San Dego DUI criminal defense attorneys come across the situation where the California police claim the client was following too close. That might not have been the case.

In the below DUI case, the driver was found by the court following the vehicle in front of him too closely.

Drunk Driving cop found not credible on the distance between the cars.

The police officer noticed that Mohammed was repeatedly tapping his breaks, but he was unable to definitively state that this was not the result of the lead car varying its speed.

DUI evidence suppressed!

--- S.E.2d ----, 2010 WL 2106049 (Ga.App.)

Court of Appeals of Georgia.
The STATE
v.
MOHAMMED.


No. A10A1188.

May 27, 2010.


JOHNSON, Judge.


*1 Following his arrest for driving under the influence of alcohol, Andy Jason Mohammed filed a motion to suppress evidence collected during what he claimed was an invalid traffic stop. The state now appeals from a trial court order granting the motion to suppress. Based on our limited standard of review in considering judgments on motions to suppress, we affirm.


When considering the appeal of a grant or denial of a motion to suppress, the trial court sits as the trier of fact, and this Court construes the evidence in favor of the trial court's ruling.FN1 We must defer to the trial court's determination on the credibility of witnesses; and while we review de novo the trial court's application of the law to undisputed facts, we must accept the trial court's ruling on disputed facts unless it is clearly erroneous.FN2


FN1. State v. Swift, 232 Ga. 535, 536(1) (207 S.E.2d 459) (1974).



FN2. Burke v. State, 302 Ga.App. 469 (691 S.E.2d 314) (2010).



So viewed, the evidence shows that shortly after midnight on the morning of August 6, 2008, a police officer with the Cobb County Police Department observed two vehicles traveling in a westerly direction on Powder Springs Road. That portion of the road has two lanes designated for westerly traffic, but both vehicles were in the same lane, with the car driven by Mohammed in back of the other car.


The police officer followed the vehicles for approximately two miles. During that time, Mohammed made no improper lane changes, maintained his lane, and traveled at approximately 45 miles per hour, which was the posted speed limit. The police officer noticed that Mohammed was repeatedly tapping his breaks, but he was unable to definitively state that this was not the result of the lead car varying its speed.


The police officer testified that he believed Mohammed was following too closely, in violation of OCGA § 40-6-49(a), and he conducted a traffic stop of Mohammed's car. Based on evidence collected during the traffic stop, Mohammed was charged with driving under the influence of alcohol.


Under Georgia law, a police officer may conduct a brief investigative stop of a vehicle if the stop is “justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” FN3 In addition, the stop of a vehicle is also authorized if the police officer reasonably believed that he observed a traffic violation.FN4 In support of his claim that the traffic stop was valid, the police officer testified that Mohammed “appeared to be having trouble ... estimat[ing] the distance in between him and the vehicle in front of him” and that the distance between Mohammed's vehicle and the lead car was less than “advisable when following people on roadways generally.”


FN3. (Footnote omitted.) Proctor v. State, 298 Ga.App. 388, 390(1) (680 S.E.2d 493) (2009); see also Vansant v. State, 264 Ga. 319, 320-321(2) (443 S.E.2d 474) (1994).



FN4. McBride v. State, 246 Ga.App. 151, 152 (539 S.E.2d 201) (2000); see also Proctor, supra.



Mohammed disputed the police officer's claims that he was following too closely. For reasons not clear to this Court, the trial court apparently found that the police officer was not credible and rejected much of his testimony. For example, while the police officer testified that the distance between the two vehicles was approximately one car length, the trial court found that the distance “very likely” exceeded one car length. While the police officer testified that he provided Mohammed with enough space to allow him to change into the other lane for westerly traffic, the trial court found that Mohammed could not have merged into that lane because of the presence of the officer's patrol car. In addition, the trial court apparently agreed that the lead car was not maintaining a constant speed and found that Mohammed's repeated tapping of the breaks resulted from his attempt to maintain the speed limit. Based on these findings, the trial court concluded that the police officer did not have a valid cause for initiating the stop of Mohammed's car.


*2 The state claims that the police officer's testimony was substantiated by his patrol car video and that we should therefore review the trial court's findings de novo instead of applying the “clearly erroneous” standard. However, the de novo standard is applied in this context only “[t]o the extent that the controlling facts ... are undisputed because they are plainly discernable from the ... video recording.” FN5 Here, neither the speed of the vehicles nor the distance between them is plainly discernable on the video. While the video is consistent with the police officer's claim that Mohammed was following the lead car more closely than was reasonable and prudent under the conditions, FN6 it was also consistent with the theory accepted by the trial court that Mohammed was merely trying to maintain a safe speed while following a car that failed to maintain a constant rate of travel.


FN5. Johnson v. State, 299 Ga.App. 474, 474-475 (682 S.E.2d 601) (2009); see also Lyons v. State, 244 Ga.App. 658, 661(1) (535 S.E.2d 841) (2000).



FN6. See OCGA 40-6-49(a).

Given that we must accept the trial court's determinations on credibility, and given that the video does not clearly establish that the trial court erred in determining that the traffic stop was unlawful, we must affirm the ruling of the trial court.

Judgment affirmed.

A prior municipal court DWI (drunk driving) conviction can't be used for enhancement of a present DUI offense, based upon a statutory interpretation of drunk driving "priors" under Missouri law. Missouri law referred only to state-court convictions.

--- S.W.3d ----, 2010 WL 2099264 (Mo.App. E.D.)



Missouri Court of Appeals,
Eastern District,
Division Three.
STATE of Missouri, Respondent,
v.
Kevin E. CARSON, Appellant.


No. ED 91955.

May 25, 2010.


Appeal from the Circuit Court of Franklin County, David L. Hoven, Judge.
Frank K. Carlson, Union, MO, for appellant.

Chris Koster, Atty. Gen., Shaun J. Mackelprang, Asst. Atty. Gen., John W. Grantham, Asst. Atty. Gen., Jefferson City, MO, for respondent.


LAWRENCE E. MOONEY, Judge.


*1 The defendant appeals his judgment of conviction for the class-D felony of driving while intoxicated (“DWI”). The trial court used his prior municipal-court conviction for driving with excessive blood-alcohol content (“BAC”) to enhance the penalty he faces for DWI. The defendant challenges the use of this municipal-court BAC conviction, citing Turner v. State, 245 S.W.3d 826 (Mo. banc 2008). The defendant argues that the Missouri Supreme Court's reasoning in Turner compels us to conclude, by logical extension, that the use of his prior municipal-court BAC conviction to enhance the penalty for DWI was in error. We agree with his argument and reverse the judgment as to the defendant's sentence for DWI. We also conclude that he is entitled upon remand to a jury-recommended sentence.


The State charged the defendant with one count of DWI in violation of section 577.010 RSMo. (2000) in the Circuit Court of Franklin County, for events occurring on November 17, 2005. The defendant had two previous intoxication- related traffic offenses. In 1994, the defendant pleaded guilty to BAC in the St. Louis County Municipal Court, and in 1995, he pleaded guilty to BAC in the Circuit Court of Jefferson County. As a result, the State charged the defendant with a class-D felony as a persistent offender pursuant to section 577.023.1(4) (a) RSMo. (Supp.2005).FN1 The jury found the defendant guilty on July 24, 2008 of DWI, and the trial court sentenced the defendant to three years' imprisonment.


FN1. All statutory references are to RSMo. (Supp 2005) except as otherwise indicated.



On appeal, the defendant asserts the trial court erred in sentencing him as a persistent offender under the sentence-enhancemen t provisions of section 577.023. He contends that section 577.023.16 does not identify a municipal-court BAC conviction as a prior conviction for enhancement purposes. He further maintains that, if he is not a persistent offender, he cannot be a prior offender pursuant to section 577.023.1(5) because his remaining alcohol-related offense occurred more than five years before the charged offense.


The issues presented are purely legal. We review matters of statutory interpretation and whether a statute applies to a given set of facts de novo. White v. Tariq, 299 S.W.3d 1, 3 (Mo.App.E .D.2009).


The Defendant's Municipal BAC Conviction
The defendant argues that Turner requires us to reverse the defendant's conviction and remand for jury sentencing as a class-B misdemeanor. In Turner, Judge Stephen Limbaugh, writing for a unanimous Supreme Court, determined that provisions of section 577.023 RSMo. (2000 and Supp.2004) governing the proof of prior offenses conflicted with each other, creating an ambiguity that the Court could not resolve through application of other canons of statutory construction. 245 S.W.3d at 828-29. Therefore, the Court resorted to the rule of lenity, and interpreted the statute in the defendant's favor. Id. at 829. The Court held that prior municipal offenses resulting in a suspended imposition of sentence (“SIS”) could not be used to enhance punishment under then-section 577.023.14 RSMo. (2000 and Supp.2004). FN2 Id.


FN2. At the time of the offense charged in Turner, section 577.023.14 RSMo. (2000 and Supp.2004) contained language identical to section 577.023.16 RSMo. (Supp.2005).



*2 At the time of the offense charged in this case, section 577.023 contained these definitional provisions, which clearly include a municipal-court BAC conviction:


1. For purposes of this section, unless the context clearly indicates otherwise:



* * *
(3) An “intoxication- related traffic offense” is driving while intoxicated, driving with excessive blood alcohol content, involuntary manslaughter pursuant to subdivision (2) or (3) of subsection 1 of section 565.024, RSMo, murder in the second degree under section 565.021, RSMo, where the underlying felony is an intoxication- related traffic offense, assault in the second degree pursuant to subdivision (4) of subsection 1 of section 565.060, RSMo, assault of a law enforcement officer in the second degree pursuant to subdivision (4) of subsection 1 of section 565.082, RSMo, or driving under the influence of alcohol or drugs in violation of state law or a county or municipal ordinance, where the defendant was represented by or waived the right to an attorney in writing;

(4) A “persistent offender” is one of the following:



(a) A person who has pleaded guilty to or has been found guilty of two or more intoxication- related traffic offenses;



* * *
(5) A “prior offender” is a person who has pleaded guilty to or has been found guilty of one intoxication- related traffic offense, where such prior offense occurred within five years of the occurrence of the intoxication- related traffic offense for which the person is charged.
(Emphasis added).

But the same statute also contained this subsection, which makes no mention of a municipal-court BAC conviction:


16. Evidence of prior convictions shall be heard and determined by the trial court out of the hearing of the jury prior to the submission of the case to the jury, and shall include but not be limited to evidence of convictions received by a search of the records of the Missouri uniform law enforcement system maintained by the Missouri state highway patrol. After hearing the evidence, the court shall enter its findings thereon. A conviction of a violation of a municipal or county ordinance in a county or municipal court for driving while intoxicated or a conviction or a plea of guilty or a finding of guilty followed by a suspended imposition of sentence, suspended execution of sentence, probation or parole or any combination thereof in a state court shall be treated as a prior conviction.


