State v. Ramos

• Decision Date: 21 April 1987
• Docket Number: CA-CR
• Citation: 155 Ariz. 153,745 P.2d 601
• Parties: STATE of Arizona, Appellant, v. Faustino V. RAMOS, Appellee. 110321.
• Court: Arizona Court of Appeals

Page 601

745 P.2d 601

155 Ariz. 153

STATE of Arizona, Appellant, v. Faustino V. RAMOS, Appellee.

1 CA-CR 10321.

Court of Appeals of Arizona Division 1, Department B.

April 21, 1987.

Reconsideration Denied July 31, 1987.

Review Denied Nov. 17, 1987.

Thomas E. Collins, Maricopa Co. Atty. by H. Allen Gerhardt, Deputy Co. Atty., Phoenix, for appellee.

A. Elwyn Larson, Phoenix, for appellant.

OPINION

GREER, Judge.

The appellee (Ramos) was arrested on July 7, 1985, for driving under the influence of intoxicating liquor (DWI). Ramos refused a breath test after the state invoked the implied consent law. The police did not tell him that he had a right to an independent chemical test for blood alcohol level, and at no time did he request an independent test. Ramos was jailed immediately following the booking process.

On January 13, 1986, by information, Ramos was charged with driving when under the influence while license suspended, cancelled, revoked or refused, a class 5 felony. Appellee filed a motion in limine, which was treated by the trial court as a motion to dismiss. An evidentiary hearing was held on the motion on June 4, 1986. The trial court dismissed without prejudice the DWI portion of the charge, citing Montano v. Superior Court, 149 Ariz. 385, 719 P.2d 271 (1986). The remaining charge (of driving while license suspended, cancelled, revoked or refused) was also dismissed without prejudice.

The state has appealed the dismissal of the DWI charge, arguing that Montano is inapplicable because Ramos was given an opportunity for a breath test. In Montano the supreme court held that when a suspect is not given the opportunity for a breath test, the suspect must be advised of his right to an independent test. Id. at 391, 719 P.2d at 277. The state also argues that in a supplemental opinion the court held that Montano is to be given prospective application only, and thus the trial court erred in relying on Montano as justification for dismissal. Ramos argues that Montano applies to the facts of this case, and that to come to a contrary decision would be a violation of the Fourteenth Amendment of the United States Constitution.

Montano was decided on April 18, 1986, subsequent to appellee's arrest on June 7, 1985, and does not apply to his arrest. See id. at 393, 719 P.2d at 279. The trial court therefore improperly applied the Montano mandate to the facts of this case. Normally, this would end the matter. However, other proceedings presented in this court persuade us that there is some conflict in the manner in which the trial courts are interpreting Montano. Hence, we reach the merits here to correct any misunderstanding of Montano.

In Montano the defendant was arrested for driving under the influence of intoxicating liquor. At the time of the arrest South Tucson Police Department policy did not require the testing of DWI suspects' breath, blood, or urine for alcohol, presumably because South Tucson had no functioning intoxilyzer machine. The police department made no arrangements to borrow a machine or to have blood or urine samples analyzed.

As a consequence, upon arrest the suspect in Montano was not requested to submit to any test of his breath, blood, or urine, and he did not request that any test be done. The arresting officer did not inform the suspect that he had the right to an independent test. On appeal, Montano claimed that the failure to inform him of his right to an independent test denied him due process in violation of both the United States and Arizona Constitutions. Under these circumstances, our supreme court held that when the state chooses not to invoke the implied consent statute, "DWI suspects must be informed of their right to an independent chemical alcohol test at their own expense ..." Id. at 389, 719 P.2d at 275.

A number of factors unique to DWI cases provide the rationale for the holding in Montano. For example: 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 ..." Id. 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). Given the above set of factors,

When the implied consent statute is not invoked, it is important that DWI suspects be promptly informed upon arrest of their right to secure an independent alcohol test; and the police must make every reasonable effort to facilitate a suspect's request (citation omitted). The state has no obligation, apart from Baca, to actually gather evidence for a suspect but in the absence of the implied consent law it must provide suspects a fair chance to gather evidence by informing them of their right to testing.

Id. (emphasis added). The obligation in Baca was that the police must offer to collect and preserve a breath sample for the suspect whenever they choose to give a breath test. Baca v. Smith, 124 Ariz. 353, 604 P.2d 617 (1979).

Montano holds only that the obligation by law enforcement to inform a suspect of his right to an independent test does not arise unless the state chooses not to invoke the implied consent law. These facts are not present in this case. The arresting officer asked Ramos to take a breath test, and he refused. Thus, the state invoked the implied consent law, and Ramos was afforded the opportunity to obtain scientific evidence, but waived that opportunity. See Baca. Neither the holding or rationale in Montano dictate that Ramos must be told of his right to an independent test in this situation. Absent the unique conditions in Montano no Arizona court has ever held that a DWI suspect must be told of his right to an independent test.

Ramos contends that the officer violated his due process rights by failing to advise him of his right to an independent blood test. Arizona Revised Statutes § 28-692(I) authorizes a suspect to obtain an independent blood test. The statute states that, "the person tested may have a physician or qualified technician, chemist, registered nurse or other qualified person of his choosing administer a test or tests in addition to any administered at the direction of a law enforcement officer." Ramos was not advised of his right to obtain an independent test. The statute, however, contains no requirement that such advice be given.

Alaska has a statutory provision that is nearly identical to A.R.S. § 28-692(I). The Alaska Supreme Court has held that neither that statute, nor state or federal constitutional provisions, require police to advise a DWI suspect of his right to obtain an independent test. Palmer v. State, 604 P.2d 1106 1110 (Alaska 1979). See also, City of Farmington v. Joseph, 91 N.M. 414, 575 P.2d 104 (App.1978); Conrad v. Schwendiman, 680 P.2d 736 (Utah 1984). The Miranda warnings inform the suspect of fundamental rights guaranteed by the Fifth and Sixth Amendments to the United...