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State v. Kemp8/21/1990
Bret John Kemp appeals from a jury verdict finding him guilty of manslaughter using a dangerous instrument (an automobile), driving a motor vehicle under the influence of intoxicating liquor while his license was suspended and driving a motor vehicle with a .10 percent or more blood alcohol content while his license was suspended. He was sentenced to mitigated, concurrent prison terms, the longest being five years on the manslaughter conviction.
FACTS
On January 5, 1989, appellant drove into the pathway of an oncoming automobile. The collision caused the death of the other driver.
Police and emergency medical assistance arrived at the scene shortly after the accident. According to police, appellant smelled of alcohol before being taken to the hospital. Less than two hours later Officer Ickes arrived at the hospital to collect a blood sample from appellant. Although appellant had not been placed under
arrest, Officer Ickes requested a blood sample and advised appellant that if he did not consent, his license would be suspended. Appellant gave his consent. See A.R.S. § 28-691(B).
Officer Ickes then inquired whether the hospital intended to take appellant's blood for medical purposes and, if so, whether blood had already been drawn. The hospital employee answered in the affirmative to his first question and informed him that blood had not yet been drawn from appellant. Soon thereafter, hospital technicians drew four vials of blood, two for the hospital and two for the police. The record does not show that the hospital ever conducted a blood-alcohol test.
Appellant argued to the trial court that his blood was taken illegally. The trial court denied appellant's suppression motion, and the jury found him guilty of the above-stated offenses. This appeal followed.
ISSUES
Appellant contends the trial court erred in failing to suppress the blood alcohol results obtained from his blood sample. For the following reasons, we reverse.
Discussion
Appellant makes essentially two claims related to his suppression argument. First, he asserts that the blood was seized improperly by the state. In the alternative, he argues suppression was required because the police did not advise him of his right to obtain an independent blood test or a portion of the blood sample drawn by the hospital.
The state must show by a preponderance of the evidence that the blood sample was obtained lawfully. State v. Howard, 163 Ariz. 47, 785 P.2d 1235 (App.1989). On review, we will consider the facts most favorably to upholding the trial court's ruling. Id. Absent clear and manifest error the ruling will not be disturbed. State v. Gerlaugh, 134 Ariz. 164, 654 P.2d 800 (1982); State v. Howard, supra.
I. A.R.S. § 28-692(M)
The state may obtain the blood of a person suspected of driving while under the influence pursuant to A.R.S. § 28-692(M). This statute provides:
Notwithstanding any provision of law to the contrary if a law enforcement officer has probable cause to believe that a person has violated this section and a blood sample is taken from that person for any reason a portion of that sample sufficient for analysis shall be provided to a law enforcement officer if requested for law enforcement purposes . . . .
This exception may be invoked "if 1) probable cause exists to believe the person has violated A.R.S. § 28-692(A) or
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