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Declining Suspect Phone Call Request During Dui Arrest In Arizona

Under Rule 6.1(a), Ariz. R. Crim. P., 16A A.R.S., X had "the right to consult in private with an attorney, or the attorney's agent, as soon as feasible after [he was] taken into custody."

The Sixth Amendment right to counsel arises only when a defendant is formally charged with a crime. Moran v. Burbine, 475 U.S. 412, 428-32, 106 S. Ct. 1135, 1144-47, 89 L. Ed. 2d 410, 425-28 (1986); State v. Hall, 129 Ariz. 589, 592, 633 P.2d 398, 401 (1981).

That rule "recognizes the federal and state constitutional right to counsel." Kunzler v. Pima County Superior Court, 154 Ariz. 568, 569, 744 P.2d 669, 670 (1987).

State v. Holland, 147 Ariz. 453, 455, 711 P.2d 592, 594 (1985) (state may not, "without justification, prevent access between a defendant and his lawyer, if available, in person or by telephone, when such access would not unduly delay the DUI investigation and arrest").

Because we value the right to counsel so highly, Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), when the right to counsel is violated, then the conviction obtained as a direct result must be set aside.

This is the rule because it is impossible to foresee what advice would have been given defendant had he been able to confer privately with counsel. It is quite possible that he would have been instructed to obtain, in some manner, exculpatory evidence.

Holland, 147 Ariz. at 456, 711 P.2d at 595. See also State v. Sanders, 194 Ariz. 156, P9, 978 P.2d 133, (App. 1998) ("The remedy for a violation of the right to counsel [in the DUI context] is dismissal.").

See, e.g., McNutt (police inexplicably denied defendant's request to telephone his attorney and ignored his request for independent blood test, instead holding him for two-and-one-half hours while any alcohol dissipated from his body);

Amos v. Bowen, 143 Ariz. 324, 327, 693 P.2d 979, 982 (App. 1984) (dismissal required when police, albeit for good reason and without bad motive, "delayed a period of two or more hours in the process of proceeding to obtain an independent blood test"); Cada, 114 Ariz. at 514, 562 P.2d at 394 (state "may not unreasonably interfere with an accused's reasonable attempts to secure, at his own expense, a blood or other scientific test for the purpose of attempting to establish evidence of his sobriety at or near the crucial time under consideration");

Ganske, 114 Ariz. at 516, 562 P.2d at 396 (police interference with defendant's attempted release on bail and instead holding him for eight hours precluded him from obtaining independent blood test; it was interference with obtaining test that gave rise to "claimed denial of 'fair-play' in [that] case, not that he could have pursued other alternatives").

None of the pertinent Arizona cases involving violation of the right to counsel and related due process concerns in the DUI context have limited suppression only to evidence that is "tainted" by the violation. Our supreme court, in no uncertain terms, has stressed the importance of and has assiduously protected the right to counsel in this area.

When that right is violated, as it admittedly was here, the court has imposed stringent remedies, ranging from suppression of any evidence obtained after the violation to outright dismissal of the action.

Moreover, when the state violates a defendant's due process right to obtain independent, potentially exculpatory evidence of sobriety, as the trial court found, the violation equates to a de facto suppression of any such evidence that the defendant might have obtained but for the violation. See Cada, 114 Ariz. at 512-13, 562 P.2d at 392-93 (police interference with defendant's gathering of independent evidence of sobriety analogous to suppression of evidence favorable to defendant and violates due process); cf. Webb, 25 Ariz. App. at 215-16, 542 P.2d at 408-09.