                                IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                        THE STATE OF ARIZONA,
                          Petitioner/Appellant,

                                   v.

                          JOSEPH COOPERMAN,
                           Respondent/Appellee.

                          No. CV-12-0319-PR
                          Filed August 5, 2013

         Special Action from the City of Tucson Municipal Court
              The Honorable Wendy A. Million, Magistrate
                            No. TR 10061595
                               AFFIRMED

             Appeal from the Superior Court in Pima County
            The Honorable John S. Leonardo, Presiding Judge
                            No. C20117903
                              AFFIRMED

             Opinion of the Court of Appeals, Division Two
                   230 Ariz. 245, 282 P.3d 446 (2012)
                              AFFIRMED

COUNSEL:

Michael G. Rankin, Tucson City Attorney, Baird S. Greene, Deputy City
Attorney, William F. Mills (argued), Principal Assistant Prosecuting City
Attorney, Tucson, for State of Arizona

Stefan F. Niemiec, City of Tucson Public Defender, and James Nesci
(argued), Law Office of Nesci & St. Louis, Tucson, for Joseph Cooperman

Stephen Paul Barnard, Law Offices of Stephen Paul Barnard, P.C., Tucson,
for Amicus Curiae Arizona Attorneys for Criminal Justice
                        STATE V. COOPERMAN
                          Opinion of the Court

Brad Carlyon, Navajo County Attorney, Neill Perry, Deputy County
Attorney, Holbrook, for Amicus Curiae Navajo County Attorney’s Office

Robert S. Hubbard, Tempe City Prosecutor, Andrew M. Davidson,
Assistant City Attorney, Tempe, for Amicus Curiae Tempe City
Prosecutor’s Office

Elizabeth Ortiz, Executive Director, Arizona Prosecuting Attorneys’
Advisory Council, Faith C. Klepper, Attorney, Phoenix, for Amicus Curiae
Arizona Prosecuting Attorneys’ Advisory Council

CHIEF JUSTICE BERCH authored the opinion of the Court, in which VICE
CHIEF JUSTICE BALES, JUSTICE PELANDER, JUSTICE BRUTINEL, and
JUSTICE TIMMER joined.

CHIEF JUSTICE BERCH, opinion of the Court:

¶1 This case addresses (a) whether partition ratio evidence is
admissible in a prosecution for driving while impaired in violation of
A.R.S. § 28-1381(A)(1) if the state elects to introduce breath test results
only to prove that the defendant had “an alcohol concentration of 0.08 or
more within two hours of driving” in violation of A.R.S. § 28-1381(A)(2),
and (b) whether evidence relating to the variability of partition ratios in
the general population is relevant to a particular defendant’s state of
impairment. We conclude that such evidence is relevant and therefore
may be admissible to show the defendant’s lack of impairment.

                           I. BACKGROUND

¶2     The State charged Joseph Cooperman with two counts of driving
under the influence (“DUI”). The first charge was for driving while
“impaired to the slightest degree” by alcohol or other substances, in
violation of A.R.S. § 28-1381(A)(1) (the (A)(1) or “impairment” charge).
The second charge, filed under § 28-1381(A)(2) (the (A)(2) or “per se”
charge), was for having “an alcohol concentration [in the breath or blood]
of 0.08 or more within two hours of driving or being in actual physical
control of the vehicle.”      See A.R.S. § 28-101(2) (defining alcohol
concentration). The (A)(2) charge is proven by presenting evidence of the
defendant’s breath or blood alcohol concentration (“AC”) and establishing


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                         STATE V. COOPERMAN
                           Opinion of the Court

that the test sample was taken within two hours of the time the defendant
drove or controlled a vehicle.

¶3     Section 28-1381(G) creates statutory presumptions that a person
whose breath or blood AC is 0.05 or less “was not under the influence of
intoxicating liquor,” (G)(1), and that one whose AC is 0.08 or greater was
under the influence, (G)(3). If the AC falls between 0.05 and 0.08, no
presumption of intoxication arises, but the AC “may be considered with
other competent evidence in determining the guilt or innocence of the
defendant.” Id. § 28-1381 (G)(2).

