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State v. Rosengren11/16/2000
AFFIRMED
The state appeals from the trial court's or der suppressing certain evidence relevant to the sole charge of manslaughter against defendant/appellee John Rosengren. Rosengren cross- appeals from that order, contending the trial court should have dismissed the case with prejudice. We affirm.
BACKGROUND
We view the evidence presented at the suppression hearing in the light most favorable to sustaining the trial court's ruling. State v. Bentlage, 192 Ar iz. 117, , 961 P. 2d 1065, (App. 1998). At approximately 1:30 a. m. on February 28, 1999, Rosengren was the driver in a single-vehicle, r ollover accident that resulted in the death of his passenger. After the accident, paramedics at the scene examined Rosengren, who told them he had been drinking. The paramedics detected no signs of alcohol ingestion or impairment.
Rosengren also told investigating police officers at the scene that he had consumed alcohol before the accident. The on-scene officers observed the following possible signs of alcohol impairment on Rosengren: a strong odor of intoxicants on his breath, flushed face, bloodshot and watery eyes, slurr ed speech, a noticeable stagger while walking, and a sideways body sway. An officer read Rosengren the Miranda warnings, and Rosengren invoked his right to remain silent. The officer interpreted that as a refusal to perform any field sobriety tests and did not ask Rosengren if he would perform them. Unbeknownst to Rosengren, the officer audiotaped and videotaped the investigation.
The police handcuffed Rosengren and transported him to St. Mary's Hospital to obtain a blood sample, arriving there at 2:32 a. m. Officers then urged Rosengren several times to provide a blood sample and told him he could go home after doing so. At 2:39 a. m., Rosengren asked to contact his father and informed the officers that the father was an out-of-state attorney. The police denied that request and instead offered Rosengren the oppor tunity to call any local attorney listed in the Tucson telephone book, in fact, urging him to do so. Rosengren declined that offer. He also refused to give a blood sample.
After declining Rosengren's request that he call his father, and after deciding to arrest Rosengren, one of the officers administered a horizontal gaze nystagmus (HGN) test by observing Rosengren's eyes while using a pen as a stimulus. The officer then formally arr ested Rosengren at 2:58 a. m. for driving under the influence of intoxicating liquor (DUI). T he officer informed Rosengren of Arizona's implied consent law, A. R.S. § 28-1321, and again denied his repeated request to talk to his father. Rosengr en still refused to give a blood sample.
At 3:15 a. m., the police obtained a telephonic search warrant and obtained two gray-topped tubes of Rosengren's blood, drawn by a hospital phlebotomist at 3:28 a. m. The phlebotomist also drew two additional, red-topped tubes of Rosengren's blood for hospital purposes. At 4:00 a. m., an officer booked Rosengren into the Pima County jail, where he apparently remained until sometime later that morning.
Rosengren was indicted for manslaughter. Alleging a violation of his right to counsel and to due process, Rosengren moved to dismiss the charge with prejudice. F ollowing an evidentiary hearing, the trial court found that the police had violated Rosengren's "right to remain silent and right to consult with counsel of his choice in a situation where such would not interfere with the investigation." Based on those findings, the tr ial court suppressed the following evidence: the results of the state's blood test and of the HGN test, Rosengren's refusal to vo
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