THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24.

MEMORANDUM DECISION

WINTHROP, Judge.

¶1 After a mistrial was declared, Esteban Ruiz ("Appellant") was convicted in a subsequent trial of two counts of manslaughter, a dangerous offense, and one count of aggravated assault, a dangerous offense. Appellant contends that the court erred in not suppressing the results of a blood test or dismissing the case because he was never informed of his right to obtain and independently test a sample. Appellant also argues that the court should have prohibited the second trial as such proceeding violated his right to be free from double jeopardy. For the following reasons, we affirm Appellant's convictions.

FACTS AND PROCEDURAL HISTORY

¶2 On March 11, 2006, at approximately 2:30 a.m., while driving southbound on 51st Avenue, Appellant crossed into the northbound lane and collided with a Pontiac in that lane. There were three passengers in the Pontiac, and Appellant was the only person in his vehicle. Two of the Pontiac's passengers were declared dead at the scene of the accident, and both the Pontiac's third passenger and Appellant were injured and transported to a hospital. The emergency responder testified that he smelled alcohol on Appellant's breath at the scene of the accident.

¶3 When Appellant arrived at the hospital, various blood samples were drawn, including two vials designated for "law enforcement" purposes as required by hospital policy. At approximately 3:27 a.m., the blood samples were given to police officer Daniel Flanders. When police later tested the blood sample, Appellant's blood alcohol content was .191.

¶4 Upon arriving at the hospital at approximately 4:40 a.m., Detective Jacobs interviewed Appellant, who had been restrained to a hospital bed for treatment. Detective Jacobs detected the odor of alcohol on Appellant's breath, and administered a horizontal gaze nystagmus test used to detect impairment caused by alcohol. The results of the interview and horizontal gaze nystagmus test led Detective Jacobs to believe that Appellant likely had a blood alcohol content above .08. After conferring with other officers investigating the scene of the accident, Detective Jacobs obtained a search warrant to get two additional blood samples. He also collected the blood samples from Officer Flanders. At that time, Detective Jacobs informed Appellant he was a suspect for manslaughter, read Appellant his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), and told him that he could obtain one of the blood samples collected by the police for independent testing, or that he could obtain another sample of his own. On later cross-examination, Detective Jacobs conceded that he did not tell Appellant that he had a "right" to obtain his own sample independent of the ones the police had collected. Appellant did not request any of the blood samples presently drawn, and did not arrange for any additional draws or independent testing. He remained in the hospital for a period of time before being transferred into the State's custody.

¶5 Appellant filed many motions, one of which was a Motion to Dismiss for the failure to inform Appellant of his right to obtain an independent blood sample. At the subsequent hearing on the motions, Appellant requested that the court suppress the results of the State's blood test on the grounds that Appellant was not properly informed of his right to receive an independent blood sample pursuant to Arizona Revised Statutes ("A.R.S.") section 28-1388(C)(2004) and State v. Olcan, 204 Ariz. 181, 61 P.3d 475 (App. 2003). The court denied Appellant's motion to dismiss the case/suppress the blood test.

¶6 The case proceeded to trial in February, 2008, before Judge John H. Ditsworth. While deliberating, the foreperson informed the court that it had reached an impasse. After receiving this notice, the court met with counsel and with the jury, gave the jury an "impasse instruction," and then sent them back to the jury room to continue deliberations. A short time later, the jury once again informed the court it was "hopelessly deadlocked." Judge Ditsworth then called the jury and counsel back into the courtroom, declared a mistrial without giving any further instruction, excused the jury, and requested that the jurors agree to meet with counsel.

