A. The results of a breath test administered for the purpose of determining a person's alcohol concentration are admissible as evidence in any trial, action or proceeding on establishing the following foundational requirements:
1. The test was performed using a quantitative breath testing device approved by the department of health services or the department of public safety. A properly authenticated certification by the department of health services or the department of public safety or judicial notice of department of health services or department of public safety rules is sufficient to establish this requirement.
2. The operator who conducted the test possessed a valid permit issued by the department of health services or the department of public safety to operate the device used to conduct the test.
3. Duplicate tests were administered and the test results were within 0.02 alcohol concentration of each other or an operator observed the person charged with the violation for twenty minutes immediately preceding the administration of the test.
4. The operator who conducted the test followed an operational checklist approved by the department of health services or the department of public safety for the operation of the device used to conduct the test. The testimony of the operator is sufficient to establish this requirement.
5. The device used to conduct the test was in proper operating condition. Records of periodic maintenance that show that the device was in proper operating condition are admissible in any proceeding as prima facie evidence that the device was in proper operating condition at the time of the test. Calibration checks with a standard alcohol concentration solution bracketing each person's duplicate breath test are one type of records of periodic maintenance that satisfies the requirements of this section. The records are public records.
B. Compliance with subsection A of this section is the only requirement for the admission in evidence of a breath test result.
C. The inability of any person to obtain manufacturer's schematics and software for a quantitative breath testing device that is approved as prescribed in subsection A of this section shall not affect the admissibility of the results of a breath test pursuant to this section.
D. Records that may be obtained or that are otherwise maintained pursuant to section 28-1327 are admissible as evidence in any trial, action or proceeding.
Notes of Decisions
Cited in
17
cases (
2 in the last 5 years), 1999–2024 · leading case:
Bohsancurt v. Eisenberg, 129 P.3d 471 (Ariz. Ct. App. 2006).
Bohsancurt v. Eisenberg, 129 P.3d 471 (Ariz. Ct. App. 2006).
· cites it 9× “See A.R.S. § 28-1323. The applicable statute provides that breath tests conducted on DUI suspects “are admissible as evidence in any trial” as long as five “foundational requirements” are met, the last of which is: The device used to conduct the test was in proper operating…”
State v. King, 146 P.3d 1274 (Ariz. Ct. App. 2006).
· cites it 4× “King contends that, given these times, Rhind could not have witnessed the required deprivation period despite the officers’ testimony to the contrary.”
State of Arizona v. Luis Armando Peraza, 366 P.3d 1030 (Ariz. Ct. App. 2016).
· cites it 5× “This jury instruction is based on AR.S. § 28-1323(A) which provides that the results of a breathalyzer test are admissible as evidence upon establishing five requirements.”
State v. Lindner, 252 P.3d 1033 (Ariz. Ct. App. 2010).
· cites it 18× “¶ 2 We have jurisdiction over this appeal of the superior court's ruling affirming his municipal court conviction under A.”
State v. Superior Court, 991 P.2d 258 (Ariz. Ct. App. 1999).
· cites it 7× “) section 28-1323 (1998). 1 The State filed a petition for special action with the Yavapai County Superior Court seeking review of the justice court’s ruling.”
State v. Quinn, 178 P.3d 1190 (Ariz. Ct. App. 2008).
· cites it 2× “But see § A.R.S. § 28-1323 (authorizing results of breath test to be used in “any trial, action or proceeding” so long as certain prerequisites are met.”
State v. Esser, 70 P.3d 449 (Ariz. Ct. App. 2003).
· cites it 2× “¶ 8 Appellants first argue that the trial court should have suppressed their breath test results because Hlastala’s findings show that the state did not comply with A.R.S. §§ 28-1323 and 28-1324, which require that tests be performed on a device approved by DHS, and with that…”
Bohsancurt v. Tucson City Prosecutor's Off. (Ariz. Ct. App. 2006).
· cites it 8× “See A.R.S. § 28-1323. The applicable statute provides that breath tests conducted on DUI suspects “are admissible as evidence in any trial” as long as five “foundational requirements” are met, the last of which is: The device used to conduct the test was in proper operating…”
State v. Jensen (Ariz. Ct. App. 2015).
· cites it 7× “§ 28-1323(A)(5) was “NIST traceable” as required by Arizona Administrative Code R13-10- 104(A)(4), meaning that it was certified as a .”
State v. Evans (Ariz. Ct. App. 2016).
· cites it 4× “The checklist—the applicable version of which is set forth in title 13, chapter 10, article 1, Exhibit G-1 of the Arizona Administrative Code (“A.”
State v. Evans (Ariz. Ct. App. 2016).
· cites it 4× “The checklist—the applicable version of which is set forth in title 13, chapter 10, article 1, Exhibit G-1 of the Arizona Administrative Code (“A.”
Soza v. Marner, 430 P.3d 1265 (Ariz. Ct. App. 2018).
