Carrillo v. Houser

214 P.3d 444, 222 Ariz. 356, 564 Ariz. Adv. Rep. 7, 2009 Ariz. App. LEXIS 707

• Court: Court of Appeals of Arizona
• Decided: September 1, 2009
• Docket: 1 CA-SA 09-0042
• Status: Published

Opinions

OPINION

SWANN, Judge.

¶ 1 Arizona’s Implied Consent Law, A.R.S. § 28-1321, requires the state to obtain a warrant before drawing a blood sample from a DUI suspect unless the suspect “expressly agree[s]” to submit to the blood test. A.R.S. § 28-1321(B), (D) (Supp.2005). We hold that the “express agreement” required by the statute must be affirmatively and unequivocally manifested by words or conduct, and may not be inferred from a suspect’s mere failure to communicate clear objection to the test.

I. FACTS AND PROCEDURAL HISTORY

¶ 2 On December 31, 2006, Carrillo was arrested for (1) DUI, (2) driving with a Blood Alcohol Content over .08, (3) extreme DUI, (4) failure to provide identification, and (5) leaving the scene of an accident. After his arrest, Carrillo was vomiting, and therefore unable to participate effectively in a breath test. While he was sitting on the steps of a DUI van, an officer placed a large toolbox on Carrillo’s lap and another officer drew a blood sample. No warrant preceded the blood draw.

¶ 3 Before trial, Carrillo moved to suppress the results of his blood test, and the trial court held an evidentiary hearing. Carrillo testified that he did not speak English and that none of the officers spoke to him in Spanish, his native language. He also testified that the officers took his arm to draw his blood, but he did not give consent for the draw. He stated that he only allowed the blood to be drawn out of fear. All of the officers testified that they were not certified Spanish translators, but that they were able to communicate with Carrillo in basic Spanish and with gestures. No one testified that Carrillo was “requested” to submit to the test. The state presented testimony that the officers told Carrillo “that we were going to take his blood,” to which Carrillo responded by holding out his arm. Another officer testified that he used the Spanish word for blood when he indicated that he was going to draw Carrillo’s blood. The testimony was undisputed that Carrillo offered no active resistance to the test.

¶ 4 The court found that “[t]here was nothing by Mr. Carrillo’s conduct that indicated to the officers that he was refusing to consent to the test.” Based on that finding, the court denied the motion to suppress. Carrillo waived trial and submitted the matter to the court for decision based on the documentary record. The court acquitted Carrillo on the charge of failure to provide identification, and found him guilty of all other charges. Carrillo timely appealed to the superior court, which affirmed the trial court’s suppression ruling, judgment and sentence. Carrillo then filed this petition for special action relief. ¡

II. JURISDICTION AND STANDARD OF REVIEW

¶ 5 Carrillo lacks any further remedy by direct appeal. See AR.S. § 22-375(B) (2002). We accept special action jurisdiction because the petition presents a legal question of statewide importance, the resolution of which will provide guidance in the interpretation of the Implied Consent Law, A.R.S. § 28-1321. See Guthrie v. Jones, 202 Ariz. 273, 274, ¶ 4, 43 P.3d 601, 602 (App.2002).

¶ 6 Generally, we review a trial court’s denial of a motion to suppress for an abuse of discretion. State v. Olquin, 216 Ariz. 250, 252, ¶ 10, 165 P.3d 228, 230 (App. 2007). “A trial court abuses its discretion when it misapplies the law or predicates its decision on incorrect legal principles.” State v. Jackson, 208 Ariz. 56, 59, ¶ 12, 90 P.3d 793, 796 (App.2004) (citing Gorman v. City of Phoenix, 152 Ariz. 179, 182, 731 P.2d 74, 77 (1987); State v. Fields, 196 Ariz. 580, 582, ¶ 4, 2 P.3d 670, 672 (App.1999)).¹ We review de novo the legal questions that underlie the court’s decision of a motion to suppress, including whether a warrantless blood draw complied with the Fourth Amendment. State v. Flannigan, 194 Ariz. 150, 152, ¶ 12, 978 P.2d 127, 129 (App.1998). Where, as here, we must interpret a statute to determine whether consent to a search existed, our review is de novo. See State v. Gonzalez, 216 Ariz. 11, 12, ¶ 2, 162 P.3d 650, 651 (App. 2007) (issues of statutory interpretation reviewed de novo); State v. Flores, 195 Ariz. 199, 203, ¶ 11, 986 P.2d 232, 236 (App.1999) (we review de novo whether an individual who is not the owner may give valid consent to search a vehicle). Finally, we review the voluntariness of the consent to a search as a question of fact determined in view of the totality of the circumstances. State v. Pa-redes, 167 Ariz. 609, 612, 810 P.2d 607, 610 (App.1991).

III. DISCUSSION

¶ 7 Carrillo contends that the trial court’s misapplication of Arizona’s Implied Consent Law allowed the state to circumvent the Fourth Amendment’s requirement that consent to a search be given freely and voluntarily. He also argues that consent cannot be inferred from his conduct in this case.

