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State v. Reiher

Court of Appeals of Arizona, First Division

March 7, 2017

STATE OF ARIZONA, Appellee,
v.
ADAM REIHER, Appellant.

         Appeal from the Superior Court in Maricopa County No. LC2015-000249-001 The Honorable Crane McClennen, Judge (Retired)

         DISMISSED

         COUNSEL

          Phoenix City Prosecutor's Office, Phoenix By Gary L. Shupe Counsel for Appellee

          Cameron A. Morgan, Scottsdale Counsel for Appellant

          Presiding Judge Samuel A. Thumma delivered the opinion of the Court, in which Chief Judge Michael J. Brown and Judge Patricia A. Orozco joined. [1]

          OPINION

          THUMMA, Judge

         ¶1 Adam Mark Reiher was convicted of various driving while under the influence (DUI) offenses in Phoenix Municipal Court. Reiher unsuccessfully appealed those convictions in the Superior Court. Now, he argues this court should apply State v. Valenzuela, 239 Ariz. 299 (2016), and Brown v. McClennen, 239 Ariz. 521 (2016), retroactively and vacate his convictions. Because this court lacks appellate jurisdiction over Reiher's challenge, the appeal is dismissed.

         FACTS AND PROCEDURAL HISTORY

         ¶2 In November 2013, police arrested Reiher and charged him with DUI pursuant to Arizona Revised Statutes (A.R.S.) section 28-1381(A)(1), (2) (2017).[2] After advising Reiher of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), a police officer read him the implied consent affidavit (admin per se) form. After being asked to do so, Reiher agreed to a blood test, signed a consent form and blood was drawn and analyzed, resulting in additional DUI charges being filed against him.

         ¶3 Pretrial, Reiher unsuccessfully moved to suppress the blood test results, arguing that the blood draw was not voluntary and that the implied consent law was unconstitutional. After Reiher submitted the matter to the court, the court found him guilty of various DUI offenses, including two extreme DUI offenses, and imposed consequences.

         ¶4 Reiher unsuccessfully appealed to the Superior Court, arguing that the blood draw was not voluntary and that the implied consent law was unconstitutional. On appeal to this court, Reiher no longer challenges the constitutionality of A.R.S. § 28-1321. Instead, he relies on Valenzuela and Brown, which held that a driver's consent to blood testing, obtained after a police officer advised that "Arizona law requires you to submit" to such testing, was not "freely and voluntarily given." Valenzuela, 239 Ariz. at 301 ¶ 2; Brown, 239 Ariz. at 523 ¶ 2 (similar for watercraft operator). In this appeal, Reiher argues Valenzuela and Brown should apply retroactively and, as a result, his convictions should be vacated.

         DISCUSSION

         ¶5 This court lacks appellate jurisdiction to hear an appeal from "a final judgment of the superior court in an action appealed from a justice of the peace or municipal court" unless, as applicable here, the appeal "involves the validity of a . . . statute." A.R.S. ยง 22-375(A). The State argues that, given Reiher is now only arguing ...


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