The reviewing courts analyze the totality of the circumstances. See State v. Payne, 146 Idaho 548, 562, 199 P.3d 123, 137 (2008) (whether an out-of-court identification violated due process turns on the totality of the circumstances); State v. Johns, 112 Idaho 873, 879, 736 P.2d 1327, 1333 (1987) (applying the totality of the circumstances to evaluate whether a confession was voluntary or violated due process); State v. Carr, 128 Idaho 181, 184, 911 P.2d 774, 777 (Ct. App. 1995) ("due process is flexible and calls for such procedural protections as the particular situation demands") (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). Due process is violated if an officer refuses to allow a DUI arrestee to contact legal counsel after any alcohol concentration test requested by the officer has been completed or refused.
Stegall's "right to a fair opportunity to defend against the State's accusations" includes an interest in obtaining evidence to refute the State's evidence against him. The Court of Appeals analyzed a nearly identical issue in State v. Carr, 128 Idaho 181, 911 P.2d 774 (Ct. App. 1995). In that case, a police officer arrested Carr for driving under the influence and transported her to the county jail. Id. at 182, 911 P.2d at 775.
State v. Green, 149 Idaho 706, 709, 239 P.3d 811, 814 (Ct. App. 2010). In the proceedings below, as well as on appeal, Grom relies on State v. Carr, 128 Idaho 181, 911 P.2d 774 (Ct. App. 1995). In Carr, this Court addressed whether the right to due process was violated when the defendant was denied her request to call an attorney following a breath test.
This Court also considers whether the Telmate telephone system deprived Evenson of his right to gather potentially exculpatory evidence in violation of the Fourteenth Amendment and I.C. § 18-8002A(6). Individuals charged with an alcohol-related driving offense have a constitutional right to gather exculpatory evidence under the due process clause of the Fourteenth Amendment, State v. Carr, 128 Idaho 181, 184, 911 P.2d 774, 777 (Ct. App. 1995), and a qualified statutory right to obtain additional, independent BAC testing under I.C. § 18-8002A(6), State v. Hedges, 143 Idaho 884, 886-87, 154 P.3d 1074, 1076-77 (Ct. App. 2007). These means provide an individual the chance to gather evidence to refute the State's evidence of intoxication, preserving the right to a fair opportunity to defend against the State's accusations.
Schmerber v. California, 384 U.S. 757, 767-68, 86 S.Ct. 1826, 1834, 16 L.Ed.2d 908, 917-18 (1966); State v. Woolery, 116 Idaho 368, 370-71, 775 P.2d 1210, 1212-13 (1989); State v. DeWitt, 145 Idaho 709, 711-12, 184 P.3d 215, 217-18 (Ct.App. 2008). In State v. Carr, 128 Idaho 181, 911 P.2d 774 (Ct.App. 1995), we addressed whether Carr's right to due process was violated when the State denied her request to telephone her attorney after she had submitted to a breath test and held her incommunicado for approximately five hours after her arrest. Recognizing the exigency created by the dissipation of evidence as alcohol in the blood metabolizes, we found a constitutional violation.
Because of this exigency, the only opportunity to obtain a meaningful, independent BAC test is within a reasonable time following arrest and administration of the state's evidentiary BAC test. State v. Carr, 128 Idaho 181, 184, 911 P.2d 774, 777 (Ct.App.1995). This means that, after administration of the evidentiary BAC test, a defendant cannot be denied access to a telephone upon request to arrange for an independent test.
Therefore, a detainee's opportunity to gather exculpatory evidence in such cases lasts only a short time following the arrest and administration of the state's testing. State v. Carr, 128 Idaho 181, 184, 911 P.2d 774, 777 (Ct.App. 1995). In Carr, this Court noted that a detainee may gather exculpatory evidence in several ways other than submitting to another BAC test, including the taking of photographs to demonstrate that the detainee's eyes were not bloodshot but were clear and white; preparation of a tape recording to demonstrate that the detainee had clear speech; videotaping the detainee to show that he has balance and is able to walk in a straight line; performance of a gaze nystagmus test to show smooth eye pursuit at all angles; and eyewitness observation by a non-law enforcement person who observes the various characteristics of sobriety aforementioned.
See also United States v. Canane, 622 F. Supp. 279, 281 (W.D.N.C. 1985) (recognizing need for suspect's "access to his counsel, friends, relatives, or some disinterested person within a relatively short time after his arrest"). As the court noted in State v. Carr, 911 P.2d 774, 777-78 (Idaho App. 1995): [T]he person contacted by the arrestee could arrange for a photograph to be taken to demonstrate that the arrestee's eyes were not bloodshot but were clear and white; prepare a tape recording to demonstrate that the arrestee had clear speech; videotape the arrestee to show that he or she has balance and is able to walk in a straight line; perform a gaze nystagmus test to show smooth eye pursuit at all angles; or simply serve as a witness who observed the aforementioned characteristics of sobriety. Thus, a DUI suspect has a qualified due process right to gather independent evidence of sobriety while it still exists, so long as exercise of that right does not unduly delay or interfere with the law enforcement investigation.
The test for determining whether state action violates procedural due process requires the Court to consider three distinct factors: (1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the existing procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. Mathews v. Eldridge, 424 U.S. 319, 335 (1976); State v. Carr, 128 Idaho 181, 184, 911 P.2d 774, 777 (Ct.App. 1995). Procedural due process is flexible and calls for such procedural protections as the particular situation demands.
In a recent Idaho case, the defendant claimed her Sixth and Fourteenth Amendment rights to counsel were violated when, after she had submitted to a chemical test, her request to call her attorney was denied. State v. Carr, 128 Idaho 181, 911 P.2d 774 (Ct.App. 1995). In dicta, the Idaho Court of Appeals commented there clearly is no right to counsel prior to the administration of a chemical test.