dissenting.
I disagree with the majority that we must remand the case to the trial court on the issue of prejudice. The record reflects that the trial court made specific findings of prejudice due to defendant’s inability to obtain a blood test during a crucial period of time. These findings were not challenged on appeal by the state. Aside from its reliance on a few cases, the state devoted only one sentence in its answer brief to contend that “[djefendant has failed to show actual prejudice,” without challenging the trial court’s findings. We are thus bound by them, and a remand, in my view, would be inappropriate.
Additionally, aside from the trial court’s specific finding of prejudice, this court can determine, as a matter of law, that there was prejudice, irrespective of whether we denote it as presumed or actual. The mere fact that a blood test may have contradicted the breath test is all that should be required. This case is analogous to a case of lost evidence in which the actual effect of its absence will never be known. The importance of gaining quick and certain access to counsel in an arrest for driving under the influence of intoxicating substances, for the possible purpose of conducting a blood alcohol test, is greater than access to counsel, for example, in a shoplifting case. In the former, the necessity for prompt access is due to the rapid dissipation of the evidence — the alcohol content in defendant’s system. Once the alcohol has dissipated from defendant’s body, a method to prove his innocence was lost.
The cases relied on by the state in support of its argument that defendant was not prejudiced are distinguishable because the issue in those cases was denial of a right to counsel, rather than prejudice caused by a failure to preserve evidence. See State v. Gibby, 78 N.M. 414, 432 P.2d 258 (1967); State v. Maimona, 80 N.M. 562, 458 P.2d 814 (Ct.App.1969); State v. Knerr, 79 N.M. 133, 440 P.2d 808 (Ct.App.1968); State v. Flores, 79 N.M. 412, 444 P.2d 597 (Ct.App.1968). State v. Sandoval, 101 N.M. 399, 683 P.2d 516 (Ct.App.1984), likewise is distinguishable because there, “[njeither defendant contended] that he was deprived of his right to an additional test.” Id. at 401, 683 P.2d at 518. Here, defendant was deprived of his right to an additional test, not as defendants in Sandoval argued under the Implied Consent Act, NMSA 1978, Sections 66-8-105 to -112, but under the statutory right to contact his attorney. Section 31-1-5(A) modifies the right to counsel somewhat in that it gives an arrested individual the right to contact his attorney, if he so chooses, within twenty minutes of arriving at the place of detention. It is irrelevant that defendant did not specifically state that he intended to contact his attorney for the purposes of obtaining an independent blood alcohol test— what is relevant is that he was denied the opportunity to tell anyone anything. For these reasons, I dissent.