Provo City v. Werner

• Decision Date: 11 April 1991
• Docket Number: No. 900161-CA,900161-CA
• Citation: 810 P.2d 469
• Parties: PROVO CITY, Plaintiff and Appellant, v. Mary C. WERNER, Defendant and Appellee.
• Court: Utah Court of Appeals

Page 469

810 P.2d 469

PROVO CITY, Plaintiff and Appellant, v. Mary C. WERNER, Defendant and Appellee.

No. 900161-CA.

Court of Appeals of Utah.

April 11, 1991.

Vernon F. (Rick) Romney (argued), Provo, for plaintiff and appellant.

Michael J. Petro and Randy S. Kester (argued), Springville, for defendant and appellee.

Before BENCH, JACKSON and RUSSON, JJ.

OPINION

BENCH, Judge:

Provo City brings this interlocutory appeal challenging the trial court's suppression of the results of a breath test administered by the police to defendant, Mary C. Werner. We reverse the order and remand the case.

Defendant was arrested for driving under the influence. When requested by the police to submit to a breath test, she refused, requesting a urine sample instead because she did not believe breath tests to be trustworthy. She was then informed that under Utah's Implied Consent Law, Utah Code Ann. § 41-6-44.10 (1988), she might lose her license if she did not submit to the test as requested. She was also informed that she had the right to obtain her own independent test administered by a physician of her choice and at her own expense after the police test. ¹ Defendant then submitted to the police test.

The arrest report shows that defendant's breath was tested at 2:04 a.m. and that she received the Miranda warnings at 2:19 a.m. The arrest report also shows that she requested that her attorney, Mike Petro, be present. Defendant was given an opportunity to call her attorney but she declined, apparently due to the lateness of the hour. Defendant also did not ask to contact a physician or technician to assist her in obtaining an independent test.

At some time after the police conducted the breath test, defendant renewed her demand for a urine test. One of the officers said, "we have a urine bottle, we can certainly give that to you and you can obtain your own sample, and have it analyzed it [sic] wherever you wish." Defendant took the bottle to the restroom and collected a sample. No instructions were given to her by the police as to how to collect the sample or preserve it so that it would be admissible at trial.

Upon release from the jail, defendant took her urine sample to the Utah Valley Regional Medical Center for analysis. The hospital refused to analyze the sample, citing the following reasons: 1) the sample was not accompanied by a chain of custody, 2) the sample was not labeled with the subject's name or time of collection, 3) the sample was not sealed when it arrived at the hospital, nor was there any evidence that it had ever been sealed. ² After indicating to defendant that the hospital was declining to analyze the sample, the technician at the hospital offered to dispose of it because it would not be of any use to her. Defendant apparently consented and asked the technician to send a letter to her counsel explaining why the hospital would not analyze the sample.

Prior to trial, defendant moved to suppress the results of the breath test. She argued that Provo City could not introduce the results because she was unable to secure an independent urinalysis with which to challenge the test. The trial court ruled that the police had no affirmative duty to provide defendant any assistance with her independent test, but that once they cooperated by providing her with the "hardware" for the test, i.e., the bottle, they accepted a duty to also provide her with adequate information on how to secure an admissible sample. The trial court then suppressed the breath test results because it believed that defendant had been denied her due process rights when the police failed to advise her as to how to properly exercise her statutory right to an independent test.

Provo City appeals the suppression of the test results and argues that under Utah Code Ann. § 41-6-44.10(6), the failure of the accused to secure an independent test cannot affect the admissibility of police evidence. Since questions of constitutional rights are questions of law, we give no deference to the trial court's conclusion that the police had a duty, as a matter of due process, to "adequately inform" defendant about how to properly collect an admissible sample. See State v. Davis, 787 P.2d 517, 519 (Utah Ct.App.1990).

FAILURE TO OBTAIN AN INDEPENDENT TEST

Utah's implied consent law provides those who are accused of driving under the influence with the right to obtain an independent chemical test at their own expense. ³ The accused may then use the results of the independent test to challenge the accuracy of whatever test the police may have conducted. Subparagraph (b) of the statute expressly provides, however, that if the accused fails or is unable to obtain the independent test, the prosecution may still introduce the results of the test conducted by the police. We therefore recognize at the outset that the right afforded by Utah's implied consent law is the right to seek to obtain an independent test not an absolute right to obtain a test. State v. Dressler, 433 N.W.2d 549 (N.D.Ct.App.1988); Fairfax v. Smith, 330 S.E.2d 290 (S.C.1985).

