Special Action Proceeding Pima County Cause No. CR20174554001
Trejo, City of Tucson Chief Public Defender By Steven A.
Weber, Assistant Public Defender, Tucson Counsel for
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
Brearcliffe authored the opinion of the Court, in which Judge
Espinosa concurred and Chief Judge Eckerstrom concurred in
part and dissented in part.
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.
and Procedural History
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.
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.
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
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.
of Law and Analysis
Consent and Chemical Testing
adopted an implied consent regime in 1969. See 1969
Ariz. Sess. Laws, ch. 41, §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.
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.
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
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.
"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.'" 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
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. ¶ 13. The court further explained that it
was "resolv[ing] th[e] case as a matter of ...