Special Action from the City of Tucson Municipal Court The Honorable Wendy A. Million, Magistrate No. TR 10061595.
Appeal from the Superior Court in Pima County The Honorable John S. Leonardo, Presiding Judge No. C20117903.
Opinion of the Court of Appeals, Division Two 230 Ariz. 245, 282 P.3d 446 (2012).
Michael G. Rankin, Tucson City Attorney, Baird S. Greene, Deputy City Attorney, William F. Mills (argued), Principal Assistant Prosecuting City Attorney, Tucson, for State of Arizona
Stefan F. Niemiec, City of Tucson Public Defender, and James Nesci (argued), Law Office of Nesci & St. Louis, Tucson, for Joseph Cooperman
Stephen Paul Barnard, Law Offices of Stephen Paul Barnard, P.C., Tucson, for Amicus Curiae Arizona Attorneys for Criminal Justice
Brad Carlyon, Navajo County Attorney, Neill Perry, Deputy County Attorney, Holbrook, for Amicus Curiae Navajo County Attorney's Office
Robert S. Hubbard, Tempe City Prosecutor, Andrew M. Davidson, Assistant City Attorney, Tempe, for Amicus Curiae Tempe City Prosecutor's Office
Elizabeth Ortiz, Executive Director, Arizona Prosecuting Attorneys' Advisory Council, Faith C. Klepper, Attorney, Phoenix, for Amicus Curiae Arizona Prosecuting Attorneys' Advisory Council
CHIEF JUSTICE BERCH authored the opinion of the Court, in which VICE CHIEF JUSTICE BALES, JUSTICE PELANDER, JUSTICE BRUTINEL, and JUSTICE TIMMER joined.
BERCH, CHIEF JUSTICE
¶1 This case addresses (a) whether partition ratio evidence is admissible in a prosecution for driving while impaired in violation of A.R.S. § 28-1381(A)(1) if the state elects to introduce breath test results only to prove that the defendant had "an alcohol concentration of 0.08 or more within two hours of driving" in violation of A.R.S. § 28-1381 (A)(2), and (b) whether evidence relating to the variability of partition ratios in the general population is relevant to a particular defendant's state of impairment. We conclude that such evidence is relevant and therefore may be admissible to show the defendant's lack of impairment.
¶2 The State charged Joseph Cooperman with two counts of driving under the influence ("DUI"). The first charge was for driving while "impaired to the slightest degree" by alcohol or other substances, in violation of A.R.S. § 28-1381(A)(1) (the (A)(1) or "impairment" charge). The second charge, filed under § 28-1381 (A)(2) (the (A)(2) or "per se" charge), was for having "an alcohol concentration [in the breath or blood] of 0.08 or more within two hours of driving or being in actual physical control of the vehicle." See A.R.S. § 28-101(2) (defining alcohol concentration). The (A)(2) charge is proven by presenting evidence of the defendant's breath or blood alcohol concentration ("AC") and ...