Diaz v. Bernini

246 Ariz. 114

435 P.3d 457

Alexis Marie DIAZ, Petitioner,

v. Hon. Deborah BERNINI, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent,andThe State of Arizona, Tucson City Prosecutor’s Office, Real Party in Interest.

No. CR-18-0250-PR

Supreme Court of Arizona.

Filed February 28, 2019

Mary C. Trejo, Chief Public Defender, Tucson Public Defender’s Office, Kristina Bohn (argued), Deputy Public Defender, Tucson, Attorneys for Alexis Marie Diaz

Michelle L. Behan (argued), Behan Ramsell, P.L.L.C., Tucson, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice

Michael G. Rankin, Tucson City Attorney, Alan L. Merritt, Deputy City Attorney, Jennifer Stash, Mari L. Worman (argued), Prosecuting City Attorneys, Tucson, Attorneys for State of Arizona and Tucson City Prosecutors Office

JUSTICE PELANDER authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICES TIMMER, BOLICK, GOULD, and LOPEZ joined.

JUSTICE PELANDER, opinion of the Court:

¶1 Under Arizona’s implied consent statute, a law enforcement officer may obtain a blood or breath sample from a person arrested for driving under the influence ("DUI") only if the arrestee expressly agrees to the test. We today hold that, apart from any constitutional considerations, the statute itself does not require that the arrestee’s agreement be voluntary.

I.

¶2 On April 2, 2016, Alexis Diaz was arrested and later charged with DUI. After the arrest, the investigating officer read her the following "admin per se" admonition:

Arizona law states that a person who operates a motor vehicle at any time in this state gives consent to a test or tests of blood, breath, urine or other bodily substances for the purpose of determining alcohol concentration or drug content. The law enforcement officer is authorized to request more than one test and may choose the types of tests.

If the test results are not available, or indicate an alcohol concentration of 0.08 or above ... then your Arizona driving privilege will be suspended for not less than 90 consecutive days.

If you refuse, or do not expressly agree to submit to, or do not successfully complete the tests, your Arizona driving privilege will be suspended. The suspension will be requested for 12 months, or for two years if you’ve had a prior implied-consent refusal within the last 84 months.

Will you submit to the tests?

Diaz agreed and submitted to a breath test that revealed an alcohol concentration above the legal limit.

¶3 In municipal court, Diaz moved to suppress the breath test result, arguing her consent was not voluntary under either the Fourth Amendment or A.R.S. § 28-1321, Arizona’s implied consent statute. The court deemed the admonition coercive, ruled that Diaz’s consent to testing was involuntary, found the good-faith exception to the exclusionary rule inapplicable, and granted her motion to suppress. On appeal, the superior court affirmed the municipal court’s involuntariness finding but found the good-faith exception applicable and therefore reversed the suppression order.

¶4 The court of appeals accepted jurisdiction of Diaz’s ensuing special action petition but denied relief for reasons different from the superior court’s. Diaz v. Bernini , 244 Ariz. 417, 418 ¶ 1, 419 ¶ 5, 419 P.3d 950, 951, 952 (App. 2018). Finding any federal or state constitutional challenge to the warrantless breath test foreclosed by prior case law, the court of appeals addressed whether Arizona’s implied consent statute required suppression. Id. at 419-20 ¶¶ 6–9, 419 P.3d at 952–53 (citing Birchfield v. North Dakota , ––– U.S. ––––, 136 S.Ct. 2160, 2184, 195 L.Ed.2d 560 (2016), and State v. Navarro , 241 Ariz. 19, 21 ¶ 4, 382 P.3d 1234, 1236 (App. 2016) ). The court held that a DUI arrestee’s "agreement to testing under § 28-1321 must be voluntary" and "[i]f it is not, the officer has not secured a statutorily required pre-condition to conduct testing" and "has taken the sample unlawfully." Id. at 421 ¶ 14, 419 P.3d at 954. But concluding that the officer "accurately advise[d] Diaz of state law," and finding no facts suggesting that Diaz was coerced or misled to submit to testing, the court held that "her agreement was voluntary." Id. at 422 ¶¶ 18–19, 419 P.3d at 955. Accordingly, the breath test "results were obtained in compliance with the statute and were admissible at trial." Id. ¶ 20.

