Bilbrey v. State, 1 Div. 405

• Decision Date: 10 March 1987
• Docket Number: 1 Div. 405
• Citation: 531 So.2d 27
• Parties: Dennis James BILBREY v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 27

531 So.2d 27

Dennis James BILBREY v. STATE.

1 Div. 405.

Court of Criminal Appeals of Alabama.

March 10, 1987.

Rehearing Denied April 14, 1987.

Certiorari Denied June 26, 1987

Alabama Supreme Court 86-954.

On Return to Remand Aug. 23, 1988.

Gary D. Porter, Mobile, for appellant.

Charles A. Graddick, Atty. Gen., and Beatrice E. Oliver, Asst. Atty. Gen., for appellee.

PATTERSON, Judge.

Appellant, Dennis James Bilbrey, was arrested on July 22, 1986, for driving while under the influence of alcohol, in violation of § 32-5A-191, Code of Alabama 1975. On October 1, 1986, a jury found appellant guilty as charged and the trial court imposed a sentence of forty-eight hours in jail and a fine of $500.

On July 22, 1986, State Trooper Tim McGlothlin observed appellant's vehicle towing a large boat on a trailer which had improper taillights. McGlothlin attempted to effectuate a stop, which was unsuccessful. The officer followed appellant's vehicle for approximately three-fourths of a mile, during which time the vehicle driven by appellant left the roadway on three occasions and almost stopped. The officer's testimony established that appellant's driving was somewhat erratic; however, he acknowledged that the roads in that area were very curvy and in poor condition. McGlothlin followed appellant until appellant arrived at his residence and exited his vehicle. McGlothlin observed nothing unusual about appellant's walk or speech; however, he did observe "a strong odor of alcoholic beverage" about appellant's person and "his eyes were glassy, bloodshot like." When asked for his driver's license, appellant responded that he "didn't have any." Appellant was placed under arrest for driving with a suspended license and having improper lights on his boat trailer. Appellant was then transported to police headquarters for the administration of a photoelectric intoximeter test (P.E.I.). The results of this test indicated that appellant had a .11 percent blood alcohol content. Appellant was then charged with driving under the influence of alcohol.

I

Subsequent to the administration of the P.E.I. test, appellant informed McGlothlin that he did not trust the P.E.I. test results and requested that he be taken to a local hospital to obtain an independent test at his expense. McGlothlin testified that he refused to take appellant to the hospital because appellant was under arrest; however, he did make a telephone available to appellant so that appellant could arrange for a blood test to be administered at the jail. McGlothlin stated the following: "We are required to help them minimally, which means give them a phone or allow them the opportunity to get someone. We can't go to the hospital and turn them over to a doctor or anything like that. The person is under arrest." The record is silent as to what action appellant took after being told he could use the phone. Apparently, no arrangements were made; we are not provided with any evidence relating to what action, if any, appellant took to arrange, by telephone, an independent blood test.

Section 32-5A-194(a)(3), Code of Alabama 1975, provides, as follows:

"The person tested may at his own expense have a physician, or a qualified technician, registered nurse or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the discretion of a law enforcement officer. The failure or inability to obtain an additional test by a person shall not preclude the admission of evidence relating to the test or tests taken at the direction of a law enforcement officer."

We have previously held that there is no obligation on the part of police authorities to advise a defendant of the existence of this code section, Bush v. City of Troy, 474 So.2d 164, 166 (Ala.Cr.App.1984), aff'd, 474 So.2d 168 (Ala.1985), and that this provision requires an accused to first submit to a chemical test directed by an arresting officer as a prerequisite to the taking of additional tests at his request. Gibson v. City of Troy, 481 So.2d 463, 467 (Ala.Cr.App.1985).

This court has never addressed the issue of what police authorities are required to do when an independent test is requested by a defendant in police custody. Other state courts, with statutory provisions similar to § 32-5A-194(a)(3), have resolved this question. For an excellent treatment of this subject see Annot., 45 A.L.R.4th 11 (1983). There is substantial authority to support the proposition that when an accused is entitled to an independent test, he must be allowed a reasonable opportunity to attempt to procure a timely independent test at his own expense and in no event may police authorities frustrate or interfere with these reasonable efforts without denying him due process of law. See, e.g., Brown v. Municipal Court of Los Angeles Judicial District, 86 Cal.App.3d 357, 150 Cal.Rptr. 216 (1978); In re Newbern, 175 Cal.App.2d 862, 1 Cal.Rptr. 80 (1959); Commonwealth v. Alano, 388 Mass. 871, 448 N.E.2d 1122 (1983); State v. Snipes, 478 S.W.2d 299 (Mo.), cert. denied, 409 U.S. 979, 93 S.Ct. 332, 34 L.Ed.2d 242 (1972); State v. Magai, 96 N.J.Super. 109, 232 A.2d 477 (1967); City of Blain v. Suess, 93 Wash.2d 722, 612 P.2d 789 (1980); State v. Reed, 36 Wash.App. 193, 672 P.2d 1277 (1983). See generally, 45 A.L.R.4th 11. To refuse an accused this reasonable opportunity, upon request, constitutes a violation of due process and results in the suppression of the test conducted by the police authorities. Brown.

