Diaz v. Bernini

• Decision Date: 12 April 2018
• Docket Number: No. 2 CA-SA 2017-0081,2 CA-SA 2017-0081
• Parties: 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.
• Court: Arizona Court of Appeals

419 P.3d 950

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,andThe State of Arizona, Tucson City Prosecutor's Office, Real Party in Interest.

No. 2 CA-SA 2017-0081

Court of Appeals of Arizona, Division 2.

Filed April 12, 2018

Mary C. Trejo, City of Tucson Public Defender, By Kristina Bohn, Assistant Public Defender, Tucson, Counsel for Petitioner

Michael G. Rankin, Tucson City Attorney, Alan L. Merritt, Deputy City Attorney, By Mari L. Worman and Jennifer Bonham, Assistant Prosecuting City Attorneys, Tucson, Counsel for Real Party in Interest

Chief Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred.

ECKERSTROM, Chief Judge:

¶ 1 In this special action, Alexis Diaz challenges the ruling of the respondent judge reversing the Tucson City Court's order granting her motion to suppress breath evidence obtained after Diaz was arrested for driving under the influence (DUI). Because we conclude the officer complied with the statutory requirements for obtaining a breath test, the respondent judge correctly reversed the city court's ruling, albeit for reasons other than those set forth below. We therefore deny relief.

¶ 2 Diaz was arrested for and subsequently charged with DUI. See A.R.S. § 28-1381. After her arrest, the investigating officer read her the following 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 prior implied-consent refusal within the last 84 months.

Will you submit to the tests?

Diaz agreed and submitted to testing.

¶ 3 Diaz filed a motion to suppress the testing results, arguing her consent had not been voluntary under the Fourth Amendment and that "the implied consent rules ... do not excuse the State from demonstrating that consent was voluntarily obtained." In response, the state argued that "the search incident to arrest exception" to the Fourth Amendment warrant requirement "applies to breath tests conducted after a lawful DUI arrest," so voluntary consent was not constitutionally required. It asserted that the admonition given to Diaz was different from that deemed coercive in State v. Valenzuela , 239 Ariz. 299, 371 P.3d 627 (2016), and was not coercive. And, relying on Valenzuela , the state contended that even if the admonition had been coercive, the officer had acted in good faith. The city court asked for supplemental memoranda on the exclusionary rule and good faith and thereafter granted the motion to suppress, concluding that the admonition read to Diaz rendered any "consent given ... coerced and therefore not voluntary" and that the state had not established the officer had acted in good faith.

¶ 4 The state appealed the city court's ruling to the superior court pursuant to A.R.S. §§ 12-124(A), 13-4032(6). The parties again addressed the questions of voluntariness, exclusion, and good faith presented to the city court. The respondent judge determined the city court had properly ruled Diaz's consent was involuntary, but disagreed as to the application of the good-faith exception, concluding that based on Valenzuela , the exception applied. The respondent therefore reversed the city court's ruling on the motion to suppress and remanded the matter to that court. Diaz then filed the instant petition for special action in this court.

¶ 5 Exercise of our special-action jurisdiction is appropriate when a party lacks "an equally plain, speedy, and adequate remedy by appeal." Ariz. R. P. Spec. Action 1(a). And it is particularly so when, as here, the issues are ones "of statewide importance, issues of first impression, ... or issues that are likely to arise again." State ex rel. Romley v. Martin , 203 Ariz. 46, ¶ 4, 49 P.3d 1142 (App. 2002), aff'd, 205 Ariz. 279, 69 P.3d 1000 (2003). We therefore accept jurisdiction.

¶ 6 On special action, the parties advance the same arguments made below. This court, following the United States Supreme Court, has determined the Fourth Amendment does not require suppression of breath-test results because, "as Birchfield [v. North Dakota ] held, a warrantless breath test is allowed as a search incident to a lawful [DUI] arrest." State v. Navarro , 241 Ariz. 19, ¶ 4, 382 P.3d 1234 (App. 2016), citing Birchfield v. North Dakota , –––U.S. ––––, 136 S.Ct. 2160, 2184, 195 L.Ed.2d 560 (2016). Diaz was administered the warrantless test after her arrest for DUI, the lawfulness of which she does not contest, and the test results were therefore admissible under the Fourth Amendment regardless of whether her consent was voluntary. See Birchfield , ––– U.S. ––––, 136 S.Ct. at 2184 ; Navarro , 241 Ariz. 19, ¶ 4, 382 P.3d 1234.