¶7 On April 10, 2008, Appellant filed a motion to amend the record. At the hearing on the motion, Appellant stated that when counsel for both parties met with the jury to inquire about their deliberations after the mistrial was declared, one of the jurors informed them that the jury had unanimously found Appellant "not guilty" of the manslaughter charges and were only at an impasse over some or all of the remaining charges. Appellant asked that the court either recall the jurors to ascertain if they had, in fact, reached a unanimous verdict on any of the charges or to amend the record to reflect that the jury had reached a "not guilty" verdict on the manslaughter counts.1 Appellant admitted that he did not request that the jury be polled or otherwise object to the declaration of mistrial, instead assuming that the jury had reached an impasse on the two counts of manslaughter. The court denied Appellant's motion. On September 19, 2008, Appellant filed a motion to dismiss the indictment, arguing that the court erred in declaring a mistrial and contended that a retrial would violate Appellant's right to be free from double jeopardy. This motion was also denied.

¶8 The case was then retried before Judge Kristin C. Hoffman. On May 26, 2009, the jury found Appellant guilty on both counts of manslaughter and of aggravated assault. Appellant was found not guilty on the count of endangerment. The court sentenced Appellant to the presumptive terms of ten and one-half years' imprisonment on each count of manslaughter and seven and one-half years' imprisonment on the count of aggravated assault, with the sentences to run concurrently. Appellant timely appealed.

¶9 We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A) (2003), 13-4031 (2010) and 13-4033(A)(1) (2010).

ANALYSIS

¶10 Appellant argues that the court erred in failing to grant his motion to either dismiss the case or suppress the results of the blood test because Appellant was denied a reasonable opportunity to arrange for an independent blood sample to be drawn and analyzed. In the alternative, Appellant contends that the court erred in declaring a mistrial and denying Appellant's motion to dismiss the indictment and, therefore, the retrial unconstitutionally subjected Appellant to double jeopardy.

I. Opportunity to Obtain Blood Sample

¶11 Appellant argues that, although the State tested Appellant's blood sample, it did not properly inform him of his right to have his blood independently drawn and tested. When considering a motion to suppress, we review the record for a clear abuse of discretion regarding the facts, but review de novo the court's legal conclusions. See State v. Nelson, 208 Ariz. 5, 6-7, ¶ 4, 90 P.3d 206, 207-08 (App. 2004). We also consider "only the evidence presented at the suppression hearing." Id at 6, ¶ 4, 90 P.3d at 207.

¶12 We begin by noting that A.R.S. § 28-1388(C) states:

(Emphases added).

¶13 Section 28-1388 is found in Title Twenty-eight, Chapter Four, Article Three, entitled "driving under the influence" ("DUI"). Appellant was not charged with DUI in this case. The State does not raise the issue of whether § 28-1388 applies to a case where, as here, the suspect is not arrested for and charged with DUI. Even assuming, as Appellant contends, that § 28-1388 applies to the instant case and requires that Appellant be given an opportunity to acquire his own independent blood sample as discussed further below, we find that Appellant was given such opportunity.

¶14 The right to seek a private blood draw, even if the State does not administer a blood test, "is derived from [the] defendant's due process right to gather exculpatory evidence." Olcan, 204 Ariz. at 183, ¶ 8, 61 P.3d at 477. We have previously determined that it is not sufficient simply to offer a suspect the opportunity to independently test a blood sample already collected by the State; rather, the State must afford the suspect "a reasonable opportunity to obtain an additional test." Id. at 183, ¶¶ 8-9, 61 P.3d at 477. Essentially, § 28-1388 guarantees a suspect the opportunity to have an independent blood draw, even if the State offers to let the suspect test samples it has already acquired and/or stored. Id. at 184, ¶ 13, 61 P.3d at 478. Although the State need not assist a suspect in obtaining an independent sample, it is prohibited from unreasonably interfering with a suspect's attempts to secure their own blood sample. See Smith v. Cada, 114 Ariz. 510, 514, 562 P.2d 390, 394 (App. 1977).

