a witness possesses sufficient qualifications to testify as an expert is a matter within the trial court's discretion and that determination will not be upset on appeal in the absence of clear abuse.” State v. Saez, 173 Ariz. 624, 630, 845 P.2d 1119, 1125 (App.1992). On the record before us, we find no error, let alone fundamental error. See Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607."

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DUI Appeal of the Day (DAD) - Margin of Error Defense Rejected

In Borger v. Dep't of Motor Vehicles, --- Cal.Rptr.3d ----, 2011 WL 541131 (Cal.App. 2 Dist.), the driver challenged his suspension after giving two breath tests on an Intoxilyzer 5000 of .09 and .08. His expert, Jay Williams, testified that all “Intoxilyzer 5000” machines have an inherent margin-of-error of plus or minus .02 percent. He said that respondent's BAC could be “anywhere between a .06 and a .10” and could not say with reasonable scientific certainty that his BAC was .08 percent or higher. The DMV hearing officer did not credit Williams' testimony and found that respondent was lawfully arrested for DUI and driving with a BAC of .08 percent or more. (§ 13557, subd. (b)(2).) However, the trial court credited Williams' testimony. It impliedly found that respondent's BAC was less than .08, granted the writ petition, and ordered DMV to set aside the suspension of respondent's license. This appeal followed.
Rejecting the defense, the appeals court stated:

The trial court's terse analysis does not inspire confidence. Williams testified that an “Intoxilyzer 5000” that is in working order meets “the Adams requirements” ( People v. Adams (1976) 59 Cal.App.3d 559) but has an inherent margin-of-error of “plus or minus .02” percent. There is no disagreement that the “Intoxilyzor 5000” is an “approved instrument” within the meaning of Title 17, article 7, section 1221.3. Williams did not examine the machine used to test respondent's BAC on March 18, 2009, and he offered no opinion that the machine was not in working order. The trial court inexplicably credited Williams' theoretical lowest possible BAC and ignored the theoretical highest possible BAC. The logic of the trial court ruling concerning an impossibility to determine respondent's BAC is unknown. In reality, Williams' conclusion would “overrule” every “Intoxilyzer 5000” reported result unless it is .10 or more. This would change the California Code of Regulations, title 17, article 7, sections 1221 through 1221.5 and effectively remove this breath testing device from the Department of Motor Vehicle's “approved instrument” list. Other than testifying that he owned “Intoxilyzer 5000” machines, Williams offered no reasoning to support his conclusion. He offered no evidence of any scientific tests that he conducted with any such machine let alone the one used here. The record does not show that any other experts in the scientific community have reached similar conclusions or that any scientific literature supports Williams' conclusion. To say that his conclusion is bald is an understatement.

Further unnecessary ripping of the expert then occurred:

“Where an expert bases his conclusion upon assumptions which are not supported by the record, upon matters which are not reasonably relied upon by other experts, or upon factors which are speculative, remote or conjectural, then his conclusion has no evidentiary value. [Citations.] In those circumstances the expert's opinion cannot rise to the dignity of substantial evidence. [Citation.]” ( Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal.App.3d 1113, 1135.) ‘ “ ‘ “The chief value of an expert's testimony in this field, as in all other fields, rests upon the material from which his opinion is fashioned and the reasoning by which he progresses from his material to his conclusion....” ‘ (Quoting Carter v. v. United States (D.C.Cir.1957) 252 F.2d 608 617 [102 App. D.C. 227].)” ( People v. Coogler (1969) 71 Cal.2d 153, 167.) Williams' bald conclusion is speculative and cannot be fairly characterized a “substantial evidence.”

Editor's note: Obviously, this was a political decision - not an evidentiary one. Although couched in scientific terms (i.e. "how do we know that the expert really knows what he is talking about unless he teaches us to know it too?") the judges on the appellate court were simply unwilling to accept a simple unrefuted proposition, that the machine has a margin of error of =/- 0.02. Normally, case law states that the trier of fact cannot disregard unrefuted testimony. And sometimes, a scientific proposition is so simple, that nothing further need be said. An example might be that "two objects of the same shape will fall to earth at the same rate." Even though a judge might not know that to be true until it is told to him by an expert, the law doesn't require that Galileo re-climb the Tower of Pisa all over again, just to placate the ignorant and/or obstinate.


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