¶5 In her petition for review, Diaz challenges the court of appeals’ determination that the State met its burden of proving voluntary consent and argues that, contrary to the superior court’s ruling, the municipal court correctly found the good-faith exception inapplicable (an issue the court of appeals did not reach). In its cross-petition for review, the State argues the court of appeals erred in holding that § 28-1321 requires "voluntary" agreement to submit to breath tests and that if that requirement is not met, evidence of breath test results is inadmissible in a criminal DUI prosecution under A.R.S. § 28-1381. We granted review of the petition and cross-petition because the issues raised are of statewide importance and recurring. This Court has jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

II.

¶6 Preliminarily, we agree with the court of appeals that this case does not implicate any constitutional issues. "[T]he administration of a breath test is a search" subject to Fourth Amendment constraints. Birchfield , 136 S.Ct. at 2173. A warrantless search is deemed reasonable under the Fourth Amendment, however, if "one of a few well-established exceptions [to the warrant requirement] applies." State v. Valenzuela (Valenzuela II ), 239 Ariz. 299, 302 ¶ 10, 371 P.3d 627, 630 (2016) (citing Arizona v. Gant , 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) ). Under the search-incident-to-arrest exception, the United States and Arizona Constitutions permit law enforcement officers to administer warrantless breath tests to lawfully arrested DUI suspects. Birchfield , 136 S.Ct. at 2184 (holding that "the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving"); Navarro , 241 Ariz. at 21 ¶ 4, 382 P.3d at 1236 (concluding that for purposes of article 2, section 8 of the Arizona Constitution"a search incident to a lawful arrest does not require any warrant" and "non-invasive breath tests for DUI arrestees fall within this exception").

¶7 A warrantless search is also reasonable for Fourth Amendment purposes if the subject voluntarily consents. Birchfield , 136 S.Ct. at 2185. But Birchfield makes clear that because a warrantless breath test is "a permissible search incident to [a suspect’s] arrest for drunk driving," the government need not establish under the totality of circumstances that the suspect voluntarily consented to the test. Id. at 2186.

¶8 Based on Birchfield and Navarro , the court of appeals correctly rejected Diaz’s argument that her voluntary consent to the breath test was constitutionally required. Diaz , 244 Ariz. at 419–20 ¶¶ 6–8, 419 P.3d at 952. Therefore, like the court of appeals, we limit our analysis to § 28-1321.

III.

¶9 Commonly referred to as Arizona’s implied consent law, § 28-1321 provides in part:

A. A person who operates a motor vehicle in this state gives consent ... to a test or tests of the person’s blood, breath, urine or other bodily substance for the purpose of determining alcohol concentration or drug content if the person is arrested for any offense arising out of acts alleged to have been committed in violation of this chapter or § 4-244, paragraph 34 while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs. The test or tests chosen by the law enforcement agency shall be administered at the direction of a law enforcement officer having reasonable grounds to believe that the person was driving or in actual physical control of a motor vehicle in this state ... [w]hile under the influence of intoxicating liquor or drugs.

...

B. After an arrest a violator shall be requested to submit to and successfully complete any test or tests prescribed ... and if the violator refuses the violator shall be informed that the violator’s license or permit to drive 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.

The statute further provides that "[i]f a person under arrest refuses to submit" to the designated test, it may not be given except pursuant to a search warrant or as provided by the medical-purpose exception in A.R.S. § 28-1388(E), and the violator’s license must be surrendered. § 28-1321(D)(1), (2)(c). The purpose of § 28-1321 is to "remove from Arizona highways those drivers who may be a menace to themselves and others because of intoxication." Carrillo v. Houser , 224 Ariz. 463, 465 ¶ 13, 232 P.3d 1245, 1247 (2010) (quoting Sherrill v. Dep’t of Transp. , 165 Ariz. 495, 498, 799 P.2d 836, 839 (1990) ).

¶10 The parties dispute whether § 28-1321 provides greater protection than the Fourth Amendment by requiring DUI arrestees to voluntarily agree to breath testing. The issue is whether the statute requires that an arrestee "voluntarily consent" (as that phrase is understood for Fourth Amendment purposes) to a breath test even though the Fourth Amendment itself does not require such consent. Whether § 28-1321 imposes a voluntariness requirement, as Diaz contends and the court of appeals held, is a question of statutory construction which we review de novo. Stambaugh v. Killian , 242 Ariz. 508, 509 ¶ 7, 398 P.3d 574, 575 (2017). If, as here, the statute is subject to only one reasonable interpretation based on its words and context, we apply it without further analysis. Id.

¶11 Citing Carrillo , Diaz argues that § 28-1321"unquestionably...