[Note: the following pleading was originally written as an appellate brief. It needs to be tweaked for use as a motion. Read on and see where changes need to be made] STATEMENT OF FACTS A Phoenix police officer arrested the Appellant on December 14, 1996, for alleged violations of Arizona's "DUI" law, then A.R.S. 28-692 et sequitur. The police officer later gave the Appellant a series of breath test which revealed BrACs of .151 at 2230 hours and .150 at 2237 hours. The officer used an "Intoxilyzer 5000" for the breath tests. The Intoxilyzer relies upon a number of assumptions in producing its test results. One assumption is commonly referred to as the "conversion" or "partition ratio". The Intoxilyzer machine converts a blood alcohol ratio into a breath alcohol content by assuming that a 2100 to 1 partition ratio exists between the two media. The Phoenix Municipal Court has traditionally disallowed any evidence concerning the effect of the partition ratio on breath test results. The defense therefore made a motion in limine concerning its ability to introduce evidence concerning the ratio (Transcript, hereinafter TR, p. 5, ll. 18-22). The Phoenix Municipal Court heard the motion on the date set for jury trial, January 20, 1999. The trial court ruled in limine that it would not allow any evidence concerning the ratio. The court used A.R.S. 28-692(N) as the basis for the ruling and stated that the entire matter is "statutory". TR, p. 9, ll. 14-25). This statute provides: N. In this section, "alcohol concentration" means grams of alcohol per one hundred milliliters of blood or grams of alcohol per two hundred ten liters of breath. The trial court also indicated that it would only allow such testimony if the defendant were first to offer some evidence that would indicate that the defendant had a different partition ratio than 2100:1. (TR, p. 12, ll. 9-14). The parties then "submitted" the matter to the trial court for a verdict pursuant to a stipulated record. The Appellant filed this timely appeal after the court's guilty verdict. The defense made an offer of proof at the motion hearing regarding the proposed testimony of its expert witness, Mr. Chester Flaxmayer . (TR, p. 4 - p. 8). The offer or proof was that the Intoxilyzer necessarily assumes a partition ratio in all tests subjects of 2100 to 1. Nevertheless, the expert would testify that this partition ratio is in fact not an unvarying absolute. Rather, the ratio is a variable which may differ from individual to individual and which may also vary depending on the time at which a breath test is given. The expert would have testified that the Appellant was in the "absorptive phase" at the time of the breath tests and that test subjects in the absorptive phase may have partition ratios as low as 1700 to 1. Breath tests given in the absorptive phase may over-report the actual blood alcohol concentration. The expert would have ultimately testified that the Appellant's actual alcohol concentration could have been under a .10 at the time he was driving. (TR, p. 5, ll. 3-13). STATEMENT OF LAW Argument I: Arizona precedent deems the evidence in controversy admissible. The Fuenning case is arguably our Supreme Court's most important interpretation of the "DWI" statute. Fuenning and its progeny held that the defendant is free to utilize any relevant evidence to attack the breath testing device. Both our Supreme Court and our Court of Appeals believe such attacks properly include the conversion ratio aspect of breath testing. The Fuenning court ultimately held inter alia that the "DWI" statute is not void under the due process clause as creating a presumption of guilt since a defendant may attack the accuracy of chemical test on any relevant ground including inherent margin of error. It is next argued that the statute is void because it creates a presumption of guilt. Our court of appeals correctly dismissed the presumption argument raised in State v. Thompson, supra, by pointing out that the statute contains no presumption but, rather, an outright ban on driving with a .10% BAC. The public defenders amici argue that the court failed to consider the true implications of the presumption argument. They concede that the statute is "per se" in nature and creates no presumption; they argue that the admission of test results which may be scientifically inaccurate subjects a defendant to "conviction by machine" despite the fact that the test results do not necessarily indicate the true blood-alcohol level of the test subject. (FN3) The amici contend that allowing