State v. Clary

• Decision Date: 20 January 2000
• Docket Number: No. 1CA-CR97-0307.,1CA-CR97-0307.
• Citation: 2 P.3d 1255,196 Ariz. 610
• Parties: STATE of Arizona, Appellee, v. Peter J. CLARY, Appellant.
• Court: Arizona Court of Appeals

2 P.3d 1255

196 Ariz. 610

STATE of Arizona, Appellee, v. Peter J. CLARY, Appellant.

No. 1CA-CR97-0307.

Court of Appeals of Arizona, Division 1, Department A.

January 20, 2000.

Review Denied May 23, 2000.

Janet A. Napolitano, Attorney General by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section, Diane M. Ramsey, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Dean W. Trebesch, Maricopa County Public Defender by Edward F. McGee, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

TOCI, Judge.

¶ 1 Peter J. Clary ("defendant") appeals his convictions and sentences for two counts of aggravated driving under the influence of intoxicating liquor ("aggravated DUI"), class 4 felonies. Defendant contends that the trial court erred in denying his motion to suppress test results of a blood sample taken without his consent and against his active resistance but pursuant to a search warrant issued on probable cause.

¶ 2 We hold that neither Arizona Revised Statutes Annotated ("A.R.S.") section 28-1321(D)(1) (1998),¹ which allows the taking of blood for alcohol content testing under authority of a search warrant, nor the Fourth Amendment preclude the use of reasonable force to overcome defendant's resistance to the execution of a warrant for the extraction of blood. Further, the trial court did not err in concluding that the force applied here was objectively reasonable. We therefore affirm the convictions and sentences imposed.

I. FACTS AND PROCEDURAL HISTORY

¶ 3 Officer Steven Raz stopped defendant after clocking his pickup truck being driven at fifty-two miles per hour in a thirty-five mile-per-hour zone. When Officer Raz approached the truck, he detected the odor of alcohol and noted defendant's "glazed stare." The officer also observed defendant's difficulty in extracting his driver's license from his wallet.

¶ 4 When the officer asked defendant to step out of the truck, he stated that he could not. Officer Raz repeated his request three times before defendant complied. Once out of the truck, defendant held onto it to maintain his balance. Officer Raz administered field sobriety tests, which defendant failed.

¶ 5 Officer Raz then advised defendant of the implied consent law and asked him if he would submit to a blood alcohol test. Defendant responded, "I adhere to my rights." Officer Raz again advised defendant of the law and said that he would seek a search warrant if defendant did not consent to the blood test. When defendant stated that he would adhere to his rights, he was transported to the police station.

¶ 6 At the station, Officer Raz obtained a telephonic search warrant authorizing him to draw a sample of defendant's blood. Officer Raz then served defendant with the search warrant, but defendant refused to submit to the blood test. Several officers then restrained defendant on the floor so that a phlebotomist could draw blood.² The blood drawn at 8:15 a.m. showed a blood alcohol level of .19.

¶ 7 Defendant moved to suppress the blood test results. After holding a pretrial trial hearing, the trial court denied the motion. The jury convicted defendant on both counts of aggravated DUI.

II. DISCUSSION

A. Section 28-1321(D)(1) Permits Extraction of Blood Pursuant to a Search Warrant

¶ 8 We review the trial court's ruling on a motion to suppress for clear and manifest error. See State v. Spreitz, 190 Ariz. 129, 145, 945 P.2d 1260, 1276 (1997). Defendant here does not dispute that the search warrant was properly issued on probable cause, but he first contends that no statute expressly authorized the seizure of his blood when he actively resisted its taking and thus that the trial court erred in denying his motion to suppress.

¶ 9 In interpreting statutes, we choose a sensible rather than absurd construction, and when possible, one that furthers the legislative purpose. See State v. Flores, 160 Ariz. 235, 239, 772 P.2d 589, 593 (App.1989). We also consider the policy behind the law and the evil it was intended to remedy. See Carrow Co. v. Lusby, 167 Ariz. 18, 21, 804 P.2d 747, 750 (1990).

¶ 10 To understand the context of defendant's claim, we recount a partial history of our implied consent law. In 1984, A.R.S. § 28-691 provided that any person operating a motor vehicle within this state arrested for driving while under the influence of intoxicating liquor consented to a test or tests of his blood, breath, or urine to determine the alcohol content of his blood. If the arrested person refused to submit to a test selected by the law enforcement agency, no test could be given except pursuant to section 28-692(M). The latter section provided that if police had probable cause to believe the suspect had violated the law and a blood sample was taken "for any reason a portion of that sample shall be provided to a law enforcement officer if requested for law enforcement purposes." A.R.S. § 28-692(M).

