State v. Okken

• Decision Date: 08 December 2015
• Docket Number: No. 1 CA–CR 15–0196.,1 CA–CR 15–0196.
• Citation: 364 P.3d 485
• Parties: STATE of Arizona, Appellee, v. Duane E. OKKEN, Appellant.
• Court: Arizona Court of Appeals

364 P.3d 485

STATE of Arizona, Appellee,

v.Duane E. OKKEN, Appellant.

No. 1 CA–CR 15–0196.

Court of Appeals of Arizona, Division 1.

Dec. 8, 2015.

Scottsdale City Prosecutor's Office, By Kenneth M. Flint, Seth Peterson, Scottsdale, Counsel for Appellee.

Cameron A. Morgan Attorney at Law, By Cameron A. Morgan, Scottsdale, Counsel for Appellant.

Judge PETER B. SWANN delivered the opinion of the court, in which Presiding Judge KENTON D. JONES and Judge SAMUEL A. THUMMA joined.

OPINION

SWANN, Judge:

¶ 1 Duane E. Okken ("Defendant") appeals from the superior court's order affirming his city court conviction for driving under the influence ("DUI"). Defendant's conviction was based on the results of blood tests to which he consented after being informed of the administrative penalties for refusal prescribed by Arizona's "implied consent" statute, A.R.S. § 28–1321. Defendant now challenges the facial constitutionality of § 28–1321, arguing that it is invalid under the United States Supreme Court's decision in Missouri v. McNeely, ––– U.S. ––––, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), and the doctrine of "unconstitutional conditions." We reject these facial challenges. Consistent with the underlying principles of McNeely (an exigent-circumstances case), § 28–1321 authorizes warrantless searches of a DUI arrestee's bodily substances only when the arrestee gives actual, voluntary consent, as determined by the totality of the circumstances. Further, the statutory penalties for failure to give consent do not violate the unconstitutional conditions doctrine. The state has a substantial interest in keeping intoxicated drivers off the roadways, and the statute reasonably serves that interest by penalizing an arrestee's refusal to submit to testing with suspension of his or her driver's license.

FACTS AND PROCEDURAL HISTORY

¶ 2 In January 2013, a police officer stopped Defendant after observing him drive slowly through a Scottsdale neighborhood and make a turn that crossed the center line. While speaking with Defendant, officers noticed that he smelled of alcohol, his eyes were bloodshot and watery, his speech was slurred, and he was unsteady on his feet. Defendant admitted having recently consumed wine; he also stated that he had taken medication that caused dizziness. An officer administered a horizontal gaze nystagmus test and a preliminary breath test that indicated impairment. The officer placed Defendant under arrest, handcuffed him, and placed him in the back seat of a patrol vehicle.

¶ 3 The officer sat in the driver's seat of the patrol vehicle and read Defendant a series of admonitions from a form, "Admin Per Se/Implied Consent Affidavit," based on A.R.S. § 28–1321. Defendant indicated he understood each of the admonitions. The officer then asked Defendant if he would submit to a blood test and Defendant responded that he would. The officer transported Defendant to jail and drew a sample of his blood. Later testing showed that the sample contained 0.225% ethyl alcohol.

¶ 4 The state tiled a criminal DUI complaint against Defendant in the Scottsdale City Court. Defendant tiled a motion to suppress the blood test results, arguing that the sample was obtained in violation of his rights under the Fourth Amendment. Among other things, Defendant challenged the constitutionality of A.R.S. § 28–1321. After an evidentiary hearing and oral argument, the city court ruled that the implied consent statute was constitutional and that, based on the totality of the circumstances, Defendant's consent was voluntary.

¶ 5 The parties submitted the matter on the record, and the city court found that Defendant was guilty of DUI under A.R.S. § 28–1381(A)(1) and (2). Defendant appealed to the superior court, again challenging the blood test results under the Fourth Amendment. The superior court affirmed. Defendant timely appeals.

JURISDICTION AND STANDARD OF REVIEW

¶ 6 Under A.R.S. § 22–375(A), "[a]n appeal may be taken by the defendant ... from a final judgment of the superior court in an action appealed from a ... municipal court, if the action involves the validity of a tax, impost, assessment, toll, municipal fine or statute." The state contends that because the implied consent statute is a state (not municipal) law, we lack jurisdiction under § 22–375(A). The state's argument rests upon the absence of a comma that is grammatically optional. Were we to accept the state's reading of the statute, the rules of grammar would require us to insert an additional conjunction before the word "municipal." Bryan A. Garner, Garner's Modern American Usage, at 676 (3d ed.2009); Randolph Quirk et al., A Comprehensive Grammar of the English Language, at 1619 (1st ed.1985). We discern no ambiguity in the statute, and will not write words into it. See Canon Sch. Dist. No. 50 v. W.E.S. Constr. Co., 177 Ariz. 526, 529, 869 P.2d 500, 503 (1994).

