concurring and dissenting:
Although I agree that the conviction should be affirmed, I disagree with the conclusion that the officer’s testimony about intoxication was impermissible. As noted by this court in Bojorquez, 145 Ariz. at 503, 702 P.2d at 1348, Fuenning did not preclude such testimony but merely urged caution in its blanket admission. No per se prohibition was intended. Rather, admission of police officer testimony regarding a DUI defendant’s intoxication is discretionary with the trial court. Bojorquez, 145 Ariz. at 503, 702 P.2d at 1348; State v. Carreon, 151 Ariz. 615, 617, 729 P.2d 969, 971 (App.1986).
The officer’s testimony here contained no ultimate opinion on guilt. Although his testimony .rating Lummus’ level of intoxication touched on an important factual issue, that it supports guilt does not make it improper. The opinion was not framed in conclusory terms that merely parroted the DUI statute, as was disapproved in Fuenning; it followed the officer’s description of observed symptoms of intoxication and rested solely on the officer’s experience and observations. Under *573these circumstances, the testimony about degree of intoxication fell well short of an impermissible ultimate opinion on guilt. See City of Seattle v. Heatley, 70 Wash.App. 573, 854 P.2d 658, 661-63 (1993) (note 3, citing Arizona law). As recently as 1990, after Fuenning, Division 2 of our court acknowledged that police testimony about intoxication is not an ultimate issue and should be admitted. Newell v. Town of Oro Valley, 163 Ariz. 527, 789 P.2d 394 (1990).
The officer’s testimony was also “otherwise admissible” within Rule 704. In Arizona lay witnesses with the opportunity to observe a person may opine as to degree of intoxication as well as about other perceptible aspects of physical appearance. See Esquivel v. Nancarrow, 104 Ariz. 209, 213, 450 P.2d 399, 403 (1969) (“well-settled” that lay opinion of intoxication is admissible); Starkins v. Bateman, 150 Ariz. 537, 546, 724 P.2d 1206, 1215 (App.1986) (approving lay opinion of emotional and mental state); State v. Griffin, 99 Ariz. 43, 50, 406 P.2d 397, 401-02 (1965) (approving lay opinion re sanity); see generally Morris K. Udall, et al., Law of Evidence (3rd Ed.) § 21 (1991). The majority’s conundrum is justifying the exclusion of trained police officer testimony in the face of admission of untrained lay testimony on the same subject. The Washington court of appeals has the answer exactly right:
“[I]f a lay witness may express an opinion regarding the sobriety of another, there is no logic to limiting the admissibility of an opinion on intoxication when the [police] witness is specially trained to recognize characteristics of intoxicated persons.” City of Seattle, v. Heatley, 854 P.2d at 662.