State v. Clark

• Decision Date: 30 December 2014
• Docket Number: No. 2 CA-CR 2014-0041,2 CA-CR 2014-0041
• Citation: State v. Clark, No. 2 CA-CR 2014-0041 (Ariz. App. Dec 30, 2014)
• Parties: THE STATE OF ARIZONA, APPELLEE, v. HAROLD HILL CLARK, APPELLANT.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, APPELLEE, v. HAROLD HILL CLARK, APPELLANT.

No. 2 CA-CR 2014-0041

ARIZONA COURT OF APPEALS DIVISION TWO

December 30, 2014

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.

Appeal from the Superior Court in Pima County

No. CR20132493001

The Honorable Howard Fell, Judge Pro Tempore

AFFIRMED

COUNSEL

Thomas C. Horne, Arizona Attorney General

Joseph T. Maziarz, Section Chief Counsel, Phoenix

By Alan L. Amann, Assistant Attorney General, Tucson

andBarbara La Wall, Pima County Attorney

By Heather A. Mosher, Deputy County Attorney, Tucson

Counsel for Appellee

Lori J. Lefferts, Pima County Public Defender

By David J. Euchner, Assistant Public Defender, Tucson

Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Miller authored the decision of the Court, in which Judge Espinosa specially concurred and Chief Judge Eckerstrom dissented from the result.

MILLER, Presiding Judge:

¶1 Harold Clark appeals from the superior court's ruling affirming the justice court's judgment and sentence against him for driving while impaired to the slightest degree (DUI). Clark presents a facial challenge to the constitutionality of A.R.S. § 28-1388(D), which allows an arrestee's refusal to consent to a blood alcohol test to be used against him in a later proceeding. For the reasons set forth below, we affirm.

Factual and Procedural Background

¶2 The pertinent facts are undisputed. In July 2011, Clark was arrested for driving under the influence of alcohol. After the arrest, an officer requested consent to draw Clark's blood, but he refused. The officer obtained a warrant and Clark cooperated with the blood draw. Clark was charged with driving while impaired to the slightest degree and driving with a blood alcohol content (BAC) of .08 or more. Before trial, Clark filed a motion in limine to preclude admission of his refusal to submit to the blood draw. The court denied the motion and the arresting officer testified at trial about Clark's refusal.

¶3 Clark appealed his conviction¹ to the superior court, arguing that § 28-1388(D) was facially unconstitutional; further, that his right to counsel and an independent chemical test were hindered. The superior court affirmed the conviction and sentence. Clark timely appealed to this court pursuant to A.R.S. § 22-375.²

Due Process

¶4 Clark's challenge³ to the facial validity of § 28-1388(D) is subject to de novo review. See State v. Boehler, 228 Ariz. 33, ¶ 4, 262 P.3d 637, 639 (App. 2011). This review is limited to whether the law itself is constitutional. See Lisa K. v. Ariz. Dept. of Econ. Sec., 230 Ariz. 173, ¶ 7, 281 P.3d 1041, 1045 (App. 2012) (review does not include specific application to defendant). The court presumes that "the legislature acts constitutionally." Gallardo v. State, 691 Ariz. Adv. Rep. 36, ¶ 9 (Oct. 30, 2014), quoting Ariz. Minority Coal. for Fair Redistricting v. Ariz. Indep. Redistricting Comm'n, 220 Ariz. 587, ¶ 21, 208 P.3d 676, 684 (2009). Further, there must be "no circumstances [that] exist under which the challenged statute would be found valid." Lisa K., 230 Ariz. 173, ¶ 8, 281 P.3d at 1045.

¶5 Arizona's implied consent law generally requires a person who operates a vehicle in this state to consent to alcohol ordrug tests if arrested for driving under the influence of those substances. See A.R.S. § 28-1321; Caretto v. Ariz. Dep't of Transp., 192 Ariz. 297, ¶ 19, 965 P.2d 31, 36 (App. 1998) (consent statutes reflect multiple means to deter drunk driving). Certain specific requirements for blood draws and breath tests are further detailed in A.R.S. § 28-1388. Subsection D provides:

If a person under arrest refuses to submit to a test or tests under § 28-1321, whether or not a sample was collected pursuant to subsection E of this section or a search warrant, evidence of refusal is admissible in any civil or criminal action or other proceeding. The issue of refusal is an issue of fact to be determined by the trier of fact in all cases.

Clark challenges only the admissibility provision, arguing that a refusal to submit to a blood draw before a search warrant is obtained implicates the protections of the Fourth Amendment to the United States Constitution. Further, assuming that his assertion of those constitutional rights cannot be used against him in a criminal proceeding, he contends that the statute violates his due process rights under the Fifth and Fourteenth Amendments.

