State v. Rosengren, 2 CA-CR 99-0470.

CourtCourt of Appeals of Arizona
Citation199 Ariz. 112,14 P.3d 303
Docket NumberNo. 2 CA-CR 99-0470.,2 CA-CR 99-0470.
PartiesThe STATE of Arizona, Appellant/Cross-Appellee, v. John Eric ROSENGREN, Appellee/Cross-Appellant.
Decision Date16 November 2000

Barbara LaWall, Pima County Attorney by Elizabeth Tyszko, Tucson, Attorneys for Appellant/Cross-Appellee.

Piccarreta & Davis, P.C. by Michael L. Piccarreta and Jefferson Keenan, Tucson, Attorneys for Appellee/Cross-Appellant.



¶ 1 The state appeals from the trial court's order suppressing certain evidence relevant to the sole charge of manslaughter against defendant/appellee John Rosengren. Rosengren cross-appeals from that order, contending the trial court should have dismissed the case with prejudice. We affirm.


¶ 2 We view the evidence presented at the suppression hearing in the light most favorable to sustaining the trial court's ruling. State v. Bentlage, 192 Ariz. 117, ¶ 2, 961 P.2d 1065, ¶ 2 (App.1998). At approximately 1:30 a.m. on February 28, 1999, Rosengren was the driver in a single-vehicle, rollover accident that resulted in the death of his passenger. After the accident, paramedics at the scene examined Rosengren, who told them he had been drinking. The paramedics detected no signs of alcohol ingestion or impairment.

¶ 3 Rosengren also told investigating police officers at the scene that he had consumed alcohol before the accident. The on-scene officers observed the following possible signs of alcohol impairment on Rosengren: a strong odor of intoxicants on his breath, flushed face, bloodshot and watery eyes, slurred speech, a noticeable stagger while walking, and a sideways body sway. An officer read Rosengren the Miranda1 warnings, and Rosengren invoked his right to remain silent. The officer interpreted that as a refusal to perform any field sobriety tests and did not ask Rosengren if he would perform them. Unbeknownst to Rosengren, the officer audiotaped and videotaped the investigation.

¶ 4 The police handcuffed Rosengren and transported him to St. Mary's Hospital to obtain a blood sample, arriving there at 2:32 a.m. Officers then urged Rosengren several times to provide a blood sample and told him he could go home after doing so. At 2:39 a.m., Rosengren asked to contact his father and informed the officers that the father was an out-of-state attorney. The police denied that request and instead offered Rosengren the opportunity to call any local attorney listed in the Tucson telephone book, in fact, urging him to do so. Rosengren declined that offer. He also refused to give a blood sample.

¶ 5 After declining Rosengren's request that he call his father, and after deciding to arrest Rosengren, one of the officers administered a horizontal gaze nystagmus (HGN) test by observing Rosengren's eyes while using a pen as a stimulus. The officer then formally arrested Rosengren at 2:58 a.m. for driving under the influence of intoxicating liquor (DUI). The officer informed Rosengren of Arizona's implied consent law, A.R.S. § 28-1321, and again denied his repeated request to talk to his father. Rosengren still refused to give a blood sample.

¶ 6 At 3:15 a.m., the police obtained a telephonic search warrant and obtained two gray-topped tubes of Rosengren's blood, drawn by a hospital phlebotomist at 3:28 a.m. The phlebotomist also drew two additional, red-topped tubes of Rosengren's blood for hospital purposes. At 4:00 a.m., an officer booked Rosengren into the Pima County jail, where he apparently remained until sometime later that morning.

¶ 7 Rosengren was indicted for manslaughter. Alleging a violation of his right to counsel and to due process, Rosengren moved to dismiss the charge with prejudice. Following an evidentiary hearing, the trial court found that the police had violated Rosengren's "right to remain silent and right to consult with counsel of his choice in a situation where such would not interfere with the investigation." Based on those findings, the trial court suppressed the following evidence: the results of the state's blood test and of the HGN test, Rosengren's refusal to voluntarily submit to a blood test, and all observations and statements of Rosengren that occurred after his arrival at the hospital at 2:32 a.m.

¶ 8 The trial court granted the state's motion to dismiss the case without prejudice for purposes of challenging the suppression order. See State v. Million, 120 Ariz. 10, 583 P.2d 897 (1978)

. This appeal and cross-appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4032(6).


