Daniel B. Treon - 014911 DANIEL B. TREON, P.C. 2302 North Third Street Phoenix, Arizona 85004 Telephone: (602) 258-5050 Fax: (602) 254-7337 Attorney for Defendant IN THE PHOENIX MUNICIPAL COURT STATE OF ARIZONA, COUNTY OF MARICOPA STATE OF ARIZONA, ) ) Case No. _________ Plaintiff, ) ) DEFENDANT’S MOTION v. ) TO DISMISS ) _______________, ) Evidentiary Hearing Requested ) Division 12 Defendant, ) ________________________________________) Defendant, through undersigned counsel, moves this court to dismiss the charges against him with prejudice. The basis for this request is the interference with Mr. _____’s right to counsel and right to gather exculpatory evidence, as set forth in the following Memorandum of Points and Authorities RESPECTFULLY SUBMITTED this 16th day of November, 1998. DANIEL B. TREON, P.C. By_______________________ Daniel B. Treon Attorney for Defendant MEMORANDUM I. FACTS On June 26, 1998 at approximately ten p.m. Phoenix Police Officer Toland (#5818) responded to a two vehicle, non-injury accident and later arrested Mr. ______for suspicion of driving under the influence of intoxicating liquor and/or drugs. Officer Toland’s report indicates that at the arrest scene Mr. _____ stated that he was well aware of his constitutional rights and that he therefore declined to continue with various field sobriety tests. Mr. _____ was transported to the police station for a DRE evaluation, and Officer Toland reported that there again Mr. _____ stated that he knew his constitutional rights. Once at the station, Mr. _____ noticed a telephone through a window of the room in which he was being examined. He made a clear and affirmative request for counsel, specifically demanding that he be allowed to telephone a lawyer. By this time, three other officers had joined Officer Toland in the investigation at the station. Mr. _____ was told that there was no phone for him to use. The officers continued the investigation, even though Mr. _____ had earlier told them that he refused to undergo any further field sobriety tests and that he wanted counsel. At 10:45 p.m., Officer Toland, who appears to be in training for DRE certification, and who conducted the DRE examination, read Mr. _____ his Miranda rights. Again, Mr. _____ requested counsel and was again told that there was no phone for him to use. After continuing to subject Mr. _____ to various DRE tests, and after Mr. _____ had blown .022 and .021 on the Intoxilyzer 5000 and allegedly made the statement that he had taken two hits off a marijuana cigarette almost twelve hours earlier, Officer Toland concluded that Mr. _____ was under the influence of alcohol and marijuana. Oddly, tests of Mr. _______ urine showed no marijuana, but did show Valium (for which Mr. _____ has a prescription, and which Mr. _____ had advised officers in the field that he had consumed about four hours before the accident), and methamphetemine. II. LAW AND ARGUMENT The Arizona Supreme Court has given great weight to a suspect's right to the assistance of an attorney. The Court in Kunzler 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.2d 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). Similarly, the court has settled that if a defendant asks to speak with an attorney after being advised of his Miranda rights, any unreasonable interference by police would violate his right to counsel. State v. Transon, 168 Ariz. 482, 924 P.2d 486 (1996). This right is based on Article 2, Section 24 of the Arizona Constitution and is incorporated into Rule 6.1 of the Arizona Rules of Criminal Procedure. Rule 6.19(a) provides that: A defendant shall be entitled to be represented by counsel in any criminal proceeding….The right to be represented shall include the right to counsel in private with an attorney, or the attorney’s agents, as soon as feasible after a defendant is taken into custody, at reasonable times thereafter, and sufficiently in advance of a proceeding to allow adequate preparation therefore. State v. Transon, 168 Ariz. 482, 484, 924 P.2d 486, 488 (1996). A defendant’s right to the assistance of counsel in determining whether to take the blood alcohol test, field sobriety tests and DRE tests 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 (1986) (alteration in original)(citing Smith v. Ganske, 114 Ariz. 515, 517, 562 P.2d 395, 397 (App. 1977). In State v. Keyonnic, 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. Attorneys play an essential role in assisting defendants in gathering exculpatory evidence. Lawyers are specially trained to have an intelligent understanding of the law and the rights of individuals. A person without legal training and experience should not be expected to understand and effectively exercise his rights without being afforded an opportunity to speak with an attorney. Often a defendant will not understand the importance of a test to establish innocence, and he will not submit tot a test given by the officers nor make the effort to obtain an independent test. Also, attorneys have resources available to gather independent evidence not readily available to a suspect, especially when that suspect is held in custody. In a DUI case, a defendant has a very limited time period in which to gather exculpatory evidence. Therefore, a denial of the right to counsel during this time is an obstruction of the suspects right to a fair trial. There are two possible remedies for a violation of a defendant’s right to assistance of counsel in such a situation. First, the evidence that was obtained should be suppressed. This is the sole remedy only when the defendant is able to obtain exculpatory evidence without the assistance of counsel. However, if police conduct interferes with the defendant’s ability to obtain exculpatory evidence, then the appropriate remedy is dismissal of the case with prejudice. This is the appropriate remedy when the state’s action prevents a fair trial by denying the defendant the right to collect exculpatory evidence on his behalf. Smith v Cada, 114 Ariz. 510, 562 P.2d 390 (App. 1977). Mr. Burch’s case presents a situation in which there was unreasonable interference with his right to the assistance of counsel and that interference denied him the opportunity to gather exculpatory evidence. The police officer’s denial of the existence of a telephone for Mr. Burch to call an attorney was unreasonable. It would not have interfered with the investigation were the officers to have allowed Mr. Burch to use the phone which he could clearly see in the next room. Had Mr. Burch been able to speak with counsel, he might have been advised to obtain independent tests of his urine, breath and blood. The police interference with Mr. Burch’s ability to gather such exculpatory evidence violated his constitutional rights. Such denial of fundamental fairness demands that the charges be dismissed with prejudice. RESPECTFULLY SUBMITTED this 16th day of November, 1998. By_______________________ Daniel B. Treon Attorney for Defendant Original/copy of the foregoing delivered this 16th day of November, 1998 to: City Prosecutor’s Office 455 North Fifth Street Phoenix, AZ 85004 ___________________________