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Soza v. Marner

Court of Appeals of Arizona, Second Division

October 2, 2018

Angel Soza, Petitioner,
Hon. James E. Marner, 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. CR20174554001

          Mary Trejo, City of Tucson Chief Public Defender By Steven A. Weber, Assistant Public Defender, Tucson Counsel for Petitioner

          Michael G. Rankin, Tucson City Attorney Alan L. Merritt, Deputy City Attorney By Mari L. Worman, Associate Prosecuting City Attorney, Tucson Counsel for Real Party in Interest

          Judge Brearcliffe authored the opinion of the Court, in which Judge Espinosa concurred and Chief Judge Eckerstrom concurred in part and dissented in part.



         ¶1 Angel Soza petitions for special action relief from the respondent judge's order reversing a Tucson City Court judge's order suppressing breath-test evidence obtained incident to his lawful arrest for driving under the influence (DUI). This case presents a legal question of statewide significance, see State v. Superior Court, 198 Ariz. 109, ¶ 2 (App. 2000), and of first impression, see State ex rel. Romley v. Martin, 203 Ariz. 46, ¶ 4 (App. 2002): whether the exclusionary rule is a remedy for the warrantless taking of a breath test incident to a lawful arrest but in violation of A.R.S. § 28-1321. We therefore accept special action jurisdiction. But, because we conclude the respondent judge properly reversed the city court ruling, we deny relief.

         Factual and Procedural History

         ¶2 In August 2015, Soza was arrested for driving while impaired to the slightest degree and driving while having a blood alcohol concentration in excess of .08. See A.R.S. §§ 28-1381(A)(1), (2). After his arrest, he was given an administrative admonition like that rejected by our supreme court in State v. Valenzuela, 239 Ariz. 299 (2016), including the language, "Arizona law requires you to submit to and successfully complete tests of breath, blood or other bodily substance . . . to determine alcohol concentration or drug content." Id. ¶ 5. He then submitted to a breath test.

         ¶3 Soza filed a motion to suppress in Tucson City Court, arguing his breath test was subject to the Fourth Amendment, because, under Valenzuela, the admonition was coercive, and Birchfield v. North Dakota, U.S., 136 S.Ct. 2160 (2016) did not apply. Birchfield, which held that the Fourth Amendment permitted warrantless breath tests as a search incident to arrest, was inapplicable, he argued, because Arizona "has long accorded 'implied consent' breath tests protection under traditional Fourth Amendment analysis." The state responded that breath tests are lawful searches when incident to arrest under Birchfield and State v. Navarro, 241 Ariz. 19 (App. 2016). It asserted that Soza's consent had been voluntary under the totality of the circumstances, but, even if involuntary, the exclusionary rule did not apply because of the officer's good faith belief that the admonition was proper. Finally, it argued that suppression was unwarranted under the implied consent statute, even assuming a violation of § 28-1321.

         ¶4 The city court granted Soza's motion to suppress, concluding the admonition violated § 28-1321 and rendered his consent involuntary. The court determined the good-faith exception to the exclusionary rule did not apply because, after our supreme court's decision in State v. Butler, 232 Ariz. 84 (2013), no binding precedent supported giving the admonition. The state appealed to the superior court, arguing the city court had erred by concluding § 28-1321 had been violated, by failing to apply the good-faith exception to the exclusionary rule, and by finding that the search-incident-to-arrest exception does not apply to breath tests taken in violation of § 28-1321. It also argued that "whether exclusion is an appropriate remedy for violation of" § 28-1321 must be addressed separately from Fourth Amendment exclusion. The respondent judge reversed the city court's ruling, concluding that, pursuant to our decision in State v. Weakland, 244 Ariz. 79 (App. 2017), the good-faith exception to the exclusionary rule would apply, and it therefore did not need to address the other grounds raised by the state. Soza then filed the instant petition for special action relief.

         ¶5 Soza argues that the breath-test evidence must be excluded because he did not voluntarily agree to the test, and therefore the evidence was not obtained in compliance with § 28-1321, which directs that "[i]f a person under arrest refuses to submit to the test" "[t]he test shall not be given." The state argues that, even if the officer failed to comply with the statute, suppression of the evidence was not required.

         Principles of Law and Analysis

         Implied Consent and Chemical Testing

         ¶6Arizona adopted an implied consent regime in 1969. See 1969 Ariz. Sess. Laws, ch. 41, §1.[1] The statute provided:

Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent . . . to a chemical test or tests of his blood, breath, or urine for the purpose of determining the alcoholic content of his blood if 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.

1969 Ariz. Sess. Laws, ch. 41, §1. The statute further dictated, "If a person under arrest refuses to submit to a chemical test . . . none shall be given." Id. The statute directed the Department of Motor Vehicles to suspend the arrested person's license for so refusing. Id.