¶ 9 Generally, a trial court's ruling on a motion to dismiss the indictment or to suppress evidence will not be overturned absent an abuse of discretion. State v. Carter, 145 Ariz. 101, 110, 700 P.2d 488, 497 (1985); State v. Pecard, 196 Ariz. 371, ¶ 24, 998 P.2d 453, ¶ 24 (App.1999). We defer to the trial court's factual findings that are supported by the record and not clearly erroneous. Id. at ¶ 7 n. 1; Mack v. Cruikshank, 196 Ariz. 541, ¶ 6, 2 P.3d 100, ¶ 6 (App.1999). Although we view the evidence presented at the suppression hearing and reasonable inferences therefrom in the light most favorable to upholding the trial court's factual findings, we are not bound by its legal conclusions. State v. Hackman, 189 Ariz. 505, 508-09, 943 P.2d 865, 868-69 (App.1997). To the extent suppression of evidence is based on exclusionary rule principles, we review the suppression order de novo. Id. We also review de novo Rosengren's due process claims. Mack, 196 Ariz. 541, ¶ 6, 2 P.3d 100, ¶ 6. Finally, we review the trial court's choice of remedy for the violation of Rosengren's rights for an abuse of discretion. Pecard, 196 Ariz. 371, ¶ 48, 998 P.2d 453, ¶ 48. But cf. Mack; State v. Keyonnie, 181 Ariz. 485, 892 P.2d 205 (App.1995)



¶ 10 Under Rule 6.1(a), Ariz.R.Crim. P., 16A A.R.S., Rosengren had "the right to consult in private with an attorney, or the attorney's agent, as soon as feasible after [he was] taken into custody."2 That rule "recognizes the federal and state constitutional right to counsel." Kunzler v. Pima County Superior Court, 154 Ariz. 568, 569, 744 P.2d 669, 670 (1987). The trial court found, and the state concedes, that the police "acted improperly" and intentionally violated Rosengren's right to counsel by not honoring his request to speak with his father, an attorney. The trial court also found, and the state does not contest, that affording Rosengren that opportunity would not have unduly interfered with the police investigation. See id. (state "may not unreasonably restrict" in-custody suspect's "right to an attorney"); State v. Holland, 147 Ariz. 453, 455, 711 P.2d 592, 594 (1985) (state may not, "without justification, prevent access between a defendant and his lawyer, if available, in person or by telephone, when such access would not unduly delay the D[U]I investigation and arrest").

¶ 11 In view of the trial court's uncontested factual findings and the state's concessions on appeal, the only issue we must address is whether the court chose an appropriate remedy for the state's violation of Rosengren's rights. The state contends the only "appropriate remedy is to suppress the fruits of the [officers'] illegal conduct," which, the state argues, are limited to any "statements derived from custodial interrogation" after Rosengren invoked his Miranda rights. In contrast, Rosengren contends the trial court should have dismissed the case with prejudice or, alternatively, precluded the state "from admitting evidence relating to his purported intoxication." If Rosengren is correct, we need not address separately the specific items of evidence that the trial court suppressed. Therefore, we address the cross-appeal first.

I. Request for Dismissal

¶ 12 As our supreme court has noted:

[I]n a D[U]I investigation, 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. Otherwise, any alcohol that may have been in the blood will have decomposed before the blood can be tested.

McNutt v. Superior Court, 133 Ariz. 7, 10 n. 2, 648 P.2d 122, 125 n.2 (1982). In view of the evanescent nature of alcohol in the bloodstream, such evidence may include not only chemical or other scientific evidence, such as a blood or breath test, McNutt, but also other forms of potentially exculpatory evidence, such as observations by "non-police witnesses" of a suspect's physical appearance and function. State ex rel. Webb v. City Court, 25 Ariz.App. 214, 216, 542 P.2d 407, 409 (1975). See also United States v. Canane, 622 F.Supp. 279, 281 (W.D.N.C.1985) (recognizing need for suspect's "access to his counsel, friends, relatives, or some disinterested person within a relatively short time after his arrest").3 Thus, a DUI suspect has a qualified due process right to gather independent evidence of sobriety while it still exists, so long as exercise of that right does not unduly delay or interfere with the law enforcement investigation. See Kunzler; Holland; Webb. See also Montano v. Superior Court, 149 Ariz. 385, 389, 719 P.2d 271, 275 (1986)

. And, "[t]he right to counsel is an extension of the doctrine that defendants have the right to gather independent exculpatory evidence." State v. Transon, 186 Ariz. 482, 485, 924 P.2d 486, 489 (App.1996).

¶ 13 When the state unreasonably interferes with a DUI suspect's ability "to attempt to gather evidence exculpating him on the issue of intoxication," "[d]ismissal of the case with prejudice is the appropriate remedy because the state's action foreclosed a fair trial by preventing [the defendant] from collecting exculpatory evidence no longer available." McNutt, 133 Ariz. at 10, 648 P.2d at 125. See also Keyonnie, 181 Ariz. at 487,

892 P.2d at 207. Our supreme court has explained why dismissal is appropriate under such circumstances:

Because we value the

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