State v. Rowland

• Decision Date: 21 January 1992
• Docket Number: No. 2,CA-CR,2
• Citation: 172 Ariz. 182,836 P.2d 395
• Parties: The STATE of Arizona, Appellant, v. Thomas John ROWLAND, Appellee. 91-0436.
• Court: Arizona Court of Appeals

Page 395

836 P.2d 395

172 Ariz. 182

The STATE of Arizona, Appellant, v. Thomas John ROWLAND, Appellee.

No. 2 CA-CR 91-0436.

Court of Appeals of Arizona Division 2, Department A.

Jan. 21, 1992.

Reconsideration Denied March 4, 1992.

Review Denied Sept. 22, 1992.

[172 Ariz. 183] Stephen D. Neely, Pima Co. Atty. by Catherine M. Shovlin, Tucson, for appellant.

Joseph P. St. Louis, Tucson, for appellee.

OPINION

HOWARD, Judge.

In this case, the trial court determined that defendant Thomas John Rowland was not under arrest at the time his blood was drawn in order to be tested for alcohol content. Accordingly, the trial court granted Rowland's motion to suppress the blood alcohol content (BAC) test results because of an implied consent statute in effect at the time of the test. We disagree with the trial court and vacate its order to suppress the BAC.

On October 15, 1989, Rowland was involved in an accident on Interstate 19, south of Tucson. A disabled vehicle had parked on the emergency shoulder. Rowland's vehicle hit the disabled vehicle and then struck two people standing near the disabled vehicle. One of those persons died before help arrived and the other died on the way to the hospital. Rowland's vehicle careened after the initial impact and struck two other people who were also standing on the road's shoulder. These two people both suffered serious injuries.

Officer Phillip Michael Cianciolo of the Department of Public Safety (DPS) arrived to investigate the accident. Cianciolo informed Rowland that he had the opportunity to be given medical attention at the accident scene and he declined such treatment at that time. Because of the seriousness of the accident, Cianciolo advised Rowland of his Miranda rights and administered field sobriety tests. As a result of those tests Cianciolo concluded that Rowland was driving under the influence of alcohol. Cianciolo then Mirandized Rowland a second time. Cianciolo placed Rowland in handcuffs, put him in his police car, gave him the Miranda warnings a third time and transported him to St. Mary's Hospital without his consent. Rowland had not requested any medical treatment prior to the time Cianciolo drove him to the hospital.

At the hospital, Cianciolo read Rowland the implied consent affidavit. Cianciolo told Rowland he was not under arrest but that charges would be filed pending the outcome of the traffic violation. After Rowland gave the blood pursuant to A.R.S. § 28-691, the implied consent law in effect at the time, he was transported to the pretrial services at the Pima County Jail.

Sergeant Edward J. Slechta, also of DPS, made the decision not to formally charge Rowland that night. He decided this because he believed that if misdemeanor charges were filed along with felony charges in the same case and Rowland pled guilty to the misdemeanor then it would be impossible to prosecute the felony charge. Slechta told Cianciolo to release Rowland from pretrial services without formally charging him.

Rowland filed a motion to suppress the BAC arguing that at the time Cianciolo invoked implied consent, i.e., at the time Rowland's blood was drawn, Rowland was not under arrest as contemplated by A.R.S. § 28-691. According to the pertinent part of that statute, a person who operates a motor vehicle in Arizona and is arrested for an offense arising out of acts which occurred while the person was driving under the influence of alcohol gives implied consent to a blood test.

The trial court granted Rowland's motion, holding that Rowland was not under arrest when Cianciolo invoked the implied consent law. The trial court made this determination because Cianciolo told Rowland that he was not under arrest and Rowland was released without being formally charged.

On appeal, the state raises two arguments. First, the state contends that because Rowland was under arrest, the trial court erred. We agree that Rowland was under arrest. Therefore, we need not reach the state's second argument, which is that Slechta's decision not to file formal driving under the influence charges was a good faith attempt to prevent preclusion of the manslaughter charges pursuant to Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990).

The issue of whether Rowland was under arrest is a mixed question of fact and law. When determining if an arrest has occurred, the trial court's legal conclusions "are especially susceptible of appellate review." State v. Winegar, 147 Ariz. 440, 445, 711 P.2d 579, 584 (1985).

It is undisputed that Cianciolo gave Rowland Miranda warnings, placed him in handcuffs, gave him Miranda warnings a second time, put him in the police car, gave him Miranda warnings again and drove him to the hospital without his consent. Our supreme court has held that an arrest occurs once the police interrupt and restrict a person's freedom of movement. State v. Ault, 150 Ariz....