Appeal
from the Superior Court in Mohave County No. S8015CR201201535
The Honorable Derek C. Carlisle, Judge.
Arizona Attorney General's Office, Phoenix By Terry M.
Crist Counsel for Appellee
Law
Offices of Shawn B. Hamp, Kingman By Shawn B. Hamp, Virginia
L. Crews, Troy M. Anderson Counsel for Appellant
Judge
James P. Beene delivered the opinion of the Court, in which
Presiding Judge Maria Elena Cruz and Judge Jennifer B.
Campbell joined.
OPINION
BEENE,
JUDGE.
¶1
Don Jacob Havatone appeals from his convictions and sentences
for two counts of aggravated driving under the influence of
intoxicating liquor ("DUI"), one count of
aggravated assault, one count of endangerment, and four
counts of misdemeanor assault. Because a Nevada statute at
the time allowed a blood sample to be taken from an
unconscious DUI suspect, the good-faith exception to the
exclusionary rule applied, and the superior court did not err
by denying Havatone's motion to suppress. Accordingly, we
affirm.
FACTS
AND PROCEDURAL HISTORY[1]
¶2
In September 2012, Havatone's SUV swerved into oncoming
traffic and collided with another vehicle near Kingman,
Arizona. Havatone was taken to a hospital in Nevada for
injuries sustained in the collision. A police officer in
Nevada, without securing a warrant, obtained a sample of
Havatone's blood drawn by the hospital's
phlebotomist. A criminalist in Arizona tested Havatone's
blood sample and it showed a blood alcohol concentration of
0.21.
¶3
The State charged Havatone with two counts of aggravated DUI,
five counts of aggravated assault, and one count of
endangerment. Before trial, Havatone moved to suppress the
results of the warrantless blood draw.
¶4
At the suppression hearing, Officer Perea with the Arizona
Department of Public Safety ("DPS") testified that
he responded to the collision. He stated that the passengers
riding with Havatone, as well as the driver of the other
vehicle, were injured in the collision. He found Havatone
lying behind his SUV with a head wound. Officer Perea smelled
alcohol coming from Havatone, found alcohol containers in his
vehicle, and Havatone admitted he was driving.
¶5
Based on his injuries, Havatone was taken by helicopter to a
hospital in Nevada. Officer Perea contacted DPS dispatch and
asked them to contact Nevada Highway Patrol ("NHP")
to collect a blood sample. DPS dispatch contacted NHP,
informed them that Havatone caused a collision in Arizona,
the officer on scene suspected him of DUI, and requested
Nevada law enforcement assist in the collection of a blood
sample.
¶6
Officer Perea did not direct dispatch to explain how Nevada
law enforcement should collect the blood sample or whether
they needed a search warrant. Although Officer Perea
testified at the suppression hearing that whether to obtain a
search warrant was his "sole decision," he did not
believe he needed to obtain a search warrant for an
out-of-state blood draw and he never attempted to do so in
prior cases.
¶7
NHP dispatch relayed Officer Perea's request to NHP
Officer Reinmuth. Officer Reinmuth testified that he went to
the hospital, obtained a sample of Havatone's blood from
a phlebotomist, and completed a declaration form pursuant to
NHP protocol. Havatone was unconscious at the time of the
blood draw and the State stipulated that the blood sample was
not collected for medical purposes. The officer sent
Havatone's blood sample to Arizona DPS for testing. Both
officers testified that they followed departmental policies
and their law enforcement training regarding the taking of
Havatone's blood.
¶8
After the suppression hearing, the superior court found that
the officers were authorized under both Arizona and Nevada
law to obtain a warrantless blood sample, and, even if a
warrant was required, the good-faith exception applied. The
court denied Havatone's request to suppress the blood
test results and the evidence was presented at trial. A jury
found Havatone guilty as charged in four counts and guilty of
lesser included offenses in the remaining counts. The court
sentenced Havatone to a total of 17.5 years'
imprisonment.
¶9
In his first appeal, Havatone argued the superior court erred
in refusing to suppress the blood test results because both
states' "implied consent" laws authorizing
officers to conduct blood draws from unconscious DUI suspects
violated his Fourth Amendment rights. See Ariz. Rev.
Stat. ("A.R.S.") § 28-1321(C) (2011); Nev.
Rev. Stat. ("N.R.S.") § 484C.160(1), (2)
(2009). Citing Missouri v. McNeely,569 U.S. 141
(2013), Havatone argued that the officers lacked exigent
...