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State v. Keyonnie3/14/1995
EHRLICH, Judge
The state appeals the trial court's dismissal with prejudice of the charges pending against Vincent Keyonnie ("defendant"). Be-cause we find that the trial court erred, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
At approximately 4:40 a.m. on May 24, 1992, Officer Steve Garnett of the Winslow Police Department found the defendant asleep behind the wheel of a 1990 Chevrolet pickup, its lights on and the engine running. Recognizing the defendant from earlier encounters, and recalling that his driver's licence was suspended, Officer Garnett arrested the defendant. The officer also noted the distinct odor of alcohol and the defendant's slurred speech and difficulty standing. The defendant was taken to the Winslow Police Department and read his Miranda rights. The defendant responded: "Lawyer present today, right now."
Despite the request for an attorney, Officer Garnett continued processing the defendant. He advised him of the Implied Consent Law, Ariz. Rev. Stat. Ann. ("A.R.S.") section 28-691, and, after waiting the required twenty-minute observation period, adminis-tered an Intoxilyzer Breath Test. The test showed the defendant's blood-alcohol concentration ("BAC") to be .166%. The defendant was also informed of his right to obtain an independent blood test, a right that he stated he wished to exercise. Officer Garnett then released the defendant and drove him to a hospital in Winslow so that he might arrange for the blood test. Approximately 30 to 35 minutes elapsed between the time the defendant requested an attorney and his release.
The defendant was charged with one count of aggravated driving under the influence of intoxicating liquor ("DUI") and on a suspended license, a class 5 felony, and one count of aggravated driving with a BAC of .10% or more, also a class 5 felony. At the pre-trial voluntariness hearing, Officer Garnett testified that he did not believe that he had provided the defendant with an opportunity to contact an attorney. The trial court found that the defendant had requested an attorney, that he was not provided an occasion to contact one and that contacting an attorney prior to the administration of the breath test would not have interfered with the officer's investigation. The court also stated that there was no evidence indicating that the officer had interfered with the defendant's efforts to obtain exculpatory evidence nor was there any showing that any exculpatory evidence was lost or destroyed during the 30 to 35 minute period at issue. Nonetheless, based upon the decisions in McNutt v. Superior Court, 133 Ariz. 7, 648 P.2d 122 (1982), and State v. Holland, 147 Ariz. 453, 711 P.2d 592 (1985), the court dismissed both counts with prejudice, ruling that dismissal, and not suppression of the breath test, was the remedy for the violation of the defendant's Sixth Amendment right to counsel. The state timely appealed.
Discussion
On appeal, the state concedes that Officer Garnett interfered with the defendant's right to counsel but argues that the remedy for that violation should be suppression of the breath test results and not dismissal of the charges with prejudice. We agree.
The right to counsel triggered in this case is that found in Arizona Rule of Criminal Procedure 6.1(a), which recognizes the federal and state constitutional right to counsel. The Arizona Supreme Court has made it clear that, in a criminal DUI case, "it 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 pla
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