State v. Tierney

BISTLINE, Justice,

dissenting.

I continue to adhere to my views expressed in State v. Ankney, 109 Idaho 1, 704 P.2d 333 (1985) — a case similar to today’s case — wherein I stated that an arresting police officer may not seize a driver’s license. There I hoped to make it clear that an individual is entitled to the right of counsel before being required to submit to an evidentiary test for alcohol concentration. On either of those bases would I reverse the district court today, which affirmed the magistrate court’s decision to the contrary.

Today’s case also raises several additional issues erroneously handled by the major: ity. The most troublesome involves a refusal by the magistrate judge to admit into evidence a videotape of the defendant, which was taken at the police station after his arrest.

The defendant argued unsuccessfully to the magistrate judge that the tape was relevant to the issue of whether or not the defendant exhibited any physical evidence of intoxication at or near the time of his arrest. The defendant testified — and was *478not contradicted1 — that he acted and felt exactly the same, and performed the sobriety tests in a similar manner at the police station during the taping, as when he was first pulled over and interrogated by the arresting officer. Thus, if the tape revealed that the defendant was not intoxicated, then he certainly would have had the requisite cause which I.C. § 49-352 requires for refusing to submit to the test, because the tape would have disclosed that the arresting officer did not have reasonable grounds to request that he take the test as that section requires.

The magistrate judge refused to admit the tape, however, ruling that the other introduced evidence had convinced him that the arresting officer had probable cause to stop the defendant and request that he take the blood-alcohol test. Said the magistrate judge:

The evidence I have heard today convinces me that the officer had probable cause to make a stop and upon making the stop had probable cause to request that the defendant take the field sobriety tests based upon the lateness of the hour, the fact that he had run the stop sign, the fact, by his own admission, the odor of alcohol was about him, thereafter, by his own admission, he did not complete successfully all the field sobriety tests. Therefore, I feel the officer has further cause to request him to take the intoximeter test.

This circuitous reasoning cannot be the grounds for excluding potentially exculpatory evidence. To refuse to admit potentially exculpatory evidence because one has already made up his mind on the matter smacks of the worst form of unfairness and bias. It is akin in a criminal trial to convicting the defendant after the prosecution has presented its case but before the defense has had an opportunity to rebut, impeach, and explain its view of the evidence.

The majority finds no problem with the magistrate’s decision, however, stating that a trial court has “broad discretion in the admission of evidence at trial.” Ante, p. 882. I cannot disagree more strongly with such a statement. If evidence is relevant, it is admissible, subject to several exceptions now embodied in Idaho’s Rules of Evidence, but which are inapplicable here. See Idaho Rules of Evidence, art. IV. While a trial court may have discretion in determining the relevancy of evidence, Marks v. Vehlow, 105 Idaho 560 n. 9, 671 P.2d 473, 482 n. 9 (1983), it does not have such discretion in admitting evidence that is relevant. Rule 402 now states as much. See also Matter of Estate of Kreie, 235 Kan. 143, 679 P.2d 712 (1984); Whalen v. State, 679 P.2d 248 (Nev.1984); Carlson v. Piper Aircraft Corp., 57 Or.App. 695, 646 P.2d 43 (1982); Terry v. Zions Co-op Mercantile Institution, 605 P.2d 314 (Utah 1979).

It cannot be gainsaid but that the tape was relevant. It was probative of whether the defendant was sober, which was an important issue, contrary to the majority. As stated above, if the defendant was sober, then the arresting officer had no grounds by which to request that the defendant take the blood alcohol test. If the officer had not grounds to request that the defendant take the test, then the corollary to this must also be true: the defendant had cause not to take the test. Had the tape been adverse to the defendant, the magistrate would not have hesitated one moment to admit on the state’s offer. As all practicing attorneys know, but apparently not judges, a picture is worth a thousand words.

Today’s opinion is unfair to the defendant. It denies him his chance to show cause for not taking the blood-alcohol test, which the arresting police officer may not have been entitled to request. The tortuous path the majority takes to reach the result in this case muddies evidentiary *479rules and definitions, which I had thought had always “been the rule [in Idaho] by implication and case law.” Comment to Rule 402, Idaho Rules of Evidence.

. Under the authority of Pierstorff v. Gray’s Auto Shop, 58 Idaho 438, 447-48, 74 P.2d 171, 175 (1937), this Court is required to accept defendant’s uncontradicted, not inherently incredible evidence on this point as being true.