(Emphasis added).


Thus, section 577.023.1(3) , defining “intoxication- related traffic offense,” and section 577.023.1(4) (a), defining “persistent offender,” purport to permit the use of municipal-court BAC convictions to enhance punishment, while section 577.023.16 does not include such a conviction among those that a court can use for that purpose. Sections 577.023.1(3) and (4)(a) expressly address the offense in question-the defendant's 1994 guilty plea to BAC in the St. Louis County Municipal Court. Section 577.023.16 also addresses the municipal BAC offense, “albeit by necessary implication.” See Turner, 245 S.W.3d at 828.


*3 “The last sentence of subsection [16] delineates those offenses that ‘shall be treated as a prior conviction’ in order to enhance punishment.” Id. The list expressly includes “[a] conviction of a violation of a municipal or county ordinance in a county or municipal court for driving while intoxicated.” Section 577.023 .16 (emphasis added). The list does not include a plea of guilty to BAC in municipal court. See id. The necessary implication is that a guilty plea to BAC in municipal court cannot be treated as a prior conviction in order to enhance punishment. See Turner, 245 S.W.3d at 828. The Turner Court reasoned that:


[T]he list does not include a plea of guilty or a finding of guilty followed by a suspended imposition of sentence in municipal court, which is not a conviction. The necessary implication, then, is that a municipal plea of guilty followed by a suspended imposition of sentence cannot be used to enhance punishment.


Id. (Emphasis in original). Therefore, we follow the Supreme Court's decision in Turner, and likewise apply the rule of lenity to conclude that a municipal-court BAC cannot be treated as a prior conviction under section 577.023.16 for punishment-enhancem ent purposes.


We note that our Western District colleagues reached a congruent conclusion in State v. Denbow, No. WD70474, 2010 WL 431366 (Mo.App.W.D. Feb. 9, 2010). In Denbow, the Court concluded that the pre-2008 version of section 577.023 plainly allowed use of a state-court BAC conviction for punishment-enhancem ent purposes. 2010 WL 431366, at *1-*2. But the Court also observed that subsection 16 limits prior municipal-court convictions available for sentence enhancement to those for DWI. Id. at *2-*3. The Denbow Court concluded that “[A]s in Turner, we assume that the legislature intentionally chose to define the prior convictions which justified sentence enhancement differently, depending on the court in which those prior convictions were entered.” Id. at *4.


The State advances numerous attacks on this extension of Turner 's reasoning. We shall address each in turn.


The State initially contends that Turner does not govern this case because Turner did not deal with municipal-court BAC convictions. While this rather narrow observation may be true, we are bound to follow Turner 's reasoning, which is that a disposition not expressly delineated in section 577.023.16 cannot, by necessary implication, be treated as a prior conviction in order to enhance punishment. Because section 577.023.16 does not include municipal-court BAC offenses among the dispositions a court can use to enhance punishment, Turner requires us to conclude that prior municipal-court BAC offenses cannot be used to enhance punishment under section 577.023, as in effect at the time of the offense charged in this case.


Second, the State argues that Turner 's holding should not be expanded to apply to municipal-court BAC convictions because the legislature amended the statute shortly after the Turner decision. The State asserts that the legislature' s 2008 amendment, made soon after Turner, “demonstrate[ s] that Turner is not a reliable guide to the statutory construction of section 577.023.” The legislature amended the last sentence of section 577.023.16 RSMo. (Supp.2008) to provide that:


*4 A plea of guilty or a finding of guilt followed by incarceration, a suspended imposition of sentence, suspended execution of sentence, probation or parole or any combination thereof in any intoxication- related traffic offense in a state, county or municipal court or any combination thereof, shall be treated as a prior plea of guilty or finding of guilt for purposes of this section.FN3



FN3. The legislature again amended this sentence in 2009 to add the words “a fine,” after the word “incarceration.” Section 577.023 .16 RSMo. (Supp.2009). The amended language remains confusing. First, this last sentence is out of place in subsection 16, which otherwise is procedural in instructing the court when and in what manner to hear evidence to make its repeat-offender determination. Second, it serves no discernible purpose. The relevant offenses are listed in the definitional instructions for “intoxication- related traffic offense,” “persistent offender,” and “prior offender.” Third, the statute remains ambiguous. Subsection 16's current language indicates that a plea of guilty or a finding of guilt, when “followed by” certain dispositions, triggers the enhancement of sentences. But the definitional instructions make clear that it is only the plea or finding of guilty that is relevant. The definitional instructions make no mention of the disposition of the prior charge. Thus, a defendant who pleaded to DWI and then committed a new DWI while awaiting sentencing on the first DWI could be properly charged as a prior offender under the definitional instructions. But such a defendant, given the wording of Subsection 16, would not be a prior offender because the disposition of his prior plea of guilty had not occurred before he committed the new offense. Previous sentences or other dispositions are immaterial to the prior- and persistent-offender determination and resulting sentence enhancement in the general felony context, from which section 577.023 borrowed its procedural subsections. See sections 558.016 RSMo. (Supp.2009) and 558.021 RSMo. (2000).



The State asks us to presume that the 2008 amendment was a direct response to Turner. But we do not know whether the legislature intended to abrogate Turner 's holding or simply to change the law. The State points to nothing in the legislative record to cause us to draw the inference the State urges. Therefore, we decline to do so.


Third, the State seeks to escape the holding of Turner by arguing that other canons of statutory construction resolve the statute's ambiguity, so the rule of lenity should not apply. While Turner addressed a clear conflict between the terms “suspended imposition of sentence” and “conviction,” the State first asserts, no such clear conflict exists in this case in reading “driving while intoxicated” to include “driving with excessive blood-alcohol content.” But we have already identified a clear conflict. Section 577.023.1(3) , defining “intoxication- related traffic offense,” and section 577.023.1(4) (a), defining “persistent offender,” purport to permit the use of municipal-court BAC convictions for sentence enhancement, while section 577.023.16 does not include such a conviction.


Third, the State urges us to resolve any ambiguity by looking at the statute as a whole, and specifically at the definition of intoxication- related traffic offense. However, the Supreme Court has already concluded that examination of the whole act does not allow us to discern the legislature' s intent with regard to section 577.023. In Turner, the Supreme Court specifically determined, “But these [other canons of construction] , too, are fruitless, because the purpose of the act and the problem to be remedied are the essence of the ambiguity itself.” 245 S.W.3d at 829. The statute as a whole sets forth conflicting solutions, one that includes all intoxication- related traffic offenses in determining persistent-offender status and one that does not. As the Turner court remarked it is “difficult to ascertain the problem to be remedied where the statute sets out conflicting solutions.” Id.


Fourth, the State argues that we must presume the legislature did not intend absurd results by allowing the use of municipal-BAC convictions to determine persistent-offender status while simultaneously prohibiting their use to prove persistent-offender status for punishment enhancement. Yet the Turner Court concluded with regard to municipal SIS dispositions what we conclude as regard municipal BAC convictions. And the Turner court expressed no concern that its resolution was absurd. The Court here, as in Turner, is faced with an ambiguous statute. The fact that a statute is inexact is certainly unfortunate. But that misfortune is not of the judiciary's making. The Court must resolve the ambiguity, here by the rule of lenity. It is not absurd for a Court to choose between the two ambiguous meanings present in a statute. In essence, the State fails to distinguish between an absurd result, which this is not, and an undesirable result, which this may be.


*5 The State grasps for its flimsiest straw by contending that B AC is merely a species of DWI. The State urges us to construe the intoxication- related offense statutes in pari materia. Given that a blood-alcohol content greater than .10 percent constitutes prima facie evidence of intoxication, FN4 the State argues, BAC is simply a type of driving while intoxicated. We reject this novel contention. If it were true, then the legislature would have had no reason to separately identify both “driving while intoxicated” and “driving with excessive blood alcohol content” as “intoxication- related traffic offense” in section 577.023.1(3) .


FN4. Section 577.037.1 RSMo. (Supp.1993), the version of the statute in effect at the time of the defendant's municipal-BAC offense.



We do find, however, one canon of construction that proves helpful. The maxim expressio unius est exclusio alterius means the expression or inclusion of one thing implies the exclusion of the other or of the alternative. Black's Law Dictionary 602 (7th ed.1999). The maxim teaches that where a statute designates a form of conduct, its manner of performance and operation, and the persons and things to which it refers, there is an inference that all omissions are understood as exclusions. 2A Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction sec. 47:23 at 398-404 (7th ed.2007). When the items expressed are members of an associated group or series, they justify the inference that the legislature deliberately excluded items not mentioned. 2A id. at 405-12. A statute that provides a thing shall be done in a certain way-such as counting municipal convictions for DWI as prior convictions for punishment enhancement- implicitly prohibits doing that thing any other way-such as counting municipal convictions for BAC as prior convictions. 2A id. at 412-13.


The maxim's force is strengthened where a thing is provided in one part of the statute and omitted in another, 2A id. at 417, which is precisely the conflict we confront. On one hand, section 577.023.1(3) lists the specific offenses that constitute intoxication- related traffic offenses, including BAC. On the other hand, section 577.023.16 omits municipal-court BACs from those offenses it identifies as prior convictions for punishment enhancement. Turner, 245 S.W.3d at 828. Thus, the canon of expressio unius est exclusio alterius reinforces our conclusion that prior municipal-court BAC offenses cannot be used to enhance punishment under section 577.023.16.


Essentially, the Supreme Court decided Turner on the basis of expressio unius est exclusio alterius. The logic of the maxim underlies the Supreme Court's determination that certain dispositions, there a municipal-court SIS, were excluded by necessary implication from subsection 14, now subsection 16, because such dispositions were not listed therein. Id.


Finally, arguing that section 577.023.16 is procedural only, the State asserts that the 2008 version of subsection 16 applied to the defendant's trial in July 2008. We disagree. Section 1.160 RSMo. (Supp.2009) provides that:


*6 No offense committed and no fine, penalty or forfeiture incurred, or prosecution commenced or pending previous to or at the time when any statutory provision is repealed or amended, shall be affected by the repeal or amendment, but the trial and punishment of all such offenses, and the recovery of the fines, penalties or forfeitures shall be had, in all respects, as if the provision had not been repealed or amended, except that all such proceedings shall be conducted according to existing procedural laws.FN5



FN5. The legislature adopted the current version of section 1.160 in 2005, and this language was in effect at the time of the defendant's 2008 trial.



