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State v. De Anda

Supreme Court of Arizona

February 28, 2019

State of Arizona, Appellee,
v.
Alfonso De Anda III, Appellant.

          Appeal from the Superior Court in Pima County The Honorable Richard D. Nichols, Judge No. CR20161614-001 AFFIRMED

         Opinion of the Court of Appeals, Division Two 244 Ariz. 471 (App. 2018) AFFIRMED

          Joel Feinman, Pima County Public Defender, David J. Euchner (argued), Michael J. Miller, Pima County Public Defender's Office, Tucson, Attorneys for Alfonso De Anda, III

          Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Tanja K. Kelly (argued), Assistant Attorney General, Phoenix, Attorneys for State of Arizona

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

          OPINION

          BALES CHIEF JUSTICE

         ¶1 Alfonso De Anda III submitted to a blood test after he was arrested for driving under the influence. He argues his consent was involuntary under the Fourth Amendment to the United States Constitution because, before he was asked if he would submit to the test, the police officer told him his driving privileges would be suspended if he refused. We disagree. Unlike the officer in State v. Valenzuela, 239 Ariz. 299 (2016) ("Valenzuela II"), the officer here did not tell De Anda he was required to submit to the test, and the officer's identifying the consequences of refusal before asking whether he would submit to the testing did not in itself render De Anda's consent involuntary. The trial court did not err in denying his motion to suppress the test results.

         I.

         ¶2 A few weeks before the opinion in Valenzuela II issued, De Anda was stopped by police while driving and arrested because he showed signs of impairment. At the scene of the arrest, a police officer read De Anda an "admin per se form" as follows:

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 substance 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 (0.04 or above in a commercial vehicle, ) or indicate any drug defined in ARS 13-3401 or its metabolite without a valid prescription, then your Arizona driving privilege will be suspended for not less than 90 consecutive days.
If you refuse, 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?

         After the officer finished reading the form, De Anda agreed to submit to a test, and the officer performed a blood draw. A test of the blood revealed an alcohol concentration of 0.142. De Anda was charged with two counts each of aggravated driving under the influence ...


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