Carrillo v. The Honorable Robert Houser
| Decision Date | 07 June 2010 |
| Docket Number | No. CV-09-0285-PR.,CV-09-0285-PR. |
| Citation | 232 P.3d 1245,224 Ariz. 463 |
| Parties | Jose CARRILLO, Petitioner,v.The Honorable Robert HOUSER, Judge of the Superior Court of the State of Arizona, in and for the County of Maricopa, Respondent Judge,Phoenix City Prosecutor's Office, Real Party in Interest. |
| Court | Arizona Supreme Court |
Law Office of Nicole Farnum by Nicole T. Farnum, Tempe, Attorney for Jose Carrillo.
Aarón J. Carreón-Aínsa, Phoenix City Prosecutor by Gary L. Shupe, Assistant City Prosecutor, Phoenix, Attorneys for Phoenix City Prosecutor's Office.
Law Office of Stephen Paul Barnard, P.C. by Stephen Paul Barnard and The Law Firm of Nesci & St. Louis, P.L.L.C. by Joseph P. St. Louis, Tucson, Attorneys for Amicus Curiae Arizona Attorneys for Criminal Justice.
¶ 1 Under Arizona's implied consent law, A.R.S. § 28-1321 (Supp.2009), a person arrested for driving under the influence is asked to submit to testing, such as a blood draw, to determine alcohol concentration or drug content. If the arrestee refuses the test-and the statute deems a failure to expressly agree to be a refusal-the arrestee's license is administratively suspended. We today hold that the statute generally does not authorize law enforcement officers to administer the test without a warrant unless the arrestee expressly agrees to the test.
¶ 2 Arizona's implied consent law begins by stating that a “person who operates a motor vehicle in this state gives consent” to a test “for the purpose of determining alcohol concentration or drug content” if he or she is arrested for “driving ... under the influence of [alcohol] or drugs.” A.R.S. § 28-1321(A).1 Despite this broad statement, the next subsection of the statute provides, in part, that:
¶ 3 Police officers arrested Jose Carrillo for driving under the influence and related offenses. He was taken to a DUI van, where further action was delayed because Carrillo vomited for about thirty minutes. While Carrillo was sitting on the steps of the van, an officer placed a large toolbox on Carrillo's lap and another officer drew a blood sample. The officers did not obtain a warrant before administering the test.
¶ 4 Before his trial in Phoenix Municipal Court, Carrillo moved to suppress the results of his blood test. At an evidentiary hearing, Carrillo testified that he spoke only Spanish, the officers did not speak to him in Spanish, and he did not consent to the blood draw but did not resist it because he was afraid. The officers testified that although they were not certified Spanish translators, they communicated with Carrillo by gesturing and using basic Spanish. One officer said that they told Carrillo they were “going to take his blood” and he responded by holding out his arm. The officer also testified that he said the Spanish word for blood when indicating he was going to draw Carrillo's blood and Carrillo did not resist the test.
¶ 5 The municipal court denied the motion to suppress, stating that nothing in Carrillo's conduct indicated that he refused to consent to the test. Carrillo was convicted of DUI and other offenses. The superior court affirmed, rejecting Carrillo's argument that the blood draw violated A.R.S. § 28-1321.
¶ 6 The court of appeals accepted special action jurisdiction and granted relief. Carrillo v. Houser, 222 Ariz. 356, 214 P.3d 444 (App.2009). The court held that A.R.S. § 28-1321 does not allow a warrantless blood draw unless the suspect “expressly agrees” to the test, and the “ ‘express agreement’ required by the statute must be affirmatively and unequivocally manifested by words or conduct, and may not be inferred from a suspect's mere failure to communicate clear objection to the test.” Id. at 357 ¶ 1, 214 P.3d at 445. The court vacated Carrillo's convictions and remanded to the municipal court to determine whether Carrillo had consented to the blood draw under the appropriate standard. Id. at 360 ¶ 14, 214 P.3d at 448. Dissenting, Judge Irvine agreed that the implied consent law generally does not authorize a blood draw without the person's consent or a warrant, but concluded that the record established that Carrillo had consented. Id. at 360-62 ¶¶ 15-22, 214 P.3d at 448-50.