a finding of guilt beyond a reasonable doubt on the basis of test results which, according to the weight of scientific evidence, are subject to considerable inaccuracy, violates the rule of Sandstrom v. Montana, 442 U.S. 510, 99 S.Ct. 2450, 61 L.Ed.2d 39 (1979). Sandstrom holds that irrebuttable presumptions of guilt violate the fourteenth amendment's requirement that the state prove every element of a crime beyond a reasonable doubt. We agree that neither State v. Franco, supra; State v. Thompson, supra, nor the other cases in the majority have considered this type of presumption argument. Given the inherent possibility of error in the test results, the argument has some plausibility. However, we need not decide whether such a rule would violate Sandstrom v. Montana, because we hold, infra at 129, that the defendant may attack the accuracy of the test on any relevant ground, including inherent margin of error. Id., 595-96, 126-27. (emphasis supplied) Our Supreme Court also expressly acknowledged that defendant would attack the chemical tests results because of the conversion or partition ratio: We agree with defendant that the only ultimate issue is whether defendant had a BAC of .10% or greater. In each case in which a violation of subsection B is charged, the state will present evidence of the test and the issue will be whether the test results were an accurate measurement of the defendant's BAC at the time of arrest. Typically, defendants will attack the margin of error, the conversion rate, the calibration of the test instrument, the technique used by the operator, the absorption and detoxification factors, etc. Fuenning, 139 Ariz. 590, 599, 680 P.2d 121. Similarly, the Moss, infra, decision upholding the constitutionality of the replicate testing procedure also contemplated the defense's continuing ability to attack the reliability of the test results: . . .Thus, like the Trombetta court, we find that DUI suspects continue to have the means of impeaching even Intoxilyzer 5000 results by showing calibration errors, operator errors, however slight, and/or extraneous conditions, such as dieting or medical treatment, that might affect the outcome of testing for individual defendants. . . . Defendants may still appropriately challenge the results obtained from a breath sample by means other than by a preserved secondary or referee breath sample. Moss v. Superior Court, 175 Ariz. 348, 354, 857 P.2d 400. Argument II: The evidence in controversy is relevant to both "DUI" charges The relevance of the actual amount of alcohol in a person's system blood would seemingly be beyond dispute to an "A1" charge. Even if the lower court wished to accept the State's argument that the evidence was irrelevant, such an argument would apply only to the "A2" charge. The State, after all, usually cites to People v. Bransford, 35 Cal. Rep. 2d 613, 884 P. 2d 70 (CA.1994) to support its claim that the evidence concerning the partition ratio is irrelevant. Bransford involved only a per se charge; the prosecutor did not charge California's equivalent of our A)(1)charge. Bransford held only that the partition ratio evidence was irrelevant with respect to a Californian per se charge, the equivalent of our "A2 charge". Arizona, unlike California, has an affirmative defense to the not available in California. The affirmative defense in Arizona inevitably results in the use of a retrograde extrapolation by which experts relate back a hypothetical range of alcohol concentration. Retrograde extrapolation inevitably includes the utilization of various conversion ratios. The Bransford decision therefore ultimately has no applicability to the interaction of the conversion ratio to an (A)(1) or (A)(2) charge with an affirmative defense. Consequently, the lower court at the very least should have allowed testimony regarding the conversion ratio in the "A1" case. Exclusion of partition ratio evidence ignores the relevance of that issue to the "A1" charge. Moreover, the two charges inherent in an Arizona DUI case are necessarily intertwined. The Arizona Supreme Court noted the relevance of evidence of impairment on an "A1" charge to the per se charge under the (A)(2) subsection: . . . the manner in which the defendant was driving, the manner in which he performed the field sobriety tests, and the video tape showing his behavior at the time he was booked . . . will be relevant to the jury's determination of whether the test results are an accurate measurement of alcohol concentration. Fuenning, supra, 599, 130. The legislature also