JASON S. BROWN, Petitioner,
THE HONORABLE CRANE MCCLENNEN, JUDGE OF SUPERIOR COURT OF THE STATE OF ARIZONA, IN AND FOR THE COUNTY OF MARICOPA, Respondent Judge, STATE OF ARIZONA, Real Party in Interest
from the North Mesa Justice Court. No. JC2013-427663. Special
Action from the Superior Court in Maricopa County. The
Honorable Crane McClennen, Judge. No. LC2013-427663. Order of
the Court of Appeals, Division One. Filed Dec. 30, 2014.
Willimann (argued), The Law Office of Mark F. Willimann, LLC,
Tucson, Attorneys for Jason S. Brown.
G. Montgomery, Maricopa County Attorney, Amanda M. Parker
(argued), Deputy County Attorney, Phoenix, Attorneys for
State of Arizona.
Washburn, Scottsdale City Attorney, Ken Flint, Assistant City
Prosecutor, Scottsdale, Attorneys for Amicus Curiae City of
TIMMER authored the opinion of the Court, in which VICE CHIEF
JUSTICE PELANDER and JUSTICES BRUTINEL and BERCH (RETIRED)
joined, and CHIEF JUSTICE BALES concurred.
Although the Fourth Amendment generally prohibits warrantless
searches, they are permitted if there is free and voluntary
consent to search. Schneckloth v. Bustamonte, 412
U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973);
State v. Butler, 232 Ariz. 84, 87 ¶ 13, 302
P.3d 609, 612 (2013). Consent cannot be given " freely
and voluntarily" if the subject of a search merely
acquiesces to a claim of lawful authority. Bumper v.
North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 20
L.Ed.2d 797 (1968).
Arizona's implied consent law for watercraft operators
provides that " [a]ny person who operates a motorized
watercraft that is underway within this state gives consent .
. . to a test or tests of the person's blood, breath,
urine or other bodily substance" if arrested for
operating a motorized watercraft while under the influence of
alcohol or drugs (" OUI" ). A.R.S. §
5-395.03(A). Nevertheless, the statute requires that an
arrestee " unequivocally manifest assent to the testing
by words or conduct" before officers can conduct
warrantless testing. Cf. Carrillo v.
Houser, 224 Ariz. 463, 467 ¶ 19, 232 P.3d 1245,
1249 (2010) (interpreting the implied consent law for
motorists). The issue here is whether, for Fourth Amendment
purposes, an operator arrested for OUI voluntarily consented
to giving samples of his blood after a deputy sheriff advised
him that " Arizona law requires you to submit" to
breath, blood, or other bodily substance tests chosen by law
In a concurrently issued opinion, we hold that showing only
that consent was given by a drunk-driving arrestee in
response to an almost identical admonition fails to prove
that an arrestee's consent was freely and voluntarily
given. State v. Valenzuela, CR-15-0222-PR,
Id. *2 ¶ 2 (Ariz. Apr. 26, 2016). We adopt the
reasoning in Valenzuela and reach the same
In reviewing the denial of a defendant's motion to
suppress, we consider only " evidence presented at the
suppression hearing and view the facts in the light most
favorable to sustaining the trial court's ruling."
State v. Hausner, 230 Ariz. 60, 70 ¶ 23, 280
P.3d 604, 614 (2012).
In June 2013, Jason Brown was operating a boat on Apache Lake
when a uniformed deputy sheriff stopped him for illegally
towing a water skier after sundown. The deputy smelled
alcohol and Brown admitted he had been drinking. After
conducting field sobriety tests, the deputy arrested Brown
for OUI and transported him to an aid station used by the
At that station, the deputy directed Brown to a phlebotomist
chair and read to him from an " OUI Admonishment"
form, which provided:
Arizona [l]aw requires you to submit and successfully
complete a test of breath, blood or other bodily substance as
chosen by the law enforcement officer to determine alcohol
concentration or drug content. A law enforcement officer may
require you to submit to one or more test[s]. You are
required to ...