(Emphasis added.) Thus, only if section 577.023.16 is a procedural provision can the 2008 amendment apply to the defendant's trial and allow for enhanced punishment. Subsection 16, however, contains both procedural and substantive elements. But Turner construed the last sentence of what is now subsection 16 to be substantive when it declared that it “delineates those offenses that ‘shall be treated as a prior conviction’ in order to enhance punishment.” 245 S.W.3d at 828. We are bound by the Supreme Court's interpretation, and cannot apply the 2008 amendment to the defendant's case.


Because section 577.023.16 excludes by necessary implication municipal-court BACs and thus conflicts with other parts of section 577.023, the statute is ambiguous. In accordance with Turner, we apply the rule of lenity, and hold that the defendant's 1994 municipal-court BAC cannot be treated as a prior conviction in order to enhance his punishment pursuant to section 577.023.16. Without consideration of the municipal-BAC offense, the defendant does not qualify as a persistent offender pursuant to section 577.023.1(4) (a). Likewise, the defendant does not qualify as a prior offender pursuant to section 577.023.1(5) because his remaining intoxication- related traffic offense occurred more than five years before the charged DWI.


The Defendant's Remedy
We have determined that section 577.023.16 does not allow the trial court to treat the defendant's municipal-court BAC as a conviction for punishment-enhancem ent purposes as a persistent offender. We have also determined that, without consideration of the municipal-court BAC, the defendant does not qualify as a prior offender under section 577.023.1(5) . We now must resolve the question of the proper remedy.


Two principal consequences accompany a repeat-offender finding for intoxication- related traffic offenses. A defendant becomes subject to an enhanced sentence for a second or subsequent intoxication- related traffic offense. Section 577.023. Here, the defendant was charged with, and sentenced for, a class-D felony rather than for a class-B misdemeanor. A prior-or persistent-offender also loses the right to a jury-recommended sentence. Section 577.023.13. Injury-recommended sentencing, the jury sets the ceiling on the sentence that a defendant will receive. State v. Emery, 95 S.W.3d 98, 102 (Mo. banc 2003). The judge can impose a lesser sentence, but cannot exceed the punishment the jury recommends. Id.


*7 The defendant requests that we remand for jury-recommended sentencing. He argues that he repeatedly objected to the use of the municipal-court BAC to enhance the instant DWI charge to a class-D felony along with the corresponding exposure to felony penalties. The State counters that, in the event this Court reverses the judgment and remands for sentencing, then the trial court is entitled to sentence the defendant without a jury recommendation. Citing Emery, the State argues that the defendant waived his right to a jury-recommended sentence because he neither asserted a right to jury-recommended sentencing nor objected to judge-imposed sentencing without a jury recommendation.


In Emery, the State charged the defendant as a prior and persistent offender pursuant to sections 558.016 and 557.036.4 RSMo. (2000), but then failed to present any evidence of the defendant's alleged prior felony DWI offenses. Id. at 100. Nonetheless, the trial court sentenced Emery without a jury recommendation as to sentence, in the manner prescribed for a prior or persistent offender. Id. at 99. The defendant did not address either the prior- and persistent-offender issue or his right to jury-recommended sentencing in the trial court. Id. at 102-03. The Supreme Court remanded the case for resentencing, but held that the State could not have a second chance to prove Emery's prior- or persistent-offender status because to do so would violate the timing requirements of section 558.021.2 RSMo. (2000). Id. at 101-02.


The Court further determined that Emery was not entitled to jury-recommended sentencing on remand because he waived that right when he allowed the judge to determine his sentence without raising his right to a jury recommendation. Id. at 102-03. The Court reasoned that had Emery timely raised the issue of the State's failure to offer evidence of his prior- and persistent-offender status, the State could have offered appropriate evidence, which if proved, would have subjected Emery to a greater sentence. Id. at 103. Emery, however, “chose to sit on his statutory right,” and thus waived his right to jury-recommended sentencing. Id.


But in State v. Teer, 275 S.W.3d 258 (Mo. banc 2009), the Supreme Court remanded for resentencing in accordance with the jury's recommendation where the trial court made an untimely prior-offender finding. Id. at 262. The State moved to amend the information during trial to charge Teer as a prior felony offender. Id. at 260. Unlike the defendant in Emery, but like the defendant in the instant appeal, Teer objected to the State's efforts to classify him as a prior offender. Id. at 263 (Fischer, J., concurring). The trial court sustained the State's motion while the jury deliberated. Id. at 260. The jury then returned its verdict and recommended sentences on each of five counts. Id. Thereafter, the trial court found that Teer was a prior offender and sentenced him to far longer terms of imprisonment on each count. Id. The Supreme Court reversed the judgment as to Teer's sentences because section 558.021.2 RSMo. (1994) provided that prior-offender status must be pleaded and proved before the court submitted the case to the jury. Id. The Court reversed and remanded for resentencing consistent with the jury's recommendation, and free from the sentence enhancement applicable to a repeat offender. Id. at 262.


*8 The instant case is distinguishable from Emery and more akin to Teer. In Emery, the defendant failed to present to the trial court either the State's lack of evidence of prior- and persistent-offender status or his right to jury-recommended sentencing. Id. at 102-03. Thus, Emery waived his right to jury-recommended sentencing and failed to preserve the issue for appellate review. But here, the defendant, like Teer, objected in the trial court to the sufficiency of the State's evidence to support a persistent-offender finding. Indeed, he repeated his objections. The defendant moved to strike that portion of the information charging him as a persistent offender based on his municipal-court BAC. He maintained a continuing objection during trial. He included the issue in his motions for judgment of acquittal at the close of the State's evidence and at the close of all the evidence. He raised the issue in his motion for new trial, wherein he expressly objected to the use of the municipal offense to enhance the charge against him and to expose him to felony penalties. Again, one of the two principal consequences resulting from enhancing the charge against the defendant from a class-B misdemeanor to a class-D felony was the loss of jury-recommended sentencing. We construe his objection to the proof of his prior- and persistent-offender status to include an objection to his loss of jury-recommended sentencing. The defendant did not sit on his statutory rights and did not waive his right to a jury-recommended sentence. Furthermore, the defendant clearly suffered prejudice because the court sentenced him to three years' imprisonment for class-D felony DWI rather than for a term not to exceed six months for class-B misdemeanor DWI. Section 558.011. Thus, we conclude that the defendant is entitled to a jury-recommended sentence on remand.

Conclusion

We reverse the judgment as to the defendant's sentence for class-D felony DWI, and remand for jury-recommended sentencing within the range of punishment for the class-B misdemeanor of driving while intoxicated. In all other respects, we affirm the judgment.FN6

FN6. We thank both counsel for the State and the defense for the superior quality of their briefs and argument.

San Diego DUI criminal defense lawyer update California casle law.

5/28/10
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE


BENITO GARCIA,
Plaintiff and Appellant,
v.
DEPARTMENT OF MOTOR VEHICLES,
Defendant and Respondent.

A126130

(San Francisco City and County
Super. Ct. No. CPF09-509437)

