dissenting:
As I read the majority opinion, two requirements must be met to establish a breathalyzer test as “unsuccessful” and trigger suspension under A.R.S. § 28-691. (1) The breathalyzer must meet ■ and be operated in compliance with the Robinson foundational requirements. (2) The breathalyzer must pronounce a sample “deficient.” No evidence is presented what the breathalyzer means by this pronouncement. Its verdict of “deficient” is enough.
This strikes me as excessive judicial deference to a machine.
State law enforcement has not similarly deferred. Rather, on the basis of appellant’s breathalyzer reading, the state undertook her prosecution in Scottsdale City Court. When appellant moved to suppress the breathalyzer reading, the state resisted, urging that the test score “completely complied with ... foundational requirements” and was competent to prove that appellant had been driving with 0.10’ or more alcohol concentration in her blood, as required by A.R.S. § 28-692(B).
The majority finds this prosecutorial usage of appellant’s breathalyzer reading irrelevant for present purposes. Quoting Division Two’s opinion in Kuznicki v. Arizona Dep’t of Transp., 152 Ariz. 381, 382, 732 P.2d 1119, 1120 (1986), it states:
That a deficient breath sample prompted a (perhaps unprovable) charge of driving with a blood alcohol level in excess of the statutory limit ... [is] simply irrelevant to the issue of whether such a sample complied with the statutory obligation to take a breath test.
This reasoning, I believe, is flawed.
First, it assumes, without record support, that the readout from a sample labelled “deficient” would be weaker — its accuracy more readily attackable at trial — than a sample that satisfied the machine’s unrevealed standard of sufficiency. This as*447sumption is merely speculation on the present record. Was the quantity of air that appellant blew into the machine sufficient to register a blood alcohol concentration of .295, but deficient to make that a reliable reading? Was it sufficient to reliably provide a blood alcohol reading of at least .295, but deficient to rule out an even higher level? Was it sufficient to establish a blood alcohol level for the state’s eviden-tiary purposes, but deficient to preserve a surplus quantity for independent testing? Was it sufficient even to provide a surplus sample, but deficient in some other unrevealed respect? This record does not say. And the burden of the record’s deficiencies must fall on ADOT, not appellant, because ADOT bore the burden of proving unsuccessful completion below.
The second flaw in the majority’s Kuz-nicki-based approach is that it overlooks the state’s responsibility, when initiating a prosecution, to “weigh the evidence, the law and the facts, and the chances of successful termination of the prosecution.” State v. Stewart, 103 Ariz. 457, 458, 445 P.2d 433, 434 (1968). See also 1 A.B.A. Standards For Criminal Justice: The Prosecution Function, Standard 3-3.9(a) (2d ed. Supp.1986) (“A prosecutor should not institute, cause to be instituted, or permit the continued pendency of criminal charges in the absence of sufficient admissible evidence to support a conviction.”) To say dismissively that the breathalyzer reading merely prompted a “perhaps unprovable charge” is to inappropriately minimize the fact that the reading satisfied criminal prosecutors — exercising a significant screening responsibility — that it constituted competent and usable evidence of crime.
Finally, the majority’s Kuznicki-based analysis ignores the purpose of A.R.S. § 28-691, which is to assist the state in gathering usable evidence for prosecutions under A.R.S. § 28-692. The appellant satisfied this statutory purpose, and this can hardly be irrelevant — as Kuznicki terms it — to the question whether she met the statutory requirement of “successfully complet[ing]” a breathalyzer test.
In summary, the prosecutorial usage of appellant’s breathalyzer reading constituted evidence of successful completion. The only contrary evidence was an unexplained declaration of deficiency by the machine. The hearing officer abused his discretion, in my judgment, by accepting the latter over the former. For these reasons, I would reverse.