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MacLeod v. State8/17/2001
e, that the blood test reading would likely be higher than the breath test reading. A reasonable person in Campbell's position would conclude that Oly "went off-record" in order to give her the kind of advice that he had just explained he should not give.
We do not accuse Sergeant Oly of dishonesty or of trying to manipulate MacLeod's choice in order to strengthen the State's case. The record strongly suggests that Oly was honestly trying to help Campbell and MacLeod, and that he turned the tape recorder off because he suspected that his advice to them might be inconsistent with the aim of obtaining the best evidence against MacLeod. Further, the record suggests that Oly's advice was accurate. Even MacLeod's attorney agreed that, in his experience, blood test readings tend to be higher than breath test readings.
But we reiterate our holding in Lau: a government officer having custody of a motorist arrested for DWI should not attempt to dissuade the motorist from invoking their right to an independent blood test. This prophylactic rule admittedly penalizes even the well-intentioned advice that Oly gave to Campbell in this case. But the rule is necessary to prevent mischief in a recurring situation that is fraught with the potential for governmental overreaching.
MacLeod was convicted at a bench trial. Normally, when a defendant is tried without a jury and we later conclude that some of the government's evidence should have been suppressed, we would vacate the defendant's conviction and direct the trial judge to re-assess the defendant's guilt or innocence without reference to the suppressed evidence. But in MacLeod's case, it appears that the bench trial was a "slow plea" - a procedure designed to allow MacLeod to preserve an appellate issue that was not dispositive for purposes of Cooksey v. State. After the district court denied MacLeod's suppression motion, not only did MacLeod waive his right to a jury, but he also agreed to be tried on stipulated facts.
Under these circumstances, we conclude that MacLeod should be given a choice: either to consent to a second bench trial, or to rescind his waiver of jury trial and be tried by jury.
MacLeod's conviction for driving while intoxicated is REVERSED, and this case is remanded to the district court for further proceedings on the complaint.
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