Monday, June 7, 2010

No DUI blood draw without a warrant unless drunk driver agrees to test when drunk driver refuses test

Under Arizona’s implied consent law, A.R.S. § 28-1321
(Supp. 2009), a person arrested for driving under the influence
is asked to submit to testing, such as a blood draw, to
determine alcohol concentration or drug content. If the
arrestee refuses the test – and the statute deems a failure to
expressly agree to be a refusal - the arrestee’s license is
administratively suspended. We today hold that the statute
generally does not authorize law enforcement officers to
administer the test without a warrant unless the arrestee
expressly agrees to the test.
I.
¶2 Arizona’s implied consent law begins by stating that a
“person who operates a motor vehicle in this state gives
consent” to a test “for the purpose of determining alcohol
concentration or drug content” if he or she is arrested for
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“driving . . . under the influence of [alcohol] or drugs.”
A.R.S. § 28-1321(A).1 Despite this broad statement, the next
subsection of the statute provides, in part, that:
After an arrest a violator shall be requested to
submit to and successfully complete any test [to
determine alcohol concentration or drug content], and
if the violator refuses the violator shall be informed
that the violator’s license . . . will be suspended
. . . unless the violator expressly agrees to submit
to and successfully completes the test or tests. A
failure to expressly agree to the test or successfully
complete the test is deemed a refusal.
Id. § 28-1321(B). The statute also provides that if the
arrestee “refuses to submit” the test generally shall not be
given except pursuant to a search warrant. Id. § 28-1321(D)(1).2
¶3 Police officers arrested Jose Carrillo for driving
under the influence and related offenses. He was taken to a DUI
van, where further action was delayed because Carrillo vomited
for about thirty minutes. While Carrillo was sitting on the
steps of the van, an officer placed a large toolbox on
1 Although the arrest in this case occurred in 2006, we cite
the current version of the statute because intervening
amendments are not material to the issues presented.
2 Under A.R.S. § 28-1321(D)(1), tests may also be given as
provided in § 28-1388(E) (2004), which concerns samples of blood
or other bodily substances taken for other purposes, such as
when an individual receives medical care, and allows law
enforcement officers to obtain and test a sample without consent
or a search warrant. This “medical purposes exception” is not
at issue here. Also not at issue is A.R.S. § 28-1321(C), which
allows testing of persons who are dead, unconscious or otherwise
incapable of refusing a test.
4
Carrillo’s lap and another officer drew a blood sample. The
officers did not obtain a warrant before administering the test.
¶4 Before his trial in Phoenix Municipal Court, Carrillo
moved to suppress the results of his blood test. At an
evidentiary hearing, Carrillo testified that he spoke only
Spanish, the officers did not speak to him in Spanish, and he
did not consent to the blood draw but did not resist it because
he was afraid. The officers testified that although they were
not certified Spanish translators, they communicated with
Carrillo by gesturing and using basic Spanish. One officer said
that they told Carrillo they were “going to take his blood” and
he responded by holding out his arm. The officer also testified
that he said the Spanish word for blood when indicating he was
going to draw Carrillo’s blood and Carrillo did not resist the
test.
¶5 The municipal court denied the motion to suppress,
stating that nothing in Carrillo’s conduct indicated that he
refused to consent to the test. Carrillo was convicted of DUI
and other offenses. The superior court affirmed, rejecting
Carrillo’s argument that the blood draw violated A.R.S. § 28-
1321.
¶6 The court of appeals accepted special action
jurisdiction and granted relief. Carrillo v. Houser, 222 Ariz.
356, 214 P.3d 444 (App. 2009). The court held that A.R.S. § 28-
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1321 does not allow a warrantless blood draw unless the suspect
“expressly agrees” to the test, and the “‘express agreement’
required by the statute must be affirmatively and unequivocally
manifested by words or conduct, and may not be inferred from a
suspect’s mere failure to communicate clear objection to the
test.” Id. at 357 ¶ 1, 214 P.3d at 445. The court vacated
Carrillo’s convictions and remanded to the municipal court to
determine whether Carrillo had consented to the blood draw under
the appropriate standard. Id. at 360 ¶ 14, 214 P.3d at 448.