recognized the relationship between a person's BAC and the presumed degree of intoxication when it drafted the "presumption" section of the DUI statute, then ARS 28-692(E). This subsection creates certain presumptions regarding impairment which arise if the specified alcohol levels are found in the "defendant's blood, breath, or other bodily substance". (emphasis supplied) The subsection concludes by stating that the presumptions "shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of intoxicating liquor". (bolding supplied) The inherent assumptions, deficiencies and inaccuracies in the chemical testing process are therefore relevant to both "DUI" charges in Arizona. Numerous cases subsequent to Fuenning, {and subsequent to adoption of the former breath/blood standard articulated at 28-692(N)} have consistently recognized the relevance between the actual amount of alcohol in the blood and the "DUI" charge: See, e.g., State ex rel McDougall v. Riddell, 169 Ariz. 117, 817 P.2d 62 (App. 1992). Defendant was originally charged with driving a motor vehicle while under the influence of intoxicating liquors; driving with a blood alcohol concentration of .10 or more... 169 Ariz. at 118. (Emphasis supplied). Cochrane was charged under A.R.S. sec. 28-692(A)(2), which requires proof that he had an "alcohol concentration" of .10 or more within two hours of driving. The quoted term is defined in subsection (O) {now subsection (N)} to mean "grams of alcohol per one-hundred milliliters of blood or grams of alcohol per two-hundred ten liters of breath." The evidence presented by the state to prove Cochrane's alcohol concentration was the Intoxilyzer printout resulting from two breath samples taken from him and the DHS regulations, of which the magistrate took judicial notice. The printout is captions, "INTOXILYZER - ALCOHOL ANALYZER" The results are printed in three columns entitled, "TEST," "BAC VALUE" and "TIME." Under the BAC VALUE column on each printout are the numbers .168 and .172. The DHS regulations, among other things, establish the criteria the devices used to determine blood alcohol content from breath must meet in order to be approved under A.R.S. Sec. 28-692.03 {now 28-695}, which in turn establishes the foundational requirements for admission into evidence in any proceeding under 28-692 of breath test results to determine a blood alcohol level. State v. Superior Court (Cochrane, R.P.I.), 178 Ariz. 420, 422, 874 P.2d 977. A.R.S. 28-692(A)(2) now provides that it is illegal to have a BAC of 0.10 or more within two hours of driving. The statute gives fair notice to a driver who has been drinking that blood alcohol testing may take place over a two hour period... And, State v. Martin, 174 Ariz. 118,122, 847 P.2d 619 (App. 1993) Accord: State v. Vannoy, 177 Ariz. 206, 866 P.2d 874 (App. 1993) (Right to preserved sample after "deficient" test result.); State v. Superior Court (Kankelfritz, R.P.I.) 197 Ariz. 441, 930 P.2d 517 (App. 1996) (State may satisfy its burden by evidence relating defendant's blood alcohol content back to the time of driving); Marzlof v. Superior Court (Wanberg), 185 Ariz. 144, 147, 912 P.2d 1373, 1376 (App. 1995) ("A person arrested for DUI ...submits to a blood or breath test resulting in a blood alcohol concentration of 0.10 ore more..."). III The lower court erred in its interpretation of the statute. Arizona Courts have repeatedly instructed us that the primary purpose of statutory construction is to give effect to the legislative intent. The trial court's ruling ignores that the Arizona legislature is perfectly capable of expressing its intent concerning the admissibility of evidence in DUIs. It has not only presumptive but actual knowledge as to how to draft a DWI statute so as to make certain evidence inadmissable. A.R.S.28-692(I), for example, states in relevant part that "the issue of refusal shall be an issue of fact to be determined by the trier of fact in all cases." Similarly, A.R.S.28-692(L) provides that "a statement by the defendant that he was driving a vehicle... is admissible in any corpus proceeding without further proof of corpus delicti if it otherwise admissible." A.R.S.28-692(F)provides that "(t)he qualifications of the individual drawing the blood and the method used to draw the blood shall not be foundational prerequisite for the admissibility of any blood alcohol content determination made pursuant to this subsection." The lower court nevertheless made the great quantum leap that the oblique language of subsection (N) somehow mandates makes evidence