Appeal from the Superior Court in Cochise County. No. CR201300076. The Honorable Karl D. Elledge, Judge.
For Appellee: Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix, Diane Leigh Hunt, Assistant Attorney General, Tucson.
For Appellant: Mark F. Willimann, The Law Office of Mark F. Willimann, LLC., Tucson.
For Amicus Curiae Arizona Attorneys for Criminal Justice: Jeffrey D. Bartolino, Law Offices of Jeffrey D. Bartolino, Tucson.
Presiding Judge Miller authored the opinion of the Court, in which Judge Espinosa concurred and Chief Judge Eckerstrom dissented.
MILLER, Presiding Judge:
¶1 Francisco Valenzuela was convicted after a bench trial of two counts of aggravated driving under the influence of alcohol (DUI) and sentenced to concurrent prison terms totaling 1.5 years. On appeal, he contends he was coerced into consenting to blood, breath, or urine tests by the language the arresting officer used to implement Arizona's implied consent admonition. He also contends his consent to testing was involuntary based on the totality of the circumstances. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We consider only the evidence introduced at the hearing on the motion to suppress and view the facts in the light most favorable to sustaining the trial court's ruling.
State v. Butler, 232 Ariz. 84, ¶ 8, 302 P.3d 609, 612 (2013). In August 2012, a Department of Public Safety (DPS) officer responded to a call about an unconscious man behind the wheel of a vehicle on a state highway. The officer found Valenzuela asleep in a truck with the gear in drive, an open container of alcohol in the center console, and the odor of alcohol coming from the vehicle. After waking Valenzuela, the officer conducted several field sobriety tests and then arrested him for DUI. At the police station, the officer read Valenzuela an administrative implied consent affidavit (admin per se) form. According to the officer, he did not threaten Valenzuela or make any promises to obtain his consent for testing, and Valenzuela understood the questions asked and agreed to provide breath and blood samples. Valenzuela's results on the breath tests were .223 and .241. Valenzuela also provided a blood sample. He was subsequently charged with five counts of aggravated DUI.
¶3 The trial court denied Valenzuela's motion to suppress the results of the chemical testing upon the conclusion of the hearing. In its oral ruling, the court rejected the argument that a warrantless search following consent was " per se unreasonable" ; further, it found that Valenzuela's consent was " unequivocal" as a matter of fact and " not . . . involuntary" under a Fourth Amendment totality-of-the-circumstances analysis. Soon after the suppression hearing, Valenzuela waived his right to a jury trial and proceeded based on stipulated facts. The court found him guilty on all five counts, but dismissed three counts at sentencing because they were lesser-included offenses. He was sentenced as described above, and this appeal followed. This court granted a motion for Arizona Attorneys for Criminal Justice to file an amicus brief in support of Valenzuela's appeal.
¶4 Valenzuela argues the trial court erred when it concluded he freely and voluntarily consented to the breath test and blood draw. We review a court's ruling on a motion to suppress for an abuse of discretion, but we review the court's legal conclusions de novo. State v. Peterson, 228 Ariz. 405, ¶ 6, 267 P.3d 1197, 1199-1200 (App. 2011).
¶5 Arizona's implied consent statute provides in relevant part that the driver of a motor vehicle " gives consent . . . [for tests] of the person's blood, breath, urine or other bodily substance for the purpose of determining alcohol concentration" if the person is arrested by a law enforcement officer who has reasonable grounds to believe the person was in actual physical control of a motor vehicle while under the influence of liquor. A.R.S. § 28-1321(A). If a driver refuses any test, he " shall be informed" that the license will be suspended, " unless [he] expressly agrees to submit to and successfully completes" the tests. § 28-1321(B). The statute does not specify any particular language or a form to implement the admonition. Despite the suggestion that consent is given at the time of licensure, if the driver refuses to submit, § 28-1321(D)(1) prohibits the officer from giving a test unless he obtains a search warrant or another exception applies.
¶6 Before the test results can be used in a criminal proceeding, a blood draw administered pursuant to Arizona's implied consent statute must comply with the Fourth Amendment's restrictions on warrantless searches. Butler, 232 Ariz. 84, ¶ 10, 302 P.3d at 612; cf. Campbell v. Superior Court, 106 Ariz. 542, 550, 479 P.2d 685, 693 (1971) (license suspension proceedings civil in nature). Generally, warrantless searches " 'are per se unreasonable under the Fourth Amendment--subject only to a few specifically established and well-delineated exceptions.'" Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710,
173 L.Ed.2d 485 (2009), quoting Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). One such exception is voluntary consent. Butler, 232 Ariz. 84, ¶ 13, 302 P.3d at 612.