Dissenting, Judge Irvine agreed that the implied consent law
generally does not authorize a blood draw without the person’s
consent or a warrant, but concluded that the record established
that Carrillo had consented. Id. at 360-62 ¶¶ 15-22, 214 P.3d
at 448-50.
¶7 The Phoenix City Prosecutor’s Office petitioned for
review, arguing that the court of appeals had misinterpreted the
implied consent law. Recognizing the statewide importance of
this issue, we granted review. We have jurisdiction under
Article 6, Section 5(3) of Arizona’s constitution and A.R.S.
§ 12-120.24 (2003).
II.
¶8 The City Prosecutor argues that the court of appeals
improperly “rewrote” A.R.S. § 28-1321 and ignored its two
provisions that imply consent to testing by impaired motorists.
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This result, the Prosecutor contends, not only is contrary to
the statutory language, but also undermines the purpose of the
implied consent statute and conflicts with prior decisions by
this Court. We consider these arguments in turn.
¶9 As the Prosecutor notes, A.R.S. § 28-1321(A) declares
that a “person who operates a motor vehicle in this state gives
consent” to a test “for the purpose of determining alcohol
concentration or drug content” if he or she is arrested for
“driving . . . under the influence of [alcohol] or drugs.” In
turn, A.R.S. § 28-1321(C) provides that “[a] person who is dead,
unconscious or otherwise in a condition rendering the person
incapable of refusal is deemed not to have withdrawn the consent
provided by subsection A . . . and the test or tests may be
administered.” If a blood draw can be taken from an unconscious
person without consent, the Prosecutor argues, no different
result can obtain when the arrestee is simply silent.
¶10 These provisions of the implied consent law, however,
cannot be interpreted in isolation from the rest of the statute.
The “consent” by motorists referenced in subsection (A) does not
always authorize warrantless testing of arrestees. The
legislature has explicitly provided otherwise in subsections (B)
and (D). Notwithstanding subsection (A), subsection (B)
requires that the law enforcement officer “shall” request the
arrestee to submit to a test and, if the arrestee “refuses,” the
7
officer must explain that the arrestee’s license will be
suspended unless the arrestee “expressly agrees to submit to and
successfully completes the test.” Id. § 28-1321(B). Subsection
(B) also specifies that “[a] failure to expressly agree to the
test or successfully complete the test is deemed a refusal.”
Id. Subsection (D) then states that, “[i]f a person under
arrest refuses to submit to the test,” the test “shall not be
given . . . [unless] pursuant to a search warrant.” Id. § 28-
1321(D)(1).
¶11 Giving force to the language of subsections (B) and
(D) does not vitiate subsections (A) and (C). The implied
consent noted in subsection (A) statutorily disclaims any
asserted “right” by an arrestee to refuse testing. Subsection
(B) allows arrestees to refuse consent (by not expressly
agreeing) with the consequence of administrative license
suspension. Subsection (D) then makes clear that the statute
does not itself authorize warrantless testing upon an arrestee’s
refusal. Subsection (C), which concerns arrestees who are
incapable of refusal, does not affect the provisions in
subsections (B) or (D) regarding arrestees who can refuse.
¶12 The Prosecutor also suggests that the requirement in
subsection (B) that an arrestee expressly agree to a test only
applies to those initially refusing a test. This argument,
however, implies that the word “refuses” in the first sentence
8
of subsection (B) means something different from “refusal” in
the second sentence of that subsection and “refuses” in
subsection (D). The more plausible interpretation is that the
legislature intended the words to mean the same thing when used
in different subsections of the same statute.
¶13 Interpreting the implied consent law generally to
require that an arrestee expressly agree to warrantless testing
also comports with the statutory purpose. The key purpose of
the implied consent law “is to remove from Arizona highways
those drivers who may be a menace to themselves and others
because of intoxication.” Sherrill v. Dep’t of Transp., 165
Ariz. 495, 498, 799 P.2d 836, 839 (1990). One way the
legislature chose to achieve this goal was by providing for the
prompt suspension of the licenses of arrestees who refuse
testing. Rather than statutorily authorizing the warrantless
administration of tests on such persons, the legislature instead
deemed a failure to expressly agree to be a refusal, thus
expanding the class of arrestees subject to administrative
sanctions. As this Court explained in Sherrill:
The sanction of administrative license suspension for
refusal to submit to the test was enacted to assure
that licenses of dangerous drivers are revoked
quickly, and to increase the certainty that a drunk
driver receives a penalty even if that driver provided
no evidence of intoxication. The “consent” aspect of
the statute also assures that no physical violence or
coercion will occur against a person who is
noncooperative with a law officer’s effort to obtain
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necessary chemical evidence of intoxication.
