State v. Vannoy, 1
| Decision Date | 22 April 1993 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 866 P.2d 874,177 Ariz. 206 |
| Parties | STATE of Arizona, Appellee, v. David Allen VANNOY, Appellant. 91-0351. |
| Court | Arizona Court of Appeals |
In this case, we decide whether the state must provide a breath sample to a defendant charged with driving under the influence of alcohol when the defendant has given a deficient sample in the breath test, but the state still uses the test results at trial. Defendant David Allen Vannoy was convicted following a jury trial of one count of aggravated driving under the influence of alcohol, a class 5 felony. He appeals from his conviction and from the trial court's order suspending imposition of sentence and placing him on probation for three years. He raises the following issues on appeal:
1. whether the state's interference with his right to counsel required that the charge against him be dismissed;
2. whether the state's failure to inform him of his right to an independent blood alcohol test required that the charge against him be dismissed;
3. whether the state's failure to provide him with a breath sample for independent testing required the suppression of the breath test results that the state introduced at trial; and
4. whether the trial court abused its discretion in denying his motion to allow a previously undisclosed witness to testify.
We reverse and remand for a new trial because we conclude that the trial court erred in denying defendant's motion to suppress the breath test results.
On the evening of August 31, 1990, Scottsdale police officers observed defendant's automobile going forty miles per hour in a twenty-five mile per hour zone. When the officers stopped defendant, they found that he was driving on a revoked license and that he had alcohol on his breath. They arrested him for aggravated driving under the influence of alcohol. 1 The officers informed defendant of his Miranda rights 2 and of the provisions of Arizona's implied consent law, 3 and transported him to the police station for a breath test.
Defendant was tested twice on an intoxilyzer. The results indicated that the machine had received a deficient breath sample on both tests. Defendant was not advised of his right to have an independent test done, and no breath samples were preserved for him for this purpose.
At trial, the state's intoxilyzer expert, Lucien Haag, testified that a deficient sample can occur when the person being tested fails to blow all of the breath that is in his lungs into the machine. Haag explained that the reading obtained from a deficient sample will be lower than a person's actual BAC. Officers David Bickel and Philip Hazlett testified that defendant's breath samples were deficient because each time defendant took the test, he blew some of his breath out of the side of his mouth instead of into the machine.
Prior to trial, defendant filed a motion to suppress the test results. He also filed a motion to dismiss the charge against him on the ground that the officers had refused to allow him to call an attorney after he was arrested. The trial court denied both motions. Although defendant's breath samples were deficient, the state introduced the intoxilyzer results into evidence at trial. The first test registered a BAC of .194, and the second test registered a BAC of .161. On the basis of these results, Haag testified that defendant's actual BAC exceeded .10 when he took the tests and that it exceeded .21 when he was stopped by the police. Defendant filed a timely notice of appeal from his conviction and from the order suspending imposition of sentence and placing him on probation for three years.
Defendant initially argues that the trial court should have dismissed the charge against him because his right to counsel was violated. At the hearing on the motion to dismiss, defendant testified that he asked to speak with his attorney prior to taking the breath test. He maintained that the police told him just to take the test. Two police officers testified that defendant did not ask to call an attorney.
If defendant asked to speak with an attorney, he had a right to do so before taking the test. Ariz.R.Crim.P. 6.1(a); State v. Juarez, 161 Ariz. 76, 80, 775 P.2d 1140, 1144 (1989). The conflicting testimony, however, created an issue of fact as to whether defendant actually made such a request. The responsibility of resolving factual disputes rests with the trial court. State v. Tapia, 159 Ariz. 284, 288, 767 P.2d 5, 9 (1988). The trial court implicitly resolved the factual dispute in question against defendant in ruling that defendant had not been deprived of his right to counsel. Defendant does not claim that there is insufficient evidence to support such a finding. Under these circumstances, there is no basis for reversing the trial court's ruling.
Defendant also argues that the trial court should have dismissed the charge against him because the officers did not advise him of his right to an independent blood alcohol test. We conclude that the officers were not required to inform defendant of his right to an independent test under the circumstances of this case.