The Department of Motor Vehicles (DMV) suspended Benito Garcia’s (Garcia) driving privileges for refusal to submit to, or failure to complete, a chemical test for blood alcohol content (Veh. Code, § 13353, subd. (a)(1)). Garcia sought an order from the trial court, via petition for writ of administrative mandamus (§ 13559, subd. (a); Code Civ. Proc., § 1094.5), directing the DMV to set aside the suspension. He appeals the trial court’s denial of his petition. Garcia argues that he did not refuse a chemical test of his blood alcohol content. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Arrest
On December 6, 2008, at approximately 12:24 a.m., San Francisco Police Department (SFPD) officers McNamara and Khan were on duty and driving their patrol car southbound on Mission Street. McNamara observed a black Ford Explorer driving ahead of him that, without any warning or signal, swerved over the center, double yellow line. After the Ford returned to its lane, it slowed from about 20 miles per hour to about seven miles per hour. The Ford then sped back up to about 25 miles per hour. McNamara pulled the vehicle over.
McNamara contacted the driver, later identified as Garcia, and asked him why he was driving as he was. Garcia said that he did not understand. McNamara smelled the strong odor of an alcoholic beverage coming from Garcia’s breath and observed that Garcia was chewing something. McNamara told Garcia to remove what he had in his mouth. After asking why and again being ordered to remove it, Garcia eventually removed a piece of gum from his mouth. McNamara asked Garcia if he had been drinking before driving. Garcia said that he had not. However, McNamara observed that Garcia’s eyes were bloodshot and that Garcia was sweating, even though it was cold outside. McNamara recognized these as objective signs of alcohol intoxication.
McNamara had Garcia exit his vehicle to perform field sobriety tests. Before beginning the tests, Garcia stated that he was in good health and did not have any physical ailments. Garcia also again stated that he had not consumed any alcohol or other drugs that night. McNamara advised Garcia that each test would be explained and demonstrated and he should let the officer know if he did not understand any instructions. McNamara noticed that Garcia was still chewing gum and again told him to spit it out. Garcia asked “why?” He was told that it was necessary for his mouth to be empty for the tests. When Garcia began to argue, McNamara demanded that he remove the gum. Garcia paused, but then removed the gum from his mouth. After each test was explained and demonstrated, Garcia indicated that he did not understand. After repeated explanations, he eventually attempted to perform each test. Garcia was evasive and repeatedly mentioned that he knew SFPD officers and started listing their names. Garcia also asked if he could just be driven home. Based on observations of Garcia’s driving, his symptoms of alcohol intoxication and his performance on the field sobriety tests, McNamara determined that Garcia was driving while under the influence of alcohol and was unable to safely operate a motor vehicle. Garcia was arrested at 12:43 a.m.
While in the patrol car and still at the scene, Garcia was advised that he was required by law to submit to either a blood test or a breath test and that he needed to choose one. Garcia became very evasive and asked McNamara to look in his wallet for a list of SFPD officers he knew. Garcia was asked several more times which test he wanted to take. Garcia asked what the officer recommended. McNamara told Garcia that he could not recommend a test and that Garcia needed to choose. After several minutes passed, Garcia was told that if he did not decide, McNamara would decide for him. Garcia stated that was okay with him. McNamara told Garcia he would be taking a breath test. McNamara also advised Garcia that if he did not cooperate and perform the breath test as ordered, it would be considered a refusal and he would lose his driving privileges for a year. Garcia stated that he understood and would comply with the breath test.
Garcia was transported to county jail where he was first observed for 15 minutes, as required for the breathalyzer test. During those 15 minutes, Garcia did not place anything in his mouth, belch, or vomit. When Garcia was told to sit in the chair in front of the breathalyzer machine, he stated that he wanted to take a blood test. McNamara told Garcia that he believed Garcia was trying to stall the test to reduce his blood alcohol content and that Garcia needed to comply or his conduct would be considered a refusal and he would lose his driving privileges for a year. Garcia sat down and began the test at 1:15 a.m. McNamara explained that Garcia needed to place his lips on the mouthpiece and blow strongly and steadily until the machine beeped. Garcia said that he did not understand. McNamara again explained that he needed to place his lips on the mouthpiece and blow steadily until the machine beeped. After receiving this explanation at least three more times, Garcia put his lips on the mouthpiece and blew for about one and a half seconds before stopping, without the machine beeping. He was told that he needed to try again and received yet another explanation of what was required. Garcia argued with McNamara for a few minutes and then was again advised that if he did not comply, it would be considered a refusal and he would lose his driving privileges for one year. Garcia said he would comply, but just stared at the mouthpiece. At 1:20 a.m., McNamara deemed Garcia’s lack of cooperation a refusal to take a chemical test. McNamara ordered a phlebotomist, who arrived at 1:40 a.m. and obtained blood samples from Garcia at 1:50 a.m. The blood test revealed that Garcia’s blood alcohol content at the time of the test was 0.28.
B. Administrative Hearing
Garcia was served with a copy of the order suspending his driver’s license for refusing to submit to, or failing to complete, a chemical test. Pursuant to section 13558, Garcia requested an administrative hearing before the DMV. The only contested issue at the hearing was whether Garcia refused to take, or failed to complete, a chemical test. His testimony at the hearing was consistent, in most respects, with McNamara’s report. For example, Garcia testified that McNamara informed him, at the time and scene of his arrest, that he had a choice of chemical tests and that if he did not take a chemical test he could lose his license for one year. However, Garcia also testified that when he was seated before the breath machine he felt “[v]ery nauseous” and that he requested a blood test at that time because he “thought [he] was going to throw up a little bit on the machine and [he] didn’t think [he] could perform the test.” When asked whether he told the officer that he felt nauseous, Garcia stated: “I believe I did.” He further testified that he tried to blow three times and that “[he] couldn’t make something trigger off, but [he] blew as hard as [he] could as far as the way [he] was feeling.” Garcia testified that he signed the blood test request form to indicate his consent to take a blood test. Garcia later testified that he never resisted or intended to refuse the blood test. He also admitted that he had consumed “maybe two or three” beers on the night in question but had not told the officer as much. Garcia later testified that he could not recall what he had told the officer regarding his consumption of alcoholic beverages.
The DMV hearing officer found that Garcia “did refuse or fail to complete the chemical test or tests after being requested to do so by a peace officer.” The hearing officer stated: “Officer McNamara did not have a duty to provide a subsequent opportunity for a chemical test. [Garcia] was warned by Officer McNamara, before arriving at jail that if he did not cooperate and perform the breath test as ordered that Officer McNamara would consider it a refusal. [Garcia] had agreed to comply with the breath test. After attempting [the] test and being warned by Officer McNamara again that his noncompliance would be considered a refusal [Garcia] did not complete the chemical breath test. Signing the Blood Test Request by Peace Officer form at phlebotomist’s request, for a forced blood draw, does not invalidate respondent’s refusal.” The hearing officer specifically found that Garcia’s testimony was “not credible” because Garcia “testified to a different drinking pattern.”
C. Mandamus Proceedings and Ruling
Garcia then filed a petition for writ of administrative mandamus. After reviewing the administrative record and hearing argument, the trial court denied Garcia’s petition. The trial court upheld the administrative finding that Garcia refused or failed to complete a chemical test. The court stated: “In exercising its independent judgment, the Court finds that the weight of the evidence does support the decision of the hearing officer. The Court further finds that the weight of the evidence supports the decision of the hearing officer that [Garcia’s] testimony at the hearing was not credible. Further, this Court, in exercising its independent judgment in reviewing the record, also independently finds that [Garcia’s] testimony at the hearing was not credible.” In light of this credibility problem, the court stated that the hearing officer properly rejected Garcia’s claim that he was incapable of completing the breath test because of nausea.
With respect to Garcia’s argument that he had a right to change his mind and ask for a blood test, the trial court stated: “if a driver elects to take one of the three tests, he must complete the test or he will be deemed to have refused and failed to take it. (Cahall v. Department of Motor Vehicles (1971) 16 Cal.App.3d 491 [(Cahall)]; Quesada v. Orr (1971) 14 Cal.App.3d 866 [(Quesada)]).” The court also observed: “The fact that [Garcia] may have ultimately submitted to a blood test does not save him from the consequences of his earlier behavior. Once the suspect refuses to take one of the required tests, there is no requirement that the officers thereafter give him a test when he decides he is ready. (Zidell v. Bright (1968) 264 Cal.App.2d 867 [(Zidell)]; Skinner v. Sillas (1976) 58 Cal.App.3d 591, 598 [(Skinner)].) ‘ “It is the initial refusal which forms the basis for the suspension of the driver’s license.” ’ (Payne v. Department of Motor Vehicles (1991) 235 Cal.App.3d 1514, 1519 [(Payne)].) ‘ “Simply stated, one offer plus one rejection equals one refusal; and one suspension.” [Citations.]’ (Hildebrand v. Department of Motor Vehicles (2007) 152 Cal.App.4th 1562, 1573 [(Hildebrand)].)” Thereafter, the court entered judgment against Garcia. Garcia filed a timely notice of appeal.
II. DISCUSSION
If a person is lawfully arrested for driving under the influence of alcohol, he or she is deemed to have given his or her consent to chemical testing of his or her blood or breath to determine blood alcohol content. (§ 23612, subd. (a)(1)(A).) A driver lawfully arrested for driving under the influence of alcohol has the choice of a breath or a blood test, and the arresting officer shall inform the driver of that choice. (§ 23612, subd. (a)(2)(A).) “If the person arrested either is incapable, or states that he or she is incapable, of completing the chosen test, the person shall submit to the remaining test.” (Ibid.) A person who refuses to submit to, or fails to complete, a chemical test under section 23612 is subject to suspension of his or her driving privileges, among other sanctions. (§ 13353, subd. (a)(1).) The officer shall tell the arrestee that his or her failure to submit to, or failure to complete, the required chemical testing will result in a fine and suspension or revocation of driving privileges. (§ 23612, subd. (a)(1)(D).)
Garcia raises two distinct arguments on appeal. Garcia argues that he did not refuse to take the breath test. Garcia also argues that he was entitled to change his mind and that his subsequent submission to a blood test negates his conduct with respect to the breath test. We address each argument in turn.
A. Standard of Review
In ruling on a petition for writ of mandate following a DMV suspension order, the “trial court is required to determine, based on its independent judgment, ‘ “whether the weight of the evidence supported the administrative decision.” ’ [Citations.]” (Lake v. Reed (1997) 16 Cal.4th 448, 456–457; Hildebrand, supra, 152 Cal.App.4th at pp. 1567–1568.) “In making that determination, the trial court had to ‘weigh the evidence and make its own determination as to whether the administrative findings [were] sustained.’ [Citation.]” (Gananian v. Zolin (1995) 33 Cal.App.4th 634, 638, last brackets added.) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.) “The review shall be on the record of the [administrative] hearing and the court shall not consider other evidence.” (§ 13559, subd. (a).)
On appellate review, this court reviews “ ‘the record to determine whether the trial court’s findings are supported by substantial evidence.’ ” (Lake v. Reed, supra, 16 Cal.4th at p. 457, quoting Bixby v. Pierno (1971) 4 Cal.3d 130, 143, fn. 10.) Issues of law are reviewed de novo. (Hildebrand, supra, 152 Cal.App.4th at p. 1568; Brierton v. Department of Motor Vehicles (2005) 130 Cal.App.4th 499, 508.)
B. Did Garcia Refuse, or Fail to Complete, a Chemical Test?
We reject Garcia’s argument that suspension of his license was improper because he did not refuse a chemical test. “The question whether a driver ‘refused’ a test within the meaning of the statute is a question of fact. [Citation.]” (Cahall, supra, 16 Cal.App.3d at p. 497.) To comply with the law, a “driver should clearly and unambiguously manifest the consent required by the law. Consent which is not clear and unambiguous may be deemed a refusal.” (Carrey v. Department of Motor Vehicles (1986) 183 Cal.App.3d 1265, 1270.) “In determining whether an arrested driver’s conduct amounts to a refusal to submit to a test, the court looks not to the state of mind of the arrested driver, but to ‘the fair meaning to be given [the driver’s] response to the demand he submit to a chemical test.’ [Citations.]” (Payne, supra, 235 Cal.App.3d at p. 1518, last brackets added.)
The trial court found that Garcia failed or refused to complete a chemical test after being requested to do so by McNamara. Garcia attempts to focus this court’s attention solely on his conduct at the jail. However, the trial court specifically stated: “viewed in its totality, [Garcia’s] conduct amounted to a refusal to submit to a chemical test . . . .” (Italics added.)
Garcia remained silent and refused to choose a test after McNamara repeatedly asked Garcia which test he wanted at the scene of the arrest. This conduct alone was sufficient to constitute refusal to submit to a chemical test. (Buchanan v. Department of Motor Vehicles (1979) 100 Cal.App.3d 293, 299 (Buchanan) [evidence of the arrestee’s silence when asked whether he wanted blood test, breath test, or urine test supports finding arrestee refused to submit to chemical test].) Furthermore, Garcia also failed to complete the breath test after being repeatedly warned that his failure to do so would constitute a refusal. The record shows that Garcia tried ineffectually to blow once and then refused or declined to try any further. The trial court did not find that Garcia was “incapable, or state[d] that he . . . [was] incapable, of completing the chosen test. . . .” (§ 23612, subd. (a)(2)(A).) In fact, the trial court did not find credible Garcia’s testimony that he was unable to complete the test because of nausea.
Garcia argues that his failure to complete the breath test was insufficient to justify suspension of his driver’s license in the absence of an explicit, verbal refusal or conditional agreement. His point is not well taken. Section 13353, subdivision (a)(1), itself provides: “If a person refuses the officer’s request to submit to, or fails to complete, a chemical test or tests pursuant to Section 23612, upon receipt of the officer’s sworn statement that the officer had reasonable cause to believe the person had been driving a motor vehicle in violation of Section 23140, 23152, or 23153, and that the person had refused to submit to, or did not complete, the test or tests after being requested by the officer, the department shall do one of the following: [¶] (1) Suspend the person’s privilege to operate a motor vehicle for a period of one year.” (Italics added; see also Noli v. Department of Motor Vehicles (1981) 125 Cal.App.3d 446, 448–449 [arrestee’s lack of cooperation in completing urine test, despite verbal consent, justified officer’s conclusion of refusal].) Substantial evidence supports the trial court’s findings.