Id. (internal citations omitted).
¶14 Our interpretation of the statute is confirmed by its
history and our prior decisions. The legislature first enacted
the implied consent law in 1969. 1969 Ariz. Sess. Laws, ch. 41,
§ 1 (1st Reg. Sess.). The statute then provided in subsection
(A) that persons operating a motor vehicle “shall be deemed to
have given consent” to testing if arrested for driving under the
influence, directed in subsection (B) that officers shall warn
an arrestee that his license will be suspended upon refusal to
submit to the test, and further declared in subsection (D) that
if a person “refuses” to submit to a test as provided in the
statute, no test “shall be given.” Id.
¶15 This statutory framework was not unique to Arizona.
Many other states adopted “implied consent” statutes providing
that arrestees who refuse testing would not be subject to
warrantless testing but would have their licenses
administratively suspended. See Tina W. Cafaro, Fixing the
Fatal Flaws in OUI Implied Consent Laws, 34 J. Legis. 99, 103-04
(2008) (discussing history of implied consent laws); Phillip T.
Bruns, Driving While Intoxicated and the Right to Counsel: The
Case Against Implied Consent, 58 Tex. L. Rev. 935, 941-44 (1980)
(same).
¶16 As originally enacted, Arizona’s statute did not
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define the word “refuses.” This Court held in Campbell v.
Superior Court that a refusal occurs when “the conduct of the
arrested motorist is such that a reasonable person in the
officer’s position would be justified in believing that such
motorist was capable of refusal and manifested an unwillingness
to submit to the test.” 106 Ariz. 542, 553, 479 P.2d 685, 696
(1971). This definition, however, generated litigation over
whether an officer reasonably believed that a motorist had
refused to submit. See, e.g., Willis v. State, 145 Ariz. 302,
304-05, 701 P.2d 10, 12-13 (App. 1985). In 1987, the
legislature amended the implied consent law and adopted the
language that now appears in A.R.S. § 28-1321(B) providing that
“[a] failure to expressly agree to the test or successfully
complete the test is deemed a refusal.” 1987 Ariz. Sess. Laws,
ch. 262, § 2 (1st Reg. Sess.).
¶17 In addition to clarifying the meaning of refusal, the
legislature also amended the implied consent law to specify
circumstances in which tests may be administered even if the
arrestee refuses to submit. In 1984, the legislature added a
provision to subsection (D) allowing tests pursuant to the socalled
“medical purposes exception.” See 1984 Ariz. Sess. Laws,
ch. 257, §§ 1-2 (2d Reg. Sess.), now codified in A.R.S. § 28-
1388(E) (2004); see also State v. Cocio, 147 Ariz. 277, 285-87,
709 P.2d 1336, 1344-46 (1985) (interpreting this provision).
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This Court subsequently held that the statute did not authorize
the administration of tests “solely as a result of a search
warrant” after an arrestee had refused to submit to the test.
Collins v. Superior Court, 158 Ariz. 145, 146, 761 P. 2d 1049,
1050 (1988). In response, the legislature again amended
subsection (D), adding language providing that tests may also be
administered “pursuant to a search warrant” if a person refuses
to submit. See 1990 Ariz. Sess. Laws, ch. 375, § 7 (2d Reg.
Sess.).
¶18 Neither the implied consent law nor decisions by this
Court have ever suggested that the “consent” referenced in
subsection (A) authorizes warrantless testing of all persons
arrested for driving under the influence. Instead, the statute
has always provided that an arrestee may refuse to submit to
tests but that doing so will result in the loss of the
arrestee’s license. Over time, the legislature has clarified
that an arrestee’s failure to expressly agree constitutes a
refusal, and that if the arrestee refuses, tests may not be
administered except under the medical purposes exception
identified in A.R.S. § 28-1388(E) or a search warrant.
