Special Action Proceeding Pima County Cause No. CR20173611001
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
Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Vásquez and Judge Eppich concurred.
ECKERSTROM, CHIEF JUDGE:
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.
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
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?
agreed and submitted to testing.
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.
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