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Diaz v. Bernini

Supreme Court of Arizona

February 28, 2019

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 from the Superior Court in Pima County The Honorable Deborah Bernini, Judge No. CR20173611-001 AFFIRMED

         Opinion of the Court of Appeals, Division Two 244 Ariz. 417 (App. 2018) VACATED

          Mary C. Trejo, Chief Public Defender, Tucson Public Defender's Office, Kristina Bohn (argued), Deputy Public Defender, Tucson, Attorneys for Alexis Marie Diaz

          Michelle L. Behan (argued), Behan Ramsell, P.L.L.C., Tucson, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice

          Michael G. Rankin, Tucson City Attorney, Alan L. Merritt, Deputy City Attorney, Jennifer Stash, Mari L. Worman (argued), Prosecuting City Attorneys, Tucson, Attorneys for State of Arizona and Tucson City Prosecutors Office

          JUSTICE PELANDER authored the opinion of the Court, in which CHIEF JUSTICE BALES, VICE CHIEF JUSTICE BRUTINEL, and JUSTICES TIMMER, BOLICK, GOULD, and LOPEZ joined.

          OPINION

          PELANDER, JUSTICE

         ¶1 Under Arizona's implied consent statute, a law enforcement officer may obtain a blood or breath sample from a person arrested for driving under the influence ("DUI") only if the arrestee expressly agrees to the test. We today hold that, apart from any constitutional considerations, the statute itself does not require that the arrestee's agreement be voluntary.

         I.

         ¶2 On April 2, 2016, Alexis Diaz was arrested and later charged with DUI. After the arrest, the investigating officer read her the following "admin per se" 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 ...

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