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SNYDER v. STATE12/27/1996
attendant to DWI arrests." Op. at 1278.
Fairness and justice do not require the result reached here. It is one thing to impose a duty to aid in independent testing if the prosecution has access to highly-persuasive breath testing results. The most effective way to dispute such results is through independent testing. But because Snyder refused to give a breath sample, there are no police test results. Further, the record does not reveal that Snyder was precluded from arranging an independent blood test to be conducted while he was still in custody.
The duty the court now imposes creates procedural and practical problems which, assuming they can be surmounted by diligent and exacting police work, illustrate not only why imposing such a duty is a bad idea, but also why the existence of such a right is constitutionally improbable. Snyder demanded an independent test, but if the right now conferred has due process origins, at a minimum police must disclose the right to DWI arrestees; some will be incapable of making an informed decision whether to exercise the right. Presumably, also, the public must pay for an independent test if the arrestee cannot. Transporting arrestees to the place of independent testing will reduce the number of officers available to patrol actively for DWI offenders (or to respond to other reported crimes). I do not agree that the burden that will be imposed on the state (and other non-state law enforcement agencies) will only be "slight," Op. at 1279, but it also seems probable that collateral disputes will arise about whether the failure to provide independent testing for particular arrestees is excusable because it was in fact completely infeasible or could be obtained only after extraordinary effort. Assuming for sake of discussion that an arrestee is entitled to independent testing within two or three hours after arrest (keeping in mind that it is in the arrestee's interest to delay the test as long as possible), one can foresee that due process could require that an arrestee be transported over great distances. If there is no person qualified to draw blood for an independent test in the near vicinity, does due process require that the arrestee be transported to the nearest community by road or air at public expense?
Finally, the court fashions an unwarranted remedy which illustrates why no such right should be conferred. Reasoning that because police did not administer a breath test, there are no police test results to suppress,
the court requires the trial court on remand to "presume that the independent blood test Snyder sought, if provided, would have been favorable to him." Op. at 1280. Thus, Snyder, by refusing to give a breath sample to police, has the best of all worlds: he prevented police from gathering incriminating test results, and he receives a presumption that his independent blood test would have been exculpatory. Snyder's refusal, consequently, not only deprived the state of incriminating evidence, but generates the equivalent of exculpatory evidence. I am not suggesting that some other remedy, such as dismissal, would be appropriate. Instead, the remedy reveals the fundamental illogic in conferring any such right in the first place.
EASTAUGH, Justice, dissenting in part.
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