§ 5.4.2 Voluntariness of Consent
General Rule. The State has the burden of proving voluntary consent to a search by a preponderance of the evidence. State v. Valenzuela, 239 Ariz. 299, 371 P.3d 627 (2016) (discussing implied consent in DUI cases; defendant was taken to a police station, where he was read an “admin per se” form, providing that “Arizona law requires you to submit” to breath, blood, or other bodily substance tests chosen by law enforcement.; he submitted to breath and blood tests and was charged with aggravated DUI; Arizona Supreme Court affirmed defendant’s convictions, holding that (1) his consent was not freely and voluntarily given in this case; but (2) because the admonition was given in good faith reliance on precedent, exclusion of the test results was not required.; court also found that providing consent after admin per se warning does not always render consent involuntary; court discussed proper procedure for officers to employ). “When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of demonstrating that the consent was, in fact, freely and voluntarily given. This burden cannot be discharged by showing no more than an acquiescence to a claim of lawful authority.” State v. Flannigan, 194 Ariz. 150, 153, 978 P.2d 127, 130 (App. 1998) (Div. 1), citing North Carolina v. Bumper, 391 U.S. 543, 548-49 (1968). See also State v. Cañez, 202 Ariz. 133, 151, 42 P.3d 564, 582 (Ariz. 2002) (officer “said something about coming in”; wife did not reply or invite officer in; she walked into the house and the officer followed her in; court found consent was not given). The consent must be knowing and voluntary, and not the product of coercion. Schneckloth v. Bustamonte, 412 U.S. 218 (1973); State v. Acinelli, 191 Ariz. 66, 952 P.2d 304 (App. 1997) (Div. 1).
Consent was voluntary when defendant gave consent to Spanish-speaking officer in Spanish, and signed Spanish-language consent form. State v. Flores, 195 Ariz. 199, 986 P.2d 232 (App. 1999) (Div. 1) (also rejecting defendant’s argument, after the fact, that he had trouble reading it). The mere fact that additional officers arrive at the scene does not make seizure inherently coercive. Id.
1. DUI – Voluntariness of Consent/Implied Consent
Officers may rely on a defendant’s consent to conduct testing. See also § 3.2.6 “Personal Characteristics, including Blood, Breath, DNA, Urine, GSR”; § 5.6.3 “Evanescent Evidence – Exigency, including Blood (DUI).”
In State v. Mitcham, 1 CA-CR 23-0014, 2023 WL 5354942 (App. Aug. 22, 2023) (Div. 1), after the defendant consented to taking of his blood in a prior DUI case, police exceeded the scope of that consent by using the blood to create a DNA profile, although no suppression was warranted because of the inevitable discovery doctrine.
In Carrillo v. Houser, 224 Ariz. 463, 232 P.3d 1245 (2010), the Arizona Supreme Court found that Arizona’s implied consent law, A.R.S. § 28-1321, under which persons arrested for driving under the influence are asked to submit to testing, like a blood draw or a breath test, to determine alcohol or drug content, does not authorize warrantless testing unless the arrestee expressly agrees to the test. “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.” 224 Ariz. at 466-67. This decision is expressly limited to A.R.S. § 28-1321, and does not consider “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 the test.” Id.
In Diaz v. Bernini, 246 Ariz. 114, 435 P.3d 457 (2019), the Arizona Supreme Court held that the officer’s advisement of the consequences of refusal before...
