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State v. Olcan1/28/2003
AFFIRMED
The State appeals from the trial court's dismissal of two counts of aggravated driving under the influence , class four felonies. See Ariz. Rev. Stat. ("A.R.S.") § 28-1383(A)(1) (Supp. 2000). For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
Peter Olcan ("Olcan") was arrested for driving under the influence . Olcan spoke privately with his lawyer and then consented to a blood test. When Olcan asked for the opportunity to have an independent blood sample drawn, a police officer told him that one could be arranged from jail.
Shortly after being transported to the Mesa City Jail, Olcan made repeated requests for an independent blood draw. However, he was not given an opportunity to arrange one. Olcan was later booked into the county jail and released the following day. Olcan moved the trial court to dismiss the charges, arguing that the police officers interfered with his ability to arrange for an independent blood draw. Olcan's lawyer read a series of stipulated facts into the record and submitted a written stipulation to the court. The court granted the motion, stating, There's nothing in the hearing that we did the other day that would indicate that taking a blood sample at the Mesa City Jail would be unreasonable.
Under the circumstances of this case, the defendant repeatedly asked for an independent blood sample and was never given an opportunity. I don't believe that saving the extra tube complies with the statute because the statute talks about an independent blood test, not saving a sample of a test that's given.
. . . hen somebody requests [an independent blood draw], repeatedly requests it, and when it's reasonable to allow him that opportunity to call his lawyer again and arrange for it, I think you do have to do that. The statute's clear, in my mind.
The State timely appeals, and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1) (1992) and 13-4032(1) (2001).
DISCUSSION
The State presents two arguments on appeal: first, that a defendant has no statutory right to an independent blood draw when the State has collected and preserved a sample to be tested; and second, that even if there was such a right, the trial court erred in determining that the State denied Olcan a reasonable opportunity to exercise that right. We review the trial court's dismissal of the charges for an abuse of discretion. See State v. Sanchez, 192 Ariz. 454, 456, 4, 967 P.2d 129, 131 (App. 1998). We first consider whether Olcan had a right to seek an independent blood draw. We review the trial court's constitutional and statutory interpretations de novo. Mack v. Cruikshank, 196 Ariz. 541, 544, 6, 2 P.3d 100, 103 (App. 1999).
Both parties agree that a defendant has the right to seek a private blood draw if the State does not administer a blood test. This right is derived from a defendant's due process right to gather exculpatory evidence, Van Herreweghe v. Burke, 201 Ariz. 387, 389, 8, 36 P.3d 65, 67 (App. 2001), and is codified at A.R.S. § 28-1388(C) (Supp. 2001), which states in part: The person tested shall be given a reasonable opportunity to arrange for any physician, registered nurse or other qualified person of the person's own choosing to administer a test or tests in addition to any administered at the direction of a law enforcement officer.
(Emphasis added.) However, the State argues that, when police officers have already collected a sample of a defendant's blood, the defendant has no right to an independent blood draw. Instead, the State asserts that the defendant's right is satisfied by allowing him to arrange for an
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