We are in accord with the above cited authorities and hold that pursuant to § 32-5A-194(a)(3), due process requires that when an accused has complied with police requests to submit to a blood alcohol test and subsequently requests an independent blood alcohol test, the accused must be allowed a reasonable opportunity to obtain a timely, independent test at his own expense, and police authorities may not frustrate his attempts to do so. What is reasonable will depend upon the circumstances of each case.

In the instant case, appellant contends that the failure of police authorities to transport him to a local hospital was unreasonable under the circumstances. Appellant acknowledges that he was provided with access to a telephone and, apparently, declined its use. It has been held, by other courts, that the denial of telephone access constitutes a denial of the defendant's right to a reasonable opportunity to obtain his own test and, thus, a denial of due process. McCormick v. Municipal Court of Los Angeles Judicial District, 195 Cal.App.2d 819, 16 Cal.Rptr. 211 (1961); People v. Dawson, 184 Cal.App.2d Supp. 881, 7 Cal.Rptr. 384 (1960); Alano; Scarborough v. State, 261 So.2d 475 (Miss.1972), cert. denied, 410 U.S. 946, 93 S.Ct. 1353, 35 L.Ed.2d 613 (1973). It has been generally held that access to a telephone was all that due process required. See, Smith v. Cada, 114 Ariz. 510, 562 P.2d 390 (1977); Alano; Magai; Snipes.

In the instant case, we find that appellant was allowed a reasonable opportunity to arrange an independent test by being allowed access to a telephone. Without more evidence of the circumstances, we cannot say that the refusal to transport appellant to a hospital was unreasonable under the circumstances, for there are no circumstances which show the conduct of McGlothlin to be unreasonable. Appellant was allowed access to a telephone and could have arranged to have an independent test conducted, at his own expense, at the place of incarceration. Based upon these facts, there is nothing to suggest that police authorities thwarted appellant's attempts to obtain an independent test and, thus, we find no due process violation.

We note that McGlothlin's statement that "We are required to help them minimally, which means give them a phone" is not entirely correct, for a phone call may not always, in all circumstances, satisfy the minimal requirements of due process. We, therefore, make no per se rule regarding whether the refusal to transport an accused to a certain location for an independent test is, under all circumstances, reasonable. However, appellant must demonstrate that, based on the totality of the circumstances, the police conduct was unreasonable by clear and convincing evidence in order to establish a due process violation. See Capler v. City of Greenville, Mississippi, 422 F.2d 299, 301 (5th Cir.1970). Based on the totality of the facts presented here, we conclude that the police authorities acted reasonably.

II

Appellant contends that the P.E.I. test results should have been suppressed because McGlothlin failed to comply with the State Department of Health regulation that requires that the machine "be on" for twenty minutes prior to the administration of the test. This contention is without merit. McGlothlin testified that a "green light" is automatically switched on when the machine has been "on" for twenty minutes, thus signifying that the machine is ready for use. The "green light" was signaling that the machine was ready for operation when the P.E.I. test was administered to appellant. We find that the test was conducted in accordance with the methods approved by the State Department of Health. Gibson v. City of Troy, 481 So.2d 463 (Ala.Cr.App.1985).

III

Appellant's third, and final, contention is that he was improperly sentenced as a second offender. At the sentencing phase of the instant case, the State introduced a certified copy of a prior Uniform Traffic Ticket and Complaint (U.T.T.C.) denominated as "COMPLAINT AND AFFIDAVIT COURT RECORD COPY" to enhance punishment as provided by § 32-5A-191(d). The "COURT ACTION AND DEPOSITION" portion of this U.T.T.C. indicates that appellant, after pleading guilty, was sentenced to a fine of $341 and that no jail time was imposed. This document is silent as to appellant's being represented by counsel at the taking of the guilty plea. No other evidence was offered concerning representation by counsel.

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