¶ 7 The Phoenix City Prosecutor's Office petitioned for review, arguing that the court of appeals had misinterpreted the implied consent law. Recognizing the statewide importance of this issue, we granted review. We have jurisdiction under Article 6, Section 5(3) of Arizona's constitution and A.R.S. § 12-120.24 (2003).
¶ 8 The City Prosecutor argues that the court of appeals improperly “rewrote” A.R.S. § 28-1321 and ignored its two provisions that imply consent to testing by impaired motorists. This result, the Prosecutor contends, not only is contrary to the statutory language, but also undermines the purpose of the implied consent statute and conflicts with prior decisions by this Court. We consider these arguments in turn.
¶ 9 As the Prosecutor notes, A.R.S. § 28-1321(A) declares that a “person who operates a motor vehicle in this state gives consent” to a test “for the purpose of determining alcohol concentration or drug content” if he or she is arrested for “driving ... under the influence of [alcohol] or drugs.” In turn, A.R.S. § 28-1321(C) provides that “[a] person who is dead, unconscious or otherwise in a condition rendering the person incapable of refusal is deemed not to have withdrawn the consent provided by subsection A ... and the test or tests may be administered.” If a blood draw can be taken from an unconscious person without consent, the Prosecutor argues, no different result can obtain when the arrestee is simply silent.
¶ 10 These provisions of the implied consent law, however, cannot be interpreted in isolation from the rest of the statute. The “consent” by motorists referenced in subsection (A) does not always authorize warrantless testing of arrestees. The legislature has explicitly provided otherwise in subsections (B) and (D). Notwithstanding subsection (A), subsection (B) requires that the law enforcement officer “shall” request the arrestee to submit to a test and, if the arrestee “refuses,” the officer must explain that the arrestee's license will be suspended unless the arrestee “expressly agrees to submit to and successfully completes the test.” Id. § 28-1321(B). Subsection (B) also specifies that “[a] failure to expressly agree to the test or successfully complete the test is deemed a refusal.” Id. Subsection (D) then states that, “[i]f a person under arrest refuses to submit to the test,” the test “shall not be given ... [unless] pursuant to a search warrant.” Id. § 28-1321(D)(1).
¶ 11 Giving force to the language of subsections (B) and (D) does not vitiate subsections (A) and (C). The implied consent noted in subsection (A) statutorily disclaims any asserted “right” by an arrestee to refuse testing. Subsection (B) allows arrestees to refuse consent (by not expressly agreeing) with the consequence of administrative license suspension. Subsection (D) then makes clear that the statute does not itself authorize warrantless testing upon an arrestee's refusal. Subsection (C), which concerns arrestees who are incapable of refusal, does not affect the provisions in subsections (B) or (D) regarding arrestees who can refuse.
¶ 12 The Prosecutor also suggests that the requirement in subsection (B) that an arrestee expressly agree to a test only applies to those initially refusing a test. This argument, however, implies that the word “refuses” in the first sentence of subsection (B) means something different from “refusal” in the second sentence of that subsection and “refuses” in subsection (D). The more plausible interpretation is that the legislature intended the words to mean the same thing when used in different subsections of the same statute.
¶ 13 Interpreting the implied consent law generally to require that an arrestee expressly agree to warrantless testing also comports with the statutory purpose. The key purpose of the implied consent law “is to remove from Arizona highways those drivers who may be a menace to themselves and others because of intoxication.” Sherrill v. Dep't of Transp., 165 Ariz. 495, 498, 799 P.2d 836, 839 (1990). One way the legislature chose to achieve this goal was by providing for the prompt suspension of the licenses of arrestees who refuse testing. 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. As this Court explained in Sherrill:
The sanction of administrative license suspension for refusal to submit to the test was enacted to assure that licenses of dangerous drivers are revoked quickly, and to increase the certainty that a drunk driver receives a penalty even if that driver provided no evidence of intoxication. The “consent” aspect of the statute also assures that no physical violence or coercion will occur against a person who is noncooperative with a law officer's effort to obtain necessary chemical evidence of intoxication.
Id. (internal citations omitted).
¶ 14 Our interpretation of the statute is confirmed by its history and our prior decisions. The legislature first enacted the implied...
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