¶ 7 Furthermore, in light of Birchfield 's broad holding, questions concerning the voluntariness of Diaz's consent to the test are settled from a Fourth Amendment perspective, because the test results squarely fall under the separate search-incident-to-arrest exception. See Navarro , 241 Ariz. 19, ¶¶ 6–7, 382 P.3d 1234 ; cf. Arizona v. Gant , 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) (warrantless search per se unreasonable under Fourth Amendment unless one of few well-established exceptions applies, including a search incident to a lawful arrest). Therefore, the Fourth Amendment did not require proof of voluntariness.

¶ 8 Nor does article II, § 8 of the Arizona Constitution provide Diaz any greater protection from warrantless breath tests. We recently addressed an identical argument and observed that our supreme court has "long recognized that a search incident to a lawful arrest does not require any warrant and that non-invasive breath tests for DUI arrestees fall within this exception." Navarro , 241 Ariz. 19, ¶¶ 4–5, 382 P.3d 1234 (citations omitted). We concluded that "[t]hese precedents foreclose the argument that article II, § 8 of the Arizona Constitution provides greater privacy protection than the federal constitution with regard to DUI breath testing." Id. ¶ 5.

¶ 9 The question that remains, however, is the one left open in Navarro —whether suppression is required under Arizona's implied consent statute, A.R.S. § 28-1321. Navarro , 241 Ariz. 19, n.3, 382 P.3d 1234, n.3. In her motion to suppress, Diaz asserted the admonition as given "d[id] not accurately reflect the language contained in A.R.S. § 28-1321" and argued "Arizona proscribes a warrantless breath test in the absence of voluntary consent."

¶ 10 The implied consent statute provides,

A. A person who operates a motor vehicle in this state gives consent ... to a test or tests of the person's blood, breath, urine or other bodily substance for the purpose of determining alcohol concentration or drug content if the person is arrested for any offense arising out of acts alleged to have been committed in violation of this chapter or § 4-244, paragraph 34 while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs. The test or tests chosen by the law enforcement agency shall be administered at the direction of a law enforcement officer having reasonable grounds to believe that the person was driving or in actual physical control of a motor vehicle in this state ...

... [w]hile under the influence of intoxicating liquor or drugs.

....

B. After an arrest a violator shall be requested to submit to and successfully complete any test or tests prescribed ... and if the violator refuses the violator shall be informed that the violator's license or permit to drive will be suspended ... unless the violator expressly agrees to submit to and successfully completes the test or tests. A failure to expressly agree to the test or successfully complete the test is deemed a refusal....

The statute further provides that "[i]f a person under arrest refuses to submit to a test," the test may not be given, except with a search warrant or pursuant to A.R.S. § 28-1388(E), and the violator's license must be surrendered. § 28-1321(A), (B), (D).

¶ 11 As quoted above, the admonition the officer provided Diaz reflected this statutory language. However, it prefaced the statutory language with the phrase "Arizona law states." It did not advise Diaz of any legal right to refuse. Diaz contended in her motion to suppress that eliminating the word "require," but using this phrase in its place, communicated "that the arrestee is compelled by lawful authority to submit to a search." Therefore, she argues, the new admonition remained coercive. And, she argued, citing § 28-1321 and A.R.S. § 28-1388, that "Arizona law prohibits a warrantless breath test in the absence of voluntary consent."

¶ 12 Nothing in § 28-1388 requires that a violator must provide voluntary consent for breath testing before the state may administer the test. However, § 28-1321, as quoted above, requires that a violator "expressly agree[ ]" to testing before a warrantless test may be administered. If a violator does not "expressly agree to the test or successfully complete the test" he or she is deemed to have refused. § 28-1321(B). Our courts have generally construed this statutory scheme as providing drivers with the power, but not the legal right, to refuse testing. See, e.g. , Campbell v. Superior...