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State v. Jones2/20/1998
use "breath testing is generally regarded as highly reliable," , it is unlikely that a blood alcohol test by a person of Defendant's own choosing would have shown that Defendant was not driving while intoxicated.
{31} In this connection, we note that the trial court dismissed the "aggravated" portion of the DWI charge based, in part, on the failure to allow Defendant the opportunity to have his blood drawn by a person of his own choosing. Thus, this is not a case where Defendant is just over the limit and additional testing could well put him just under the limit. Cf. ) (reversing conviction and requiring suppression of blood test evidence where state did not preserve it and state's test results were right at legal limit, thereby establishing prejudice). Rather, this is a case where Defendant's own test would have had to have shown an error of 100% in the State's test. Defendant presented neither evidence nor argument with reference to authorities concerning the likelihood that his own test would have demonstrated an error of such magnitude. Thus, we hold that Defendant has failed to show that he was prejudiced by the violation of his statutory right to an independent chemical test in any way that would not have been cured by the remedy the trial court applied. Accordingly, Defendant is not entitled to any further remedy for the statutory violation. Because Defendant is not entitled to any further remedy, we need not consider whether dismissal of the charges or suppression of the blood alcohol evidence would be the appropriate remedy under different factual situations for a violation of Section 66-8-109.
{32} Defendant also contends that the statutory violation led to a violation of his due process rights. He contends that the appropriate remedy should be that applied in cases of lost or destroyed evidence. See generally . However, the trial court has discretion in determining the remedy to be applied in cases of lost or destroyed evidence, see , and we have long been committed to the rule that remedies for constitutional violations should be tailored to the injury suffered, see ); . Under the circumstances of this case, for the same reasons that the trial court's remedy was sufficient as a matter of statutory law, it was also sufficient as a matter of constitutional law. In other words, any possible prejudice suffered was cured by dismissing the "aggravated" portion of the DWI charge.
III. CONCLUSION
{33} We hold that: Defendant's arrest was lawful; the APD substantially complied with the notice requirements of Section 66-8-109(B); Section 66-8-109 allows an individual arrested for DWI an opportunity to arrange for a person of his or her choosing to both draw and analyze a blood sample; Defendant's statutory right to choose who draws his blood was violated; and Defendant failed to show that he was prejudiced by such a violation. For these reasons, we affirm Defendant's DWI conviction.
{34} IT IS SO ORDERED.
BENNY E. FLORES, Judge
WE CONCUR: LYNN PICKARD, Judge MICHAEL D. BUSTAMANTE, Judge
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