¶ 7 In addition, the state's position effectively concocts a term—"municipal statute"—that appears nowhere in the Arizona Revised Statutes and seems not to exist. Municipalities do not enact "statutes." The legislature enacts statutes and municipalities enact ordinances. We presume that the legislature understood this definitional distinction when it enacted A.R.S. § 22–375(A), and that it meant to include challenges to legislative enactments when it defined the scope of our jurisdiction over limited jurisdiction court appeals. We have long exercised jurisdiction under § 22–375(A) to consider challenges to state statutes. See, e.g., State v. Yabe, 114 Ariz. 89, 90, 559 P.2d 209, 210 (App.1977) (considering constitutionality of state obscenity statute). We do that again here.

¶ 8 Our jurisdiction is limited, however, to the question of the implied consent statute's facial constitutionality—"[w]e are without jurisdiction to review any alleged unconstitutional application of the statute." Yabe, 114 Ariz. at 90, 559 P.2d at 210 (emphasis added). We therefore deny Defendant's request that we consider whether the statute is unconstitutional as applied to him. We also deny Defendant's request to join the appeal with a special action that challenges the statute's application in a different case.

¶ 9 We review the facial challenge de novo. State v. Russo, 219 Ariz. 223, 225, ¶ 4, 196 P.3d 826, 827 (App.2008). We presume that a statute is constitutional unless it is shown to be otherwise by the challenging party. Gallardo v. State, 236 Ariz. 84, 87–88, ¶¶ 8–9, 336 P.3d 717, 720–21 (2014) ; Chevron Chem. Co. v. Superior Court (Hale), 131 Ariz. 431, 438, 641 P.2d 1275, 1282 (1982). "We will resolve all uncertainties in favor of constitutionality," State v. Gilfillan, 196 Ariz. 396, 402, ¶ 17, 998 P.2d 1069, 1075 (App.2000). We will find a statute unconstitutional on its face only if the challenging party demonstrates that there is no set of circumstances under which the statute would be found constitutional. Lisa K. v. Ariz. Dep't of Econ. Sec., 230 Ariz. 173, 177, ¶ 8, 281 P.3d 1041, 1045 (App.2012).

DISCUSSION

¶ 10 The Fourth Amendment protects "[t]he right of the people to be secure in their persons ... against unreasonable searches and seizures." U.S. Const. amend. IV. Tests of bodily substances are searches subject to the Fourth Amendment's constraints. State v. Jones, 203 Ariz. 1, 9, ¶ 27, 49 P.3d 273, 281 (2002) (blood tests); Petersen v. City of Mesa, 207 Ariz. 35, 38, ¶ 9, 83 P.3d 35, 38 (2004) (urine and breath tests). "In general, under the Fourth Amendment, warrantless searches ‘are per se unreasonable ... subject only to a few specifically established and well-delineated exceptions.’ " State v. Butler, 232 Ariz. 84, 87, ¶ 12, 302 P.3d 609, 612 (2013) (citation omitted). Consent is one such exception. Id. at ¶ 13.

¶ 11 A.R.S. § 28–1321 creates a two-tiered framework for consent in DUI cases. Under § 28–1321(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 [concerning driving under the influence] or § 4–244, paragraph 34 [concerning driving with spirituous liquor in one's body when under twenty-one years of age] while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs.

¶ 12 But "[t]he ‘consent’ by motorists referenced in subsection (A) does not always authorize warrantless testing of arrestees." Carrillo v. Houser, 224 Ariz. 463, 465, ¶ 10, 232 P.3d 1245, 1247 (2010). Section 28–1321(B) provides that "[a]fter an arrest a violator shall be requested to submit to and successfully complete any test or tests prescribed by subsection A of this section, and if the violator refuses the violator shall be informed that the violator's license or permit to drive will be suspended or denied for twelve months, or for two years for a second or subsequent refusal within a period of eighty-four months, unless the violator expressly agrees to submit to and successfully completes the test or tests." (Emphases added.) "[T]o satisfy the statutory requirement, the arrestee must unequivocally manifest assent to the testing by words or conduct," Carrillo, 224 Ariz. at 467, ¶ 19, 232 P.3d at 1249, though persons who have been rendered "incapable of refusal" shall be "deemed not to have withdrawn the consent provided by subsection A," A.R.S. § 28–1321(C). An arrestee's withdrawal of the statutorily implied consent is meaningful: under § 28–1321(D), "[i]f a person under arrest refuses to submit to the test designated by the law enforcement agency as provided in subsection A of this section[, t]he test shall not be given, except as provided in § 28–1388, subsection E [authorizing testing when there is probable cause of DUI and bodily-substance samples have been taken for other purposes]...