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State v. Kemp6/11/1991
The State of Arizona (State) petitioned for review of the court of appeals' decision reversing Bret John Kemp's (Kemp) conviction for manslaughter and driving while under the influence (DWI) charges. We granted review to determine whether law enforcement officers, when obtaining a blood sample pursuant to A.R.S. § 28-692(M), must advise the suspect of his right to obtain a portion of the same sample. We ordered supplemental briefing on whether a legitimate distinction may be drawn between blood testing and breath testing so that the due process standards established by this court in Baca v. Smith, 124 Ariz. 353, 604 P.2d 617 (1979), and its progeny need not be applied in blood testing cases. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. § 12-120.24.
FACTUAL AND PROCEDURAL BACKGROUND
On January 5, 1989, Kemp drove his automobile into the path of an oncoming vehicle, causing the death of the other driver, Hung Quoc Luu. Following the accident, police and other emergency vehicles arrived on the scene. An ambulance took Kemp to Sierra Vista Community Hospital. According to police testimony, Kemp smelled of alcohol prior to being transported, as well as during his questioning at the hospital.
Less than two hours after the accident, Officer Eric Ickes of the Arizona Department
of Public Safety (DPS) arrived at the hospital to obtain Kemp's blood sample. Although Kemp was not under arrest at that time, Officer Ickes received Kemp's consent to blood sampling after informing him that if he did not consent, his license would be suspended pursuant to A.R.S. § 28-691(B), the implied consent statute. He did not advise Kemp of his right to an independent blood test.
A hospital employee then drew four vials of Kemp's blood using DPS's vacutainer blood collection kit. A criminalist at the DPS crime laboratory in Phoenix performed a gas chromatography test that revealed a blood alcohol content (BAC) of .17 percent.
Kemp argued at trial that the blood test results should be suppressed because the blood was improperly seized by the State and, alternatively, that the police did not advise him of his right to obtain an independent test or a portion of the blood sample drawn at the hospital. The trial court, however, admitted the test results over Kemp's objections. The jury found 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. The trial court sentenced him to concurrent, mitigated prison terms, the longest being five years on the manslaughter conviction.
The court of appeals reversed the convictions on the manslaughter and DWI with a suspended license charges and remanded for a new trial. It dismissed with prejudice Kemp's conviction of DWI with a .10 percent or more blood alcohol content.
Discussion
Once again we are presented with a due process question in a DWI case. The State argues that the court of appeals created a new right that due process does not require. It claims that due process does not require law enforcement officers to advise a DWI defendant that he may obtain a portion of a blood sample seized because (1) blood testing leaves a portion of the seized blood sample available for independent testing by the defendant, and (2) blood testing is so accurate that an inde
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