Similarly, all that is required to provide due process is an opportunity to obtain an independent test. "The purpose of due process is to prevent fundamental unfairness, and one of its essential elements is the opportunity to defend." State v. Snipes, 478 S.W.2d 299, 303 (Mo.), cert. denied, 409 U.S. 979, 93 S.Ct. 332, 34 L.Ed.2d 242 (1972). "The issue is whether the defendant was afforded a reasonable opportunity to obtain an independent examination; it is not necessary that such an examination in fact be conducted." Commonwealth v. Alano, 388 Mass. 871, 448 N.E.2d 1122, 1127 (1983). See also Bilbrey v. State, 531 So.2d 27, 30 (Ala.Ct.App.1987) (defendant must prove by clear and convincing evidence that the conduct of the police was unreasonable in order to establish a due process violation).

The failure to obtain an independent test includes situations where the accused makes an inadequate effort to obtain a test. State v. Crotty, 152 Ariz. 264, 266, 731 P.2d 629, 631 (Ct.App.1986) (accused destroyed the breath sample without first contacting his attorney). "[I]t is the accused who must act to protect his interest, and it is only when he is denied an opportunity reasonable under the circumstances, to procure [an independent test] that he can properly claim a denial of due process." In re Koehne, 54 Cal.2d 757, 759, 8 Cal.Rptr. 435, 356 P.2d 179 (1960).

Defendant, not the police, was responsible for her failure to obtain a second test. The police provided her an adequate opportunity, but her efforts were inadequate. Defendant was given access to a telephone. She could have called her attorney or a physician for assistance in obtaining an independent test. She declined. Access to a telephone in order to arrange an independent test is typically sufficient to provide due process to an individual accused of driving under the influence. See Bilbrey, 531 So.2d at 29 (citing Smith v. Cada, 114 Ariz. 510, 562 P.2d 390 (1977) (failure to permit accused an opportunity to call attorney violated statute and due process); Alano, 388 Mass. 871, 448 N.E.2d 1122 (1983) (police "need only inform [accused] of his rights and allow him access to a telephone"); Snipes, 478 S.W.2d 299 (accused was given the opportunity to call a physician and request that he come to the jail to examine him personally, it therefore was not a denial of due process for the police to refuse to transport accused to hospital); State v. Magai, 96 N.J.Super. 109, 232 A.2d 477, 479 (1967) (no violation occurred when accused was denied access to telephone because he refused to comply with logging requirement before making call)). See also McCormick v. Municipal Court, 195 Cal.App.2d 819, 16 Cal.Rptr. 211 (1961) (improper to permit accused only one call which was used to arrange bail when accused repeatedly requested opportunity to call physician); Burbage v. Department of Motor Vehicles, 252 Or. 486, 450 P.2d 775 (1969) (no violation when accused called his wife and did not arrange for a test); State v. Reed, 36 Wash.App. 193, 672 P.2d 1277, 1278 (1983) (refusal to take accused to hospital for blood test did not thwart accused's attempts to obtain a test since he was afforded access to telephone).

If defendant was not able to obtain an independent test because of the way the sample was collected, that failure was due to her own free choice not to seek advice before collecting the sample. See State v. Miller, 41 Or.App. 687, 598 P.2d 1262, 1263 (1979) (accused was afforded an opportunity to have his blood tested, and "exercised a free will choice not to do so"). Defendant, not the police, must live with her failure to do so.

Once she obtained the sample, defendant failed to obtain an analysis of the sample. The hospital she went to refused her request to analyze the sample because of concerns over the accuracy of any results when the sample was not collected in what the hospital considered a required manner. Rather than seeking an analysis at another hospital or laboratory, defendant consented to the disposal of the sample by the hospital. Defendant also could have inquired of legal counsel before permitting her sample to be destroyed. Crotty, 731 P.2d at 631. Again, defendant, not the police, must live with her failure to have the sample analyzed.

Defendant was unable to obtain an independent test, in part, because the hospital refused to analyze the sample. The police cannot be held responsible for the actions of third parties that cause an accused to be unable to obtain an independent test. " '[I]nability' to obtain a test refers to the situation where, for some reason independent of the conduct of either the arrestee or the police, such as loss of the blood sample by the hospital performing the test, an independent chemical analysis cannot be obtained." State v. Hilditch, 36 Or.App. 435, 584 P.2d 376, 378 (1988). See, e.g., Grizzle v. State, 153...