State v. Brita
| Decision Date | 05 February 1987 |
| Docket Number | No. 1,CA-CR,1 |
| Parties | STATE of Arizona, Appellant, v. Robert John BRITA, Appellee. 9670. |
| Court | Arizona Court of Appeals |
Defendant, Robert John Brita, was charged with two counts of manslaughter and two counts of aggravated assault arising out of an automobile collision. Prior to his arrest, defendant was taken to a hospital, where a blood sample was drawn at a police officer's request for the purpose of testing blood alcohol content. This appeal is from the trial court's order granting defendant's motion to suppress the results of the blood alcohol test. We reverse on the basis of A.R.S. § 13-3925(A), which creates a good faith exception to the rule excluding evidence unlawfully obtained, and in doing so discuss the decision of the Arizona Supreme Court in State v. Cocio, 147 Ariz. 277, 709 P.2d 1336 (1985).
When a driver is suspected of operating a vehicle while under the influence of intoxicating liquor, there are two instances when a blood sample is clearly permissible for law enforcement purposes in Arizona. One instance is after arrest of the suspect and the sample is given with consent in a medical facility. This is in accordance with A.R.S. § 28-691, commonly referred to as the implied consent law. The other instance is when a blood sample has been drawn from a suspect in a medical facility for medical purposes and a law enforcement officer requests a portion of it for police testing. The latter is provided for in A.R.S. § 28-692(M), a relatively new provision added in 1982.
We discuss these more fully later, yet it should be noted neither is involved in this case. The factual situation here falls short of the implied consent statute because there was no arrest of defendant. It also falls short of the medical purpose statute since the sample was not drawn for medical purposes. Were it not for the effect of these statutes, a sample of blood could be involuntarily drawn from a suspect driver in a medical facility based upon probable cause. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); State v. Cocio. Those are the facts of this case. The question here is whether Arizona's implied consent law and the medical purpose exception in A.R.S. § 28-692(M) have the effect of preempting that kind of seizure. We read Cocio to say that they do.
On February 20, 1985, defendant lost control of his motor vehicle. The vehicle crossed both southbound lanes of Price Road in the City of Tempe and entered a northbound lane where it struck another vehicle head-on. Two victims were killed and two other victims were seriously injured.
Defendant was taken to Desert Samaritan Hospital for medical treatment. Later, a police officer contacted defendant at the hospital. Defendant told the police officer that he had consumed two beers at a friend's house in Phoenix prior to the collision. During the conversation with defendant, the officer detected a strong odor of alcohol on defendant's breath and noticed that defendant's eyes were bloodshot. The police officer determined that he had probable cause to believe that defendant had been driving while intoxicated. The trial court found that the facts supported a finding of probable cause. Although he was not placed under arrest, defendant was taken to the hospital for medical treatment. While there, the police officer asked defendant to sign a consent form that is used when invoking the implied consent law. Defendant signed the form believing he would lose his driver's license if he did not, and the blood sample was taken by medical personnel. Earlier, a sample of blood had been drawn in the hospital for medical reasons, but the officer was unaware of it. That sample is not involved in this case and never became available to police. The sample which was drawn at police request was taken under the impression the implied consent statute had been properly invoked.
Defendant was charged with two counts of manslaughter and two counts of aggravated assault and thereafter moved to suppress the results of the blood alcohol test to prevent their introduction into evidence. On November 13, 1985, the superior court granted the motion relying upon State v. Waicelunas, 138 Ariz. 16, 672 P.2d 968 (App.1983), in which this court held that an arrest was required prior to the taking of a blood sample. The trial court in the present case found that defendant was not under arrest at the time the blood sample was taken and, therefore, granted defendant's motion to suppress the blood test results. The trial court rejected the state's argument that under State v. Salazar, 146 Ariz. 547, 707 P.2d 951 (App.1985), a Division Two case, an arrest was not required before the state could legally seize a blood sample from a suspect.
Within two weeks after the trial court granted the motion to suppress, the state filed a motion for reconsideration. The motion was based on the decision of the Arizona Supreme Court in State v. Cocio, which was decided a few days before the motion to suppress had been granted, and which had not been called to the attention of the trial court. The state argued that in Cocio the supreme court decided that Schmerber did not require an arrest but that only probable cause and exigent circumstances were required before a blood sample could be seized. The trial court denied the motion for reconsideration, and dismissed the case without prejudice on the state's motion. This appeal by the state followed.