¶7 Valenzuela challenges his consent based on portions of what the arresting officer told him, as well as a general contention that any time an arresting officer provides a § 28-1321 admonishment, any subsequent consent is the result of coercion. We begin with the suppression hearing record, which is limited.
¶8 The arresting officer testified that he read Valenzuela " the admin per se" from a written form he had been using for more than ten years. Although the officer was cross-examined about the form, it never was offered into evidence. Amicus curiae asserts that " [t]he admonition which was read to Mr. Valenzuela is identical to the admonition read to DUI arrestees throughout the state." It relies, however, on the officer's testimony about how he uses the form. Amicus curiae also provides one page of a sample form which it contends is used generally by law enforcement. It provides no citation to statutory or administrative regulations about the source or authority of the attached document, nor sufficient background for any court to take judicial notice of it. Amicus curiae does not explain why the form is dated 2014, which is two years after Valenzuela's arrest. Finally, the proffered form referred to " reasons stated on the front of this form," but does not provide that page.
¶9 At oral argument, Valenzuela and amicus curiae also sought to rely on the stipulated facts filed in advance of trial. Although the stipulation provides what appears to be additional language from the admonition, the motion to suppress was argued and decided before the stipulated facts were submitted to the trial court. Moreover, counsel for the state conceded that it was not known whether the officer was consulted about the stipulated facts. Finally, the parties disagreed whether Valenzuela checked the box indicating he would submit to the test. Because the stipulated facts were not before the court at the motion to suppress and the parties assert different factual assumptions attendant to those facts, we do not consider them on review. See Butler, 232 Ariz. 84, ¶ 8, 302 P.3d at 612; see also State v. Herrera, 232 Ariz. 536, ¶ 24, 307 P.3d 103, 113 (App. 2013) (noting limitation on review of pre-trial motion to suppress is consistent with general rule that appellate court's review is limited to record before trial court).
¶10 In summary, the record on the motion to suppress is devoid of evidence and legal authority to evaluate Valenzuela's arguments about " the admin per se form" in his case or generally, as well as how police officers provide § 28-1321 admonitions. Accordingly, consideration of the parties' arguments must be based on and limited to the officer's testimony at the suppression hearing. Most important, to the extent that Valenzuela's principal argument begins and ends with the first sentence of what he contends are the admonition's fatally irrevocable words, the form itself is unnecessary to our consideration of his arguments.
¶11 Valenzuela focuses on the officer's statement to him that " Arizona law requires
you to submit to and successfully complete tests of breath, blood or other bodily substance as chosen by the law enforcement officer to determine alcohol concentration or drug content." Valenzuela relies on Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968), for the proposition that the six-word phrase " Arizona law requires you to submit" renders any consent involuntary because it was secured under the claim of lawful authority.
¶12 In Bumper, the state argued a home search was consensual, but the person who gave consent stated at the hearing that one of the officers " walked up and said, 'I have a search warrant to search your house,'" before she let them in. Id. at 546. There was no evidence in the record that the officer had a search warrant. Id. at 549-50. The Supreme Court concluded that a prosecutor cannot prove consent was voluntary by " showing no more than acquiescence to a claim of lawful authority." Id. at 548-49. The Court held that an officer who says he has a warrant " announces in effect that the occupant has no right to resist the search." Id. at 550.
¶13 Drivers in Arizona, however, may refuse a warrantless search. Section 28-1321(B) explicitly acknowledges and supports a driver's right to refuse tests, albeit with civil penalties of increasing severity. The officer testified he notifies a driver that he has a choice whether to submit to the test. Additionally, if the driver refuses the test the officer informs the person that the officer will apply for a warrant to compel testing. Unlike in Bumper, Valenzuela was informed by the statute and the officer's admonition that he had a choice, not that the officer intended to search him regardless of his answer or whether the officer had a warrant.See People v. Harris, 234 Cal.App.4th 671, 184 Cal.Rptr.3d 198, 210-12 (Ct. App. 2015) (distinguishing Bumper ...