Amos v. Bowen

• Decision Date: 19 December 1984
• Docket Number: No. 2,CA-CIV,2
• Citation: 143 Ariz. 324,693 P.2d 979
• Parties: Ricky AMOS, Petitioner/Appellee, v. The Honorable Ann BOWEN, Judge of the City Court of the City of Tucson, State of Arizona, Respondent, and STATE of Arizona, ex rel. Frederick S. DEAN, City Attorney for the City of Tucson, Real Party in Interest/Appellant. 5052.
• Court: Arizona Court of Appeals

Page 979

693 P.2d 979

143 Ariz. 324

Ricky AMOS, Petitioner/Appellee, v. The Honorable Ann BOWEN, Judge of the City Court of the City of Tucson, State of Arizona, Respondent and STATE of Arizona, ex rel. Frederick S. DEAN, City Attorney for the City of Tucson, Real Party in Interest/Appellant.

No. 2 CA-CIV 5052.

Court of Appeals of Arizona Division 2.

Dec. 19, 1984.

Stephen Paul Barnard, Tucson, for petitioner/appellee

Frederick S. Dean, City Atty. by Frank W. Kern III, Tucson, for real party in interest/appellant.

OPINION

HATHAWAY, Judge.

Appellee was charged in Tucson City Court with driving while under the influence of intoxicating liquor or drugs (DUI) in violation of A.R.S. § 28-692 on October 29, 1982. A defense motion to dismiss, alleging that the police hampered appellee's right to obtain an independent blood test, was denied. Thereupon a special action was filed in Pima County Superior Court, which ruled that the city court judge had abused her discretion in denying the motion to dismiss and remanded the cause to the city court for dismissal with prejudice. Final judgment was entered on October 28, 1983, and the state filed a timely notice of appeal raising the following issues:

1. Did the superior court have jurisdiction to accept the special action, since the petitioner had an adequate remedy by appeal?

2. Did the superior court err in finding on the record before it that the trial court abused its discretion?

3. Did the police officer who stopped for an emergency situation while transporting appellee for a blood test unreasonably interfere with appellee's opportunity to gather exculpatory evidence?

4. Did the appellee knowingly and voluntarily waive his right to have a blood test?

On October 29, 1982, in the vicinity of the intersection of Ft. Lowell Road and Stone Avenue, appellee was observed by Officer Carrillo to be traveling in excess of the posted speed limit. Officer Carrillo followed appellee and clocked his vehicle at approximately 40 to 50 mph in a 35 mph speed zone. Appellee was stopped for speeding and not having tail lights.

The officer observed that appellee was unsteady on his feet and that a strong odor of marijuana and alcohol emanated from his person. The officer testified that he then advised appellee of his Miranda rights and was advised that appellee understood the rights and would answer questions. Appellee denies that he was so advised and that he thereafter consented. In any event, the officer testified that appellee admitted to having smoked marijuana and to having drunk three or more beers. Appellee was given field sobriety tests, and after he flunked them was placed under arrest under § 28-692 for driving under the influence of alcohol and drugs. Arrangements were made for appellee's brother to come to the location and take his vehicle.

Appellee was transported to the Tucson Police Station, where he was advised of the implied consent law and submitted to an intoxilyzer test. He was also advised of his right to the preservation of the breath sample, and to an independent blood test. Appellee waived his right to the preservation of the breath sample, but stated that he wanted an independent blood test and signed the intoxilyzer test checklist to that effect.

Since appellee had furnished no permanent address, Officer Carrillo undertook to take him to the court volunteer center for a pre-booking release interview, but since appellee might not have qualified for release, Officer Carrillo undertook first to transport him to Kino Hospital for the independent blood test. En route to the hospital, an assault was observed in progress at Fourth Avenue and 22nd Street. Screams for help were heard from a vehicle, where a man was seen struggling with a woman. The woman exited the vehicle screaming, "Help! Help! He's killing me!" Backup assistance was radioed for immediately, and Officer Carrillo exited his vehicle in an attempt to bring the situation under control. A fight ensued between Officer Carrillo and the driver before help from a civilian resulted in the arrest of the assailant. Officer Carrillo then administered an intoxilyzer test to this arrestee using the mobile unit which he carried in his police car. He then completed his part of the investigation, and after approximately a two-hour delay, returned to his vehicle where appellee was required to stay during the incident. Officer Carrillo then commented that they would proceed to the hospital, but appellee decided that he no longer wanted the test. He was thereupon transported to the court volunteer center where he was accepted, and a phone call was made for him.

Appellant first challenges the superior court's decision to accept the special action. That decision is discretionary and will not be set aside unless an abuse of discretion is shown by the party challenging acceptance of jurisdiction. Wicks v. City of Tucson, 112 Ariz. 487, 543 P.2d 1116 (1975). Special action jurisdiction may be assumed to correct a plain and obvious error committed by the trial court. State ex rel. Collins v. Superior Court of State of Arizona, 129 Ariz. 156, 629 P.2d 992 (1981).

McNutt v. Superior Court of State of Arizona, 133 Ariz. 7, 648 P.2d 122 (1982), notes that constitutional standards afford a DWI suspect the right to obtain an independent blood test. Smith v. Cada, 114 Ariz. 510, 562 P.2d 390 (App.1977). In McNutt, the court held that an affirmative state interference with the arrestee's right to consult in private with an attorney, resulting in the arrestee's being unable to collect exculpatory evidence, requires dismissal. The facts of the instant case were sufficiently similar to McNutt for the superior court to reasonably conclude that the city court's decision could not be justified and to warrant an exercise of jurisdiction. Western Waste Services Systems, Inc. v. Superior Court, 120 Ariz. 90, 584 P.2d 554 (1978). Moreover, the city court denial of appellant's motion to dismiss was not appealable because no final order had issued. The only remedy available was through special action. We find that the superior court did exercise proper discretion in accepting jurisdiction.

Appellant next contends that there is no evidence that the city magistrate abused her discretion in her ruling, arguing that as the trier of fact she had the opportunity to view the evidence, weigh the credibility of the witnesses' testimony and judge other facts before the court. The difficulty with appellant's position, however, is that the problem does not lie in an evidentiary dispute, but rather in an application of the law. It is undisputed that appellee was delayed a period of two or more hours in the process of proceeding to...