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State v. Havatone

Supreme Court of Arizona

March 9, 2017

State of Arizona, Appellee,
Don Jacob Havatone, Appellant.

         Appeal from the Superior Court in Mohave County The Honorable Derek C. Carlisle, Judge Pro Tempore No. CR201201535

         Memorandum Decision of the Court of Appeals, Division One 1 CA-CR14-0223 Filed October 27, 2015 VACATED.

          Mark 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

          David 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.



         ¶1 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.

         ¶2 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.

         ¶3 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.

         ¶4 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.

         ¶5 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.

         ¶6 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.

         ¶7 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.

         ¶8 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 prison.

         ¶9 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.").

         ¶10 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.

         ¶11 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).

         ¶12 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 A....

         Subsection C, at issue here, is known as the "unconscious clause."

         ¶13 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.

         ¶14 A blood draw taken or directed by the government implicates privacy rights protected by the Constitution. The Fourth Amendment provides,

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, amend. IV.[1]

         ¶15 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.

         ¶16 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 ...

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