270 P.3d 859
Ariz. Ct. App.2012Background
- Penney was arrested for aggravated DUI after a crash; police found his own paperwork and identified him as owner.
- Penney was taken to the station and placed in a phone room so he could contact counsel; he refused a blood test after being advised under implied consent.
- The phone room had one yellow pages and one white pages; pages listing attorneys in the yellow pages were allegedly torn out.
- Penney advised the officer that the attorney pages were missing; the officer did not provide another attorney list or assist.
- Penney’s blood was drawn after a warrant was obtained, and he later was read Miranda rights and questioned.
- Trial court dismissed the charges with prejudice for denial of the right to counsel; State appeals seeking a remedy determination and remand for prejudice findings: whether dismissal was proper or whether suppression suffices.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did police denial of right to counsel occur? | Penney’s right to counsel was denied when pages listing attorneys were torn out and police provided no assistance. | Police provided access to a phone; denial only occurs if counsel access is prevented in a meaningful way. | Yes, there was a denial of the right to counsel. |
| Was the denial a per se improper denial or permissible under exception? | Any impediment to contacting counsel was unlawful; must tailor remedy. | Providing a phone and access to listings can be sufficient; no per se denial. | The denial was improper; police must provide reasonable means to contact counsel under the circumstances. |
| What remedy is appropriate for the right-to-counsel violation? | Dismissal with prejudice appropriate when the right and exculpatory evidence gathering are impeded. | Suppression should be the remedy absent demonstrated prejudice to the defense. | Remand to determine prejudice and whether dismissal with prejudice is warranted. |
| Did the court err in not addressing potential prejudice at dismissal? | Record lacked findings on exculpatory evidence and prejudice from the violation. | Remedy discussion did not require explicit prejudice findings at the initial dismissal. | Remand required to address whether violation prejudiced Penney’s defense. |
| Is there precedent limiting remedies to suppression instead of dismissal? | Pecard/Morrison guidance supports tailored relief including dismissal when prejudice shown. | Remedies should minimize impact on justice; suppression may suffice if no prejudice shown. | The remedy must be tailored; court to determine prejudice on remand. |
Key Cases Cited
- State v. Lemming, 188 Ariz. 459 (App. 1997) (abuse of discretion standard for dismissals; erroneous legal interpretation)
- State v. Chapple, 135 Ariz. 281 (1983) (abuse of discretion standard for judicial decisions)
- State v. Sanders, 194 Ariz. 156 (App. 1998) (right to counsel violated when police refuse contact information or suppress actions)
- Martinez v. Superior Court, 181 Ariz. 467 (App. 1994) (police cannot interfere with reasonable efforts to contact counsel)
- Kunzler v. Pima Cnty. Superior Court, 154 Ariz. 568 (1987) (prior framework: delay only when it hinders investigation; right to counsel vs ongoing investigation)
- State v. Rumsey, 225 Ariz. 374 (App. 2010) (burden on State to show lack of prejudice; remedy relevance to exculpatory evidence)
- Pecard, 196 Ariz. 371 (App. 1999) (Morrison framework; tailoring relief to ensure effective counsel and fair trial; prejudice required for dismissal)
- Morrison, 449 U.S. 361 (1981) (framework for remedies when rights to counsel are violated)
- City of Seattle v. Carpenito, 32 Wash. App. 809; 649 P.2d 861 (1982) (access to phone book with attorney numbers not always denial of right to counsel)