Torts—Governmental Qualified Immunity/Evidence—Admissibility of Blood and Breath Tests

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Fleming v. State of Arizona, 698 Ariz. Adv. Rep. 7 (App. Div. II, October 31, 2014) (J. Miller)


Plaintiffs' decedent, Mascolino went bar hopping and was ultimately pulled over for DUI on Interstate 10. She failed sobriety tests and blew a .252 on a portable breathalyzer. The arresting officers placed her in the back of a squad car parked in the emergency lane on the Interstate on a bridge where . A nonparty at fault rear-ended the squad car killing Mascolino. A blood test after the crash revealed a .231 to .250 BAC. Plaintiffs sued the State DPS for negligence. Over plaintiffs' objection the blood test and breathalyzer results were admitted and the jury was instructed on qualified immunity.  The jury returned a verdict finding the nonparty driver to be 75% at fault and Mascolino to be 25% at fault. No fault was found against the state. Plaintiff appealed and the Arizona Court of Appeals affirmed.

Section 12-820.02(A)(7), A.R.S., affords qualified immunity to a state entity for "[a]n injury to the driver of a motor vehicle that is attributable to the violation by the driver" of A.R.S. §§28-693 (reckless driving), 28-1381 (DUI), or 28-1382 (driving under the extreme influence). The immunity, however, is limited and does not apply when the public employee engages in gross negligence or intends to cause the injury. Plaintiffs argued that since Mascolino was not driving at the time of the crash and because the crash was not “attributable” to DUI qualified immunity doesn't apply. The court of appeals disagreed finding that while the legislature did not define “driver,”  the dictionary definition of the term includes a person not in the actual act of driving but who does drive. The legislature has the power to determine what public policy concerns justify what immunities. Here attempting to deter drinking and driving with this qualified immunity is an appropriate legislative function.

The court found the following evidence to support the qualified immunity instruction here.  Mascolino's “BAC was more than three times the legal limit. Her vehicle drifted across lane lines and travelled well below the posted speed limit. When the officer attempted a traffic stop, Mascolino refused to yield and then drove erratically for more than a mile before she stopped on the approach to a freeway overpass. Mascolino's failure to yield to the officer initially caused the DUI investigation to occur in a position on the freeway not chosen by the officer. Based on these facts, a reasonable jury could have found that Mascolino's death was attributable to her DUI violation.”

Because the court found the qualified immunity instruction appropriate, the evidentiary question became elementary. Plaintiffs argued the BAC results were irrelevant (Ariz. R. Evid 401) or that the probative value of the evidence was outweighed by the  prejudicial impact of the evidence (Ariz. R. Evid. 403). Because plaintiffs contested the issue of intoxication the BAC results made it “more probable than not” that plaintiffs' decedent was under the influence. In fact, this evidence went right to the heart of the qualified immunity question and as such had higher probative value than potential prejudicial harm.

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