State v. Transon

GERBER, Judge,

dissenting.

I respectfully dissent because counsel’s advice could have been helpful to this defendant. In that light, the trial court’s ruling was not an abuse of discretion.

The due process clause guarantees independent evidence of sobriety. The right to obtain independent evidence is not contingent upon taking the breath test. Smith v. Coda, 114 Ariz. 510, 512, 562 P.2d 390, 392 (App.1977). If allowed to speak to Transon, Bemis could have informed him about his rights under the due process clause. He also could have asked him pertinent questions similar to those in State v. Holland, 147 Ariz. 453, 455, 711 P.2d 592, 594 (1985). Based on these questions, Bemis could have advised him to take the breath test and/or ask for an independent test to develop exculpatory evidence. Subsequent consent to a breath test cures a prior refusal unless the delay would materially affect the test result or substantially inconvenience the police. Gaunt v. Motor Vehicle Div., Dept. of Tramp., State of Ariz., 136 Ariz. 424, 427, 666 P.2d 524, 527 (App.1983). Taking the test 10 to 15 minutes after the refusal would not have materially affected the test and, because the police already had the machine ready, any inconvenience would have been slight.

Thus, even at 10:00 p.m., Bemis could have (1) asked pertinent questions; (2) advised Transon to take the test and thereby rendered inadmissible his prior refusal; and (3) advised Transon to submit to independent testing to obtain exculpating evidence. Any one of these factors could have benefitted Transon. In light of Houston, 230 Cal.Rptr. 141, 724 P.2d 1166, and given that our standard of review is abuse of discretion, the trial court properly exercised his discretion in finding, in effect, that Bemis’ advice, had he been allowed to give it, could have been helpful to Transon. I would affirm his ruling.