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Smallridge v. State6/20/2005
McNutt v. Sup. Ct. of Ariz., 648 P.2d 122 (Ariz. 1982) (dismissing case because the police had not allowed the defendant to call his attorney while in custody, and an independent blood-alcohol test taken upon his release two and one-half hours after the traffic stop would have been meaningless); State v. Strand, 951 P.2d 552, 554 (Mont. 1997) (observing that the right to obtain an independent blood test is rendered futile unless the defendant is apprised of such right upon arrest, due to "the evanescent character of blood alcohol evidence"), overruled on other grounds, State v. Minkoff, 42 P.3d 223 (Mont. 2002) (holding that dismissal is the proper remedy for such a due-process violation, rather than the suppression remedy approved in Strand); Montano v. Sup. Ct. in Pima County, 719 P.2d 271, 275 (Ariz. 1986) (stating that the defendant must be informed of the right to obtain an independent blood-alcohol test "prior to dissipation"). Indeed, the availability to appellant of an independent test at a nearby hospital, alluded to in the court's order, appears a problematic remedy in that, as the record discloses, law enforcement impeded appellant's opportunity to be made aware of such right.
Although Smallridge lacked the right to refuse the test authorized by section 316.1933(1)(a), he retained the choice under the statute of seeking an independent test; that option, however, was effectively denied him by the officers' active interference with his right to confer with an attorney. Because, under the circumstances, I consider it impossible to conclude that the officers rendered reasonable assistance to appellant in seeking the administration of an independent test, I am convinced the demands of the statute require nothing less than suppression of the blood-alcohol test results.
I also am of the opinion that reversal and remand is demanded as to the issue regarding the admission of photographic evidence. In so saying I note that the defense stipulated during trial that the victims had died during the accident. As a result of this agreement, the trial court ruled the testimony of the medical examiner who conducted the autopsies of the victims was irrelevant, and, even if relevant, the potential for prejudice outweighed the probative value of such evidence. In my judgment, the trial court should have ruled similarly in regard to the submission of the photographs, which the state argues were admissible for the purpose of showing the crash damage of the vehicle occupied by the victims in order to corroborate the opinion of the state's expert witness as to the speed of appellant's Jeep at the time of impact. The difficulty with the state's argument is that such evidence was amply displayed to the jurors by the admission of photographs of the damaged vehicle after the victims' bodies were removed. I might add that the photographs here at issue were not exhibited simply as blown-up photographs, but were placed on an enlarged screen as part of a Power Point presentation during the testimony of the state's accident reconstructionist.
Under the circumstances, I conclude, as did the Fourth District in Hoffert v. State, 559 So. 2d 1246, 1249 (Fla. 4th DCA 1990), the trial court abused its discretion in admitting the blown-up photographs into evidence, because whatever minimal relevant value such evidence may have offered was far outweighed by the danger of unfair prejudice. As a result of the gravity of these two errors, I firmly believe nothing other than a new trial can be allowed, together with directions that the above evidence be excluded.
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