(dissenting).
I dissent.
A. The indictment was fatally defective.
The indictment charged defendant with homicide by vehicle in one count. It charged defendant with driving under the influence of intoxicating liquor or drugs, or reckless driving, which resulted in the death of a minor child.
The jury returned a verdict:
We, the jury, find the defendant guilty in the manner and form as charged in the indictment.
The indictment and verdict leave unanswered the following question: Was the defendant convicted of homicide by vehicle while (1) driving under the influence of intoxicating liquor, or (2) driving under the influence of drugs, or (3) driving recklessly? The State must inform a defendant, with certainty, of the offense with which he was charged. It is impossible to sustain a conviction upon an indictment in which the offense charged is indefinite and uncertain. State v. McMath, 34 N.M. 419, 283 P. 51 (1929).
It is the established rule of the common law * * * that in all criminal prosecutions the accused must be informed of the nature and cause of the accusation against him. It is the law of every civilized community, and in no case can there be, in criminal proceedings, due process of law where the accused is not thus informed. The information which he is to receive is that which will acquaint him with the essential particulars of the offense, so that he may appear in court prepared to meet every feature of the accusation against him. State v. Dutchover, 85 N.M. 72, 77, 509 P.2d 264, 269 (Ct.App.1973) (Su-tin, J., dissenting) (quoting Mr. Justice Field’s dissent in O’Neil v. Vermont, 144 U.S. 323, 365-66, 12 S.Ct. 693, 709, 36 L.Ed. 450, 468 (1892))
The use of the disjunctive “or” is a fundamental defect and the indictment is fatally defective and void and vulnerable to attack at any time. People v. Heard, 47 Ill.2d 501, 266 N.E.2d 340 (1970); State v. Hook, 433 S.W.2d 41 (Mo.App.1968); State v. Ciocca, 125 Vt. 64, 209 A.2d 507 (1965); State v. Webster, 105 N.H. 415, 200 A.2d 856 (1964). See, also, 42 C.J.S. Indictment and Information, § 101, at 984-86.
B. The State denied defendant his statutory right to a blood test by a physician of his own choosing. This was prejudicial error.
The accident occurred at 11:10 p. m. A blood sample was drawn from defendant at about 12:15 a. m. Two breath balloon tests were made. A blood alcohol test on the blood sample was made by the State.
On January 25, 1974, two months before trial, defendant filed a motion for an additional blood test. On the morning of trial, this motion was heard. The court and the State agreed that defendant was entitled to a blood alcohol test of the blood sample pursuant to § 64-22-2.9(B), N.M.S.A.1953 (2nd Repl.Vol. 9, pt. 2). However, the State reported that it exhausted all of the blood sample in making its tests to determine alcoholic content and drugs, if any, in defendant’s body. None of the blood sample withdrawn from defendant was available for an additional blood test by a physician chosen by the defendant. The trial court denied defendant’s motion to suppress the blood tests taken by the State.
The majority of this Court finds no error in denial of defendant’s motion to suppress the results of the State’s blood test, even though defendant was unable to introduce his own evidence as to alcohol blood levels at trial. The majority’s reason for so holding is that the statute permitting defendant to perform his own blood test “cannot insulate defendant ‘against the slings and arrows of outrageous fortune’ * * * »
To the contrary, the accused has an absolute right to secure witnesses and obtain additional evidence to counteract the evidence obtained by the government, to establish a defense and to seek an acquittal. To hold otherwise is to return to the rack and the stake.
The defendant, not the State, was penalized at trial because the blood sample was used up before defendant could exercise his right to perform his own blood test. This consequence does not disturb the majority of the Court. It disturbs me greatly because, “Essential fairness is a fundamental due process requirement in criminal prosecutions * * *. [Citations omitted]/’ United States v. Parish, 152 U.S. App.D.C. 72, 76, 468 F.2d 1129, 1133 (1972), cert. denied, 410 U.S. 957, 93 S.Ct. 1430, 35 L.Ed.2d 690 (1973).
A fair trial is * * * one where the accused’s legal rights are safeguarded and respected. Johnson v. City of Wildwood, 116 N.J.L. 462, 184 A. 616, 617 (Ct.Err. & App.1936).
