State v. Miller, 2

• Decision Date: 18 May 1989
• Docket Number: No. 2,CA-CR,2
• Citation: 778 P.2d 1364,161 Ariz. 468
• Parties: The STATE of Arizona, Appellant/Cross-Appellee, v. Halvi MILLER, II, Appellee/Cross-Appellant. 88-0570.
• Court: Arizona Court of Appeals

Page 1364

778 P.2d 1364

161 Ariz. 468

The STATE of Arizona, Appellant/Cross-Appellee, v. Halvi MILLER, II, Appellee/Cross-Appellant.

No. 2 CA-CR 88-0570.

Court of Appeals of Arizona,

Division 2, Department A.

May 18, 1989.

Review Denied Sept. 19, 1989.

[161 Ariz. 469] Stephen D. Neely, Pima County Atty. by Thomas J. Zawada, Tucson, for appellant/cross-appellee.

Harold L. Higgins, Jr., Pima County Public Defender by Wayne E. Yehling, Tucson, for appellee/cross-appellant.

OPINION

PER CURIAM.

The state has appealed from the trial court's order granting appellee's motion to dismiss the charges against him. Appellee was indicted on two class 5 felony DUI charges, and the state filed an allegation of a prior DUI conviction. Appellee filed three motions to dismiss, the motion in question contending that dismissal was required under Montano v. Superior Court, 149 Ariz. 385, 719 P.2d 271 (1986), because appellee was not advised by the arresting officers that he had a right to an independent blood test. The trial court agreed and dismissed the charges. We reverse.

In Montano, the supreme court held that when the state chooses not to invoke the implied consent law in DUI cases, A.R.S. § 28-691, due process requires that a suspect must be advised of his right to an independent test. Since that decision, Division One of this court has held that Montano does not apply to cases where the state has invoked the implied consent law but the suspect has refused to submit to chemical testing. State v. Ramos, 155 Ariz. 153, 745 P.2d 601 (App.1987). The Ramos court identified "[a] number of factors unique to DWI cases" which provided the rationale for the decision in Montano:

1) The state must provide a fair trial under the due process clause of the Fourteenth Amendment. This "task is made easier when the state procures objective evidence of guilt or innocence ..." [Montano, 149 Ariz.] at 391, 719 P.2d at 277. 2) When the state foregoes this evidence due process requires "that the suspect be apprised of the opportunity. The importance of objective, scientific evidence to a fair adjudication has long been recognized in Arizona." Id. 3) DWI cases "are particularly susceptible of resolution by way of chemical analysis of intoxication." Id. 4) In DWI investigations "it is crucial for both the state and the defendant to gather evidence relevant to intoxication close in time to when the defendant allegedly committed the crime." Id., citing McNutt v. Superior Court, 133 Ariz. 7, 10 n. 2, 648 P.2d 122, 125 n. 2 (1982).

155 Ariz. at 154, 745 P.2d at 602. The court concluded that, by invoking the implied consent law, "Ramos was afforded the opportunity to obtain scientific evidence, but waived that opportunity.... Neither the holding or rationale in Montano dictate that Ramos must be told of his right to an independent test in this situation." 155 Ariz. at 155, 745 P.2d at 603 (citation omitted). We agree with Division One that Montano is limited to its particular facts, and that due process does not require that a suspect be advised of his right to an independent test where the state has invoked the implied consent law.

Appellee argues alternatively that the dismissal of the charges is warranted in light of the state's violation of his right to a speedy trial under Ariz.R.Crim.P. 8, 17 A.R.S., and Hinson v. Coulter, 150 Ariz. 306, 723 P.2d 655 (1986), as alleged in one of his motions before the trial court. Appellee was arrested on May 30, 1987. His own testimony established that he left the state in June...