Appeal from the Superior Court in Maricopa County. No. CR2011-110536-001. The Honorable Bruce R. Cohen, Judge.
Arizona Attorney General's Office, Phoenix, By Terry M. Crist, Counsel for Appellee.
Ballecer & Segal, LLP, Phoenix, By Natalee E. Segal, Counsel for Appellant.
Judge Samuel A. Thumma delivered the opinion of the Court, in which Presiding Judge Lawrence F. Winthrop joined and Judge Kenton D. Jones dissented in part.
Samuel A. Thumma, Judge:
[¶1] Patrick McLeod Nissley appeals from his convictions and resulting sentences for reckless manslaughter, possession or use of narcotic drugs and four counts of endangerment. Nissley argues the superior court erred in denying his motion to suppress blood test results for blood obtained for law enforcement purposes under Arizona Revised Statute (A.R.S.) section 28-1388(E) (2015). Because Nissley has shown no reversible error, his convictions and sentences are affirmed as modified to vacate the requirement that Nissley pay for the cost of his DNA testing.
FACTS AND PROCEDURAL HISTORY
[¶2] Shortly after 5:30 p.m. on November 2, 2010, while driving his car at a high rate of speed in a residential area, Nissley crashed head on into an oncoming car, injuring four people in the oncoming car and killing a pedestrian. Witnesses later detailed Nissley's erratic and dangerous driving and behavior leading up to and after the fatal crash. A blood sample taken from Nissley by medical personnel at a hospital less than an hour later revealed significant concentrations of methamphetamine and an active metabolite of heroin in his system at the time of the crash. The State charged Nissley with one count of second degree murder, a Class 1 dangerous felony; one count of possession or use of narcotic drugs, a Class 4 felony; and four counts of endangerment, each a Class 6 dangerous felony.
[¶3] Nissley moved to suppress the blood test results, asserting the blood sample was obtained without a warrant or probable cause and that he expressly refused medical treatment. Nissley argued that
[a police] officer cannot obtain blood for law enforcement purposes pursuant to A.R.S. § 28-1388(E) when the person is subjected to medical treatment that the person has expressly rejected.
In State v. Estrada, 209 Ariz. 287, 100 P.3d 452 ([App.] 2004), this precise question was answered. There, similar circumstances resulted in law enforcement obtaining a sample of blood drawn from an individual who expressly refused medical treatment. The Court held the blood inadmissible on the same theory raised in this case.
The State's response argued that the facts were " distinguishable from the Estrada case relied upon by [Nissley] as the basis for his motion to preclude the blood test results." In reply, relying on Estrada, Nissley claimed that if the " suspect actively rejects medical treatment, then the police may no longer exploit" A.R.S. § 28-1388(E).
I. The Evidentiary Hearing.
[¶4] At the evidentiary hearing on Nissley's motion to suppress, the superior court heard testimony from six witnesses, received numerous exhibits and heard argument. Nissley, as was his right, elected not to testify at the hearing. The evidence received addressed the issues raised in Nissley's motion to suppress: (1) whether law enforcement had probable cause and (2) whether Nissley expressly refused medical treatment. Given the fact-intensive nature of the inquiry, the evidence is summarized here in some detail.
A. The Scene Of The Crash.
[¶5] Officer Jay Jones was the first responder, arriving at the scene between 5:35 and 5:40 p.m. When he arrived, Nissley was being tended to by a concerned citizen who was a nurse. Jones testified Nissley appeared to be in distress, " was flailing around" and that his " whole car was crushed in around him."
[¶6] Officer Deborah Hemshrot arrived a few minutes after Jones and heard Nissley screaming in his car. When Hemshrot told Nissley to " stop it," he complied. Hemshrot testified there was a great deal of blood in his car, which photographs confirm. Asked whether Nissley was " refusing assistance," Hemshrot testified " [n]ot that I'm aware of, no." She added that Nissley did not otherwise respond to her and was being uncooperative. Nissley was screaming and cursing, shoving and punching first-responders, nonresponsive to questions and apparently unable to understand what was happening. Hemshrot, who had been an emergency medical technician (EMT) for approximately 10 years before becoming a police officer, testified, " [Nissley's] speech was slurred. I could not smell any alcohol or anything coming from his breath. But I could not make out what he was saying. He just had a -- like he was on something. He was appearing to be delirious and just screaming."
