dissenting.
I am constrained to dissent from the majority opinion because I agree with the order of the magistrate which held that the unreasonable delay in releasing Cantrell,, who had been booked in on a first time DUI, violated Cantrell’s due process rights by denying him the opportunity, to gather exculpatory evidence. The magistrate’s decision was based on Cantrell’s exercise Of his constitutional and statutory right to bond out of jail as opposed to any triggering of his due process rights by requesting a telephone call or independent BAC test. The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the state’s accusations. State v. Carr, 128 Idaho 181, 184, 911 P.2d 774, 777 (Ct.App.1995) (citing Chambers v. Mississippi 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297, 308 (1973)).
Idaho Code § 19-2904 provides that a person charged with any offense, other than one punishable by death, “may be admitted to bail before conviction, as a matter of right.” This is not, however, a right to immediate release, but rather a right to release without unnecessary delay upon the payment of bail. See State v. Langley, 62 Haw. 79, 611 P.2d 130, 132 (1980). In its order, the magistrate implicitly found that Cantrell’s son and the bail bondsman initiated bail release upon their arrival at the jail.1 The magistrate found that “[t]he defendant’s son arrived at the Criminal Justice Facility at 5:00 p.m. prepared to pay bail and obtain the defendant’s release” but that “[t]he defendant was not permitted to bond out until between 8:15 and 8:30 p.m.” This over three-hour delay,2 *413which went unexplained by the state, was an unnecessary delay which resulted in frustrating Cantrell’s right to gather exculpatory evidence, not limited to an independent BAC test, within a reasonable time following his arrest. This Court held in Carr that denying the defendant access to a telephone for approximately five hours after her arrest for DUI constituted a denial of the defendant’s means by which she could establish her defense. Carr at 184, 911 P.2d at 777. In the present case, the defendant’s initiation of bail release is far more compelling than a request for a telephone call. Accordingly, I respectfully dissent from the majority’s holding.
. The magistrate's findings have not been challenged on appeal.
. At the suppression hearing Cantrell testified that, after taking the Intoxilizer test, he was placed in a cell for about an hour, then he was moved to another edil containing a bathroom for *413another fifteen to twenty minutes, and then placed in the cage area, handcuffed to a rail, for about another hour. Cantrell testified that the cage area is where officers do the booking and from there he was released.