FILED BY CLERK
IN THE COURT OF APPEALS DEC 27 2006
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, )
)
Petitioner, )
)
v. )
) 2 CA-SA 2006-0083
HON. HECTOR CAMPOY, Judge of ) DEPARTMENT B
the Superior Court of the State of )
Arizona, in and for the County of Pima, ) OPINION
)
Respondent, )
)
and )
)
RICHARD J. CORDOVA, )
)
Real Party in Interest. )
)
SPECIAL ACTION PROCEEDING
Pima County Cause No. CR-20052955
JURISDICTION ACCEPTED; RELIEF GRANTED
Barbara LaWall, Pima County Attorney
By Melissa Rueschhoff Tucson
Attorneys for Petitioner
Law Offices of Jeffrey D. Bartolino
By Jeffrey D. Bartolino Tucson
Attorney for Real Party in Interest
E S P I N O S A, Judge.
¶1 The state brought this special action to challenge a ruling that excludes from
Richard Cordova’s trial for driving under the influence of an intoxicant (DUI) the use of
certain words and terms to describe his performance on a series of roadside sobriety tests.
For the reasons expressed below, we accept jurisdiction and grant relief.
Facts and Background
¶2 According to the petition and response, in June 2005, Cordova was the driver
of a vehicle involved in an automobile accident. He told the responding Pima County
Sheriff’s Department (PCSD) officer he had come from a party and the officer noticed a
“slight odor” of alcohol coming from Cordova’s direction. Another PCSD officer
administered to Cordova a horizontal gaze nystagmus (HGN) test,1 and he exhibited six cues
of impairment. The officer then administered two other field sobriety tests (FST): the walk-
and-turn test on which Cordova exhibited four cues of impairment, and the one-leg-stand test
on which he exhibited two cues of impairment. Cordova was arrested and charged with DUI
in violation of A.R.S. § 28-1381(A)(1).
¶3 In August 2006, the trial court conducted a pretrial hearing to address, inter
alia, how evidence of Cordova’s performance on the FSTs would be presented to the jury.
1
“The HGN test is one of several field sobriety tests police officers use to detect
whether a suspect is under the influence of alcohol. Nystagmus refers to an involuntary
jerking of the eyeball, and may be aggravated by central nervous system depressants, such
as alcohol or barbiturates.” State ex rel. Hamilton v. City of Mesa, 165 Ariz. 514, 515 n.1,
799 P.2d 855, 856 n.1 (1990). In administering the test, “the officer observes whether each
eye can track movement smoothly, at what angle onset of nystagmus occurs, and whether
pronounced nystagmus occurs at maximum deviation.” Id.
2
Cordova argued the FSTs would be given unwarranted scientific credibility if the state were
permitted to use the words “sobriety,” “test,” “field sobriety test,” “impairment,” “pass,”
“fail,” or “marginal” in describing his performance on the tests. Cordova’s expert witness
testified that scientific data does not support a correlation between an impaired ability to
operate a vehicle and a person’s performance on FSTs and that several factors other than
alcohol influence could cause a cue of impairment on an FST, i.e., fatigue, concussion, use
of prescription drugs, or injury to the inner ear. The state did not present expert testimony
at the hearing. The respondent judge concluded “there is no [scientific] linkage between
[FST performance] and impairment” and ordered “there shall be no reference to impairment,
sobriety, tests, pas[s,] . . . fail, marginal,” or “field sobriety test” when presenting testimony
at trial about FSTs, but “the [testifying] officer may describe what was asked of the
defendant and how the defendant responded.” The state seeks review of the respondent’s
ruling precluding the use of the prohibited vocabulary at trial.
Special Action Jurisdiction and Standard of Review
¶4 We accept jurisdiction of this special action because the order challenged is
interlocutory in nature and the state has no equally plain, speedy, or adequate remedy by
appeal. See Ariz. R. P. Spec. Actions 1(a), 17B A.R.S. Special action review is also proper
because the issues raised are questions of first impression, they could affect many DUI
prosecutions, and are of statewide importance. See ChartOne, Inc. v. Bernini, 207 Ariz. 162,
¶¶ 8-9, 83 P.3d 1103, 1106-07 (App. 2004).
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¶5 Trial courts have broad discretion in ruling on the admission of evidence. See
State v. Esser, 205 Ariz. 320, ¶ 3, 70 P.3d 449, 451 (App. 2003). Accordingly, we review
the respondent judge’s ruling under an abuse of discretion standard. See Ariz. R. P. Spec.
Actions 3(c), 17B A.R.S.
