dissenting
I dissent because I believe that the majority has overlooked a fundamental problem. It may be, as the majority holds, that the defendants can waive preservation of the breath sample, that they may do so without counsel, that the waiver form was adequate and defendants intentionally relinquished their rights. However, there are other, more important principles involved. The criminal justice system has its own interests. These certainly include efficiency of operation, conviction of the guilty and acquittal of the innocent. Preservation of evidence has always been considered a key factor in achieving these goals. See Scales v. City Court of City of Mesa, 122 Ariz. 231, 594 P.2d 97 (1979), in which we first criticized the state’s practice of destroying breath samples and required that they be preserved; see also State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964).
The principle is even more important in cases such as this, where the evidence held by the police is the direct evidence of guilt—it is, in a manner of speaking, the crime itself. To convict under § 28-692(B) the state need show only that the sample— which the majority permits the police to destroy—contained a blood alcohol content in excess of .10%. No other evidence is needed, Fuenning v. Superior Court, 139 Ariz. 590, 680 P.2d 121 (1983), even though the equipment used is subject to a margin of error. Id. See also State ex rel. Collins v. Seidel, 142 Ariz. 587, 691 P.2d 678 (1984).
No week goes by without this Court being asked to review cases that raise issues pertaining to calibration of the equipment, its proper use, the chance of operator error, conflicting expert opinions (even among law enforcement agencies) as to proper technique and questions of preservation of samples. With all this in mind, it becomes difficult to understand what interest other than clerical convenience is served by permitting destruction of the direct evidence. No other benefit is cited. In a prosecution for possession of narcotic drugs we would not permit the state to destroy the evidence, with or without the supposed consent of the defendant. If we were to do so, we would be faced with an unending procession of cases in which it was alleged that the “consent” was not voluntary, or was given without comprehension, or was otherwise defective and that the alleged drug, no longer available for verification, was not a proscribed substance. Similar arguments come before us quite often in DUI cases.
Permitting destruction of key evidence is bad judicial policy. Neither the defendants nor the state can force it upon us. We have both explicit constitutional power and inherent authority to supervise procedures in the courts of this state. See Arizona Constitution art. 6, §§ 3 and 5; Thomas v. Arn, — U.S. -, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); State v. Borst, 278 Minn. 388, 154 N.W.2d 888 (1967); Commonwealth v. Campana, 455 Pa. 622, 314 A.2d 854 (1974) (addendum opinion); Kersey v. State, 525 S.W.2d 139 (Tenn.1975) (invoking “inherent supervisory power” to order that all trial judges in the state, “when faced with deadlocked juries,” refrain from giving the so-called dynamite instruction and instead “comply with the ABA Standards Relating to Trial by Jury” —525 S.W.2d at 144). Indeed, this Court has done as much under its “inherent supervisory power”, without bothering to use the words. In speaking to the same issue—use of the so-called dynamite instruction—this Court acknowledged there was no error of law in the instruction, but went on to state:
“We readily concede that a close reading and study [of the instruction], sentence by sentence, does not reveal any misstatement of the law. Yet it now appears that the old adage referred to by Justice Udall—‘proof of the pudding is in *490the eating’—aptly applies. This instruction has been before us four times. When and wherever its use is called into question it must stand or fall upon the facts and circumstances of each particular case. It has given, and we believe each use will give us, harassment and distress in the administration of justice. No rule of thumb can circumscribe definite bounds of when and where, or under what circumstances it should be given or refused.
“It now appears that its continued use will result in an endless chain of decisions, each link thereof tempered and forged with varying facts and circumstances and welded with ever-changing personalities of the appellate court. This is not in keeping with sound justice and the preservation of human liberties and security. We are convinced that the evils far outweigh the benefits, and decree that its use shall no longer be tolerated and approved by this court.”
State v. Thomas, 86 Ariz. 161, 166, 342 P.2d 197, 200 (1959).
Both the principle and the actual words are applicable to the present case. Continued tolerance of the destruction of evidence which constitutes the only direct proof of the crime charged serves no substantial purpose, probably allows occasional conviction of someone who is not guilty and, where the waiver is found invalid, occasionally permits acquittal of someone who is guilty. Destruction of the evidence confuses the issues in many cases, diverts attention from the real issue in others and consumes judicial time. Destruction also induces some defendants to take their chances at trial when verification of the blood sample by independent testing would undoubtedly induce many to plead guilty.
Given the terrible backlog of DUI cases (at a recent oral argument counsel for the state indicated that a year’s delay in getting to trial is not uncommon), we should be doing everything possible to expedite disposition of cases—take pleas from the guilty, acquit the innocent and get the drunk drivers off the road. Today’s decision perpetuates a practice that “has given and ... will give us, harassment and distress in the administration of justice.” As with the dynamite instruction, continued use of the waiver “will result in an endless chain” of argument over irrelevant questions involving destruction of evidence, thus diverting valuable time and resources from the only true issue—whether the defendant’s blood alcohol content exceeded the limit proscribed by the statute.
This Court is bound by neither the defendants’ waiver nor the state’s clerical convenience. Our obligation is to administer a system of justice fairly, impartially and efficiently. That obligation is better fulfilled if we do not permit the state to use the waiver as a device to overrule Scales, supra. I would hold that the state must retain until trial the direct evidence of guilt or innocence which it has obtained from the defendants.