¶ 11 Our supreme court held that this statutory exception allowed the warrantless removal of blood only on a showing of either probable cause or exigent circumstances and when the blood was drawn for medical purposes by medical personnel. See State v. Cocio, 147 Ariz., 277, 284, 709 P.2d 1336, 1345 (1985). The court continued to hold that the exception was narrow and specific, even when it frustrated efforts to obtain blood alcohol evidence. For example, in Collins v. Superior Court, 158 Ariz. 145, 761 P.2d 1049 (1988), a person suspected of driving under the influence refused to submit to a breath test, but no blood was drawn for medical purposes. The police then obtained a search warrant and, pursuant to the warrant, a blood sample. Id. at 146, 761 P.2d at 1050. Because the blood was not obtained for medical purposes, however, the court held that the evidence must be suppressed. Id. at 146-47, 761 P.2d at 1050-51.

¶ 12 In what obviously was a response to the court's holding in Collins, the legislature amended the statute in 1990. The 1990 amendment significantly changed the statutory consequences of a refusal to take the test chosen by the law enforcement agency. The 1990 amendment provides that if an arrested person refuses to submit to the designated test, "the test shall not be given, except ... pursuant to a search warrant." See Ariz. Sess. Laws 1990, ch. 375, § 7 (emphasis added). Thus, when a DUI suspect refuses to take the chosen test, section 28-1321(D), as the statute is now numbered, effectively gives police an option.³ They may either obtain with probable cause a sample of blood drawn for another reason, as for example, blood drawn for a suspect's medical treatment, or they may draw a suspect's blood pursuant to a search warrant.

¶ 13 We acknowledge, however, that section 28-1321(D) does not expressly authorize forcible taking of blood under authority of a warrant. The dissent accordingly reads a negative implication into the statute and would avoid the Fourth Amendment question. This reading, however, renders the statute effective only when a DUI suspect is willing to comply, in which case a warrant is largely superfluous, and renders the statute completely ineffective when a suspect simply refuses to submit to blood alcohol testing. ¶ 14 The dissent also derives from the "consent aspect" of the implied consent law a legislative intent to assure uncooperative suspects that no physical force would be used, citing Campbell v. Superior Court, 106 Ariz. 542, 547, 479 P.2d 685, 690 (1971), and Sherrill v. Department of Transportation, 165 Ariz. 495, 498, 799 P.2d 836, 839 (1990). Since those cases were decided, however, the legislature has enacted and amended a number of statutes that both increase the penalties on offenders and ease the state's burden of proving intoxication. See State v. Rodriguez, 173 Ariz. 450, 453, 844 P.2d 617, 620 (App.1992) (1990 amendments governing admission of intoxilyzer results are to simplify DUI convictions); State v. Superior Ct. (Ryberg), 173 Ariz. 447, 450, 844 P.2d 614, 617 (App.1992) (same); Koller v. Arizona Dep't of Transp., 195 Ariz. 343, 988 P.2d 128, 133, ¶ 25 (App.1999) (section 28-1321(D)(1)'s amendment and other changes are to increase criminal penalties and facilitate criminal prosecutions) (citing H.B. 2433, 39th Leg., 2d Reg. Sess. (Ariz.1990), Minutes of the Judiciary Committee, February 21, 1990).

¶ 15 This heightened legislative effort since Sherrill and Campbell to remove drunk drivers from our highways is a clear indication of a legislative policy shift. No longer is simple revocation of a driver's license for failure to consent to a chemical test a sufficient sanction. See Koller, 195 Ariz. at 348, 988 P.2d at 133, ¶ 25. Thus, in view of the changes in the implied consent law since Sherrill and Campbell, we conclude that section 28-1321(D)(1) clearly indicates that the legislature intended to allow the use of reasonable force to overcome resistance to execution of a search warrant for the removal of blood.

¶ 16 Our conclusion is consistent with the general law governing seizures of evidence pursuant to a warrant. A search warrant is a court order that authorizes police to intrude into an individual's privacy. Notwithstanding the sanctity of one's home, one cannot thwart execution of a warrant by simply barring the door and refusing entry. See State v. Sanchez, 128 Ariz. 525, 528, 627 P.2d 676, 679 (1981) (homeowner had no right to prevent officer with a valid warrant from entering his home); State v. Hatton, 116 Ariz. 142, 148, 568 P.2d 1040, 1046 (1977) (no right to resist a warrant exists, even if the warrant is later found illegal).

¶ 17 Further, an officer denied entry may use reasonable force to execute a search warrant. See A.R.S. § 13-3916(B) (1989) (officer may break into a building or vehicle if, after announcing his presence and authority, he does not receive a response within a reasonable time). To resist execution of a search warrant is itself a crime. See A.R.S. § 13-2402 (1989) ("using or...