C. Was Garcia’s Refusal or Failure to Complete the Breath Test Vitiated by his Belated Compliance with a Blood Test?
Garcia also contends that the trial court erred by holding that Garcia could not change his mind and elect a blood test before attempting the breath test. This is a question of law, which we review de novo. (Brierton v. Department of Motor Vehicles, supra, 130 Cal.App.4th at p. 508.) Garcia cites no authority supporting his argument that an arrestee can refuse any test, then agree to the officer’s choice of test, fail to complete that test, and avoid the consequences of his prior conduct by agreeing to take an initially rejected test. In fact, although no published court of appeal opinion has addressed these precise factual circumstances, the authority is clear that delayed submission to a chemical test does not allow an arrestee to avoid the consequences of an initial refusal.
In Zidell, supra, 264 Cal.App.2d 867, the arrestee initially refused to submit to any chemical test. Thereafter, the arresting officer left the police station to resume other duties. Thirty to 45 minutes after his initial refusal, the arrestee stated that he had changed his mind and would submit to a test. The arresting officer was called, but refused to return to the station. No test was given. (Id. at p. 869.) The reviewing court upheld suspension of the driver’s license for refusal to submit to a chemical test. (Id. at pp. 869–870.) The court reasoned: “It would be inconsistent with the purpose of the statute to hold that either [the arresting officer], or the officers on duty at the police station, were required to turn aside from their other responsibilities and arrange for administration of a belated test when once appellant had refused to submit after fair warning of the consequences.” (Id. at p. 870.)
In Skinner, supra, 58 Cal.App.3d 591, the arrestee initially elected to take a urine test, but then told the arresting officer to “take [his] fucking bottle and shove it” when escorted to the urinal. The arresting officers concluded that the arrestee had refused a chemical test. Nonetheless, a urine sample was ultimately taken from Skinner more than four hours later. (Id. at pp. 594.) The reviewing court rejected the arrestee’s argument that he complied with the implied consent law (§ 13353) because he did in fact perform a urine test. (Id. at p. 597.) The court observed: “If the driver elects to take one of the three tests, he must complete the test or he will be deemed to have refused and failed to take it. [Citations.] And, too, once the suspect refuses to take one of the three tests, blood, urine, or breath, there is no requirement that the officers thereafter give him a test when he decides he is ready. [Citation.]” (Id. at p. 598.) The court reasoned: “The purpose of the statute is to take the test as soon as possible after arrest and discover the suspect’s blood alcohol content at the time he was arrested for driving under the influence [citation], since alcohol in the blood system dissipates quickly [citation].” (Id. at p. 599.)
Having already concluded that substantial evidence supports the trial court’s finding that Garcia refused a chemical test, we reject Garcia’s attempts to distinguish Zidell and Skinner on the ground that there were unequivocal refusals by the defendants in those cases. Nor are we persuaded that, because Garcia’s delay in providing a blood sample was less than an hour, McNamara, unlike the arresting officers in Skinner and Zidell, was obligated to provide Garcia with another opportunity to comply with the implied consent law. The delay between Garcia’s initial refusal and his compliance with a blood test was certainly shorter than the four hours at issue in Skinner, supra, 58 Cal.App.3d at pp. 598–599. Nonetheless, “ ‘[i]t is a matter of common knowledge that the intoxicating effect of alcohol diminishes with the passage of time. In a matter of a few hours an intoxicated person may “sober up.” The efficacy of a blood test depends upon its being made as soon as possible after the time of the offense. To be of any probative value the test must be “near” to the offense in point of time. If it is not taken promptly after the arrest, it proves nothing.’ [Citations.]” (Ibid., fn. omitted.) And, contrary to Garcia’s suggestion, the delay at issue here was not dissimilar to what he characterizes as a “lengthy time delay” at issue in Zidell (30 to 45 minutes in that case). (Zidell, supra, 264 Cal.App.2d at p. 869.)
The facts here are also similar to those presented in Buchanan, supra, 100 Cal.App.3d 293. In Buchanan, the arrestee was advised of his choice of tests at the time of arrest. The arrestee told the officer that he would select a test when they reached the police station. The officer informed him that he could not wait if he wanted to choose a blood test because the test would be administered at a hospital en route to the police station. The officer explained that if the arrestee did not choose a blood test before the police car reached the hospital, the blood test “ ‘would be out’ ” because he would not be taken back to the hospital once he reached the police station, which was about three miles beyond the hospital. The arrestee continued to state that he would choose at the police station. (Id. at p. 296.) Once the arrestee arrived at the police station, he was advised that his choices were limited to a breath test or a urine test. The arrestee stated that he wanted a blood test and refused to respond to the officer’s inquiries regarding a breath or urine test. (Ibid.)
On appeal, the reviewing court noted that only certain statutorily enumerated persons can withdraw blood, “and they are to be found in a hospital, not at a police station.” (Buchanan, supra, 100 Cal.App.3d at p. 298.) The court also emphasized that “the efficacy of a blood test depends on its being made as soon as possible after the time of the offense . . . .” (Ibid.) Accordingly, the court concluded that the arresting officer had the authority to require the arrestee to choose a blood test before reaching the hospital and to limit the arrestee’s choices at the station to a breath test or a urine test. “[T]he arrestee is given the right to choose among the three tests, but he is not given the further right to specify when the test which he has chosen is to be administered.” (Ibid.) Finally, the court concluded that the arrestee’s silence when asked, first, whether he wanted a blood test, and, later, whether he wanted a breath or a urine test, constituted evidence that he refused a chemical test. “A motorist’s silence in the face of a police officer’s repeated requests that he submit to a chemical test and that he choose a test to determine the alcohol content of his blood, constitutes a refusal to submit to a chemical test under section 13353. [Citation.]” (Id. at p. 299.)
Here, Garcia’s choice was statutorily limited to a blood or a breath test. (§ 23612, subd. (a)(2)(A).) McNamara properly advised Garcia of that choice after his arrest. Garcia remained silent and refused to choose a test. When Garcia agreed to McNamara’s selection of a breath test, while seated in the patrol car, McNamara advised Garcia that if he did not cooperate and perform the breath test as ordered, it would be considered a refusal and Garcia would lose his driving privileges for a year. Similar to the arrestee in Buchanan, Garcia did not voice any request for a blood test until he arrived at the county jail.
Buchanan held that the police have the authority to determine when a particular chemical test may be taken, and have no obligation to offer the test again after the arrested person refuses to take it at the offered time. (Buchanan, supra, 100 Cal.App.3d at p. 298.) McNamara had the authority to require Garcia to choose a blood test before the patrol car departed for the jail and to limit Garcia’s choices at the jail to a breath test. We reject Garcia’s argument that an exception should be made here because a phlebotomist fortuitously happened to be available at the jail within half an hour of Garcia’s failure to complete the breath test. Garcia argues that an arrestee should be allowed to change his or her mind if the arresting officer is not required to then take the arrestee to a different location to perform the newly requested test. Any such rule would be unworkable in practice and only encourage gamesmanship like that evidenced in this case. Accordingly, the trial court did not err by concluding that Garcia’s change of mind regarding a blood test and his eventual consensual submission to such a test did not obviate the consequences of Garcia’s initial refusal and failure to complete the breath test.
Garcia misplaces his reliance on Hildebrand, supra, 152 Cal.App.4th 1562, Cahall, supra, 16 Cal.App.3d 491 and Quesada, supra, 14 Cal.App.3d 866. Garcia relies on Hildebrand, Cahall, and Quesada to support his argument that an arrestee can only be deemed to have refused a chemical test when an arrestee, after failing to complete one test, then further refuses to submit to an alternative chemical test. These cases fail to support his position.
In Cahall, supra, 16 Cal.App.3d 491, the defendant consented to a urine test and was informed that two samples of urine would be required to constitute a complete test. He gave the first sample, but later said that he was “unable to furnish the second specimen because he was a diabetic and, as such, did not drink many fluids.” (Id. at p. 494.) When the defendant’s further attempt to provide a second sample proved unsuccessful, the arresting officer asked him to submit to either a blood or breath test. The arrestee responded by saying “ ‘I’m not even going to give you an answer.’ ” (Id. at pp. 494–498.) The only issue on appeal was whether there was substantial evidence to sustain the administrative finding that appellant refused to submit to a chemical test. (Id. at p. 494.)
The court rejected the arrestee’s contention that “the giving of one urine specimen was sufficient to comply with the provisions of the law . . . .” (Cahall, supra, 16 Cal.App.3d at p. 496.) The court observed: “While he may choose the type of test, the driver’s obligation does not end when he has expressed such a choice. He must go further and submit to the test. [¶] . . . [¶] . . . The giving of a partial urine sample obviously did not satisfy the requirements of the law.” (Id. at pp. 495–496.) The court went on to say “Upon [the arrestee’s] inability to comply with the requirements of the statute by providing the second urine sample, he was obliged, upon request so to do, to select another with which he could comply. Not having done so, he refused a ‘request to submit to a chemical test’ [citation] and brought upon himself the penalty of the statute. [Citation.]” (Id. at p. 496.)
Quesada, supra, 14 Cal.App.3d 866 is similar. In Quesada, the defendant chose to submit to a urine test, but did not complete the test, claiming he was too modest to produce a urine specimen while the arresting officer and a laboratory attendant stood five or six feet away. After blood and breath tests were again offered, the arrestee refused to take either test. (Id. at pp. 868–869.) The arrestee argued on appeal that “since he was physically unable to take the test of his own choosing, ‘he should not have to choose another test or be deemed to have refused.’ ” (Id. at p. 870.) The court rejected this argument, noting “[w]hile he may choose the type of test, the driver’s obligation does not end when he has expressed such a choice. He must go further and submit to the test.” (Ibid.) Accordingly, the court concluded: “[U]pon [the arrestee’s] inability to submit to the type of chemical test chosen by him, he was obliged, upon request so to do, to select another with which he could comply. Not having done so, he refused a ‘request to submit to a chemical test’ [citation] and brought upon himself the penalty of the statute.” (Id. at p. 871.)
In Hildebrand, supra, 152 Cal.App.4th 1562, an arrestee appealed from the trial court’s denial of his petition for writ of mandate, contending that the evidence was insufficient to support the trial court’s finding that he had refused to complete a chemical test after admonishment. (Id. at p. 1565.) The arrestee chose a breath test, but was unable to complete all portions of the test because he “puffed out his cheeks while placing his tongue on the end of the mouthpiece, and he would not blow hard enough to make the machine sound for eight to 10 seconds.” After numerous attempts, the arrestee said “ ‘I’m blowing as hard as I can. If that’s not good enough . . . too bad. And I’m not taking any other tests.” (Id. at p. 1566, ellipsis in original.) The officer then told the arrestee he was required to give a blood sample because he did not complete the breath test. The arrestee responded: “ ‘I’m not giving a blood sample. You got what you got now let me go!’ ” A forced blood draw was later taken. (Id. at pp. 1566–1567.)
The arrestee argued on appeal that he was not properly admonished regarding the consequences of a refusal before the breath test was administered or before any refusal. (Hildebrand, supra, 152 Cal.App.4th at p. 1573.) The court concluded that adequate admonishments were given because the officer told the arrestee he had a choice of tests before the breath test was attempted and, after the failed test, the arresting officer informed the arrestee of the consequences of a refusal. (Id. at pp. 1573–1574.) Hildebrand also argued that the police were obligated to offer him a new choice of tests after he failed to complete the breath test. (Id. at p. 1574.) The court concluded that the officer could have reasonably interpreted the arrestee’s statements after the failed breath test and his intentional frustration of the breath test as a refusal to complete any offered tests. Accordingly, the court concluded that substantial evidence supported the trial court’s finding that the arrestee refused a chemical test. (Id. at p. 1574.)
The reviewing court observed: “ ‘[T]he law of implied consent mandates that an arrestee is required to submit to and complete one of the three tests upon their first having been offered to him by an arresting officer. [¶] . . . [¶] . . . It is the initial refusal which forms the basis for suspension of the driver’s license under Vehicle Code section 13353. [Citation.] Once the driver refuses to take any one of the three chemical tests, the law does not require that he later be given one when he decides, for whatever reason, that he is ready to submit. [Citations.] [¶] . . . Simply stated, one offer plus one rejection equals one refusal; and, one suspension.’ [Citations.]” (Hildebrand, supra, 152 Cal.App.4th at p. 1573, last brackets added.)
The defendants in Hildebrand, Cahall, and Quesada were offered alternative tests after they failed to complete an initially selected test. (Hildebrand, supra, 152 Cal.App.4th at p. 1566; Cahall, supra, 16 Cal.App.3d at p. 494; Quesada, supra, 14 Cal.App.3d at p. 869.) In each of those cases, the evidence showed both failure to complete one test, as well as a subsequent refusal to take another. In each case the argument presented by the defendant was that he could not be required to consent to another test after alleged inability to complete a first. That argument was rejected in each instance. (See also § 23612, subd. (a)(2)(A) [“[i]f the person arrested either is incapable, or states that he or she is incapable, of completing the chosen test, the person shall submit to the remaining test”].) None of these cases hold, as Garcia urges us to do here, that a defendant is entitled to a second bite at the apple after rejecting the first. To the extent that either Cahall or Quesada can be read to suggest such a result, we disagree.
“ ‘It is the initial refusal which forms the basis for suspension of the driver’s license under . . . section 13353. [Citation.]’ ” (Hildebrand, supra, 152 Cal.App.4th at p. 1573, ellipsis added; Dunlap v. Department of Motor Vehicles (1984) 156 Cal.App.3d 279, 283; Barrie v. Alexis (1984) 151 Cal.App.3d 1157, 1162.) The same rule applies even if the arrestee quickly changes his or her mind and consents to a test. (Barrie v. Alexis, at p. 1163; Zidell, supra, 264 Cal.App.2d at p. 869.) We agree with the conclusion of Hildebrand that “one offer plus one rejection equals one refusal; and, one suspension.” (Hildebrand, at p. 1573.)
Accordingly, Garcia’s license was properly suspended.
III. DISPOSITION
The judgment is affirmed. Respondent is to recover its costs on appeal.





