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Diaz v. Bernini

Court of Appeals of Arizona, Second Division

April 12, 2018

Alexis Marie Diaz, Petitioner,
v.
Hon. Deborah Bernini, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent, and The State of Arizona, Tucson City Prosecutor's Office, Real Party in Interest.

          Special Action Proceeding Pima County Cause No. CR20173611001

          Mary C. Trejo, City of Tucson Public Defender By Kristina Bohn, Assistant Public Defender, Tucson Counsel for Petitioner

          Michael G. Rankin, Tucson City Attorney Alan L. Merritt, Deputy City Attorney By Mari L. Worman and Jennifer Bonham, Assistant Prosecuting City Attorneys, Tucson Counsel for Real Party in Interest

          Chief Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred.

          OPINION

          ECKERSTROM, CHIEF JUDGE:

         ¶1 In this special action, Alexis Diaz challenges the ruling of the respondent judge reversing the Tucson City Court's order granting her motion to suppress breath evidence obtained after Diaz was arrested for driving under the influence (DUI). Because we conclude the officer complied with the statutory requirements for obtaining a breath test, the respondent judge correctly reversed the city court's ruling, albeit for reasons other than those set forth below. We therefore deny relief.

         ¶2 Diaz was arrested for and subsequently charged with DUI. See A.R.S. § 28-1381. After her arrest, the investigating officer read her the following admonition:

Arizona law states that a person who operates a motor vehicle at any time in this state gives consent to a test or tests of blood, breath, urine or other bodily substances for the purpose of determining alcohol concentration or drug content. The law enforcement officer is authorized to request more than one test and may choose the types of tests.
If the test results are not available, or indicate an alcohol concentration of 0.08 or above . . . then your Arizona driving privilege will be suspended for not less than 90 consecutive days.
If you refuse, or do not expressly agree to submit to, or do not successfully complete the tests, your Arizona driving privilege will be suspended. The suspension will be requested for 12 months, or for two years if you've had a prior implied-consent refusal within the last 84 months.
Will you submit to the tests?

         Diaz agreed and submitted to testing.

         ¶3 Diaz filed a motion to suppress the testing results, arguing her consent had not been voluntary under the Fourth Amendment and that "the implied consent rules . . . do not excuse the State from demonstrating that consent was voluntarily obtained." In response, the state argued that "the search incident to arrest exception" to the Fourth Amendment warrant requirement "applies to breath tests conducted after a lawful DUI arrest, " so voluntary consent was not constitutionally required. It asserted that the admonition given to Diaz was different from that deemed coercive in State v. Valenzuela, 239 Ariz. 299 (2016), and was not coercive. And, relying on Valenzuela, the state contended that even if the admonition had been coercive, the officer had acted in good faith. The city court asked for supplemental memoranda on the exclusionary rule and good faith and thereafter granted the motion to suppress, concluding that the admonition read to Diaz rendered any "consent given . . . coerced and therefore not voluntary" and that the state had not established the officer had acted in good faith.

         ¶4 The state appealed the city court's ruling to the superior court pursuant to A.R.S. §§ 12-124(A), 13-4032(6). The parties again addressed the questions of voluntariness, exclusion, and good faith presented to the city court. The respondent judge determined the city court had properly ruled Diaz's consent was involuntary, but disagreed as to the application of the good-faith exception, concluding that based on Valenzuela, the exception applied. The respondent therefore reversed the city ...


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