from the Superior Court in Mohave County The Honorable Derek
C. Carlisle, Judge Pro Tempore No. CR201201535
Decision of the Court of Appeals, Division One 1 CA-CR14-0223
Filed October 27, 2015 VACATED.
Brnovich, Arizona Attorney General, Dominic Draye, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Terry M. Crist,
III (argued), Assistant Attorney General Criminal Appeals,
Attorneys for State of Arizona
Goldberg (argued), David Goldberg Attorney at Law, Fort
Collins, CO, Attorney for Don Jacob Havatone
JUSTICE BOLICK authored the opinion of the Court, in which
CHIEF JUSTICE BALES and JUSTICE TIMMER joined. VICE CHIEF
JUSTICE PELANDER, joined by JUSTICE BRUTINEL, concurred in
part and dissented in part.
This case considers the constitutionality of A.R.S. §
28- 1321(C), the "unconscious clause, " which
allows law enforcement officials to make or direct
nonconsensual blood draws from unconscious DUI suspects. We
hold that the provision is unconstitutional as applied to the
facts of this case.
We also consider whether the good-faith exception to the
exclusionary rule applies here. Following a collision after
which defendant was airlifted to Nevada, a blood draw was
taken at the request of Arizona law enforcement officials,
raising the question, unresolved in the trial or appeals
court, of which state's law applies to decide whether the
blood test results should be suppressed. We hold that under
Arizona law, the good-faith exception would not apply, and
thus if our state's law applies, the evidence from the
blood draw must be suppressed. However, we remand to the
trial court to determine which jurisdiction's law applies
and, if it is Nevada law, whether it supports application of
the good-faith exception. I.
On September 17, 2012, Don Jacob Havatone drove his SUV, with
four other passengers, into an oncoming vehicle on Route 66
northeast of Kingman. A witness driving behind Havatone
testified that before the collision the SUV was driving
"erratically" for several miles and repeatedly
crossed the center line. The other vehicle was occupied only
by its driver, L.S. After the collision, L.S. saw a man with
his foot caught in the SUV's windshield crawl out over
the hood and lie down in front of the vehicle. She saw a
second occupant, later identified as Havatone, exit the
driver's side of the SUV and lie down behind the vehicle.
Department of Public Safety ("DPS") Officer M.P.
responded to the scene. He approached Havatone, whom medics
were treating. Havatone confirmed he was driving the SUV.
When M.P. asked Havatone what happened, Havatone did not
respond. M.P. detected a "heavy odor" of alcohol
emanating from all the SUV's occupants, including
Havatone. M.P. looked inside the SUV and saw numerous beer
cans and an open bottle of liquor.
Havatone was airlifted to a Las Vegas hospital for treatment.
Without seeking a warrant, Officer M.P. followed DPS policy
and instructed DPS dispatch to request that Las Vegas police
officers obtain a blood sample. Havatone was unconscious when
the blood sample was taken. The sample showed a blood alcohol
concentration ("BAC") of 0.212.
The State charged Havatone with driving under the influence
of intoxicating liquor while his license was suspended or
revoked, aggravated driving under the extreme influence of
intoxicating liquor with a BAC of 0.20 or more with a
suspended license, aggravated assault of L.S. with a deadly
weapon or dangerous instrument, recklessly endangering L.S.
with a substantial risk of imminent death, and four counts of
aggravated assault of the occupants of his vehicle with a
deadly weapon or dangerous instrument.
Havatone moved to suppress the blood test results, arguing
that the test was a warrantless search prohibited by the
Fourth Amendment. The trial court denied the motion, finding
the search permissible under both Arizona and Nevada law
because the police had probable cause to believe that
Havatone was driving while intoxicated and both states'
"implied consent" laws authorize blood draws from
unconscious DUI suspects. See A.R.S. § 28-1321
(C); Nev. Rev. Stat. § 484C.160(1), (3). Alternatively,
the court ruled that even if a warrant was required, the
police acted in reliance on statutes and cases in effect when
the blood was seized, thus satisfying the good-faith
exception to the exclusionary rule.
