State ex rel. Webb v. City Court of City of Tucson, Pima County

• Decision Date: 18 November 1975
• Docket Number: CA-CIV,No. 2,2
• Parties: STATE of Arizona ex rel. James D. WEBB, City Attorney for the City of Tucson, Petitioner, v. CITY COURT OF the CITY OF TUCSON, PIMA COUNTY, State of Arizona, Gilbert Veliz, Magistrate thereof, and Michael Wayne HAMM, the Real Party in Interest, Respondents. 1998.
• Court: Arizona Court of Appeals

Page 407

542 P.2d 407

25 Ariz.App. 214

STATE of Arizona ex rel. James D. WEBB, City Attorney for the City of Tucson, Petitioner, v. CITY COURT OF the CITY OF TUCSON, PIMA COUNTY, State of Arizona, Gilbert Veliz, Magistrate thereof, and Michael Wayne HAMM, the Real Party in Interest, Respondents.

No. 2 CA-CIV 1998.

Court of Appeals of Arizona, Division 2.

Nov. 18, 1975.

James D. Webb, City Atty. by Oliver M. Transue, Asst. City Atty., Tucson, for petitioner.

Risner, Wolf & Raven by William J. Risner, Tucson, for respondents.

OPINION

HOWARD, Chief Judge.

Petitioner seeks special action relief from an order of the respondent court dismissing a pending prosecution of Mr. Hamm for driving while intoxicated. ¹ The pertinent facts are set forth in the court's order:

'Upon consideration of the fact and memorandums of law submitted in this case, the Court finds that the police officers by denying the defendant an opportunity to contact his attorney, though several requests were made, until after the defendant was taken to the County Annex at Silverbell Road was a denial of due process. The defendant was required to take field sobriety tests at the scene, then driven to the main police station where a breathalyzer examination was conducted. Defendant asked to call his attorney before the field test, during the ride to the police station and before the breathalyzer examination was conducted. This is not to say that any of these tests should have been delayed until the defendant's lawyer was present. Instead considering the transitory nature of alcohol in the blood system, an opportunity should have been given to the defendant to attempt to obtain evidence, chemical or otherwise, as close to the time of the alleged offense as possible. This could only have been done by permitting the defendant to make his call. If the defendant had been permitted to make a call at the police station either immediately before or after the breathalyzer examination was conducted, this perhaps would have given the defendant such an opportunity. It is the Court's opinion that if the procedure followed by the police officers in this case is approved, there is always a delay of different lengths in transporting the defendant from the area of the breathalyzer to the area of confinement. Such a delay will affect the value of any evidence that the defendant can obtain to counter both the chemical and other objecture (sic) evidence that has been gathered by the police. If only the chemical evidence is excluded, the police officers will still have their observations regarding the defendant's actions at the scene and the filed sobriety tests. These tests to a certain degree are subjective in nature. The defendant should be given an apportunity, if he requests, to contact a lawyer so that observations can be made as close as is reasonably possible to the time of the alleged offense so that he could counter the police subjective observations.'

Our reading of this order leads us to conclude that the respondent court was of the opinion that the police officers, in requiring Mr. Hamm to wait until he arrived at the jail facility to make his phone call, denied him the right to attempt to gather evidence which would assist him in his defense. A number of other jurisdictions have held that while the state is not required to provide an accused with a blood test, it may not unreasonably prohibit him from trying 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. 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.1972) 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); Harlan v. State, 430 S.W.2d 213 (Tex.Cr.App.1968); In re Newbern, 55 Cal.2d 508, 11 Cal.Rptr. 551, 360 P.2d 47 (1961); In re Koehne, 54 Cal.2d 757, 8 Cal.Rptr. 435, 356 P.2d 179 (1960); State v. Munsey, 152 Me. 198, 127 A.2d 79 (1956); State v. Johnson, 87 N.J.Super. 195, 208 A.2d 444 (1965); City of Tacoma v. Heater, 67 Wash.2d 733, 409 P.2d 867 (1966).

These decisions recognize that since the bodily processes, will, within a brief time, reduce the blood alcohol level to the point where an untimely blood test will be of little probative value on the issue of the accused's condition at the crucial time, incommunicado detention under such circumstances violates due process because it amounted to a suppression of potentially exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). These cases hold, that while the state is not required to provide an accused with a scientific test, it may not unreasonably prevent him from attempting to obtain one at his own expense.

We agree that the Fourteenth Amendment's 'fair play' doctrine requires that when one charged with a criminal offense of which a physical condition or state of the accused is an element, and when such physical condition or state is subject to change with the passage of time to the extent that evidence thereof may be lost unless preserved within a relatively brief period of time, the accused is denied due process of law if he is held incommunicado and the authorities deny his request to be allowed to attempt to arrange by telephone,...