         ¶7 As our supreme court recognized, "[t]he purpose of the Implied Consent Law is to remove from the highways of this state drivers who are a menace to themselves and to others because they operate a motor vehicle while under the influence of intoxicating liquor." Campbell v. Superior Court, 106 Ariz. 542, 546 (1971). In upholding the laws against constitutional challenge, the Campbell court relied on the United States Supreme Court's decision in Schmerber v. California, 384 U.S. 757 (1966), which held that a blood draw did not violate the Fourth Amendment when taken based on exigent circumstances and as a search incident to arrest, and State v. Berg, 76 Ariz. 96 (1953), overruled on other grounds by State v. Pina, 94 Ariz. 243 (1963), its own opinion which had upheld forcibly-administered breath tests. Campbell, 106 Ariz. at 547. As to the taking of a test after an arrestee's refusal, the court explained, the law "does not give a person a 'right' to refuse to submit to the test[, ] only the physical power." Id. at 549.

         ¶8 Subsequently, in State v. Cocio, 147 Ariz. 277 (1985), and State v. Brita, 154 Ariz. 517 (App. 1987), approved in part, vacated in part on other grounds, 158 Ariz. 121 (1988), our courts limited the admissibility of blood-draw evidence taken under the implied consent statutes. In Cocio, the court did so by limiting admission of warrantless blood-draw evidence to that taken by medical personnel for a medical purpose and under exigent circumstances. 147 Ariz. at 286. And in Brita, it did so by barring admission of warrantless blood-draw evidence taken by law enforcement officers pre-arrest but with consent obtained after the giving of an implied consent admonition. 158 Ariz. at 123. The court of appeals in Brita concluded, and our supreme court agreed, that the implied consent statutes provided "the only circumstances in which a blood sample may be seized from a person suspected of driving while intoxicated." Brita, 154 Ariz. at 521. And this did not include the pre-arrest drawing of blood without a warrant. Id. This court noted it had "assumed . . . that a violation by police officers" of the statutes "would give rise to exclusion of evidence thereby obtained, just as would a violation of a constitutional right under the [F]ourth [A]mendment. The state does not argue otherwise in this case." Id. at 522 n.2. In approving that analysis, our supreme court concluded suppression was appropriate. Brita, 158 Ariz. at 123.

         ¶9Later, in Collins v. Superior Court, 158 Ariz. 145, 146-47 (1988), stating that its decisions in "Cocio and Brita [we]re dispositive of th[e] matter," our supreme court concluded that, when blood was drawn after the defendant had refused a test, even pursuant to a search warrant, it was not admissible. In so doing, the court relied on decisions from several other states, noting they had also concluded that blood taken pursuant to a warrant was inadmissible because the implied consent laws did not provide for taking of blood evidence by warrant. Id.

         ¶10 "In what obviously was a response to the court's holding in Collins, the legislature amended the statute in 1990." State v. Clary, 196 Ariz. 610, ¶ 12 (App. 2000); see also State v. Stanley, 217 Ariz. 253, 257 (App. 2007). "The 1990 amendment provides that if an arrested person refuses to submit to the designated test, 'the test shall not be given, except . . . pursuant to a search warrant.'"[2] Clary, 196 Ariz. 610, ¶ 12 (quoting 1990 Ariz. Sess. Laws, ch. 375, § 7). In Clary, this court discussed that change and further determined that reasonable, physical force could be used to obtain a blood test pursuant to a warrant. Id. ¶ 15. We noted the legislature's "heightened legislative effort" in the years since Campbell as evidence of a "policy shift" under which "simple revocation of a driver's license for failure to consent to a chemical test" was no longer "a sufficient sanction." Id.; see also Koller v. Ariz. Dep't. of Transp., Motor Vehicle Div., 195 Ariz. 343, ¶ 25 (App. 1999) (noting policy shift towards increasing criminal penalties and facilitating prosecution of DUIs).

         ¶11 A decade later, in Carrillo v. Houser, 224 Ariz. 463, ¶ 4 (2010), our supreme court revisited the implied consent statutes, concluding that § 28-1321 "generally does not authorize law enforcement officers to administer [a] test without a warrant unless the arrestee expressly agrees to the test." Carrillo, 224 Ariz. 463, ¶ 1. Thus, the mere fact that the defendant does not resist the test is insufficient under the statute; consent must be express. Id. ¶ 19. The court explained that the consent requirement "assures that no physical violence or coercion will occur against a person who is non-cooperative with a law officer's effort to obtain necessary chemical evidence of intoxication." Id. ¶ 13 (quoting Sherrill v. Dep't of Transp.,165 Ariz. 495, 498 (1990)). The court pointed out that prompt license suspension was the method the legislature had chosen: "Rather than statutorily authorizing the warrantless administration of tests on such persons, the legislature instead deemed a failure to expressly agree to be a refusal, thus expanding the class of arrestees subject to administrative sanctions." Id. ΒΆ 13. The court further explained that it was "resolv[ing] th[e] case as a matter of ...

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