The jury found Havatone guilty of four offenses as charged
and guilty of lesser included offenses for other charges. The
trial court imposed concurrent sentences of 17.5 years in
On appeal, Havatone argued that the statute authorizing his
blood draw while unconscious violated his Fourth Amendment
rights. The court of appeals affirmed. It did not reach the
constitutional question but reasoned that even if the blood
draw violated Havatone's Fourth Amendment rights, it was
shielded by the good-faith exception to the exclusionary
rule. State v. Havatone, 1 CA-CR 14-0223, at *5
¶ 20, *6 ¶ 25 (Ariz. App. Oct. 27, 2015)
("[T]he search was objectively reasonable in either
state, so we-like the trial court-need not decide whether
Arizona or Nevada law applies.").
We granted review because the issues presented are of first
impression and statewide importance. We have jurisdiction
under article 6, section 5(3) of the Arizona Constitution and
A.R.S. § 12-120.24. II.
We review rulings on motions to suppress for an abuse of
discretion, considering only the evidence presented at the
suppression hearing and viewing it in the light most
favorable to sustaining the trial court's ruling.
State v. Butler, 232 Ariz. 84, 87 ¶ 8, 302 P.3d
609, 612 (2013). "An error of law constitutes an abuse
of discretion." State v. Bernstein, 237 Ariz.
226, 228 ¶ 9, 349 P.3d 200, 202 (2015). Both a
statute's constitutionality under the Fourth Amendment
and the applicability of the good-faith exception to the
exclusionary rule are questions of law that we decide de
novo. Gallardo v. State, 236 Ariz. 84, 87 ¶ 8,
336 P.3d 717, 720 (2014); State v. Crowley, 202
Ariz. 80, 91 ¶ 32, 41 P.3d 618, 629 (App. 2002).
Arizona's "implied consent" statute, A.R.S.
§ 28-1321, reads in pertinent 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 . .. 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 ... (1) [while] under the influence of
intoxicating liquor or drugs.
C. A person who is dead, unconscious or otherwise in a
condition rendering the person incapable of refusal is deemed
not to have withdrawn the consent provided by subsection
C, at issue here, is known as the "unconscious
After we granted review, the State acknowledged that the
unconscious clause is unconstitutional as applied to the
facts of the case. The State takes the position that blood
may be taken from a DUI suspect under the unconscious clause
only if case-specific exigent circumstances exist. We agree.
A blood draw taken or directed by the government implicates
privacy rights protected by the Constitution. The Fourth
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches
and seizures, shall not be violated, and no warrants shall
issue, but upon probable cause, supported by oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized. U.S. Const,
In Missouri v. McNeely, 133 S.Ct. 1552 (2013),
decided after the arrest here, the United States Supreme
Court considered the constitutionality of nonconsensual,
warrantless blood draws in DUI cases where police relied
solely upon the natural dissipation of alcohol in the blood.
Such a "compelled physical intrusion" beneath the
skin and into the veins "to obtain a sample of his blood
for use as evidence in a criminal investigation ...
implicates an individual's 'most personal and
deep-rooted expectations of privacy.'" Id.
at 1558 (citation omitted). The Court confirmed the view,
expressed in prior cases, that such searches could be
justified only by exigent circumstances. "In short,
" the Court ruled, "while the natural dissipation
of alcohol in the blood may support a finding of exigency in
a specific case, ... it does not do so categorically. Whether
a warrantless blood test of a drunk-driving suspect is
reasonable must be determined case by case based on the
totality of the circumstances." Id. at 1563.
Following McNeely, we ruled in State v.
Butler that Arizona's implied consent statute,
A.R.S. § 28-1321, does not relieve the state of
establishing voluntary consent or another exception to the
warrant requirement, such as exigent circumstances, to
justify warrantless blood draws from DUI suspects. 232 Ariz,
at 87-88 ¶¶ 12-13, 18, 302 P.3d at 612-13.
Furthermore, in Birchfield v. North Dakota, 136
S.Ct. 2160, 2180 ...