concerning the conversion ratio irrelevant. Such an interpretation first would ignore that our legislature, had it desired to make such evidence irrelevant, would have used the same form of language that it utilized in subsections F), (I), and (J). The lower court's interpretation also would engulf the general rule that relevant evidence is admissible. Such an interpretation creates additional issues. The Arizona constitution gives our Supreme Court, not the legislature, the power to create rules of evidence: The constitution of Arizona gives the Supreme Court the power to make rules relative to all procedural matters in any court. (FN4) Article 6,  5(5). Pursuant to that authorization, this court promulgated the Rules of Evidence to take effect on September 1, 1977. Rules of evidence have generally been regarded as procedural in nature. Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 310, 551 P.2d 1354, 1357 (1976); thus, our promulgation of these rules was within the power granted us by the constitution. See also 1 Wigmore on Evidence,  7, 462-63 n. 1 (Tillers rev. 1983). * * * That we possess the rule-making power does not imply that we will never recognize a statutory rule. We will recognize "statutory arrangements which seem reasonable and workable" and which supplement the rules we have promulgated. Alexander v. Delgado, 84 N.M. 717, 718, 507 P.2d 778, 779 (1973). However, when a conflict arises, or a statutory rule tends to engulf a general rule of admissibility, we must draw the line. The legislature cannot repeal the Rules of Evidence or the Rules of Civil Procedure made pursuant to the power provided us in article 6,  5. Ammerman v. Hubbard Broadcasting, Inc., supra; cf. State v. Herrera, 92 N.M. 7, 582 P.2d 384(1978). State ex rel. Collins v. Seidel, (Deason, RPI,) 142 Ariz. 587, 590-1, 691 P.2d 678 (emphasis supplied) The court's ruling, therefore, would at first graft its interpretation of legislative intent to define evidentiary law. Such an interpretation of the subsection in question first would require the court to ignore the legislature's apparent and actual knowledge of how to properly draft such an intent. Such an interpretation also means that the actual amount of alcohol in a person's system is irrelevant to a charge of driving while impaired under A.R.S. 28-692.01 A)(1). Such an interpretation also essentially allows a justice court overrule the Arizona Supreme Court and the Court of Appeals. CONCLUSION The issue ultimately becomes one of fundamental fairness. Criminal prosecutions must comport with prevailing notions of fundamental fairness. As the United State Supreme Court has stated, "(w)e have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense". California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2352. The Arizona legislature has shown that is capable of drafting a the statute so as to exclude evidence. It nevertheless chose not to do so in the subsection dealing with the definition of alcohol concentration. Moreover, the Arizona Supreme Court has give its apparent imprimatur to testimony concerning the conversion ratio. The trial court's ruling that the defendant has the burden of first producing some evidence to establish this line of cross- examination is repugnant to judicial notions of fair play and due process. The State, after all, ultimately bears the burden of proof. While the public and the State may well have acknowledged interest in deterring the citizenry from driving while impaired, the words of the Alaska Supreme Court are noteworthy: The concept of due process is not static, it evolves as times and circumstances require. Among other things, it must change to keep pace with new technological developments. Over the years the public's perception of drunk driving has evolved. What the public once viewed as a common indiscretion it now views as a serious crime and public health hazard. The state's drunk driving statutes are no enforced rigorously, prosecuted zealously and provide for substantial punishments. This is proper. It is also proper, however, that we remain vigilant in safeguarding the rights of individuals and ensure that those accused of serious crimes such as DWI have the aid of processes necessary for them fairly to defend against such charges. Snyder v. State, 930 P.2d 1274, 1278 (1996). Wherefore, Appellant respectfully requests that this Honorable Court enter its order overturning the decision of the trial court and remanding this matter for further proceedings in accordance with its opinion. RESPECTFULLY submitted this day of