Smith v. Cada

• Decision Date: 15 February 1977
• Docket Number: No. 1,CA-CIV,1
• Parties: The Honorable James M. SMITH, Magistrate of the City Court, the Honorable Rodger A. Golston, Chief Magistrate of City Court, the City Court of Phoenix and the STATE of Arizona, Real Party in Interest, Appellants, v. Charles J. CADA, Appellee. 3403.
• Court: Arizona Court of Appeals

Page 390

562 P.2d 390

114 Ariz. 510

The Honorable James M. SMITH, Magistrate of the City Court, the Honorable Rodger A. Golston, Chief Magistrate of City Court, the City Court of Phoenix and the STATE of Arizona, Real Party in Interest, Appellants, v. Charles J. CADA, Appellee.

No. 1 CA-CIV 3403.

Court of Appeals of Arizona, Division 1, Department C.

Feb. 15, 1977.

Rehearing Denied March 22, 1977.

Review Denied April 5, 1977.

Andy Baumert, City Atty. by Geoffrey T. Jones, Asst. City Atty., Phoenix, for appellants

Minne & Sorenson by Roger J. Blake, John W. Rood, Phoenix, for appellee.

OPINION

JACOBSON, Presiding Judge.

The fundamental issue on appeal is whether the deprivation of an opportunity for a DWI defendant to contact his attorney and to effectuate bail when he possessed upon his person a cash amount exceeding the established master bail schedule for the offense charged prevented the obtaining of independent evidence of sobriety, thus depriving him of a fair trial.

These legal issues arise under the following pertinent factual background.

Appellee Cada was arrested at approximately 12:40 a.m. and charged with driving a motor vehicle while under the influence of liquor, in violation of A.R.S. § 28--692(A); failing to drive in one traffic lane, in violation of A.R.S. § 28--729.1; and not turning off the roadway safely, in violation of A.R.S. § 28--754(A). Prior to the officer's offer of the breathalyzer, Cada did not request an attorney. After the police officers advised him of the breathalyzer test procedures and the ramifications inherent in refusal, Cada refused to take the police-administered breathalyzer test. At this time he did not request an attorney. However, while being transported to the police station, he requested the opportunity to telephone his attorney. The request went unheeded by the transporting officer. Cada renewed this request upon arrival at the station; the request went unheeded by the detaining officer. Even though Cada had upon his person cash funds which exceeded the established bail schedule of the Phoenix Municipal Court for the offense charged, his request for bail to secure his release so an independent blood test could be administered was ignored. Cada was booked into the Maricopa County jail and released later that morning at approximately 8:00 a.m. following his appearance before a magistrate.

Subsequently, Cada brought a special action in Maricopa County Superior Court before his cause was brought to trial in municipal court. The Superior Court determined that Cada was deprived of his right to obtain a fair trial because, following his arrest, he was denied the opportunity to make a phone call and denied the right to bail in accordance with A.R.S. § 22--424; and consequently, he was unable to make timely contact with his attorney and unable to effectuate arrangements for a blood test for evidentiary purposes. The Superior Court's formal judgment made an earlier stay order permanent. It is from this judgment that the present appeal is taken.

The appellants first contend that failure to provide Cada with an opportunity to obtain counsel or bail and thus an independent blood test to establish sobriety is not prejudicial. This contention is based on appellant's interpretation of A.R.S. § 28--692(F) as providing that the taking of a breathalyzer test administered by the police is a condition precedent to the entitlement of an independent chemical or blood test. The argument continues that since he refused to submit to a breathalyzer test the police could properly prohibit his obtaining an independent blood test. A.R.S. § 28--692(F) provides 'The person Tested may have a physician or a qualified technician, chemist, registered nurse or other qualified person of his own choosing administer a chemical test or tests In addition to any administered at the direction 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.' (emphasis added)

Appellants point to the emphasized portions of the statute as clearly illustrating that the right to an independent blood test only arises after the taking of a breathalyzer test. They also cite three cases which they contend support this interpretation. See Beales v. State, 271 Cal.App.2d 594, 76 Cal.Rptr. 662 (1969); Fallis v. Dept. of Motor Vehicles, 264 Cal.App.2d 373, 70 Cal.Rptr. 595 (1968), and Beare v. Smith, 82 S.D. 20, 140 N.W.2d 603 (1966).

