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Esque v. State8/25/1999
e proceedings." (Citations omitted.)
These findings are not clearly erroneous.
Esque next contends that her due process rights were violated because the trooper did not warn her or otherwise put her on notice that she was under investigation for DWI. She asserts that had she been warned, she would have had the opportunity to preserve her blood sample for retesting. She presents no authority supporting this contention, and she implicitly concedes that the troopers have no such duty by requesting this court to create a new rule for circumstances like hers.
In this case, as the state points out, while the trooper did not explicitly tell Esque that a DWI investigation was ongoing, or that any specific evidence would be used against her, Esque had to have known from her interaction with the trooper at the hospital that the trooper was indeed investigating the accident. It is unreasonable for Esque to assert that she did not understand that the trooper was investigating the accident, and a possible DWI, when the trooper told her that she needed to ask Esque some questions about the accident. Even though the trooper had no duty to give Esque the specific notice she now requests, considering the circumstances of the accident, Esque received sufficient warning that she was being investigated for DWI. Moreover, nothing in the record shows that the state did anything to affirmatively prevent Esque from asking that the hospital preserve or retest the blood sample.
Furthermore, while due process requires that a DWI defendant have an opportunity to obtain an independent test, Esque did get such a test--her test was administered by the hospital, not by or at the direction of law enforcement personnel. In Snyder, the supreme court found that due process requires that a DWI arrestee have an opportunity to get an independent test to collect possible exculpatory evidence. Snyder is satisfied in this case because Esque received an independent test.
Esque urges this court to give DWI suspects an opportunity for a second independent test. She asks this court to require law enforcement personnel to give DWI suspects notice of a right to an additional independent test in circumstances where an arrest has not yet been made, and an independent blood test has already been done. The circumstances of this case provide no justification for the rule Esque requests. We find no violation of Esque's due process rights.
We AFFIRM the conviction.
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