_________________________
Bruiniers, J.


We concur:


_________________________
Jones, P. J.


_________________________
Simons, J.

























A126130

Superior Court of San Francisco County, No. CPF09-509437, Peter J. Busch, Judge.

Joseph Morehead for Plaintiff and Appellant.

Edmund G. Brown, Jr., Attorney General, William T. Darden and Jennifer G. Perkell, Deputy Attorneys General, for Defendant and Respondent.

San Diego DUI criminal defense attorneys can ask a court to order the retesting of an accused's blood. This accused filed a request to independently analyze a blood sample, and the sample is thereafter destroyed before the prosecutor notifies the lab.

Mississippi finds a due process violation under Youngblood, determining that the deliberate indifference of the prosecutors is tantamount to bad faith. They remand for a new trial, but do not suppress the results but rather use a negative inference jury instruction.

--- So.3d ----, 2010 WL 2106027 (Miss.)

NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL.


Supreme Court of Mississippi.
Jaison O. HARNESS
v.
STATE of Mississippi.


No. 2007-CT-01415- SCT.

May 27, 2010.


Hinds County Circuit Court, First Judicial District, Bobby Burt Delaughter, J.
Imhotep Alkebu-Lan, William R. Labarre, Virginia Lynn Watkins, Jaison O. Harness (Pro Se), attorneys for appellant.

Office of the Attorney General by Ladonna C. Holland, attorney for appellee.


EN BANC.



ON WRIT OF CERTIORARI
KITCHENS, Justice, for the Court:


*1 ¶ 1. Jaison Harness was convicted of aggravated driving under the influence of alcohol (DUI) and sentenced to twenty-five years' incarceration with ten years suspended and five years of supervised probation. Harness appealed his conviction, and the Court of Appeals affirmed. Harness v. State, 2009 WL 1383470 (Miss.Ct.App. May 19, 2009). This Court granted Harness's petition for writ of certiorari to examine the issue of whether the State had wrongfully disregarded Harness's request for an independent blood test before the sample was destroyed by the state crime laboratory. Finding error, we reverse Harness's conviction and remand the case for a new trial.


I.
¶ 2. Around 11:30 p.m., on August 22, 2003, Jaison Harness and Clyde Hampton, traveling in separate vehicles, were involved in a head-on collision. Empty beer cans were found at the scene of the accident, and an unopened bottle of brandy was on the passenger floorboard of Harness's vehicle. Harness told one of the responding police officers that he had been drinking earlier that evening but denied that he was drunk. Hampton was unconscious, and one of the officers testified that Hampton smelled of alcohol. Harness and Hampton were taken to separate hospitals, and the investigating officer asked medical personnel at the hospitals to draw blood samples from both men. Hampton eventually died of injuries related to the accident.


¶ 3. The state crime laboratory received blood samples from both Harness and Hampton on October 7, 2003. The first analysis of Harness's blood sample was performed on October 16, 2003, and the test was inconclusive for the presence of ethyl alcohol, because the result was not within the reliability parameters established by the crime lab. After the inconclusive test on Harness's blood sample, the crime lab performed a second analysis a week later on October 23, 2003, which resulted in a finding of 0.11 percent blood-alcohol level.FN1 No further test was performed on Harness's blood to check the accuracy of the second test, and the result was forwarded to the prosecutor. The prosecutor also was put on notice that the blood samples would be destroyed within six months unless the lab was instructed to preserve the samples. The report contained the following language:


FN1. The crime lab also analyzed Hampton's blood sample and reported a 0.03 percent ethyl alcohol content in his blood.



Should additional material be required for court purposes, please contact the laboratory as soon as possible. All samples submitted for toxicological examinations will be routinely disposed of six months after analyses are completed. If you anticipate that this evidence will be needed, please contact the laboratory to arrange its return.

¶ 4. On April 8, 2004, Harness was indicted for aggravated DUI. On July 22, 2004, Harness received a copy of the crime lab report from the district attorney's office, and that same day, Harness filed a motion for discovery, requesting, inter alia, the blood sample used in the blood-alcohol analysis for independent testing. The district attorney was provided a copy of this motion. When the State failed to produce the blood sample, Harness filed a motion to compel on September 30, 2004, again copying the district attorney's office. A hearing was set for November 8, 2004. Shortly before the hearing, on October 22, 2004, an investigator from the district attorney's office contacted the crime lab about the status of the blood sample but was informed that the lab had destroyed the sample just two weeks earlier, on October 7, 2004, a week after the defendant's motion to compel had been filed and served on the district attorney.


*2 ¶ 5. Harness moved to suppress the results of the blood analysis. At the hearing on the motion, John Stevenson, a forensic scientist with the state crime lab, testified that, prior to the October 22, 2004, call from the district attorney's office, neither the State nor the defense had contacted the lab about preserving the evidence. Stevenson testified that, although a defendant could request preservation of evidence, only the State had the authority to order that the sample be preserved.


¶ 6. The trial judge overruled the motion to suppress, reasoning that the destruction of the blood sample was not done in bad faith as such samples are routinely destroyed within six months to a year. Furthermore, although it was undisputed that the defendant could not have compelled the crime lab to preserve the evidence, the trial judge found it noteworthy that the defense had failed to contact the crime lab directly.


II.
¶ 7. Due process of law is a fundamental right found in both the United States Constitution and the Mississippi Constitution. U.S. Const. amend. XIV, § 2; Miss. Const. art. 3, § 14. The Court of Appeals relied on the rule set forth in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), to hold that Harness was not deprived of due process after the State failed to preserve Harness's blood sample, allowing it to be destroyed. In Trombetta, the United States Supreme Court held that when preservation of evidence is at issue, due process of law is denied only where the destroyed evidence was expected to play a significant role in the defense. Id., 467 U.S. at 488-90. The Supreme Court noted that evidence plays a significant role in the defense only where (1) the evidence possessed exculpatory value prior to its destruction, and (2) the evidence was of such a nature that the defendant could not have used other comparable evidence to mount a defense. Id. Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), added a third factor: the defendant must also demonstrate that the State acted in bad faith in failing to preserve the evidence in question. This Court has applied this three-prong federal standard in several cases. See e .g., McGrone v. State, 798 So.2d 519, 522-23 (Miss.2001); Banks v. State, 725 So.2d 711 (Miss.1997); Taylor v. State, 672 So.2d 1246 (Miss.1996); Holland v. State, 587 So.2d 848, 869 (Miss .1991); Tolbert v. State, 511 So.2d 1368 (Miss.1987).


¶ 8. The Court of Appeals found the first prong dispositive, reasoning that because the lowest test result of Harness's blood-alcohol level was 0.1170, well over the legal limit, the blood sample lacked any exculpatory value. This logic presupposes that this result was accurate, notwithstanding the state crime lab's determination that its first attempt to analyze the evidence had produced an inconclusive result.