¶4     Before trial, the State moved in limine to prevent Cooperman from
introducing evidence of the variability of the “partition ratio” used to
convert breath AC (“BrAC”) to blood AC readings.1 The State argued that
it would not introduce the breath test results to prove under (A)(1) that
Cooperman was driving while impaired, although it would present the
results in the same trial to prove the per se violation under (A)(2). That is,
the State would introduce the breath test reading to prove that
Cooperman had an alcohol concentration exceeding 0.08 within two hours
of driving, but not to show that Cooperman was driving while impaired.
The State maintained that because it did not intend to introduce
Cooperman’s breath test results to show impairment, it would not invoke
the presumptions set forth in § 28-1381(G). It therefore argued that
Cooperman could not present evidence regarding partition ratios to cast
doubt on his state of impairment.

¶5    At a hearing before the municipal court, the State and Cooperman
presented expert testimony regarding factors affecting the partition ratio.
Although the State did not intend to introduce the BrAC results to prove
impairment, Cooperman sought to introduce the BrAC and partition ratio
evidence to show lack of impairment. The court found that partition ratio
evidence is relevant whenever breath test results are introduced in
connection with an (A)(1) charge. The court also rejected the State’s
argument that such evidence should be excluded under Arizona Rule of
Evidence 403. The superior court accepted special action jurisdiction and
denied relief, and the court of appeals affirmed. State v. Cooperman, 230

1      Alcohol concentration can be measured by either blood or breath
tests. Breath test results can be converted to a blood alcohol concentration
using a partition ratio.
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                          STATE V. COOPERMAN
                            Opinion of the Court

Ariz. 245, 248, 252-53 ¶¶ 5, 25, 282 P.3d 446, 449, 453-54 (App. 2012).

¶6     We granted the State’s petition for review because this case
presents a recurring issue of statewide importance. We have jurisdiction
pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S.
§ 12-120.24.

                             II. DISCUSSION

¶7     Relevant evidence is admissible at trial unless a statute, a
constitutional provision, or another rule provides otherwise. Ariz. R.
Evid. 402. “We review a trial court’s determination of relevance and
admissibility of evidence for an abuse of discretion.” State v. Hardy, 230
Ariz. 281, 291 ¶ 49, 283 P.3d 12, 22 (2012).

       A.     Relevance

¶8     Evidence is relevant if it has “any tendency to make a fact” that is
“of consequence” in the action “more or less probable.” Ariz. R. Evid. 401.
In a prosecution for driving under the influence of alcohol in violation of
A.R.S. § 28-1381(A)(1), the state must prove that the defendant’s ability to
drive or control a vehicle was “impaired to the slightest degree” by
consumption of alcohol. That makes evidence regarding impairment
relevant.

¶9     Arizona statutes and case law recognize a strong correlation
between breath and blood alcohol concentration and intoxication. See, e.g.,
id. § 28-1381(G); State v. Childress, 78 Ariz. 1, 6, 274 P.2d 333, 336 (1954)
(“Sobriety of an individual decreases as the percentage of alcohol in his
blood increases.”). As noted in Guthrie v. Jones, “[a]lcohol in the breath
does not cause impairment; impairment results when alcohol enters the
body, is absorbed into the bloodstream, and is transported to the central
nervous system and the brain.” 202 Ariz. 273, 274 ¶ 5, 43 P.3d 601, 602
(App. 2002). Thus, blood AC evidence is relevant to show impairment or
lack thereof.