[¶7] Officer Nichole Hanson arrived at about the same time as Hemshrot and controlled
traffic and took photographs. Hanson testified to seeing syringes in Nissley's car and an uncapped needle stuck between the car's windshield and dashboard.
[¶8] Andrew McDonald, the primary treating paramedic, and EMT Aaron Lowery arrived after Hemshrot and Hanson. McDonald testified Nissley had numerous cuts, was bleeding and had scrapes to the face and head. Nissley's car had quite a bit of damage from an apparent rollover. McDonald asked Nissley for his name and general information to assess his condition. Nissley responded by stating " 'f' off, leave me alone" and refused to provide any additional information. McDonald testified that Nissley's response to similar questions was profanity and " leave me alone, I'm fine" and " just go away." As McDonald was treating Nissley and " explaining to him that I was there to help him, I did, numerous times, tell him he had to give me information if he wanted me to go away," yet Nissley did not answer the questions asked and " never responded giving me any information." " At no time was [Nissley] able to provide any indication on his level of consciousness." McDonald added that Nissley " was aggressive, he was pushing [paramedics] away," and " [a]t a few points ... attempted to strike us with a closed fist." Nissley " was physically combative during the entire event," including before McDonald asked him any questions.
[¶9] McDonald expressed concern that Nissley may have suffered a closed head injury and testified that individuals who have closed head injuries act similarly to how Nissley was acting. McDonald testified that Nissley's behavior might be " consistent" with someone with a " closed head injury," although he conceded Nissley was " conscious" and " verbally responsive" and that Nissley " seemed to be like he knew what was going on. He knew the situation he was in, but he didn't want anybody around him, was my opinion."
[¶10] When asked whether, at any point, Nissley said " I don't need medical treatment," McDonald testified " I don't recall him saying that." When asked if, at any point before being placed in the ambulance, Nissley " indicate[d] to you he didn't want to go to the hospital," McDonald answered " [h]is only indication was that he said, I didn't want your help, and that he continued to swear at us and act aggressive." McDonald testified that, for Nissley " to say, leave me alone, did not indicate that he didn't want our medical treatment." According to McDonald, Nissley's refusal to cooperate " indicat[ed] that at that particular time he did not want anything from us." After removing Nissley from his car, McDonald treated him and Nissley continued cursing and being combative. McDonald testified Nissley kept " pushing us away" and " attempting to hit us with a closed fist." Once they " had him strapped to a back board which was then in turn strapped to a gurney," Nissley was " able to pull his feet out of the straps and attempt to kick at" the paramedics.
[¶11] McDonald testified he did not believe Nissley ever said he wanted McDonald's assistance or treatment or transportation to the hospital. Given Nissley's injuries, however, McDonald testified he was unable to decline transporting Nissley to the hospital without getting clearance from a doctor. When asked " did it ever occur to you that, because this person was telling you he didn't want your help, that you were going to be transporting him against his will," McDonald responded " Yes." McDonald explained why, given his injuries, Nissley was transported to the hospital without a doctor being consulted:
Q And, I mean, isn't that when you're supposed to call the doctor at the hospital and say, we've got somebody that may not want our help? I think he needs it?
A Per our offline treatments, if they cannot respond to our alert and oriented questions, we don't have to call and get permission for that.
Q Aren't you making a distinction? You said, cannot respond. I mean, it's not that he couldn't respond. He just didn't respond. Isn't that the truth?
A He did not.
Q All right. So he could have responded?
A I don't know if he could or not. He did not respond to the questions I asked.
Q He was saying whatever the heck else he wanted to say, wasn't he?
A. He said quite a few things. I can't tell you if he could have or not. He didn't answer my questions.
[¶12] EMT Lowery testified about significant damage to Nissley's car that appeared to be caused by a rollover, that Nissley had a head wound and had quite a bit of blood " all over" his head and there was blood in the car from his head wound. Lowery testified Nissley " did state to leave me alone, don't touch me," but he " would not answer our questions." Lowery said Nissley was " throwing punches, calling us names" and saying " I don't want your help." Lowery acknowledged Nissley was saying " no" to transportation to the hospital, but added that Nissley did not have the right to refuse transportation to the hospital in his condition. " He wasn't able to make his own decisions." Lowery testified that Nissley's behavior was not consistent with a diabetic who was hypoglycemic. Even if it had been, Lowery testified that he would not have left Nissley in the car. Lowery helped put Nissley on the backboard used to put him in the gurney to take him to the hospital and held his head down because ...