· cites it 3× “For example, A.R.S. § 28-1323 is a "statutory method [that] allows a proponent to admit scientific evidence without qualifying a witness as an expert, as required by the rules of evidence method.”
— Ariz. Rev. Stat. § 28-1323(5) — 2 cases
Bohsancurt v. Eisenberg, 129 P.3d 471 (Ariz. Ct. App. 2006).
“See A.R.S. § 28-1323. The applicable statute provides that breath tests conducted on DUI suspects “are admissible as evidence in any trial” as long as five “foundational requirements” are met, the last of which is: The device used to conduct the test was in proper operating…”
Bohsancurt v. Tucson City Prosecutor's Off. (Ariz. Ct. App. 2006).
“See A.R.S. § 28-1323. The applicable statute provides that breath tests conducted on DUI suspects “are admissible as evidence in any trial” as long as five “foundational requirements” are met, the last of which is: The device used to conduct the test was in proper operating…”
— Ariz. Rev. Stat. § 28-1323(A) — 6 cases
State of Arizona v. Luis Armando Peraza, 366 P.3d 1030 (Ariz. Ct. App. 2016).
“This jury instruction is based on AR.S. § 28-1323(A) which provides that the results of a breathalyzer test are admissible as evidence upon establishing five requirements.”
State v. King, 146 P.3d 1274 (Ariz. Ct. App. 2006).
“King contends that, given these times, Rhind could not have witnessed the required deprivation period despite the officers’ testimony to the contrary.”
State v. Superior Court, 991 P.2d 258 (Ariz. Ct. App. 1999).
“) section 28-1323 (1998). 1 The State filed a petition for special action with the Yavapai County Superior Court seeking review of the justice court’s ruling.”
State v. Lindner, 252 P.3d 1033 (Ariz. Ct. App. 2010).
“¶ 2 We have jurisdiction over this appeal of the superior court's ruling affirming his municipal court conviction under A.”
— Ariz. Rev. Stat. § 28-1323(A)(2) — 1 case
State v. Lindner, 252 P.3d 1033 (Ariz. Ct. App. 2010).
“¶ 2 We have jurisdiction over this appeal of the superior court's ruling affirming his municipal court conviction under A.”
— Ariz. Rev. Stat. § 28-1323(A)(4) — 4 cases
State v. King, 146 P.3d 1274 (Ariz. Ct. App. 2006).
“King contends that, given these times, Rhind could not have witnessed the required deprivation period despite the officers’ testimony to the contrary.”
State v. Evans (Ariz. Ct. App. 2016).
“The checklist—the applicable version of which is set forth in title 13, chapter 10, article 1, Exhibit G-1 of the Arizona Administrative Code (“A.”
State v. Evans (Ariz. Ct. App. 2016).
“The checklist—the applicable version of which is set forth in title 13, chapter 10, article 1, Exhibit G-1 of the Arizona Administrative Code (“A.”
— Ariz. Rev. Stat. § 28-1323(A)(5) — 5 cases
Bohsancurt v. Eisenberg, 129 P.3d 471 (Ariz. Ct. App. 2006).
“See A.R.S. § 28-1323. The applicable statute provides that breath tests conducted on DUI suspects “are admissible as evidence in any trial” as long as five “foundational requirements” are met, the last of which is: The device used to conduct the test was in proper operating…”
State of Arizona v. Luis Armando Peraza, 366 P.3d 1030 (Ariz. Ct. App. 2016).
“This jury instruction is based on AR.S. § 28-1323(A) which provides that the results of a breathalyzer test are admissible as evidence upon establishing five requirements.”
State v. Lindner, 252 P.3d 1033 (Ariz. Ct. App. 2010).
“¶ 2 We have jurisdiction over this appeal of the superior court's ruling affirming his municipal court conviction under A.”
State v. Jensen (Ariz. Ct. App. 2015).
“§ 28-1323(A)(5) was “NIST traceable” as required by Arizona Administrative Code R13-10- 104(A)(4), meaning that it was certified as a .”
Bohsancurt v. Tucson City Prosecutor's Off. (Ariz. Ct. App. 2006).
“See A.R.S. § 28-1323. The applicable statute provides that breath tests conducted on DUI suspects “are admissible as evidence in any trial” as long as five “foundational requirements” are met, the last of which is: The device used to conduct the test was in proper operating…”
— Ariz. Rev. Stat. § 28-1323(A)(l) — 1 case
State v. Superior Court, 991 P.2d 258 (Ariz. Ct. App. 1999).
“) section 28-1323 (1998). 1 The State filed a petition for special action with the Yavapai County Superior Court seeking review of the justice court’s ruling.”
— Ariz. Rev. Stat. § 28-1323(C) — 1 case
State v. Lindner, 252 P.3d 1033 (Ariz. Ct. App. 2010).
“¶ 2 We have jurisdiction over this appeal of the superior court's ruling affirming his municipal court conviction under A.”
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