¶10 The State relies on Guthrie to argue that partition ratio evidence is
irrelevant and therefore inadmissible if the prosecutor elects not to invoke
the presumption of impairment in § 28-1381(G)(3). See 202 Ariz. at 276
¶ 13, 43 P.3d at 604. We agree with the court in Guthrie that partition ratio

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                         STATE V. COOPERMAN
                           Opinion of the Court

evidence “is not relevant to a prosecution for per se DUI” under (A)(2)
because that charge turns solely on alcohol concentration, measured by
breath or blood alcohol readings. Id. at 274 ¶ 2, 43 P.3d at 602. The only
questions in a per se case are whether the breath or blood AC is 0.08 or
more and whether the reading was obtained within two hours of driving;
whether the defendant was impaired is not at issue. A.R.S. § 28-
1381(A)(2). The court in Guthrie did not consider whether the state, by
introducing the BrAC reading only on the (A)(2) charge, can preclude the
defendant from presenting partition ratio evidence to refute an
impairment charge under (A)(1). But other language in Guthrie shows that
the court recognized that partition ratio evidence may be relevant
regarding the defendant’s impairment. Id. at 274 ¶ 5, 43 P.3d at 602
(recognizing that impairment occurs as alcohol enters the bloodstream
and makes its way to the brain).

¶11 The State argues that it has the unilateral discretion to invoke
(G)(3)’s presumption that a defendant is under the influence, and if it
elects not to do so, then partition ratio evidence is irrelevant and
inadmissible. But nothing in § 28-1381 or its legislative history supports
that argument or precludes a DUI defendant from presenting AC or
partition ratio evidence to establish lack of impairment in an (A)(1) case.
And suggesting the contrary, § 28-1381(H) expressly provides that
subsection (G) “does not limit the introduction of any other competent
evidence bearing on the question of whether or not the defendant was
under the influence of intoxicating liquor.”

¶12 The State also argues that because Cooperman has not offered
evidence of how his individual physiology would affect the ratio, the
evidence offered does not reflect Cooperman’s state of impairment and
therefore lacks foundation. But evidence showing that the ratio varies in
the general population might introduce doubt as to the relationship
between breath AC and impairment. See State v. Hanks, 772 A.2d 1087,
1092 (Vt. 2001) (holding evidence of the ratio’s variability “unquestionably
relevant because it had some tendency to explain the alleged inconsistency
between defendant’s condition and the test result”). As such, it is relevant
to create doubt about the relationship between Cooperman’s BrAC
reading and his state of impairment.

¶13 Evidence of general characteristics “outside jurors’ common
experience” is admissible in other contexts. See, e.g., State v. Lujan, 192

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                        STATE V. COOPERMAN
                          Opinion of the Court

Ariz. 448, 451-52 ¶¶ 11-12, 967 P.2d 123, 126-27 (1998) (error to exclude
defendant’s evidence of general characteristics of abuse victims to explain
inconsistencies in victim’s story); State v. Bogan, 183 Ariz. 506, 514, 905
P.2d 515, 523 (App. 1995) (observing that “[o]pponents of DNA match
testimony” may “challenge . . . foundation and introduce controverting
evidence”). Such evidence may, subject to objections under Arizona Rules
of Evidence 403 and 702, be allowed in this context as well.

¶14 Other jurisdictions have similarly held partition ratio evidence
relevant and admissible. In People v. McNeal, the California Supreme
Court held both general and personal partition ratio evidence admissible
in a prosecution under California’s DUI-impairment statute. 210 P.3d 420,
431 (Cal. 2009).2 McNeal noted that partition ratio evidence may “raise[] a
reasonable doubt as to whether the test result was an accurate measure of
[a defendant’s] blood-alcohol level,” and thus of a defendant’s
impairment. Id. at 430-31.

¶15 Similarly, the Vermont Supreme Court found such evidence
relevant and its exclusion under Vermont Rule of Evidence 403 to be an
abuse of discretion. Hanks, 772 A.2d at 1088, 1091-93 (overturning
conviction). The court recognized that “not allowing defendants to reveal
these scientifically recognized facts would make it difficult, if not
impossible, for a defendant to challenge” an inference of impairment
based on breath test results. Id. at 1093. We agree with the reasoning in
these cases.

¶16 For these reasons, the trial court properly concluded that the
evidence offered was relevant to support Cooperman’s argument that he
was not impaired.

