The State Of Ariz. v. Rumsey

• Citation: 238 P.3d 642,590 Ariz. Adv. Rep. 35,225 Ariz. 374
• Decision Date: 31 August 2010
• Docket Number: No. 2 CA-CR 2009-0041.,2 CA-CR 2009-0041.
• Parties: The STATE of Arizona, Appellee, v. Glenda Lorraine RUMSEY, Appellant.
• Court: Court of Appeals of Arizona

225 Ariz. 374

238 P.3d 642

590 Ariz. Adv. Rep. 35

The STATE of Arizona, Appellee,

v.Glenda Lorraine RUMSEY, Appellant.

No. 2 CA-CR 2009-0041.

Court of Appeals of Arizona,Division 2, Department B.

Aug. 31, 2010.

Terry Goddard, Arizona Attorney General By Kent E. Cattani and Amy M. Thorson, Tucson, Attorneys for Appellee.

Robert J. Hirsh, Pima County Public Defender By Michael J. Miller, Tucson, Attorneys for Appellant.

OPINION

VÁSQUEZ, Presiding Judge.

¶ 1 In this opinion we address whether the trial court erred by not suppressing evidence of blood-test results after concluding the defendant's right to counsel had been violated at the time the blood draw occurred. For the reasons that follow, we conclude the court did not so err and affirm its ruling on that issue. ¹

Facts and Procedure

¶ 2 We view the facts in the light most favorable to sustaining the jury's verdicts. State v. Miles, 211 Ariz. 475, ¶ 2, 123 P.3d 669, 670 (App.2005). On the evening of January 12, 2008, J. and O. were riding their bicycles in the eastbound bicycle lane on Broadway Boulevard in Tucson. After crossing Vozack Lane, O. felt something hit him and then saw J. “flying in front of [him].” O. got up from the ground and ran to J., who was unresponsive. O. looked around and saw a “small SUV or a car, a few yards maybe, in front of [them.] ... [I]t was red, [and] driving off.” J. died as the result of head injuries, and O. suffered a dislocated tailbone, bruises, and scratches.

¶ 3 Glenda Rumsey, the driver of the vehicle that had struck J., stopped her vehicle and walked back to the accident scene, where she remained until police officers arrived. The officers noticed Rumsey had an odor of alcohol and was unable to walk straight. One officer administered the horizontal gaze nystagmus (HGN) test, and Rumsey displayed six out of six possible cues of impairment. She was arrested and charged with manslaughter, aggravated assault of a minor under fifteen years of age, driving under the influence of an intoxicant (DUI) while impaired to the slightest degree, driving with an alcohol concentration of .08 or more, driving while under the extreme influence of intoxicating liquor with an alcohol concentration of .15 or more, and leaving the scene after causing an accident resulting in death or serious physical injury. The jury acquitted her of leaving the scene of an accident, found her guilty of the remaining charges, and found the manslaughter and aggravated assault charges were dangerous-nature offenses. After an aggravation and mitigation hearing, the trial court sentenced Rumsey to concurrent, enhanced, partially aggravated terms of fourteen and thirteen years for manslaughter and aggravated assault respectively and to 180 days in jail for the DUI offenses. This timely appeal followed.

Discussion

¶ 4 Rumsey argues the trial court erred in not suppressing the results of her blood tests despite finding Detective Barrett had violated her right to counsel before officers completed the first blood draw. Specifically, she contends this violation required suppression of the blood test results under Arizona law. Whether evidence should have been excluded as the result of a deprivation of counsel is “a mixed question of fact and law implicating constitutional questions. As such [the court's determination] is reviewed de novo.” State v. Hackman, 189 Ariz. 505, 508, 943 P.2d 865, 868 (App.1997). And we will affirm the trial court if it is correct for any reason. State v. Cañez, 202 Ariz. 133, ¶ 51, 42 P.3d 564, 582 (2002).

¶ 5 While at the accident scene, Rumsey spoke with her attorney by telephone for approximately six minutes and then informed an officer that the attorney would arrive in about fifteen minutes. When he had not arrived within twenty minutes, Rumsey was taken to the police substation at 8:35 p.m. The attorney arrived at the accident scene approximately fifteen minutes later and agreed to follow Detective Barrett to the substation. En route, Barrett noticed the attorney had turned the opposite direction when Barrett had made a left turn. Barrett continued on to the substation and was notified at 9:27 p.m. that the attorney had arrived.

¶ 6 Meanwhile, around 9:10, Rumsey had consented to a blood draw. Before conducting the draw, Barrett decided to obtain a warrant for three separate blood draws, spaced one hour apart. The search warrant was issued at 9:26 p.m., served on Rumsey at 9:28, and the first blood draw occurred at 9:31, four minutes after Barrett had been informed that Rumsey's lawyer had arrived at the substation. Rumsey then consulted with counsel before the two subsequent blood draws.