Defendant cites Montano v. Superior Court, 149 Ariz. 385, 719 P.2d 271 (1986), in support of his argument. In Montano, the court held that when the state charges a person with driving under the influence of alcohol (DUI), but chooses not to ask the person to submit to a blood alcohol test in accordance with the implied consent law, it must inform the person of his right to obtain an independent test. Id. at 389, 719 P.2d at 275. The court stated that since DUI cases are particularly susceptible to resolution by way of chemical analysis evidence, due process requires the state to provide DUI defendants with a fair chance to acquire this type of evidence when the state itself decides to forgo obtaining it. Id. at 391, 719 P.2d at 277. In contrast, due process does not require that a defendant be informed of his right to an independent test when the state invokes the implied consent law, because in that instance, the defendant is normally given the opportunity to obtain chemical analysis evidence in conjunction with the test that the state performs. State v. Miller, 161 Ariz. 468, 469-70, 778 P.2d 1364, 1365-66 (App.1989); State v. Ramos, 155 Ariz. 153, 155-56, 745 P.2d 601, 603-04 (App.1987). Since the officers in the present case asked defendant to take an intoxilyzer test in accordance with the informed consent law, defendant was not denied due process by the officers' failure to inform him of his right to an independent test.
Defendant next asserts that the trial court should have suppressed the breath test results because the state did not provide him with a breath sample for an independent test. The state responds that defendant waived this issue by raising it for the first time in his reply in support of the motion to suppress. Although the state made the same argument in the trial court, the trial court decided the issue on the merits and ruled that defendant had waived the right to his own sample by giving deficient samples both times that he was tested.
The fact that an issue may have been raised in an untimely fashion does not preclude this court from reviewing the trial court's ruling on the merits of the issue. See United States v. Ramos-Zaragosa, 516 F.2d 141, 144 (9th Cir.1975). Because defendant brought the state's failure to give him a blood sample to the trial court's attention in a manner that was sufficient to inform the trial court that the issue had not been waived and the trial court ruled on the issue, we will review the court's ruling. See State v. Briggs, 112 Ariz. 379, 542 P.2d 804 (1975).
The state next argues that defendant waived his right to have a breath sample preserved by failing to give an adequate sample. Beginning with Baca v. Smith, 124 Ariz. 353, 356, 604 P.2d 617, 620 (1979), Arizona cases have consistently held that a DUI defendant is entitled to a breath sample so that he may have the opportunity to challenge the state's test results by having the sample independently tested and by introducing the independent test results into evidence if they are more favorable to him than the state's results. See, e.g., Mongan v. Superior Court, 148 Ariz. 486, 487, 715 P.2d 739, 740 (1986); State v. Harrison, 157 Ariz. 184, 186, 755 P.2d 1172, 1174 (App.1988); State v. White, 155 Ariz. 452, 455, 747 P.2d 613, 616 (App.1987). While a defendant may waive his right to a sample, such a waiver must be voluntarily and intelligently made. See Mongan, 148 Ariz. at 487-88, 715 P.2d at 740-41.
The state notes that A.R.S. section 28-691(B) provides that a DUI defendant's failure to "successfully complete" the blood alcohol test will be deemed a refusal to take the test. It argues that by failing to give a sufficient sample in the present case, defendant in effect refused to take the test and waived his right to a sample. It cites Miller and Ramos in support of this contention. We disagree.
Section 28-691(B) only addresses the civil suspension penalty for refusing to take the test. 4 It does not govern the state's duty to preserve for independent testing breath samples obtained pursuant to the implied consent law. See Sherrill v. DOT, 165 Ariz. 495, 498, 799 P.2d 836, 839 (1990) (). Moreover, Miller and Ramos are readily distinguishable. Both hold that the state has no obligation to inform a defendant of his right to...
To continue reading
Request your trial
- State v. Dean
- The State Of Ariz. v. Rumsey
-
State v. Evans
... ... 172 Ariz. at 317, 836 P.2d at 1027. 1 ... We do not agree that the trial court abused its discretion under the facts presented. We are unable to follow the lead of the ... ...
-
State v. Reichert
... ... Bond, P.C. By Stephanie K. Bond Tucson Attorney for PetitionerKELLY, Judge. ¶1 Petitioner James Reichert seeks review of the trial court's order summarily dismissing his petition for post-conviction relief, filed pursuant to ... Juarez, 161 Ariz. 76, 80, 775 P.2d 1140, 1144 (1989); see also State v. Vannoy, 177 Ariz. 206, 209, 866 P.2d 874, 877 (App. 1993) ("If defendant asked to speak with an attorney, he had a right to do so before taking the test.") ... ...