2      The State attempts to distinguish McNeal because the presumption
in the California statute is mandatory and the statute requires conversion
from breath alcohol to blood alcohol for the presumption to apply.
Regarding the conversion from breath to blood alcohol, however,
California’s statute functions identically to Arizona’s. See Cal. Veh. Code
§ 23610(b) (“Percent, by weight, of alcohol in the person’s blood shall be
based upon grams of alcohol per 100 milliliters of blood or grams of
alcohol per 210 liters of breath.”). Further, to satisfy constitutional
requirements, presumptions in criminal cases must be rebuttable.
Sandstrom v. Montana, 442 U.S. 510, 524 (1979).
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                         STATE V. COOPERMAN
                           Opinion of the Court

       B.     Arizona Rule of Evidence 403

¶17 The State asserts that the court should have found the partition
ratio evidence inadmissible under Arizona Rule of Evidence 403. That
rule allows courts to exclude evidence “if its probative value is
substantially outweighed by a danger of . . . unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Ariz. R. Evid. 403. Trial courts have
considerable discretion in deciding whether to exclude evidence under
this rule. See State v. Hensley, 142 Ariz. 598, 602, 691 P.2d 689, 693 (1984).

¶18 The State argues that Cooperman’s proposed evidence has minimal
probative value and admitting it may mislead or confuse the jury, waste
time, and create a danger of unfair prejudice. At oral argument before this
Court, the State emphasized that Cooperman was charged with both the
per se and impairment violations. Because conversion to blood AC is
unnecessary in (A)(2) per se prosecutions, the State argues that the jurors
may be confused if the conversion evidence is admitted for their
consideration solely in connection with the (A)(1) impairment charge. But
limiting the BrAC evidence to the per se charge, as the State seeks to do,
similarly requires an instruction to the jurors to consider that evidence
solely in connection with the (A)(2) per se charge and not to consider it in
connection with the (A)(1) impairment charge. We do not see that one
instruction is inherently more confusing than the other, and we trust that
the jurors will be able to follow the court’s instructions. Cf. Ariz. R. Evid.
404(b) (evidence of other acts admissible for limited purposes); State v.
Prince, 204 Ariz. 156, 158 ¶ 9, 61 P.3d 450, 452 (2003) (stating presumption
that jurors follow instructions).

¶19 The State also asserts that the partition ratio generally employed in
determining blood AC from breath AC readings favors the defendant. See
Hanks, 772 A.2d at 1089 (explaining that Vermont, like Arizona, uses a
conversion rate of 2100:1); see also A.R.S. § 28-101(2) (defining alcohol
concentration). That is, the State maintains that breath tests are more
likely to underestimate blood AC than overestimate it. The State may
argue this point at trial to rebut the evidence offered by Cooperman, but
we decline to say that the trial judge abused her discretion by finding the
BrAC and partition ratio evidence admissible. Cf. Hanks, 772 A.2d at 1091-
93 (finding an abuse of discretion in excluding similar evidence under
Vermont’s analogous rule of evidence). We find no abuse of discretion on

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                         STATE V. COOPERMAN
                           Opinion of the Court

the record before us, but the trial court may reconsider at trial whether the
proffered evidence should be excluded under Arizona Rule of Evidence
403 because it will result in unfair prejudice, potential confusion, or waste
of time.

      C.     Remaining Issues

¶20 The State argues that Arizona Rule of Evidence 702, which requires
that expert testimony be based in “sufficient facts or data,” bars the
evidence at issue in this case. But as the court of appeals noted, the State
did not raise this argument in its motion for limine or its petition for
special action. Cooperman, 230 Ariz. at 252 n.9 ¶ 24, 282 P.3d at 453 n.9. In
this Court, the State did not raise this argument until the supplemental
briefing stage. We therefore decline to address it.

                           III. CONCLUSION

¶21 We affirm the decisions of the municipal court, the superior court,
and the court of appeals.




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