This is not a case simply of “justice” or “fairness”, in the abstract. Denial to defendant of the opportunity to conduct his own blood test was a denial of access to evidence he might have introduced in his own defense. For this reason, it is a denial of his constitutionally guaranteed due process of law. Commonwealth, Dep’t of Transp. v. Gallagher, 3 Pa.Cmwlth. 371, 283 A.2d 508 (1971); People v. Burton, 13 Mich.App. 203, 163 N.W.2d 823 (Ct.App.1968); People v. Koval, 371 Mich. 453, 124 N.W.2d 274 (1963); Application of Newbern, 175 Cal.App.2d 862, 1 Cal.Rptr. 80 (Ct.App. 2nd Dist. 1959).
Full and free access to evidence is fundamental in our adversary system of trial.
A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, even though * * * his action is not “the result of guile,” * * *. [Emphasis added] Brady v. Maryland, 373 U.S. 83, 87-88, 83 S.Ct. 1194, 1197, 10 L.Ed.2d 215, 219 (1963).
[T]he ends of justice will best be served by a system of liberal discovery which gives both parties the maximum possible amount of information with which to prepare their cases * * *. Wardius v. Oregon, 412 U.S. 470, 473, 93 S.Ct. 2208, 2211, 37 L.Ed.2d 82, 87 (1973).
Imposing a heavier burden on the defendant than on the State contradicts two of the most fundamental principles in our criminal law: (1) An accused is presumed innocent until proven guilty. (2) The State must prove the guilt of an accused beyond a reasonable doubt (the heaviest burden of proof imposed on any litigant in our legal system). On the importance of these principles in our criminal justice system, see State v. Chambers, 86 N.M. 383, 524 P.2d 999 (Ct.App.1974); State v. Henderson, 81 N.M. 270, 466 P.2d 116 (Ct.App.1970); United States v. Bonanno, 180 F.Supp. 71 (S.D.N.Y.1960); R. Anderson, Wharton’s Criminal Law and Procedure, v. 5 §§ 2098, 2100, at 267, 271; J. Bentham, A Treatise on Judicial Evidence (1825), at 196-98.
Because the defendant was denied his statutory right to his own blood test and, therefore, his constitutional right to gather evidence in his own defense, introduction of the State’s blood test results was a denial of due process to the defendant. The State’s blood test results should have been suppressed at trial.
C. The State had a duty to warn defendant of his statutory right.
The majority of this Court believes that no warning of defendant’s statutory right to have his own blood test performed is required. The reason given by the majority is that blood tests are not covered by the Fifth Amendment privilege against self-incrimination, Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), and, therefore, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966), does not apply to the instant case.
It is uncontested that appellant had a statutory right to have his own test performed. It is a fair assumption that the great majority of citizens are unaware of this right. If a citizen is unaware of his right to request an additional blood test, how can he exercise the right?
The problem here revolves around notice of a statutory right that might be useful in preparing one’s defense to a criminal charge.
Notice is sometimes essential so that the citizen has the chance to defend charges. Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act. [Citations omitted], Lambert v. People of the State of California, 355 U.S. 225, 228, 78 S.Ct. 240, 243, 2 L.Ed.2d 228, 231 (1957).
The Fifth Amendment privilege against self-incrimination is irrelevant to blood alcohol test results. Schmerber, supra. Even so, the reasoning which led the Supreme Court in Miranda to choose a warning as the best method of protecting that privilege applies with equal validity to the statutory right here in question.
* * * [W]e will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. Assessments of the knowledge the defendant possessed, based on information as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation; a warning is a clearctit fact. [Emphasis added]. 384 U.S. at 468-69; 86 S.Ct. at 1625, 16 L.Ed.2d at 720.
I conclude that persons compelled to give blood samples pursuant to the Implied Consent Act are deprived of their statutory right to an additional blood test, if they are not advised of that right at the time the blood sample is given to the State.
It is only a short step further to the conclusion that the lack of warning as to his statutory right deprived appellant of his right to due process of law, guaranteed by the state and federal constitutions. The reason is that the results of his own additional blood test might have been used by appellant in his own defense, at trial. Therefore, failure to warn of the right to obtain his own blood test denied .appellant his due process right to obtain evidence for use in his own defense in a criminal prosecution. Gallagher, supra; Burton, supra; Koval, supra; Newbern, supra.
