Randall Callender, P.C. 2328 North Central Avenue P.O. Box 37573 Phoenix, Arizona 85069-7573 (602) 257-8708 State Bar I.D. no. 005394 Attorney for: Defendant PHOENIX MUNICIPAL COURT MARICOPA COUNTY, ARIZONA STATE OF ARIZONA, ) Plaintiff, ) ) vs. ) No. 5508338-1,2,3,4,5 ) XXXXXX XXXXXXX, ) Motion to Suppress/Dismiss Defendant. ) Evidentiary Hearing Requested) _________________________) Div. 20 12-18-98 8:30 a.m. Defendant, for the reasons hereinafter set forth, requests that all evidence gathered as a result of the stop in this case be suppressed. Defendant also requests, for the reasons set forth herein, that the charges be dismissed. FACTS Defendant was driving his red 1984 Pontiac Fiero eastbound on Monte Vista in Phoenix,Arizona, at approximately 1:15 a.m. on July 25, 1998, with Xxxxxx Xxxxxxxx as his passenger, when he crossed over 35th Avenue in route to Mr. Xxxxxxx's residence at 3xxx W. Monte Vista. He proceeded east on Monte Vista and pulled over and stopped in front of said residence. It was after stopping that Mr. Xxxxxxx was contacted by Officers Howard and Millsap of the Phoenix Police Department. In his report, Officer Howard states that 3 to 4 vehicles in front of him northbound on 35th Avenue had to apply their brakes when Mr. Xxxxxxx crossed in front of them and also that Mr. Xxxxxxx did not come to a complete stop at the stop sign at 34th Avenue and Monte Vista. Both Mr. Xxxxxxx and his passenger deny that any traffic was disrupted on 35th Avenue and further say that Mr. Xxxxxxx did come to a complete stop at 34th Avenue. Following some alleged observations and tests by the officers, Mr. Xxxxxxx was placed under arrest at 1:18 a.m. and handcuffed for placement in the back of the police car. Officer Howard reports that Mr. Xxxxxxx refused to get into the car after 6 requests and that he therefore drove his knee 4 times into the back of Mr. Xxxxxx's left leg, thus getting Mr. Xxxxxx into the car. Mr. Xxxxxxx asked to speak with an attorney and was allowed to talk by telephone with attorney Bradley Johnson at 1:38 a.m., but was not allowed to speak with him privately. Because Mr. Johnson is a civil lawyer, Mr. Xxxxxxx asked to call attorney Wolf after getting off the phone with Johnson. The officers made no attempt to honor this request until 2:30 a.m., some 11 minutes after Mr. Xxxxxxx's refusal to take a breath test. Mr. Xxxxxxx refused the breath test, stating that he wanted a blood test instead. The call to Wolf at 2:30 a.m. was allegedly made by Officer Campbell who was allegedly told that a lawyer would be paged and would call back. No one is said to have called back. Mr. Xxxxxx was then transported to and booked into Madison Street jail after being issued the citations which are the subject of this case. When Mr. Xxxxxxx had been advised of his right to arrange for an independent test at 2:23 a.m. his response is reported to have been, "Yeah, OK". It was, in fact, his desire to get a blood test. The booking process at Madison Street jail was not completed until, at least, 4:54 a.m. After booking, Mr. Xxxxxxx was led to believe that he would be seeing a judge at approximately 6:00 a.m. This, in reality, did not occur until about 6:00 p.m. When his wife, Sandra Xxxxxxx, went down to the jail to post bail she was told that Mr. Xxxxxx would not be getting out until he saw the judge. Mr. Xxxxxxx was thereby foreclosed from the realistic opportunity of acquiring any meaningful independent blood test. ILLEGAL STOP The Arizona Supreme Court, in State v. Rogers, 186 Ariz. 508, 924 P.2d 1027 (1996), addressed the concept of "reasonable suspicion" necessary for a police stop as follows: " We now turn to a determination of whether the officers had a reasonable suspicion that criminal activity was afoot as required by Terry. "Articulating precisely what 'reasonable suspicion' ... mean[s] is not possible. [It is a] common sense, nontechnical concept[ ] that deal[s] with 'the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' " Ornelas, --- U.S. at ----, 116 S.Ct. at 1661 (quoting Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 1311, 93 L.Ed. 1879 (1949)). Terry requires articulable reasons for an investigatory stop. Terry, 392 U.S. at 21, 88 S.Ct. at 1880." It is quite obvious that if Mr. Xxxxxxx did not drive improperly in any way there was no reason for the investigatory stop in this case and that all evidence should be suppressed and the charges dismissed. FAILURE TO ALLOW PRIVATE CONSULTATION WITH AN ATTORNEY The Arizona Supreme Court has given great weight to a suspect's right to the assistance of an attorney. The court in Kuntzler v. Pima County Superior Court declared that a DUI suspect has the right to speak with an attorney prior to deciding whether to submit to an alcohol test as long as it does not hinder an ongoing investigation. 154 Ariz. 570, 744 P.2nd 669 (1987). The court repeated and emphasized its earlier opinion in McNutt v. Superior Court that "law enforcement officials may not, without justification, prevent access between the criminal accused and his lawyer, available in person or by immediate telephone communication. if such access does not interfere unduly with the matter at hand." McNutt 133 Ariz, at 9-10. 648 P.2d at 124-25. This concept was affirmed in State v. Juarez when the court determined that a defendant has the right to the assistance of counsel in determining whether to take a blood alcohol test as long as it does not interfere with an ongoing investigation. 161 Ariz. 76, 775 P.2d 1140 1989). Because Mr. Xxxxxxx was effectively denied the opportunity to consult with an appropriate attorney before refusing to take the breath test, the fact of that refusal should be suppressed. INTERFERENCE WITH THE OPPORTUNITY TO GATHER POTENTIALLY EXCULPATORY EVIDENCE A defendant's right to the assistance of counsel in determining whether take the blood alcohol test is an extension of the doctrine that defendants have the right to gather independent exculpatory evidence. Under the Due Process Clause of the Arizona Constitution, a defendant accused of driving under the influence is guaranteed "a fair chance to obtain independent evidence of sobriety essential to his defense at the only time it [is] available." Montano v. Superior Court, 149 Ariz. 385, 389, 719 P.2d 271, 275 (1986) (alteration in original) (citing Smith V. Ganske, 114 Ariz. 515. 517, 562 P.2d 395, 397 (App. 1977)). In State v. Keyonnie 181 Ariz 485, 487, 892 P.2d 205, 207 (1995), the Court held that "when police conduct interferes with both the defendant's right to counsel and his ability to obtain exculpatory evidence" the appropriate remedy is dismissal because state action has foreclosed defendant's right to a fair trial. In the instant case we not only have the interference caused by the counsel issue but we have the fact that Mr. Xxxxxxx was physically prevented from obtaining an independent sample because of the circumstances of his incarceration. The booking process itself was not over until at least 4:54 a.m, almost four hours after the end of the driving. The appropriate remedy is the dismissal of these charges. Respectfully submitted this 18th day of November, 1998. ________________________ Randall Callender Attorney for Defendant Copy delivered above date to Phoenix City Prosecutor's Office