¶15 Appellant argues that the State unreasonably interfered with his right to obtain an independent blood sample because he was not explicitly informed by the police of his right to have an independent sample drawn. We note that A.R.S. § 28-1388 only mandates that suspects be given a "reasonable opportunity to arrange" for an independent sample and does not require that the State inform a suspect of that right. Appellant, however, relies on two cases, Olcan and Montano v. Superior Court in and for Pima County, 149 Ariz. 385, 719 P.2d 271 (1986), to support his argument that he should have been informed of his right to arrange an independent blood draw.

¶16 Olcan is of no help to Appellant. In Olcan, we upheld the dismissal of the defendant's charges because the State stipulated that it had denied the defendant the opportunity to arrange for an independent blood draw. Olcan, 204 Ariz. at 185, ¶ 16, 61 P.3d at 479. No such stipulation or similar set of facts are present here. The evidence instead suggests that Appellant had ample opportunity to arrange for an independent blood draw. As noted above, Appellant was read his Miranda rights and informed he was a suspect by Detective Jones, and was free to contact an attorney or other third party in order to arrange an independent blood draw. Far from unreasonably interfering with Appellant's statutory right to arrange an independent blood test, Detective Jacobs offered to assist Appellant by offering to give him one of the samples already drawn by the hospital independent of the State's oversight or request. Further, Olcan does not require that a suspect be advised of their right to arrange for an independent blood test, but only mandates that law enforcement not interfere with the suspect's efforts to obtain one. Id. at 184, ¶ 12, 61 P.3d at 478 (citations omitted); see also State v. Kemp, 168 Ariz. 334, 336-37, 813 P.2d 315, 317-18 (1991) (holding that the due process standard is different for breath tests and blood tests, and "law enforcement officers . . . need not advise the suspect of his right to obtain a portion of the same sample for independent testing, at least when the sample taken by law enforcement officers will still be available for testing by defendant at the time of trial").

¶17 Appellant's reliance on Montano is also unavailing. In Montano, the defendant was arrested and charged with a felony DUI and taken into custody. Montano, 149 Ariz. at 386, 719 P.2d at 272. The police did not test the defendant's breath, blood, or urine, and the officers did not inform the defendant of his right to arrange for independent testing. Id. To safeguard a defendant's due process rights, the court found that "[t]he [S]tate has no obligation . . . to actually gather evidence for a suspect, but in the absence of the implied consent law it must provide suspects a fair chance to gather evidence by informing them of their right to testing." Id. at 391, 719 P.2d at 277. The application of Montano is limited, and in most instances, a suspect need not be notified of their right to arrange for independent blood testing. See, e.g., State v. Ramos, 155 Ariz. 153, 155, 745 P.2d 601, 603 (App. 1987) (finding that "absent a statute mandating that the officer inform the suspect of his right to an independent test or the circumstances in Montano, the state has no affirmative duty to inform a [DUI] suspect of his right to an independent test" (citation omitted)); State v. Superior Court in and For County of Yavapai, 179 Ariz. 343, 345, 878 P.2d 1381, 1383 (App. 1994) (finding that Montano's "unique result represents an exception to the general rule [that notice is unnecessary] and has been consistently limited to its facts in subsequent cases").

¶18 In the instant case, Detective Jacobs testified that he did not invoke the implied consent law when he took the hospital-drawn samples because Appellant was charged with aggravated assault and homicide, not DUI. The Montano notice requirement, therefore, is inapplicable here as Montano specifically applies to cases where the implied consent law is implicated and the suspect is being charged with DUI. See Montano, 149 Ariz. at 391, 719 P.2d at 277 (citing Breithaupt v. Abram, 352 U.S. 432, 439 (1957), and stating that "[DUI cases] are particularly susceptible of resolution by way of chemical analysis of intoxication . . . [a]nd the more so since the test likewise may establish innocence'"). In this case, the collection and testing of an independent blood sample was not integral to Appellant's ability to mount a defense as it was in Montano. See id.