¶ 9. The Court of Appeals also noted that the defense attorney represented that he believed the destruction of the blood sample was not intentional. However, we need not address whether the Court of Appeals was correct in its interpretation of the three-prong test found in Tolbert, 511 So.2d 1368, because the circumstances surrounding the instant case present additional due process concerns that cannot be fully addressed by the application of such a rigid standard.


*3 ¶ 10. The preservation of evidence is especially important when the evidence in question is a blood sample taken from a person suspected of driving under the influence. In such cases, the defendant has a statutory right independently to test the sample for blood-alcohol content. Miss.Code Ann. § 63-11-13 (Rev.2004).FN2 This statutory right is firmly rooted in due process concerns, to ensure the accused's ability to mount a defense and thoroughly confront the evidence against him. As our case law demonstrates, Mississippi law affords a greater level of due process protection than the standards provided in Trombetta and its progeny.


FN2. Mississippi' s implied consent law contains the following provision:
The person tested may, at his own expense, have a physician, registered nurse, clinical laboratory technologist or clinical laboratory technician or any other qualified person of his choosing administer a test, approved by the state crime laboratory created pursuant to section 45-1-17, in addition to any other test, for the purpose of determining the amount of alcohol in his blood at the time alleged as shown by chemical analysis of his blood, breath or urine. The failure or inability to obtain an additional test by such arrested person shall not preclude the admissibility in evidence of the test taken at the direction of a law enforcement officer.



Miss.Code Ann. § 63-11-13 (Rev.2004). Although the final sentence provides that a violation of this right will not preclude the admission of the State's test results, we have repeatedly held that rules governing the admissibility of evidence are strictly within the province of the courts and are not a legislative matter. Deeds v. State, 27 So.3d 1135, 1141 (Miss.2009) (citing Whitehurst v. State, 540 So.2d 1319, 1323 (Miss.1989); Hall v.. State, 539 So.2d 1338 (Miss.1989); MRE 1103).
¶ 11. In Scarborough v. State, 261 So.2d 475 (Miss.1972), we examined this statutory provision for the first time and held that an unreasonable denial of a defendant's request for a blood test amounts to a denial of due process of law. Following his arrest for driving under the influence, Scarborough was held incommunicado, and his requests for a blood test were denied. Id. at 477. During court proceedings, it was revealed that this was standard police procedure. Id. The Court noted that:


This practice will become particularly acute when the Mississippi Implied Consent Act goes into effect April 1, 1972. The Legislature included within the act a provision giving an accused the right to an additional test conducted by anyone of his choice who is qualified. If such a practice is allowed to continue, it would in fact nullify the statute and frustrate the intention of the Legislature.


Id. at 478 (internal citation omitted). As in Scarborough, the destruction of a blood sample after the State has been notified of the defendant's desire to conduct an independent test would “nullify the statute and frustrate the intention of the Legislature.”


¶ 12. More importantly, however, the Scarborough opinion held that violation of the statute necessarily carried with it the potential violation of a defendant's constitutional right to due process of law:


We do not think the rights of the respondent are to be ascertained from an examination of the statute. Rather they are determined by the constitutional guarantee that one may be deprived of his liberty only by due process of law. Due process of law is another name for governmental fair play. Fair play requires, for example, that a respondent in a criminal case must be given a reasonable opportunity to employ and consult with counsel before trial. We think that for the same basic reasons a respondent charged with operation of a motor vehicle while under the influence of intoxicating liquor is entitled to a reasonable opportunity to attempt to procure the seasonable taking of a blood sample for test purposes.


Id. (quoting State v. Munsey, 127 A.2d 79 (Me.1956) (internal citations and quotations omitted) (emphasis added)). Thus, the unreasonable denial of a defendant's request for a blood test pursuant to Mississippi Code Section 63-11-13 amounts to a denial of due process of law.


*4 ¶ 13. Likewise, the unreasonable denial of a defendant's request for an independent blood test under the same statutory provision discussed in Scarborough also will amount to a denial of due process of law. Miss.Code Ann. § 63-11-13 (Rev.2004). In Scarborough' s case, the defendant's request was reasonably denied because he was uncooperative with the arresting officer and failed to show that a blood sample could have been obtained. Scarborough, 261 So.2d at 480. However, the circumstances in the present case are quite different, and, unlike Scarborough, Harness was unreasonably denied his right to an independent blood test. Harness complied with all of the procedures required to protect his right to an independent test. He timely filed a motion for discovery of the blood sample on July 22, 2004, and when the State failed to respond, he followed with a motion to compel on September 30, 2004. Even though the State was on notice from Harness's motions that he desired to exercise his right to independent testing, the district attorney's office did not communicate with the crime lab until October 22, 2004, fifteen days after the blood had been destroyed. The State was fully aware a year earlier from the crime lab's report that the blood would be disposed of as early as six months thence, and despite the trial judge's suggestions to the contrary, the crime lab personnel were under no compulsion to heed a request to preserve the evidence from anyone but the prosecutor. That the crime laboratory's first test was inconclusive renders the State's disregard of Harness's request even more disturbing.


¶ 14. While these facts, taken together, may not demonstrate a specific intent to destroy the blood sample, the district attorney's indifference to the defendant's efforts to obtain independent testing, which is both a statutory and constitutional right, is tantamount to a willful disregard of the affirmative duty to preserve evidence that “might be expected to play a significant role in the suspect's defense.” Tolbert, 511 So.2d at 1372 (citing Trombetta, 467 U.S. at 489). Due process of law demands that the State disclose to criminal defendants any and all evidence relevant to guilt or to punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Likewise, our uniform rules require that the prosecution “disclose to each defendant or to defendant's attorney, and permit defendant or defendant's attorney to inspect, copy, test, and photograph upon written request ... any physical evidence ... relevant to the case or which may be offered in evidence.” Miss. Unif. Cir. & Cty. R. 9 .04(A)(5) (emphasis added). Further, the State has an affirmative duty to prosecute responsibly, and to this point, Mississippi Rule of Professional Conduct 3.8(d) makes clear that in all criminal cases the prosecutor “shall make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.” A prosecutor is not merely an advocate, but a “minister of justice.” Miss. R. Prof'l. Conduct 3.8 cmt. Accordingly, a prosecutor's duty requires diligence to ensure a defendant is afforded procedural justice and that guilt is decided upon the basis of sufficient evidence. Id. Though the prosecutor in this case may not have deliberately set out to deprive the accused of his right to independent testing, his error in failing to undertake steps to preserve the defendant's right to such testing produced the same result as if he had purposely caused the evidence to be destroyed without the defendant's being allowed to test it.


*5 ¶ 15. Finally, we note that, even before the enactment of the implied consent law, this Court recognized that, in certain cases, the accused is constitutionally entitled independently to inspect and analyze material, tangible evidence. In Jackson v. State, 243 So.2d 396, 397 (Miss.1971), the defendant was convicted of possession of marihuana-based material seized from his car, which the state chemist determined to be marihuana. Id. The State refused to give the defendant a sample of the seized substance in order that he might obtain independent testing at his own expense, and the trial court overruled the defendant's motion to compel production of a sample. Id. This Court reversed, holding that the denial of the defendant's request for independent testing amounted to a denial of due process. In reaching this decision, the Court noted that “[t]here is no good reason why the defendant in a civil case should be entitled to more liberal right to tangible evidence in the possession of his adversary ... than is a person under a serious criminal charge.” Id. at 398 (quoting Armstrong v. State, 214 So.2d 589, 596 (Miss.1968)). Although the ruling was “limited to the alleged possession or sale of a prohibited substance where the outcome of the case is dependent upon its identification as contraband,” the same reasoning applies in DUI cases where the outcome of the case is dependent upon the amount of alcohol in the accused's blood:


The guilt or innocence, prison sentence or acquittal, of the defendant depends entirely upon the identification of the contents of the boxes as marijuana. This substance was relevant, material, competent and, in fact, necessary evidence to defendant's conviction. Under this circumstance we are of the opinion that due process of law requires, upon the court's attention being directed thereto by motion, that the analysis of the substance not be left totally within the province of the state chemist.


Id. (emphasis added).


¶ 16. As in Jackson, the State's inaction denied Harness an opportunity to test the key piece of evidence in this case. This evidence was at all times under the complete control of the State, and the State was fully aware of its importance as well as the defendant's desire to obtain an independent analysis. In our adversarial system, it is fundamentally unfair to allow only one party access to the evidence. No scientific test or expert is infallible, a point underscored by the crime lab's failure to obtain a valid result from the first round of testing, and the opposing party always should be given a reasonable opportunity to scrutinize his adversary's case. This is especially important in criminal cases where liberty is at stake. The State's failure to respond to Harness's request prevented him from fully defending himself against the crime with which he was charged.


¶ 17. Therefore, we reverse Harness's conviction and remand the case for a new trial. If, upon retrial, the State's blood analysis is deemed admissible, the jury shall be given a negative-inference instruction, on the following order:


*6 The Court instructs the jury that if you find from the evidence that the State has failed to preserve any physical evidence whose contents or quality are in question in this case, and which the defendant could have had tested or analyzed by a qualified expert of his choosing, but for the State's having failed to cause that evidence to be preserved for independent, expert testing or analysis by the defense, then you may infer that such testing or analysis would have been favorable to the defendant and unfavorable to the State. However, if you choose to make the negative inference against the State, this would not necessarily result in the defendant's acquittal. If other evidence on this issue has been presented to you which either establishes the fact or resolves the issue to which the missing evidence is relevant, then you must weigh that evidence along with all other evidence. If, after considering all of the evidence, including the negative inference, you unanimously believe that the defendant has been proven guilty, beyond a reasonable doubt, then your verdict shall be, “We, the jury, find the defendant guilty.”



III.
¶ 18. The Court of Appeals relied upon the standard announced by the United States Supreme Court in Trombetta to determine that Harness was not deprived of his federally-guarantee d right to due process of law, but we find this legal test insufficient to protect the due process rights accorded under Mississippi law. Trombetta, 467 U.S. 488-90. In DUI cases, the accused is entitled to independent testing of an available blood sample, at his own expense, provided a timely and proper request is made. Because the State failed to honor Harness's timely request and allowed the key evidence against him to be destroyed, he was unreasonably denied due process of law. Therefore, we reverse his conviction and remand the case for a new trial.


¶ 19. REVERSED AND REMANDED.


WALLER, C.J., CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, LAMAR AND CHANDLER, JJ., CONCUR. PIERCE, J., DISSENTS WITH SEPARATE WRITTEN OPINION.




