Court of Appeals of Arizona, First Division, Division One
Not for Publication Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Coconino County No. CR 2011-00919 The Honorable Mark R. Moran, Judge
Arizona Attorney General's Office, Phoenix By Michael O'Toole Counsel for Appellee
Coconino County Public Defender's Office, Flagstaff By Brad Bransky Counsel for Appellant
Judge Sally Schneider Duncan delivered the decision of the Court, in which Presiding Judge Peter B. Swann and Judge Kenton D. Jones joined.
SALLY DUNCAN, Judge[*]
¶1 Billy Barlow appeals from his convictions and sentences for two counts of aggravated driving under the influence ("DUI"). At trial, the superior court excluded from evidence the blood alcohol concentration ("BAC") results of the breath test administered after Barlow's DUI arrest and any mention that a test was performed. Barlow argues on appeal that although the breath test results were properly excluded, the superior court should have admitted evidence he consented to the test and instructed the jury not to consider the lack of test results in its deliberation.
¶2 In our review of the record, we discovered that Barlow's redacted certified Motor Vehicle Department record, admitted at trial as Exhibit 5, included an Admin Per Se/Implied Consent Affidavit ("consent affidavit"). The consent affidavit indicated both Barlow's consent to the administration of the breath test and the test's results. "Although we do not search the record for fundamental error, we will not ignore it when we find it." State v. Fernandez, 216 Ariz. 545, 554, ¶ 32, 169 P.3d 641, 650 (App. 2007). Accordingly, we ordered supplemental briefing on the question: Did the inclusion of the unredacted Admin Per Se/Implied Consent Affidavit in Exhibit 5 moot appellant's argument or constitute reversible error? Having now reviewed the supplemental briefs filed by Barlow and the State, we reverse Barlow's convictions and sentences and remand for proceedings consistent with this decision.
FACTS AND PROCEDURAL BACKGROUND
¶3 On December 16, 2011, Officer S. of the Page Police Department stopped a vehicle driven by Barlow after observing Barlow swerve to avoid striking his patrol car while making a left-hand turn. Officer S. also observed Barlow's vehicle cross over the fog line on one occasion. While speaking with Barlow, Officer S. smelled "at least a moderate odor of an alcoholic beverage" and Barlow admitted he drank a pitcher of beer with his brother. Barlow consented to the administration of a breath test and field sobriety tests. Based on Barlow's performance on the field sobriety tests, his driving behavior, admission, and Officer S.'s observations throughout his interaction with Barlow, Officer S. arrested Barlow for DUI.
¶4 The State charged Barlow with four counts of aggravated DUI. Count 1 was charged as driving impaired with a suspended license. Count 2 was charged as driving with a BAC of .08 or more with a suspended license. Count 3 was charged as driving impaired with two prior DUI convictions. Count 4 was charged as driving with a BAC of .08 or more with two prior DUI convictions.
¶5 Prior to trial, the State filed a motion in limine to preclude evidence relating to the administration of the breath test because the device used to administer the test had not been maintained in accordance with Arizona Revised Statutes ("A.R.S.") section 28-1323 (2012) and Arizona Administrative Code R13-10-104. Specifically, Officer S. did not conduct calibration checks on the device within 31 days of each other and standard quality assurance procedures were not conducted within 90 days of each other. Because of this, the results were inadmissible. See Mack v. Cruikshank, 196 Ariz. 541, 548, ¶ 25, 2 P.3d 100, 107 (App. 1999). The State also moved to dismiss Counts 2 and 4. Barlow agreed the test results were inadmissible, but requested he be allowed to admit evidence he consented to the administration of the breath test. He also argued the court should instruct the jury not to infer guilt based on the lack of breath test evidence. The superior court, agreeing with the State that, in light of the inadmissibility of the test results, such evidence was irrelevant, excluded both the results and any mention of the breath test. Following a two day trial, the jury convicted Barlow of the remaining counts.
I. Inclusion of BAC ...