¶19 Assuming, arguendo, that Montano does apply in the instant case, we note that Detective Jacobs advised Appellant that he "had the right to obtain one of the samples that I took from him, and that he could obtain his own." Unlike the defendant in Montano, Appellant was informed that the police had obtained blood samples to use as evidence against him and was informed that he had a right to obtain one and independently test it. The State did nothing whatsoever to interfere with Appellant's right to arrange for an independent blood sample. We believe, therefore, that Detective Jacobs' statement, coupled with Appellant's unimpeded opportunity to either request a hospital sample collected by the State or arrange for an independent blood draw, is sufficient to satisfy the notice requirement set forth in Montano.

II. Double Jeopardy

¶20 Appellant also argues that the court hastily and improperly declared a mistrial without finding the manifest necessity required to do so. Because a juror later purportedly told counsel that the jury had unanimously agreed that Appellant was not guilty of the two counts of manslaughter, Appellant argues the declaration of a mistrial without first ascertaining such information infringed on Appellant's Fifth Amendment right to be free from double jeopardy. See U.S. Const. amend. V.

¶21 "[W]e must accord great deference to the trial court's sound discretion in declaring a mistrial." State v. Givens, 161 Ariz. 278, 281, 778 P.2d 643, 646 (App. 1989) (stating that there is no abuse of sound discretion even if reasonable judges could find that a mistrial was not necessary and that "the mere availability of another alternative does not render a mistrial order an abuse of discretion"); see also Arizona v. Washington, 434 U.S. 497, 510 (1978) (noting that "The trial judge's decision to declare a mistrial when he considers the jury deadlocked is [] accorded great deference by a reviewing court").

¶22 When a court declares a mistrial sua sponte, double jeopardy will bar a retrial without defendant's consent unless "there is a manifest necessity for the mistrial or [] the ends of public justice will otherwise be defeated." McLaughlin v. Fahringer, 150 Ariz. 274, 277, 723 P.2d 92, 95 (1986) . There is no rigid formula for determining whether manifest necessity exists; rather, we try to determine whether a "failure to discontinue would defeat the ends of justice." Wade v. Hunter, 336 U.S. 684, 690 (1949); see also State v. Aguilar, 217 Ariz. 235, 239, ¶ 13, 172 P.3d 423, 427 (App. 2007) (stating that "when evaluating the trial court's decision regarding manifest necessity, the degree of deference . . . depends on the circumstances that gave rise to the mistrial" (citations omitted)).

¶23 We give great deference to the court's decision to declare a mistrial when it finds the jury is deadlocked as the court is in the best position to determine whether further deliberation is appropriate. See Aguilar, 217 Ariz. at 239, ¶ 13, 172 P.3d at 427; see also Washington, 434 U.S. at 509-10 (noting that a trial court's belief that a jury is unable to reach a verdict is "long considered the classic basis for a proper mistrial" and is given great deference on review, and that a failure to declare a mistrial in such a situation creates the risk that "a verdict may result from pressures inherent in the situation rather than the considered judgment of all the jurors").

¶24 In this case, the jury twice indicated that it had reached an impasse. After the first indication of impasse, the court met with the jury and gave them an instruction to assist in moving past the impasse. The jury deliberated again, and despite having followed the court's instructions, remained "hopelessly deadlocked." Accordingly, the court ordered a mistrial. Neither party objected to the declaration, nor did either party ask for further instruction to be given to the jury or for the jury to be polled prior to the declaration. Accordingly we find that the court properly declared a mistrial and, therefore, that retrial was not barred by the Fifth Amendment. See Andrade v. Superior Court In and For County of Maricopa, 183 Ariz. 113, 115, 901 P.2d 461, 463 (App. 1995) (stating that when a mistrial is properly granted due to deadlock, double jeopardy does not preclude a retrial on the same charges).2

CONCLUSION

¶25 For the reasons set forth above, we affirm the convictions and deny Appellant's request for relief.

PHILIP HALL, Presiding Judge, JON W. THOMPSON, Judge, Concurring.