## Facts

- Late at night, an Arizona DPS trooper stopped Anthony Salamone after observing speeding, erratic braking, and drifting in and out of his lane.
- The trooper saw signs of intoxication (including bloodshot eyes, a flushed face, and a strong odor of alcohol). Salamone admitted drinking and performed poorly on field sobriety tests.
- A records check showed Salamone’s driver’s license was suspended, and he was arrested for DUI-related offenses.
- Salamone refused alcohol testing at the roadside and later refused to consent to a blood draw.
- Salamone asked to speak with an attorney. The trooper asked for contact information, but Salamone could not provide an attorney’s name or phone number. Salamone also could not remember his wife’s phone number to obtain attorney information stored on a phone left with her, and he declined to call anyone else.
- Salamone was taken through standard DUI processing. After obtaining a search warrant, officers drew Salamone’s blood at about 2:40 a.m., more than three hours after the traffic stop.
- A DPS criminalist (Guilbault-Miscovich) analyzed Salamone’s blood and reported a BAC of 0.174 at the time of the draw. The State also relied on retrograde extrapolation evidence placing Salamone’s BAC above the legal limit within two hours of driving.
- By the time of trial, Guilbault-Miscovich no longer worked for DPS. The State called another DPS criminalist (Boone) to testify about the BAC results based on the lab file and the prior analyst’s work.
- Salamone objected, arguing Boone’s testimony violated the Sixth Amendment Confrontation Clause because the analyst who performed the testing did not testify.
- A jury convicted Salamone of two counts of aggravated DUI, and the superior court suspended imposition of sentence and placed him on concurrent three-year terms of probation.
- Salamone appealed, challenging (1) the denial of his motion to dismiss based on an alleged right-to-counsel violation and (2) admission of BAC testimony through Boone.

## Issues

1. Did law enforcement unreasonably interfere with Salamone’s right to consult counsel, requiring dismissal of the case?
2. Did admitting BAC evidence through a testifying DPS criminalist who relied on another analyst’s work violate the Confrontation Clause?

## Decision

- The Arizona Court of Appeals, Division One, affirmed Salamone’s convictions and probationary terms.
- The court held the superior court did not err in denying the motion to dismiss because the record supported the finding that officers did not unreasonably restrict Salamone’s opportunity to contact counsel; Salamone’s inability to reach counsel resulted from his lack of contact information, not police obstruction.
- The court held Boone’s testimony did not violate the Confrontation Clause because Boone testified as a witness subject to cross-examination and gave opinions based on her review of the lab materials and data rather than merely acting as a mouthpiece for the non-testifying analyst.

## Legal Principles

- A person in custody has a right to consult with counsel as soon as feasible under Arizona law, and police may not unreasonably restrict or interfere with reasonable efforts to contact counsel.
- In DUI investigations, a right-to-counsel violation focuses on whether police conduct prevented a meaningful opportunity to consult counsel in a way that could affect the ability to gather time-sensitive evidence (such as independent alcohol testing).
- Dismissal is an extraordinary remedy and is not required absent unreasonable interference and resulting harm.
- Under the Sixth Amendment, the accused has the right to confront witnesses who provide testimonial statements offered against the accused.
- A qualified witness may give expert testimony based on data and records reviewed in the case file when the witness forms and presents her own opinions and is available for cross-examination; the Confrontation Clause is not violated simply because another analyst performed earlier steps in the testing process and does not testify.

## Conclusion

The court affirmed because the superior court reasonably found that officers gave Salamone an opportunity to contact counsel and did not block access to an attorney, and because the State’s BAC evidence was properly presented through a testifying criminalist who reviewed the laboratory materials and could be cross-examined, so the Confrontation Clause was satisfied.


State v. Salamone, No. 1 CA-CR 16-0204, 2017 Ariz. App. Unpub. LEXIS 871 (2017)