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State v. Bearly3/7/1991
Defendant was convicted of driving while intoxicated and of failure to maintain a traffic lane. He contends that he was denied his constitutional right to counsel, was denied his statutory right to make telephone calls after his incarceration, and was denied statutory and constitutional rights relating to release on bond. He argues that his convictions should be reversed because the violation of these rights caused him not to obtain a blood-alcohol test that could have been used in his defense.
We dispose of two matters summarily. First, because defendant fails to show, or even contend, that any of the alleged violations of his rights prejudiced the defense of the charge of failure to maintain a traffic lane, we affirm that conviction. Second, we reject the claim of denial of right to counsel because, as defendant acknowledges, recognition of that claim would require overruling our decision in . We will not revisit Sandoval, particularly since it does not appear that defendant preserved the issue below.
We hold that defendant's statutory right to make telephone calls was violated and remand for further findings and conclusions with respect to prejudice. For reasons stated below, we find it unnecessary to resolve the contentions relating to release on bond.
{PA}
Page 52} 1. BACKGROUND
NMSA 1978, Section 31-1-5(A) (Repl. Pamp. 1984) provides:
Following arrest, any person accused of a crime is entitled to have reasonable opportunity to make three telephone calls beginning not later than twenty minutes after the time of arrival at a police station, sheriff's office or other place of detention. Nothing in this subsection limits any right to make telephone calls at any time later than twenty minutes after the time of arrival at the police station.
We must determine whether defendant's statutory right was violated in this case and whether that violation justifies setting aside his conviction.
The procedural posture of this case is peculiar. The transcript of the district court proceedings is not before the court. We have only the district court's findings of fact and conclusions of law. The district court adopted as findings all but one of the factual allegations contained in defendant's motion to dismiss. The pertinent findings adopted from the allegations were:
1. That the defendant was arrested at 8:57 PM, and took a breath test at 9:26 PM.
....
5. That the defendant was processed in the Bernalillo County Detention Center at 11:00 PM.
....
7. That at approximately 11:30 PM, December 31, 1988, the defendant was allowed access to a telephone.
8. That upon receiving access to a telephone, the defendant attempted to place a telephone call but all "outside" lines were busy.
9. That upon informing the jail attendant that he could not reach an outside line to place his call he was told he would receive a call later and was denied access to a telephone until 10:00 AM the next morning, after arraignment.
....
25. That the gravamen of the offense, alcohol content of the blood, quickly dissipates and as a result thereof the defendant has been prejudiced by his deprivation of an ability to obtain an accurate blood alcohol level on his own to refute the state's contention or to consult with an attorney to advise him concerning such.
26. That the denial of the use of a telephone, within 20 minutes of arrival at the BAT Mobile, the place of detention or, alternatively if not the place of detention, for failure to take the accused to the nearest available judge
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