Discussion
¶6 We begin by recognizing it is the trial courts’ traditional prerogative and duty
to monitor the admission of evidence in criminal trials and to ensure the probative value of
admitted evidence is not substantially outweighed by unfair prejudice to the defendant. See
State v. Salazar, 173 Ariz. 399, 405, 844 P.2d 566, 572 (1992); Ariz. R. Evid. 403, 17A
A.R.S. Accordingly, courts must ensure evidence is not presented in such a manner that it
is given unwarranted scientific credibility. With this in mind, we address the use of FST
evidence at trial and the respondent judge’s order.
¶7 Our review of Arizona law on the admissibility of evidence about FSTs and
DUI suspects’ performance on them does not support the respondent judge’s order restricting
the vocabulary available to describe Cordova’s performance on the FSTs. Although Arizona
courts have not addressed the specific issue raised in this special action, our courts have ruled
several times on the admissibility of FST evidence. These rulings have established a
framework for the use of FST evidence at trial and have delineated which aspects of such
evidence are inadmissible.
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¶8 Generally, the results of FSTs are admissible as relevant evidence of a
defendant’s impairment. See State ex rel. Hamilton v. City of Mesa, 165 Ariz. 514, 518 n.3,
799 P.2d 855, 859 n.3 (1990) (FST evidence admissible to “show[] clues or symptoms that
correlate to impairment”). Police officers may testify about the “manner in which [a
defendant] performed the [FSTs],” Fuenning v. Superior Court, 139 Ariz. 590, 599, 680 P.2d
121, 130 (1983), and may testify they administer FSTs in “an attempt to determine whether
[a defendant] is, in fact, intoxicated and was intoxicated while he was driving the car,” State
v. Askren, 147 Ariz. 436, 437, 710 P.2d 1091, 1092 (App. 1985) (emphasis deleted).
¶9 The primary restriction on FST evidence concerns the test results’ use in
establishing a defendant’s blood alcohol concentration (BAC). Our supreme court has held
FST results may not be used to quantify an accused’s BAC. See State v. Superior Court
(Blake), 149 Ariz. 269, 280, 718 P.2d 171, 182 (1986). This restriction extends to HGN test
results, which, although the test satisfies the Frye 2 standard of scientific reliability, cannot
be used to quantify or estimate BAC in the absence of a chemical test. 149 Ariz. at 280, 718
P.2d at 182; see also Hamilton, 165 Ariz. at 517, 799 P.2d at 858 (HGN test results
inadmissible to estimate BAC in absence of chemical test of blood, breath, or urine). The
proper use of HGN test results is as evidence “relevant to show[ing] whether a person [was]
2
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (standard for admissibility is
whether technique is generally accepted by relevant scientific community).
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under the influence of alcohol . . . in the same manner as . . . other field sobriety tests.”
Hamilton, 165 Ariz. at 518, 799 P.2d at 859.
¶10 Within this framework of admissibility, we find no support for the restrictions
the respondent judge imposed. Rather, it is clear Arizona law permits testimony about a
defendant’s performance on FSTs as long as no correlation is made between performance
and BAC and no scientific validity is assigned to the tests themselves as accurate measures
of BAC. FST performance has repeatedly been found to be relevant evidence of a
defendant’s impairment; thus, we disagree with the respondent’s implicit conclusion to the
contrary. See Blake, 149 Ariz. at 280, 718 P.2d at 182 (FST performance admissible “as
evidence that the driver is ‘under the influence’”); Hamilton, 165 Ariz. at 518 n.3, 799 P.2d
at 859 n.3 (“Field sobriety tests . . . show[] clues or symptoms that correlate to impairment.”);
Fuenning, 139 Ariz. at 599, 680 P.2d at 130 (performance on FSTs not conclusive, but
relevant to question of intoxication); Askren, 147 Ariz. at 437, 710 P.2d at 1092 (purpose of
FSTs is to determine alcohol intoxication).
¶11 Moreover, the words the respondent precluded are pervasive throughout the
case law concerning FSTs and have not been found, or even suggested to be, inadmissible.
The danger our courts have attempted to guard against is using FST performance to estimate
or quantify a specific BAC or level of impairment for prosecutions under § 28-1381(A)(2),
in which the state must prove the defendant had a specific BAC. That danger is much
attenuated in prosecutions under § 28-1381(A)(1), as is the case here, where the state need
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only prove impairment to the slightest degree—though we realize BAC is relevant to such
prosecutions and reiterate FST performance is inadmissible to quantify BAC in all
prosecutions under § 28-1381.