I conclude that the majority of the Court is correct that appellant was not robbed of his Fifth Amendment privilege against self-incrimination because of the failure to warn of his statutory right to an additional blood test. However, that is not the point. The failure to warn did deprive appellant of the opportunity to exercise his statutory right. And deprivation of the statutory right in question has the consequence of depriving accused persons in a criminal proceeding of their due process right to obtain evidence in their own defense.
D. Accused persons, from whom alcohol blood samples are taken, pursuant to the Implied Consent Act, have a right to the presence of counsel when the blood sample is taken.
The Sixth Amendment guarantee of the assistance of counsel requires that counsel be present at all “critical stages” of a criminal proceeding. United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L. Ed.2d 1149 (1967). Presence of counsel is not constitutionally required at the time of the taking of a blood sample, because this is not a constitutionally protected “critical stage” of a criminal proceeding. Wade, supra; Schmerber, supra. In New Mexico, however, the time of the taking of the blood sample must be considered a critical stage, because a constitutionally protected warning of the right to an additional blood test is required at that time. Therefore, an attorney’s presence should be mandatory, in New Mexico.
Even though the right to an additional blood test arises from legislative fiat, the right to be advised of the statutory right is protected by the due process clause in the state and federal constitutions. The Wade requirement that counsel be present at “critical stages” makes presence of counsel mandatory at the time when this constitutionally protected warning must be given, i. e., when the blood sample is drawn.
The Schmerber holding that the Fifth Amendment privilege against self-incrimination does not cover the giving of a blood sample for a blood alcohol test was concurred in by only five of the nine justices on the Supreme Court. Chief Justice Warren, and Justices Black, Douglas and Fortas wrote, in dissent, that the Fifth Amendment protection does apply. The close division of the Supreme Court on that question, coupled with the necessity, in New Mexico, of giving a constitutionally protected warning at that stage of the proceedings, should compel the conclusion that this is a “critical stage” in New Mexico; and that, therefore, presence of counsel is required to protect an accused’s constitutional rights.
E. Defendant is entitled to a fair trial.
A criminal trial is an adversary procedure in which the State, seeking the conviction of an accused, and the accused, fighting for his liberty, engage in combat. Each side should fight with zeal, yet not without respect for the rules that maintain the fairness of the adversary process. The accused must be given the benefit of all procedural safeguards provided by the Constitution, by statutes, and by case law. This is the essence of a fair trial, one in which evenhanded justice is dispensed.
A sporting contest is analogous to a lawsuit, in that it is an acceptable form of combat in our society, acceptable because the “rules of the game” maintain fairness between the adversaries. In boxing, the rules do not require that one adversary shall fight with one arm strapped to his back. In tennis, the rules do not require a right handed adversary to use the racquet with his left hand.
Similarly, in a criminal trial, the rules do not require an accused to fight for life or liberty without access to evidence to which he is entitled, or without a competent attorney to protect and defend him. The rules do not allow the State to give evidence against an accused, while denying the accused access to the same type of evidence for use in his defense. Yet that is precisely what was done in the instant case, with respect to blood alcohol test results.
Police officers are, or should be, familiar with criminal laws like the Implied Consent Act, having been trained at the New Mexico Law Enforcement Academy. They are aware of their authority to arrest and to direct the performance of a blood alcohol test. Those duties were adequately performed in this case. They should also be aware that the person arrested, from whom blood has been withdrawn, must be given an opportunity to arrange for a physician or other qualified person of his own choosing to perform a chemical test in addition to any test performed at their direction. In the instant case, a police officer’s lack of knowledge of the law allowed the State to deprive defendant of his statutory rights.
It is reprehensible that the State should first force the defendant to give blood without his consent, then exhaust the sample, and, finally, use the tests, over objection, with pomp and glory and splendor in the courtroom to convict him. The State has no legal right to say: “It is too bad. We are very sorry that all the blood was exhausted. We have got you now.” Such a course of action has no place in our adversary system of litigation.
The State has no right to, “deprive any person of life, liberty, or property, without due process of law; * * *Amendment XIV, Constitution of the United States; Article II, Section 18, New Mexico Constitution. Yet, in this case, there was no due process of law in respect to the accused’s right to gather evidence for use in his own defense.
Defendant did not have a fair trial.