State v. Carr

• Decision Date: 21 December 1995
• Docket Number: No. 21440,21440
• Citation: 911 P.2d 774,128 Idaho 181
• Parties: STATE of Idaho, Plaintiff-Appellant, v. Ida Kemmer CARR, Defendant-Respondent.
• Court: Idaho Court of Appeals

Page 774

911 P.2d 774

128 Idaho 181

STATE of Idaho, Plaintiff-Appellant, v. Ida Kemmer CARR, Defendant-Respondent.

No. 21440.

Court of Appeals of Idaho.

Dec. 21, 1995.

Review Denied March 8, 1996.

Alan G. Lance, Attorney General; Michael A. Henderson, Deputy Attorney General (argued), Boise, for appellant.

Lonnie F. Sparks, Coeur d'Alene, argued, for respondent.

WALTERS, Chief Judge.

The State appeals from a district court order suppressing the results of a blood-alcohol content (BAC) test. For the reasons explained herein, we affirm the district court's order.

FACTUAL AND PROCEDURAL BACKGROUND

On February 6, 1993, Ida Carr was arrested by Coeur d'Alene Police Officer Bill McLeod for driving while under the influence of alcohol (DUI), and was transported to the Kootenai County Public Safety Building. Before Officer McLeod conducted an evidentiary breath test, and while he was reading the standard police advisory form aloud to her, Carr requested access to a telephone in order to contact an attorney. Consistent with I.C. § 18-8002(2), McLeod informed Carr that she had no right to consult with an attorney prior to taking the breath test. McLeod also informed Carr that after taking the State's breath test, she could obtain an additional test at her own expense. Carr agreed to take the breath test, which yielded results of .20 and .21.

McLeod then took Carr to a holding cell, during which time Carr asked when she could speak to an attorney. McLeod informed Carr that she could "make any phone calls as soon as the jail personnel were ready to let her make the phone calls." At some point, McLeod prepared a uniform citation, charging Carr with misdemeanor DUI, I.C. § 18-8004(1). McLeod then departed and Carr made several requests of other officers to contact an attorney. The officers denied her requests. Approximately five hours after her arrest, Carr was permitted access to the telephone, and she contacted a bondsman.

Carr filed a motion to dismiss the DUI charge, arguing that the State violated her right to counsel under the Sixth and Fourteenth Amendments of the United States Constitution and that as a result, she was denied the right to a fair trial. At the hearing on the motion to dismiss, the magistrate also considered whether suppression of evidence should be ordered as an alternative to dismissal of the charge. After taking the motion under advisement, the magistrate denied Carr's motion in its entirety. Carr then entered a conditional plea of guilty, under I.C.R. 11(a)(2), preserving the right to appeal from the magistrate's denial of her motion to dismiss. The magistrate entered a judgment of conviction, and Carr appealed to the district court. On appeal, the district court reversed the magistrate's decision and suppressed the results of the breath test. The Court ruled:

Carr was prejudiced by the State's failure to allow her to gather her own evidence The State appeals.

[128 Idaho 183] concerning her blood-alcohol level. The only evidence concerning her blood-alcohol level is that which was gathered by the State. Therefore, the correct remedy is the suppression of the State's evidence which could have been contested by Carr had she been allowed to gather her own evidence of her blood-alcohol level. As such, the State's evidence gathered through admission of the BAC will be suppressed.

ANALYSIS

When considering an appellate decision of the district court which has reviewed a magistrate's findings and conclusions, we examine the record of the magistrate independently of, but with due regard for, the district court's decision. State v. Burris, 125 Idaho 289, 291, 869 P.2d 1384, 1386 (Ct.App.1994). Where the magistrate's findings of fact are supported by substantial, even if conflicting, evidence in the record, we will not disturb them on appeal. Id. However, we exercise free review on questions of law. Id.