¶19 The statute requires that an arrestee “expressly
agree” to warrantless testing. “Expressly,” as we have noted in
another context, means “in direct or unmistakable terms” and not
merely implied or left to inference. In re Estelle’s Estate,
12
122 Ariz. 109, 113, 593 P.2d 663, 667 (1979). Failing to
actively resist or vocally object to a test does not itself
constitute express agreement. Instead, to satisfy the statutory
requirement, the arrestee must unequivocally manifest assent to
the testing by words or conduct.
¶20 Whether Carrillo expressly agreed to the blood draw is
not before us. The court of appeals unanimously concluded that
A.R.S. § 28-1321 requires Carrillo’s actual consent to the
testing. Carillo, 222 Ariz. at 357 ¶ 1, 214 P.3d at 445. The
majority held that a remand is necessary so the municipal court
may determine, under the correct legal standard, whether
Carrillo agreed to the blood draw; one judge dissented in part
because he thought the record sufficiently establishes
Carrillo’s consent. Id. at 360 ¶¶ 14, 18, 214 P.3d at 448. The
Prosecutor did not seek review of the remand order, but instead
asked this Court to review only whether the court of appeals had
correctly interpreted the implied consent law to require express
agreement.
¶21 Other limits of our decision also merit comment. Our
holding reflects the requirements of A.R.S. § 28-1321; because
we resolve this case as a matter of statutory interpretation, we
need not address any constitutional issues raised by Carrillo.
Cf. South Dakota v. Neville, 459 U.S. 553, 559 (1983) (stating
that under Schmerber v. California, 384 U.S. 757 (1966), a state
13
may “force a person suspected of driving while intoxicated to
submit to a blood alcohol test”) (footnote omitted); Campbell,
106 Ariz. at 554, 479 P.2d at 697 (rejecting Fourth Amendment
challenge to implied consent law as meritless in light of
Schmerber). We also do not consider here circumstances in which
subsection (C) of the implied consent law or other statutes,
such as A.R.S. § 28-673(F) (Supp. 2009), may allow warrantless
testing of persons incapable of refusing a test.
III.
¶22 For the foregoing reasons, we vacate the opinion of
the court of appeals and remand this case to the municipal court
to determine whether Carrillo expressly agreed to the blood draw
in accordance with the implied consent law.
_____________________________________
W. Scott Bales, Justice
CONCURRING:
_____________________________________
Rebecca White Berch, Chief Justice
_____________________________________
Andrew D. Hurwitz, Vice Chief Justice
_____________________________________
Michael D. Ryan, Justice
14

SUPREME COURT OF ARIZONA
En Banc
JOSE CARRILLO
, ) Arizona Supreme Court
) No. CV-09-0285-PR
Petitioner, )
) Court of Appeals
v. ) Division One
) No. 1 CA-SA 09-0042
THE HONORABLE ROBERT HOUSER, )
JUDGE OF THE SUPERIOR COURT OF ) Maricopa County
THE STATE OF ARIZONA, in and for ) Superior Court
the County of Maricopa, ) No. LC2008-000551-001 DT
)
Respondent Judge, ) Phoenix Municipal Court
) No. 20079002017
)
PHOENIX CITY PROSECUTOR'S OFFICE, )
)
)
Real Party in Interest. ) O P I N I O N
)
__________________________________)
Appeal from the City of Phoenix Municipal Court
The Honorable Carol Berry, Judge
REMANDED
________________________________________________________________
Special Action from the Superior Court in Maricopa County
The Honorable Robert C. Houser, Judge
VACATED
________________________________________________________________
Opinion of the Court of Appeals, Division One
222 Ariz. 356, 214 P.3d 444 (2009)
VACATED
________________________________________________________________
LAW OFFICE OF NICOLE FARNUM Tempe
By Nicole T. Farnum
Attorney for Jose Carrillo
2
AARÓN J. CARREÓN-AÍNSA, PHOENIX CITY PROSECUTOR Phoenix
By Gary L. Shupe, Assistant City Prosecutor
Attorneys for Phoenix City Prosecutor’s Office
LAW OFFICE OF STEPHEN PAUL BARNARD, P.C. Tucson
By Stephen Paul Barnard
And
THE LAW FIRM OF NESCI & ST. LOUIS, P.L.L.C. Tucson
By Joseph P. St. Louis
Attorneys for Amicus Curiae Arizona Attorneys for
Criminal Justice
________________________________________________________________
B A L E S, Justice