¶6 To address Clark's argument, it is instructive to begin with a brief review of three United States Supreme Court cases addressing warrantless blood draws. In Schmerber v. California, 384 U.S. 757, 758-59 (1966), the court upheld the admission at trial of the results of the defendant's blood alcohol test, which had been conducted on blood drawn by a doctor while the defendant was in a hospital for treatment of injuries suffered in a car accident. The court concluded that (1) admission of the test results did not violate his Fifth Amendment privilege against self-incrimination because they were neither testimonial nor communicative and (2) although the Fourth Amendment ordinarily requires a warrant for a blood draw, the natural dissipation of alcohol in blood can invoke the emergency exception to the warrant requirement. Id. at 760-65, 770-72. The Schmerber court did not address the admissibility of refusal to submit to a blood test.

¶7 Admissibility of refusal was first considered by the court in South Dakota v. Neville, 459 U.S. 553 (1983). In that case, the court held that admission of a defendant's refusal to submit to a blood draw—as allowed by the South Dakota's implied consent statute—did not violate his Fifth Amendment privilege against self-incrimination because there was no coercion in making a suspect choose between refusal or submission. Id. at 554-56, 562. Further, the court concluded it was not "fundamentally unfair" to use the refusal as evidence of guilt even though the defendant had not been warned his refusal could be used against him at trial, in part because his right to refuse the blood alcohol test was not grounded in the Constitution, but "simply a matter of grace bestowed by the South Dakota legislature." Id. at 565.

¶8 The court revisited the warrantless blood draw in Missouri v. McNeely, ___ U.S. ___, ___, 133 S. Ct. 1552, 1563 (2013), holding that the dissipation of alcohol in blood over time was not a per se exigency justifying a blood test without a warrant. The court concluded the proper approach for determining whether there were exigent circumstances would be based on a totality of the circumstances. Id. In so holding, the court reiterated that the Fourth Amendment applied to blood draws conducted pursuant to implied consent statutes, and that police officers must obtain warrants when reasonable. Id. at 1562.

¶9 The McNeely court did not consider the constitutionality of using the defendant's refusal against him in a later case, but a plurality of the justices observed that states "have a broad range of legal tools to enforce their drunk-driving laws and to secure BAC evidence without undertaking warrantless nonconsensual blood draws." Id. at 1566. The plurality observed, citing Neville, that all fifty states have implied consent laws that impose consequences when a person "withdraws consent," such as license revocation or use of the refusal as evidence in a subsequent criminal prosecution. Id. Importantly, the plurality affirmed Neville's holding that "the use of such an adverse inference does not violate the Fifth Amendment right against self-incrimination." Id.

¶10 Clark seeks to avoid the clear holdings of Neville and the statements by the plurality in McNeely by grounding hisargument in the Fourth Amendment. He provides no direct authority for this distinction and there is no reason to conclude that the result is different whether the objection is based on the Fourth or Fifth Amendments. It is undisputed that "a person suspected of drunk driving has no constitutional right to refuse to take a blood-alcohol test." Neville, 459 U.S. at 560 n.10, 565. Moreover, the Neville court distinguished Miranda⁴ warnings, which contain an implicit assurance that a defendant's "silence will not be used against him." Id. at 565. The warnings in an implied consent law contain no such assurances and, to the contrary, make "it clear that refusing the test was not a 'safe harbor,' free of adverse consequences." Id. at 566. Finally, where there is no right to refuse a blood draw, there is no implicit right to preclude admission of the refusal in the criminal proceeding.

¶11 Clark also relies on State v. Butler, 232 Ariz. 84, ¶ 10, 302 P.3d 609, 612 (2013), for his Fourth Amendment argument. In Butler, the court relied on McNeely to conclude that "a compelled blood draw, even when administered pursuant to § 28-1321, is a search subject to the Fourth Amendment's constraints." 232 Ariz. 84, ¶ 10, 302 P.3d at 612. Butler focused on the voluntariness of consent given at the time of the blood draw rather than the "implied consent" given at the time a person drives. Id. ¶ 18. It found unconvincing the state's argument that consent is given at the time a person drives, and that the "consent" at the time of the testing is merely submission to the already-consented-to test. Id. ¶ 17. The court concluded that the Fourth Amendment requires consent to be voluntary. Id.

¶12 Butler, however, did not directly address whether an arrestee's refusal could be used against him or her in a later proceeding. Further, the Butler court distinguished, but did not overrule, Carrillo v. Houser, 224 Ariz. 463, ¶¶ 10-12, 232 P.3d 1245, 1247 (2010), an earlier Arizona Supreme Court case in which the court interpreted the implied consent portion of the statute as disclaiming any asserted right to refuse testing. Nor did Butler address earlier Arizona cases in which courts have found no...