At the outset, we note that the law is clear in Idaho that a driver does not have the right to consult with an attorney prior to submitting to, or refusing to submit to, an evidentiary BAC test. I.C. § 18-8002(2); State v. Ankney, 109 Idaho 1, 5-6, 704 P.2d 333, 337-38 (1985); Matter of McNeely, 119 Idaho 182, 187, 804 P.2d 911, 916 (Ct.App.1990). The issue presented in this case, however, is whether Carr's constitutional rights were violated when the State denied her request to telephone her attorney following the administration of the State's BAC test.

A similar scenario was recently presented to this Court in State v. Madden, 127 Idaho 894, 908 P.2d 587 (Ct.App.1995). In Madden, we held that the defendant was denied her statutory right to an independent BAC test. Unlike Madden, however, in this case there is no evidence that Carr asserted her statutory right to an independent BAC test, despite the fact that she was advised of her right to obtain a second test. Therefore, the statutory issue is not squarely before us as it was in Madden.

In her motion to dismiss the DUI charge, Carr argued that she was denied the assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments and could not receive a fair trial. She asserted that she was "held in jail while critical evidence[,] the blood-alcohol content of her blood[,] was destroyed." Thus, Carr concluded, she "was prevented from obtaining an independent blood test to prove her innocence." Similarly, in her memorandum in support of the motion to dismiss, Carr stated: "[B]y denying Ms. Carr effective assistance of counsel, the police eroded Ms. Carr's evidence, and have denied her a defense to the charge. She has been denied a fair trial." Carr presented the same arguments on appeal to the district court. ¹ Her attorney also suggested that suppression of evidence could be the appropriate remedy.

The district court concluded that the State unconstitutionally infringed upon Carr's right to counsel under the Sixth and Fourteenth Amendments and, as a result, suppressed the results of the State's BAC test. We agree with the district court that the officers violated Carr's constitutional rights. However, we conclude that Carr's arguments regarding the denial of her right to gather exculpatory evidence and her right to a fair trial are essentially due process claims, although couched in terms of the interference with her ability to contact counsel. We further conclude that Carr was denied her right to due process under the Fourteenth Amendment of the United States Constitution.

The due process clause of the United States Constitution prohibits deprivations of life, liberty or property without "fundamental The test for determining whether state action violates procedural due process requires a court to consider three distinct factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the existing procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976). We apply these factors in turn.

[128 Idaho 184] fairness" through governmental conduct that offends the community's sense of justice, decency and fair play. Roberts v. State of Maine, 48 F.3d 1287, 1291 (1st Cir.1995). "The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973). Due process, unlike some legal rules, "is not a technical conception with a fixed content unrelated to time, place and circumstances." Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961) (citation omitted). Rather, "due process is flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).

The private interest affected in this case is Carr's interest in procuring evidence which would challenge the results of the State's BAC test. By denying Carr access to a telephone for approximately five hours after her arrest for DUI, the State denied her the means by which she could establish her defense. As recognized by the Idaho Supreme Court, an "inherent exigency" exists in a DUI setting, due to the destruction of the evidence by metabolism of alcohol in the blood. State v. Woolery, 116 Idaho 368, 370, 775 P.2d 1210, 1214 (1989). Therefore, the only opportunity for a defendant in a DUI case to gather exculpatory evidence is within a reasonable time following arrest and administration of the State's BAC test. See Tacoma v. Heater, 67 Wash.2d 733, 409 P.2d 867, 871 (1966) (denial of right to contact attorney following issuance of citation for DUI prevented defendant's effective preparation of defense because "evidence of intoxication dissipates with the passage of time").

As a result, when a person is arrested for DUI and given an evidentiary BAC test, that person must be allowed, at a minimum, to make a phone call upon request to do so. Such contact provides the means through which the arrestee is able to gather evidence tending to refute the State's evidence of intoxication and thereby preserve the "right to a fair opportunity to defend against the State's accusations." Chambers, supra. For example, the person contacted by the arrestee could facilitate the administration of an independent BAC test, a right guaranteed by I.C. § 18-8002(4)(d). ² Indeed, many states have held that due process requires that a DUI defendant be afforded a reasonable opportunity to obtain an independent blood test as such a test assures the defendant's right to gather exculpatory evidence. See e.g., Bilbrey v. State, 531 So.2d...