PIERCE, Justice, Dissenting:


*6 ¶ 20. I disagree with the majority's decision to completely disregard the three-part federal standard outlined in California v.. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), and Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed. 281 (1988). This Court consistently has followed this standard for the more than two decades,FN3 and it is my view that the circumstances presented in the instant appeal do not warrant a less “rigid standard” in order to adequately protect Harness's due-process rights. This Court has deemed the three-part standard sufficient to protect the due-process rights of several defendants in death penalty cases where evidence was inadvertently destroyed or lost. In fact, when would the preservation of evidence be more important than in a case where an accused stands to lose his life? In those cases, the Court did not seek to bend or disregard the three-part standard in order to address “due-process concerns.”


FN3. See Bell v. State, 963 So.2d 1124 (Miss.2007) (defendant convicted of manslaughter) ; Irby v. State, 893 So.2d 1042 (Miss .2004) (defendant convicted of selling cocaine); Murray v. State, 849 So.2d 1281 (Miss.2003) (defendant convicted of five counts of aggravated assault); Smith v. State, 835 So.2d 927, 941-942 (Miss.2003) (defendant convicted of murder); McGrone v. State, 798 So.2d 519, 522-23 (Miss.2001) (defendant convicted of motor-vehicle theft, two counts of aggravated assault on a law enforcement officer, and one count of simple assault on a law enforcement officer); Banks v. State, 725 So.2d 711 (Miss.1997) (defendant convicted of capital murder, sentenced to life imprisonment) ; Holland v. State, 587 So.2d 848, 869 (Miss.1997) (defendant convicted of murder and rape, sentenced to death); Taylor v. State, 672 So.2d 1246 (Miss.1996) (defendant convicted of capital murder, sentenced to death); and Tolbert v. State, 511 So.2d 1368, 1372 (Miss.1987) (defendant convicted of murder).
*7 ¶ 21. Moreover, I disagree with the majority's interpretation of Mississippi Code Section 63-11-13. I am of the position that the final sentence in Section 63-11-13 does not require, per se, the admissibility “of the test taken at the direction of a law enforcement officer” but merely memorializes the Legislature' s view that, absent an independent test by the defendant, the test taken at the direction of a law enforcement officer may be admissible, pending a determination of admissibility by the trial judge. Miss.Code Ann. § 63-11-13 (Rev.2004).


¶ 22. Further, the majority misconstrues Tolbert v. State, 511 So.2d 1368 (Miss.1987), as it equates the lost blood sample with evidence that “might be expected to play a significant role in the suspect's defense.” Tolbert, 511 So.2d at 1372 (citing California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)). First, the Court in Trombetta held that “the State's duty to preserve evidence is limited to evidence that might be expected to play a significant role in the suspect's defense.” Tolbert, 511 So.2d at 1372 (citing Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)) (emphasis added). Second, the Trombetta Court went on to hold that “[T]o play a significant role in the defendant's case, the exculpatory nature and value of the evidence must have been (1) apparent before the evidence was destroyed and (2) of such a nature that the defendant could not obtain comparable evidence by other reasonable means ... [and (3) ] the prosecution' s destruction of evidence must not have been in bad faith.” Tolbert, 511 So.2d at 1372 (citing Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), and United States v. Webster, 750 F.2d 307, 333 (5th Cir.1984) (citations omitted)).


¶ 23. Here, to play a significant role in the case, the exculpatory value of Harness's blood sample must have been apparent to the State before it was destroyed by the State Crime Lab and of the nature that Harness could not obtain comparable evidence by other reasonable means. I concede the fact that Harness was unable to garner comparable evidence due to the State's inaction regarding the blood sample. Nevertheless, the State had no reason to believe the blood sample held any exculpatory value, since the test results revealed Harness's blood-alcohol content to be well above the legal limit statutorily permitted while operating a motor vehicle. I note that “the mere possibility the evidence might aid the defense does not satisfy the constitutional materiality standard.” Tolbert, 511 So.2d at 1372 (citing United States v. Binker, 795 F.2d 1218, 1230 (5th Cir.1986)). Further, “bad faith” is defined as “not simply bad judgment or negligence, but rather ... conscious doing of wrong because of dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will.” Murray v. State, 849 So.2d 1281, 1286 (Miss.2003) (citing Black's Law Dictionary 139 (6th ed.1990)). While the State's inaction is admittedly negligent, all parties agreed that the State's inaction was not intentional. Thus, the district attorney's inaction did not amount to a willful disregard of the duty to preserve evidence that “might be expected to play a significant role in the suspect's defense.”


*8 ¶ 24. Based on the aforementioned reasons, I would affirm the trial court. Accordingly, I must dissent.


Miss.,2010.
Harness v. State
--- So.3d ----, 2010 WL 2106027 (Miss.)

721 So.2d 1192, 23 Fla. L. Weekly D2564

DUI cop did NOT have a reasonable and articulable suspicion of criminal activity to support traffic stop and seizure of evidence:

A. where officer observed nothing that indicated the driver was impaired or engaging in any illegal activity at the time he made stop,

B. where the information provided in the anonymous tip, that the driver of a maroon car was possibly intoxicated and driving from house to house, was not sufficiently descriptive.

Robert WILLIAMS, Appellant,
v.
STATE of Florida, Appellee.

No. 97-3988.

Nov. 17, 1998.

Defendant who pleaded nolo contendere in the Circuit Court, Alachua County, Elzie Sanders, J., appealed his judgment and sentence. The District Court of Appeal, Miner, J., held that officer did not have a reasonable and articulable suspicion of criminal activity to support traffic stop.



Reversed.



West Headnotes


[1] Headnote Citing ReferencesKeyCite Citing References for this Headnote

Key Number Symbol110 Criminal Law
Key Number Symbol110XXIV Review
Key Number Symbol110XXIV(L) Scope of Review in General
Key Number Symbol110XXIV(L)13 Review De Novo
Key Number Symbol110k1139 k. In General. Most Cited Cases

Key Number Symbol110 Criminal Law Headnote Citing ReferencesKeyCite Citing References for this Headnote
Key Number Symbol110XXIV Review
Key Number Symbol110XXIV(O) Questions of Fact and Findings
Key Number Symbol110k1158.8 Evidence
Key Number Symbol110k1158.12 k. Evidence Wrongfully Obtained. Most Cited Cases
(Formerly 110k1158(4))

Court reviews a trial court's factual findings on a motion to suppress to determine whether they are supported by competent substantial evidence; however, review of the trial court's application of the law to the facts is de novo.


[2] Headnote Citing ReferencesKeyCite Citing References for this Headnote

Key Number Symbol35 Arrest
Key Number Symbol35II On Criminal Charges
Key Number Symbol35k63.5 Investigatory Stop or Stop-And-Frisk
Key Number Symbol35k63.5(3) Grounds for Stop or Investigation
Key Number Symbol35k63.5(4) k. Reasonableness; Reasonable or Founded Suspicion, Etc. Most Cited Cases

An anonymous tip may provide reasonable suspicion to permit a stop. U.S.C.A. Const.Amend. 4.


[3] Headnote Citing ReferencesKeyCite Citing References for this Headnote

Key Number Symbol35 Arrest
Key Number Symbol35II On Criminal Charges
Key Number Symbol35k63.5 Investigatory Stop or Stop-And-Frisk
Key Number Symbol35k63.5(3) Grounds for Stop or Investigation
Key Number Symbol35k63.5(4) k. Reasonableness; Reasonable or Founded Suspicion, Etc. Most Cited Cases

Unlike information from citizen informants which is presumed reliable, information provided anonymously must be independently corroborated before it provides reasonable suspicion to permit a stop. U.S.C.A. Const.Amend. 4.


[4] Headnote Citing ReferencesKeyCite Citing References for this Headnote

Key Number Symbol48A Automobiles
Key Number Symbol48AVII Offenses
Key Number Symbol48AVII(B) Prosecution
Key Number Symbol48Ak349 Arrest, Stop, or Inquiry; Bail or Deposit
Key Number Symbol48Ak349(2) Grounds
Key Number Symbol48Ak349(6) k. Intoxication. Most Cited Cases

Officer did not have a reasonable and articulable suspicion of criminal activity to support traffic stop and seizure of evidence, where officer observed nothing that indicated the driver was impaired or engaging in any illegal activity at the time he made stop, and the information provided in the anonymous tip, that the driver of a maroon car was possibly intoxicated and driving from house to house, was not sufficiently descriptive. U.S.C.A. Const.Amend. 4.


*1193 Nancy A. Daniels, Public Defender, David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.

Robert A. Butterworth, Attorney General, Mark C. Menser, Assistant Attorney General, Tallahassee, for Appellee.

MINER, Judge.



This is a timely appeal from judgment and sentence following appellant's plea of nolo contendere. The appellant specifically reserved the right to appeal the trial court's denial of his motion to suppress. We reverse.



Just past midnight on March 12, 1997, the Gainesville Police Department received an anonymous tip that the driver of a maroon Ford was “possibly intoxicated and driving from house to house.” Arriving in the specified area within five minutes of receiving the tip, the arresting officer immediately spotted a maroon Ford, which was being driven by appellant. After following the appellant for no more than a block, the officer observed the appellant turn on to a side street and then immediately into a driveway. The officer pulled in behind appellant, activated his lights, and ordered appellant out of his vehicle. At the hearing on the motion to suppress the evidence seized from appellant's car, the officer testified that he had not observed any suspicious or criminal activity which would have warranted his stopping appellant. The court denied the motion on the ground that appellant's actions sufficiently corroborated the tip and thus provided the requisite reasonable suspicion for an investigative stop.



[1] Headnote Citing ReferencesWith regard to a motion to suppress, we review a trial court's factual findings to determine whether they are supported by competent substantial evidence; however, review of the trial court's application of the law to the facts is de novo. Butler v. State, 706 So.2d 100 (Fla. 1st DCA 1998).



[2] Headnote Citing References[3] Headnote Citing References[4] Headnote Citing ReferencesAn anonymous tip may provide reasonable suspicion to permit a stop. Alabama v. White, 496 U.S. 325, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990). However, unlike information from citizen informants which is presumed reliable, see State v. Evans, 692 So.2d 216 (Fla. 4th DCA 1997), information provided anonymously must first be independently corroborated. Butts v. State, 644 So.2d 605, 606 (Fla. 1st DCA 1994), review denied, 659 So.2d 272 (Fla.1995). The facts in this case do not support a finding that the officer had an articulable suspicion of criminal activity. The officer observed nothing that indicated the driver was impaired. Further, the information provided in the anonymous tip was no *1194 more descriptive than that which “could have been provided by any pilgrim on the highway,” Robinson v. State, 556 So.2d 450, 452 (Fla. 1st DCA 1990), and there was no corroboration of any criminal activity. Thus it was error to deny the motion to suppress. The case is reversed, and the defendant's conviction and sentence are vacated.



ERVIN and KAHN, JJ., concur.