                                                                    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).



                                                3
¶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.




                                               4
¶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).

                                               5
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



                                               6
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



                                                 8
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.



                                             9
¶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

                                             10