To best understand the conflicting arguments presented by this case, it is helpful to elaborate upon the statutes and case law involved.
A suspect's blood sample may be taken with his consent in accordance with the implied consent statute, A.R.S. § 28-691, which states in part:
A. Any person who operates a motor vehicle within this state gives consent, subject to the provisions of § 28-692, to a test or tests of his blood, breath, or urine for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor. 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 the person to have been driving or in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor.
B. Following an arrest a violator shall be requested to submit to any test prescribed by subsection A of this section, and if the violator refuses he shall be informed that his license or permit to drive will be suspended or denied if he refuses to submit to the test.
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D. If a person under arrest refuses to submit to a test designated by the law enforcement agency as provided in subsection A of this section, none shall be given except pursuant to § 28-692, subsection M. The department, ... shall suspend for a period of twelve months his license or permit to drive, or any nonresident operating privilege ...
[Emphasis added.]
Another relevant statute is A.R.S. § 28-692, which sets forth the requirements for finding a person under the influence of intoxicating liquor while driving. Paragraph M of that statute, added in 1982, states:
M. Notwithstanding any provision of law to the contrary if a law enforcement officer has probable cause to believe that a person has violated this section and a blood sample is taken from that person for any reason a portion of that sample shall be provided to a law enforcement officer if requested for law enforcement purposes. A person who fails to comply with this subsection is guilty of a class 1 misdemeanor.
It is evident that by its terms the implied consent statute, A.R.S. § 28-691, requires an arrest before it can be applied to a suspect driver. Each of the subsections that refer to the testing of blood, breath, or urine indicate that the person must be under arrest. Subsection A specifically states that the arrest must arise "out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor." Thus, defendant must be placed under arrest for an offense before the police may seek a blood sample under Arizona's implied consent statute.
Additionally, A.R.S. § 28-691(D) provides that if an arrested person refuses a chemical test, none shall be taken "except pursuant to § 28-692, subsection M." Unlike the implied consent statute, subsection M of A.R.S. § 28-692 authorizes seizure of a part of a blood sample already drawn by the hospital if there is probable cause. It does not require an arrest. The language in A.R.S. § 28-692(M), "[n]otwithstanding any provision of law to the contrary," indicates that the provision may be used as an alternative means of lawfully obtaining a blood sample. See State v. Cocio; State v. Salazar.
In State v. Cocio, the defendant was taken to a hospital following an automobile collision. The police officer had probable cause to believe the defendant had been driving while intoxicated. The officer indicated that if a sample of blood was taken for medical purposes by the hospital, he wanted a portion of it for law enforcement purposes. In seeking to suppress this evidence, the defendant argued that under State v. Waicelunas, an arrest was required before the police could take a blood sample.
We turn briefly to Waicelunas, which was decided by this court prior to the enactment of A.R.S. § 28-692(M). Waicelunas based its decision on United States v. Harvey, 701 F.2d 800 (9th Cir.1...
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Soza v. Marner
...power." Id. at 549, 479 P.2d at 692.¶ 8 Subsequently, in State v. Cocio , 147 Ariz. 277, 709 P.2d 1336 (1985), and State v. Brita , 154 Ariz. 517, 744 P.2d 429 (App. 1987), approved in part, vacated in part on other grounds, 158 Ariz. 121, 761 P.2d 1025 (1988), our courts limited the admiss......
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State v. Aleman
...would have entitled the police to receive a sample of his blood regardless of his consent." Id. ¶ 14. See also State v. Brita, 154 Ariz. 517, 521, 744 P.2d 429, 433 (App.1987), approved in part and vacated in part, 158 Ariz. 121, 761 P.2d 1025 (1988) ("defendant's blood was not part of a sa......
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...that the blood extraction violated the implied consent statute and did not fall within the medical purpose exception. State v. Brita, 154 Ariz. 517, 744 P.2d 429 (App.1987). However, the court of appeals reversed the suppression order on grounds not raised or considered in the trial court, ......
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Collins v. Superior Court In and For County of Maricopa, CV-88-0167-PR
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