¶12 The respondent judge ordered the restrictions based on his finding there is no
scientific correlation between impairment and performance on FSTs, a finding in turn based
on expert testimony that several factors other than alcohol impairment can lead to a cue of
impairment on an FST. Our supreme court has indicated, however, that expert testimony
goes to the weight to be given to FST evidence, not its admissibility or relevance at trial. See
State v. Velasco, 165 Ariz. 480, 486, 799 P.2d 821, 827 (1990) (“Any lack of perfection [in
tests used to measure BAC] affects the weight the jury may wish to accord the evidence
obtained by [those] test[s], not its admissibility.”). Furthermore, although we generally defer
to a respondent judge’s factual findings, the respondent’s conclusion here is not supported
by the evidence. See Motel 6 Operating Ltd. P’ship v. City of Flagstaff, 195 Ariz. 569, ¶ 7,
991 P.2d 272, 274 (App. 1999). The mere self-evident fact that circumstances other than
alcohol impairment can be responsible for cues of impairment on FSTs does not establish
that such tests are necessarily uncorrelated with impairment. Indeed, our courts have
repeatedly found FSTs are tests of impairment, albeit not definitive indicators of such, and
police officers should be permitted to testify accordingly. See Hamilton, 165 Ariz. at 518,
799 P.2d at 859 (field sobriety test performance relevant to showing whether defendant was
under influence of alcohol); see generally Blake, 149 Ariz. at 279, 718 P.2d at 181 (supreme
7
court acknowledged “[n]ystagmus may be caused by conditions other than alcohol
intoxication”). And the words at issue in this case do not in themselves suggest a scientific
basis for the tests or lend the tests unwarranted scientific credibility. Rather, they make plain
the tests’ purpose as indicators of impairment and enable the state to demonstrate their
probative value. Testimony that a defendant exhibited “four cues of impairment” on a “field
sobriety test” does not improperly assert or imply the defendant has been scientifically
proven to have been impaired. Rather, such testimony constitutes relevant evidence of a
defendant’s impairment, which jurors may consider and balance against evidence of the tests’
limitations.
¶13 Thus, the proper method for challenging FST deficiencies is testimony, such
as that of Cordova’s expert at the pretrial hearing, calling these deficiencies to the attention
of the jury and presenting evidence that cues of impairment were caused by something other
than alcohol impairment. If, during trial, Cordova believes the state has attempted to assign
unwarranted scientific credibility to the tests, e.g., the state has used their results to establish
a specific BAC or as a definitive indicator of impairment, Cordova can object at that time.
The respondent judge would then have the appropriate context in which to determine whether
the state had improperly used the FST performance evidence.
¶14 Additionally, permitting restrictions on vocabulary in DUI cases such as the
respondent imposed here would open the door to creative wordsmithing and invite perpetual
and unnecessary litigation. A considerable amount of time could be spent determining which
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words accurately describe FSTs and portray FST performance. Would a law enforcement
officer be permitted to testify he or she had administered a “field incapacitation
examination”? And that the officer had detected two cues of “deficient performance”?
Without use of certain words, testimony could take an unnatural tone as witnesses attempt
to sidestep prohibited terms. Such restrictions would place an unnecessary burden on both
parties and would be transparent to the jury. See Askren, 147 Ariz. at 437, 710 P.2d at 1092
(“Any juror would know that the purpose of giving the field tests was to try to determine if
appellant was under the influence of alcohol.”).
Conclusion
¶15 We acknowledge the challenge faced by trial courts when monitoring the
appropriate presentation of evidence regarding a defendant’s performance on FSTs. Cordova
presented, and the trial court credited, expert testimony and studies indicating that the
“reliability and predictive validity” of the FSTs conducted on Cordova “has not been
scientifically established.” On the other hand, those tests require suspects to perform tasks
that can readily expose deficiencies in motor control and mental agility caused by the
voluntary consumption of alcohol. Thus, our courts have repeatedly endorsed the relevance
of a defendant’s performance of such tests as evidence indicating unlawful impairment. In
short, such test results are admissible in the same way any other observation about a
defendant’s behavior is admissible on the question of whether the defendant exhibited the
signs and symptoms of unlawful impairment.
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¶16 We do not question the respondent’s motivation in attempting to constrain the
state from using terminology that could cause a jury to erroneously assume that the FSTs
were scientifically designed to definitively determine alcohol impairment, but the respondent
erred in prospectively prohibiting relevant terms. As our jurisprudence indicates, it is
impractical to discuss FSTs without using some of the prohibited vocabulary. Instead, the
presentation of FST testimony is more efficiently and fairly monitored within the context of
the actual presentation of the evidence through opposing counsel’s objections and cross-
examination. We emphasize, however, that trial courts should not be deterred by our
reasoning today from placing appropriate boundaries on such testimony at trial.
¶17 Accordingly, having found that the respondent judge abused his discretion in
granting Cordova’s motion to preclude the use of certain words and terms, we accept
jurisdiction, grant relief, vacate the order granting the motion, and direct the respondent
judge to permit the state to present evidence of Cordova’s FST performance as permitted by
law and without the ordered restrictions on vocabulary.
PHILIP G. ESPINOSA, Judge
CONCURRING:
PETER J. ECKERSTROM, Presiding Judge
GARYE L. VÁSQUEZ, Judge
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