The cases cited by the appellants do not support their contention, nor is their statutory construction constitutionally sound. In the three cited cases, the issues involved a suspension of the allegedly intoxicated driver's license for refusal to submit to the statutory tests for determining intoxication. (See A.R.S. § 28--691 for similar sanctions under Arizona law). In each case the driver defended on the grounds that he had not refused to submit to the test, only that he insisted that the test be administered by his own physician. In each case, the court held that such a qualified consent was in essence a refusal to submit under the statute justifying suspension of the driver's license. In reaching this conclusion, the courts pointed out the existence of a statute similar to A.R.S. § 28--692(F) allowing additional private tests to bolster their conclusion that the initial testing need not be performed by the driver's private physician. The holding in Fallis v. Department of Motor Vehicles, supra, is illustrative:

'A licensee may not qualify his consent to a test by a condition that the test be administered by or in the presence of his own physician.

'Such a qualified consent is in fact a refusal to take the test provided by the statute (citations omitted).

'The right to have an Additional test made by one's own physician is assured by the statute. (Veh.Code § 13354) (emphasis in original) 264 Cal.App.2d at 382, 70 Cal.Rptr. at 601.

These holdings are a far cry from determining that the state may prohibit an accused from obtaining independent blood tests unless he consents to a breathalyzer test. However, in our opinion, more serious objections are raised to the appellant's interpretation.

If the appellant's contention was correct, the logical conclusion would be that the police could affirmatively prohibit every driver who refused a breathalyzer test from obtaining independent evidence of his sobriety, in essence suppressing evidence favorable to the defendant. Such a result would be violative of due process of law. As was stated in In re Martin, 58 Cal.2d 509, 24 Cal.Rptr. 833, 374 P.2d 801 (1962).

'It is a matter of common knowledge that the intoxicating effect of alcohol diminishes with the passage of time; hence, the probative value of a blood test diminishes as well. In a short period of time an intoxicated person may 'sober up' sufficiently to negate the materiality of a blood test where the sample has not been timely withdrawn . . . (citations omitted). (P)olice officers are not required to take the initiative or even to assist in procuring any evidence on behalf of a defendant which is deemed necessary to his defense (citations omitted). But in no event can duly constituted authority hamper or interfere with efforts on the part of an accused to obtain a sampling of his blood, without denying to him due process of law. We are persuaded to such conclusion in any instance where the conduct of the authorities, whether through affirmative action or by the imposition of their rules and regulations, imposes any material obstacle in the path of the accused. Nor are we impressed that an accused, as perhaps in the instant case, might have reached his goal by pursuing a different course. It is sufficient if, in seeking to establish the fact of the alcoholic content of his blood, the authorities, by their actions or regulations, frustrate his Reasonable efforts designed to produce probative evidence.

'A refusal by the police under the foregoing circumstances is analogous to a suppression of evidence and violative of due process of law.' (emphasis added) Id. at 512, 24 Cal.Rptr. at 835, 374 P.2d at 803.

The following cases also hold that it is a denial of due process to deny one charged with an offense involving intoxication the right to attempt to obtain at his own expense a blood or other scientific test for the purpose of attempting to establish his sobriety at the crucial time. Scarborough v. Kellum, 386 F.Supp. 1360 (N.D.Miss.1975), Affirmed, 525 F.2d 931 (5th Cir. 1976); 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); 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); People v. Burton, 13 Mich.App. 203, 163 N.W.2d 823 (1968); City of Tacoma v. Heater, 67 Wash.2d 733, 409 P.2d 867 (1966); State v. Johnson, 87 N.J.Super. 195, 208 A.2d 444 (1965); In re Koehne, 54 Cal.2d 757, 8 Cal.Rptr. 435, 356 P.2d 179 (1960); In re Newbern, 175 Cal.App.2d 862, 1 Cal.Rptr. 80 (1959); State v. Munsey, 152 Me. 198, 127 A.2d 79 (1956).

In our opinion then, the interpretation of A.R.S. § 28--692(F) urged by the appellants would result in an unconstitutional restraint on the right of a criminal accused to attempt to obtain independent evidence of his innocence and operate to deprive the accused of due process of law. We...