¶ 8 Our • decision in this case is based on the plain language of the Implied Consent Law — there is no conflict between the statute and any constitutional provision. Despite its popular name, the statute does not eliminate the need for search warrants in all eases by “implying consent” to search. Instead, the Arizona Legislature has carefully defined a procedure that requires the state to secure express consent to a blood test after arrest. When there is no express consent, the statute subjects the driver to civil sanctions and allows the state to obtain a search warrant to proceed with the test. The question presented by this ease is whether the express consent can be inferred from the mere failure to refuse.

¶ 9 AR.S. § 28-1321(A) provides that “[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” if arrested for an alcohol-related offense while driving. This provision eliminates a driver’s unfettered right to refuse to submit to a test, but it does not affect the power to refuse. See State ex rel. Ver-burg v. Jones, 211 Ariz. 413, 415, ¶¶ 8-9, 121 P.3d 1283, 1285 (App.2005). While a pure right could be exercised with impunity, exercise of the mere power to refuse subjects a person to automatic penalty-suspects who refuse a test are subject to civil sanctions; including the suspension of their drivers’ licenses. Therefore, rather than implying an irrevocable consent to search as a matter of law, subsection (A) civilly penalizes those who do not reaffirm their implied consent after arrest. Under the statute, however, the decision whether to consent remains that of the arrested driver.

¶ 10 Subsections (B) and (D) work together to implement these principles in practice. A.R.S. § 28-1321(B) provides:

After 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 ... unless the violator expressly agrees to submit to and successfully completes the test or tests. A failure to expi'essly agree to the test or successfully complete the test is deemed a refusal.

(Emphases added.) Pursuant to this section, after the state requests that the suspect participate in the test, the suspect may either “expressly agree” or “refuse.” If the suspect does not expressly agree, then the statute provides that “[t]he test shall not be given, except ... pursuant to a search warrant.” A.R.S. § 28-1321(D)(l) (emphasis added).²

¶ 11 DUI arrests frequently occur in circumstances that do not lend themselves to clear discourse. Communication between the arresting officer and the suspect may be impeded by any number of factors, including lack of English proficiency and, of course, intoxication. In any given case, the request for consent may be difficult or impossible to communicate and the response (if any) may be ambiguous. The Legislature recognized this reality, and prescribed a straightforward solution. By providing that “[a] failure to expressly agree to the test ... is deemed a refusal,” the Legislature made clear that the failure to refuse is not agreement — rather, the failure to agree is refusal. In this case, the trial court found that Carrillo did not indicate “that he was refusing to consent to the test.” The court’s conclusion that Carrillo’s non-refusal constituted agreement requires reversal, because it applied the incorrect legal standard.³

¶ 12 AR.S. § 28-1321 is wholly consistent with the standards for consent that have evolved to permit warrantless searches in other contexts. When a warrantless search is supported by consent, the state must establish that the suspect “unequivocally,” by his words or conduct, expressed consent to the search.⁴ See State v. Canez, 202 Ariz. 133, 151, ¶ 53, 42 P.3d 564, 582 (2002); State v. Kananen, 97 Ariz. 233, 235, 399 P.2d 426, 427 (1965) (“In determining whether or not there was a consent, it is necessary that such a waiver or consent be proved by clear and positive evidence in unequivocal words or conduct expressing consent, and it must be established that there was no duress or coercion, actual or implied.”).

¶ 13 On appeal from the trial court’s order, the superior court determined that “actual consent to the test was established by clear and positive evidence of unequivocal conduct.” While such a finding would comport with the applicable legal standard (and might well be possible on remand), the trial court did not make that finding. Sitting as an appellate court, the superior court was not in a position to recast the trial court’s finding that Carrillo did not refuse the test as a finding that he unequivocally consented. Whei’e the record contains an express finding by the trial court based upon the incorrect legal standard, a reviewing court cannot presume consent.

CONCLUSION

¶ 14 For the foregoing reasons, we vacate Carrillo’s convictions and remand for a determination of whether Carrillo consented to submit to the blood draw in accordance with the Implied Consent Law.

CONCURRING: PATRICIA A OROZCO, Presiding Judge.

1 . The phrase "abuse of discretion” is inelegant, because it sweeps within its pejorative tone categories of error that do not involve any culpable "abuse” of the discretion entrusted to the court. See State v. Chapple, 135 Ariz. 281, 297 n. 18, 660 P.2d 1208, 1228 n. 18 (1983). Here, for example, the court’s exercise of discretion was grounded in a faulty legal premise that affected its analysis. Such an error can necessitate reversal under the abuse of discretion standard without being "manifestly unreasonable” or otherwise offensive to the proper function of the trial court. See, e.g., State v. Woody, 173 Ariz. 561, 845 P.2d 487 (App. 1992).

2 . A.R.S. § 28 — 1321 (D)(1) also provides for the preservation of samples taken by qualified medical professionals. Because this case does not implicate the medical exception, we limit our discussion to the warrant exception.

3 . In a different context, we have recognized that a "failure to refuse” is not the equivalent of consent under A.R.S. § 28-1321. See State v. Stanley, 217 Ariz. 253, 258, ¶ 23, 172 P.3d 848, 853 (App.2007).

4 . There is, of course, no requirement that the officers speak the same language as the person whose consent they are trying to obtain. Where effective communication by spoken language is not possible, other means of communication may still suffice, and the suspect may express unequivocal consent by gestures or conduct.