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Hernandez v. State7/20/2001
ents, and he did not know for sure whether her advice was right or wrong. For this reason, Terland declared, he did not purposely do anything to demonstrate either agreement or disagreement with the receptionist's statements.
But although Terland may not have subjectively intended to confirm the receptionist's false information, Judge Wood nevertheless concluded that the officer's gesture was "ambiguous". By labeling the officer's conduct "ambiguous", Judge Wood appears to have found that Hernandez (and other reasonable persons in his position) could reasonably have interpreted the officer's conduct as a confirmation of the receptionist's statements.
As we held in Lau, the officer's good faith is not determinative of whether the officer's conduct violated Hernandez's right to due process. Hernandez interpreted the officer's conduct as a confirmation that the blood test result would not be admissible. If Hernandez acted reasonably in reaching this interpretation, then the State should be held accountable for the consequences of the officer's conduct - accountable for the fact that the officer's conduct was a substantial factor in dissuading Hernandez from pursuing his right to an independent blood test.
If, on the other hand, Hernandez's interpretation of the officer's conduct was unreasonable, then we would be left to resolve a more difficult issue: whether, under the circumstances of this case, Officer Terland was under an affirmative duty to rebut or at least question the receptionist's statements.
Because this issue is more difficult, and because we would not need to resolve this issue if Hernandez's interpretation of the officer's conduct was reasonable, we conclude that we should remand Hernandez's case to the superior court. As we explained above, Judge Wood labeled Terland's conduct "ambiguous"; it thus appears that Judge Wood may have already found that Hernandez acted reasonably when he interpreted Terland's conduct as a confirmation of the receptionist's statements. But Judge Wood did not focus on this issue as potentially determinative of the litigation, so we believe that the prudent course lies in remanding this case to him for an express finding on this question.
Judge Wood should determine whether, under the totality of the circumstances, Hernandez's interpretation of Terland's conduct was reasonable. Judge Wood is authorized, but is not obliged, to receive additional evidence on this issue. The judge shall transmit his finding(s) to this court within sixty days of the issuance of this opinion. We will then renew our consideration of Hernandez's appeal.
Conclusion
This case is REMANDED to the superior court to determine whether Hernandez's interpretation of Terland's conduct was reasonable.
We retain jurisdiction of this case.
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