Diaz v. Bernini
| Decision Date | 28 February 2019 |
| Docket Number | No. CR-18-0250-PR,CR-18-0250-PR |
| Citation | 246 Ariz. 114,435 P.3d 457 |
| 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 Supreme Court |
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
¶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.
¶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:
Diaz agreed and submitted to a breath test that revealed an alcohol concentration above the legal limit.
¶3 In municipal court, Diaz moved to suppress the breath test result, arguing her consent was not voluntary under either the Fourth Amendment or A.R.S. § 28-1321, Arizona’s implied consent statute. The court deemed the admonition coercive, ruled that Diaz’s consent to testing was involuntary, found the good-faith exception to the exclusionary rule inapplicable, and granted her motion to suppress. On appeal, the superior court affirmed the municipal court’s involuntariness finding but found the good-faith exception applicable and therefore reversed the suppression order.
¶4 The court of appeals accepted jurisdiction of Diaz’s ensuing special action petition but denied relief for reasons different from the superior court’s. Diaz v. Bernini , 244 Ariz. 417, 418 ¶ 1, 419 ¶ 5, 419 P.3d 950, 951, 952 (App. 2018). Finding any federal or state constitutional challenge to the warrantless breath test foreclosed by prior case law, the court of appeals addressed whether Arizona’s implied consent statute required suppression. Id. at 419-20 ¶¶ 6–9, 419 P.3d at 952–53 (). The court held that a DUI arrestee’s "agreement to testing under § 28-1321 must be voluntary" and "[i]f it is not, the officer has not secured a statutorily required pre-condition to conduct testing" and "has taken the sample unlawfully." Id. at 421 ¶ 14, 419 P.3d at 954. But concluding that the officer "accurately advise[d] Diaz of state law," and finding no facts suggesting that Diaz was coerced or misled to submit to testing, the court held that "her agreement was voluntary." Id. at 422 ¶¶ 18–19, 419 P.3d at 955. Accordingly, the breath test "results were obtained in compliance with the statute and were admissible at trial." Id. ¶ 20.
¶5 In her petition for review, Diaz challenges the court of appeals’ determination that the State met its burden of proving voluntary consent and argues that, contrary to the superior court’s ruling, the municipal court correctly found the good-faith exception inapplicable (an issue the court of appeals did not reach). In its cross-petition for review, the State argues the court of appeals erred in holding that § 28-1321 requires "voluntary" agreement to submit to breath tests and that if that requirement is not met, evidence of breath test results is inadmissible in a criminal DUI prosecution under A.R.S. § 28-1381. We granted review of the petition and cross-petition because the issues raised are of statewide importance and recurring. This Court has jurisdiction under article 6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.
¶6 Preliminarily, we agree with the court of appeals that this case does not implicate any constitutional issues. "[T]he administration of a breath test is a search" subject to Fourth Amendment constraints. Birchfield , 136 S.Ct. at 2173. A warrantless search is deemed reasonable under the Fourth Amendment, however, if "one of a few well-established exceptions [to the warrant requirement] applies." State v. Valenzuela (Valenzuela II ), 239 Ariz. 299, 302 ¶ 10, 371 P.3d 627, 630 (2016) (citing Arizona v. Gant , 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) ). Under the search-incident-to-arrest exception, the United States and Arizona Constitutions permit law enforcement officers to administer warrantless breath tests to lawfully arrested DUI suspects. Birchfield , 136 S.Ct. at 2184 (); Navarro , 241 Ariz. at 21 ¶ 4, 382 P.3d at 1236 ().
¶7 A warrantless search is also reasonable for Fourth Amendment purposes if the subject voluntarily consents. Birchfield , 136 S.Ct. at 2185. But Birchfield makes clear that because a warrantless breath test is "a permissible search incident to [a suspect’s] arrest for drunk driving," the government need not establish under the totality of circumstances that the suspect voluntarily consented to the test. Id. at 2186.
¶8 Based on Birchfield and Navarro , the court of appeals correctly rejected Diaz’s argument that her voluntary consent to the breath test was constitutionally required. Diaz , 244 Ariz. at 419–20 ¶¶ 6–8, 419 P.3d at 952. Therefore, like the court of appeals, we limit our analysis to § 28-1321.
¶9 Commonly referred to as Arizona’s implied consent law, § 28-1321 provides in part:
The statute further provides that "[i]f a person under arrest refuses to submit" to the designated test, it may not be given except pursuant to a search warrant or as provided by the medical-purpose exception in A.R.S. § 28-1388(E), and the violator’s license must be surrendered. § 28-1321(D)(1), (2)(c). The purpose of § 28-1321 is to "remove from Arizona highways those drivers who may be a menace to themselves and others because of intoxication." Carrillo v. Houser , 224 Ariz. 463, 465 ¶ 13, 232 P.3d 1245, 1247 (2010) (quoting Sherrill v. Dep’t of Transp. , 165 Ariz. 495, 498, 799 P.2d 836, 839 (1990) ).
¶10 The parties dispute whether § 28-1321 provides greater protection than the Fourth Amendment by requiring DUI arrestees to voluntarily agree to breath testing. The issue is whether the statute requires that an arrestee "voluntarily consent" (as that phrase is understood for Fourth Amendment purposes) to a breath test even though the Fourth Amendment itself does not require such consent. Whether § 28-1321 imposes a voluntariness requirement, as Diaz contends and the court of appeals held, is a question of statutory construction which we review de novo. Stambaugh v. Killian , 242 Ariz. 508, 509 ¶ 7, 398 P.3d 574, 575 (2017). If, as here, the statute is subject to only one reasonable interpretation based on its words and context, we apply it without further analysis. Id.
¶11 Citing Carrillo , Diaz argues that § 28-1321"unquestionably...
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...Ariz. at 341, ¶ 20, 350 P.3d at 845 (emphasis added). Because "a material variation in terms suggests a variation in meaning," Diaz v. Bernini , 246 Ariz. 114, 118, ¶ 16, 435 P.3d 457, 461 (2019) (quoting Scalia & Garner, supra at 170), our construction of the rollover exception statute in ......
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