A. Violation of right to counsel

¶ 7 Before trial, Rumsey moved to suppress statements she had made during the initial blood draw and the results of all three blood tests, arguing they had been “obtained in violation of her right to counsel.” The trial court found:

The real interference with the right to counsel arises when Barrett tells Rumsey, at about 9:10 p.m., you can “talk to [counsel] after the first blood draw[.]” ... That statement is made twenty minutes before the first blood draw and before Barrett had even attempted the search warrant call to the Judge.... And, Barrett testified that he knew [the attorney] was there at 9:27 p.m. Notwithstanding Barrett's wish to conclude the search warrant call and blood draw, there is no reason [the attorney] could not have been given a minute or two with Rumsey prior to the blood draw. The urgency of the timing of the blood draw is lessened when one considers that Rumsey consented to give blood at 9:10 p.m.

....

... It is the State's duty to prove that the exercise [of the right to counsel] would unduly interfere with the investigation. The State did not.

¶ 8 Rule 6.1, Ariz. R.Crim. P., provides that a suspect is entitled to the advice of counsel “as soon as feasible after [he or she] is taken into custody.” “[I]t is only when the exercise of that right will hinder an ongoing investigation that the right to an attorney must give way in time and place to the investigation by the police.” Kunzler v. Superior Court, 154 Ariz. 568, 569, 744 P.2d 669, 670 (1987). It is the state's burden to demonstrate that allowing the suspect to consult with counsel when requested would have disrupted the police investigation. State v. Juarez, 161 Ariz. 76, 81, 775 P.2d 1140, 1145 (1989).

¶ 9 In DUI-related investigations generally, “[i]nforming the driver that he may not call his attorney before taking [a blood or breath] test misstates the law and violates the driver's right to counsel.” Id. However, that is not what happened in this case. Under the circumstances here, we disagree with the trial court that Barrett's statement to Rumsey at 9:10 p.m. deprived her of the right to counsel. As noted above, before the statement was made, officers already had honored Rumsey's request to speak with counsel at the accident scene. She was provided a cellular telephone and spoke with counsel for six minutes. After the attorney arrived at the accident scene, Barrett invited him to follow Barrett to the police substation. The attorney stated he would do so but then did not. Consequently, neither Barrett nor any of the officers at the substation knew where he had gone and when, or even whether, he would arrive. ² Additionally, Rumsey consented to the blood draw after having already spoken with counsel at the accident scene. And, when Barrett first learned at 9:27 p.m. that the attorney had arrived at the substation, he had by then obtained a warrant for the blood draw.

¶ 10 Although we disagree with the trial court's ruling that Barrett's statement at 9:10 amounted to a violation of Rumsey's right to counsel, we agree that she was denied that right after the attorney made his presence at the substation known. The state contends no violation occurred because it established that allowing Rumsey to consult with counsel after his arrival at the substation would have hindered the investigation. ³ In support of this argument, it cites testimony by the investigating detectives that “her blood alcohol concentration [wa]s diminishing the longer [they] st[oo]d there,” “time was of the essence,” and blood samples should be obtained “as quickly as possible.”

¶ 11 However, these considerations apply in every DUI investigation in which blood alcohol evidence is sought. Nothing in the officers' testimony or the state's argument to the trial court suggested there were any exigent circumstances here necessitating taking Rumsey's blood immediately. Indeed, as the court noted, the argument that Rumsey's blood needed to be drawn “as quickly as possible” was undermined to some extent by Barrett's decision to delay the blood draw in order to obtain a warrant, despite the fact that Rumsey already had consented to the test. Barrett testified at the suppression hearing that “[o]btaining the search warrant was [his] first priority. Obtaining her blood, within a reasonable amount of time, was [his] second priority.” Thus, we cannot say the court abused its discretion in concluding the state failed to meet its burden of establishing that its investigation would have been hindered by allowing Rumsey to consult with counsel before the blood draw.

B. Remedy for violation of counsel

¶ 12 We next must address the appropriate remedy for the violation of Rumsey's right to counsel. She argues that, under Arizona law, the automatic remedy for a violation of the right to counsel in DUI cases is dismissal of DUI charges and suppression of the blood test results and any additional evidence obtained after the violation pertaining to all other charges. Thus, she asserts, the trial court erred in suppressing only statements she had made “at and about the time of the first blood draw.” The state counters that suppression of the blood evidence was not required because the blood draw was conducted pursuant to a search warrant and there was no...