FILED BY CLERK AUG 31 2010 IN THE COURT OF APPEALS STATE OF ARIZONA COURT OF APPEALS DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, ) ) Appellee, ) 2 CA-CR 2009-0041 ) DEPARTMENT B v. ) ) OPINION GLENDA LORRAINE RUMSEY, ) ) Appellant. ) )
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20080258
Honorable Richard S. Fields, Judge
AFFIRMED IN PART; VACATED IN PART
Terry Goddard, Arizona Attorney General By Kent E. Cattani and Amy M. Thorson Tucson Attorneys for Appellee
Robert J. Hirsh, Pima County Public Defender By Michael J. Miller Tucson Attorneys for Appellant
V Á S Q U E Z, Presiding Judge. ¶1 In this opinion we address whether the trial court erred by not suppressing
evidence of blood-test results after concluding the defendant‟s right to counsel had been
violated at the time the blood draw occurred. For the reasons that follow, we conclude
the court did not so err and affirm its ruling on that issue.1
Facts and Procedure
¶2 We view the facts in the light most favorable to sustaining the jury‟s
verdicts. State v. Miles, 211 Ariz. 475, ¶ 2, 123 P.3d 669, 670 (App. 2005). On the
evening of January 12, 2008, J. and O. were riding their bicycles in the eastbound bicycle
lane on Broadway Boulevard in Tucson. After crossing Vozack Lane, O. felt something
hit him and then saw J. “flying in front of [him].” O. got up from the ground and ran to
J., who was unresponsive. O. looked around and saw a “small SUV or a car, a few yards
maybe, in front of [them.] . . . [I]t was red, [and] driving off.” J. died as the result of
head injuries, and O. suffered a dislocated tailbone, bruises, and scratches.
¶3 Glenda Rumsey, the driver of the vehicle that had struck J., stopped her
vehicle and walked back to the accident scene, where she remained until police officers
arrived. The officers noticed Rumsey had an odor of alcohol and was unable to walk
straight. One officer administered the horizontal gaze nystagmus (HGN) test, and
Rumsey displayed six out of six possible cues of impairment. She was arrested and
charged with manslaughter, aggravated assault of a minor under fifteen years of age,
1 Appellant has raised additional issues that we have addressed in a separately filed memorandum decision in which we have vacated her conviction for driving with an alcohol concentration greater than .08. See Ariz. R. Crim. P. 31.26; Ariz. R. Sup. Ct. 111(b), (h); see also State v. Payne, 223 Ariz. 555, ¶ 2, 225 P.3d 1131, 1134 (App. 2009).
2 driving under the influence of an intoxicant (DUI) while impaired to the slightest degree,
driving with an alcohol concentration of .08 or more, driving while under the extreme
influence of intoxicating liquor with an alcohol concentration of .15 or more, and leaving
the scene after causing an accident resulting in death or serious physical injury. The jury
acquitted her of leaving the scene of an accident, found her guilty of the remaining
charges, and found the manslaughter and aggravated assault charges were dangerous-
nature offenses. After an aggravation and mitigation hearing, the trial court sentenced
Rumsey to concurrent, enhanced, partially aggravated terms of fourteen and thirteen
years for manslaughter and aggravated assault respectively and to 180 days in jail for the
DUI offenses. This timely appeal followed.
Discussion
¶4 Rumsey argues the trial court erred in not suppressing the results of her
blood tests despite finding Detective Barrett had violated her right to counsel before
officers completed the first blood draw. Specifically, she contends this violation required
suppression of the blood test results under Arizona law. Whether evidence should have
been excluded as the result of a deprivation of counsel is “a mixed question of fact and
law implicating constitutional questions. As such [the court‟s determination] is reviewed
de novo.” State v. Hackman, 189 Ariz. 505, 508, 943 P.2d 865, 868 (App. 1997). And
we will affirm the trial court if it is correct for any reason. State v. Cañez, 202 Ariz. 133,
¶ 51, 42 P.3d 564, 582 (2002).
¶5 While at the accident scene, Rumsey spoke with her attorney by telephone
for approximately six minutes and then informed an officer that the attorney would arrive 3 in about fifteen minutes. When he had not arrived within twenty minutes, Rumsey was
taken to the police substation at 8:35 p.m. The attorney arrived at the accident scene
approximately fifteen minutes later and agreed to follow Detective Barrett to the
substation. En route, Barrett noticed the attorney had turned the opposite direction when
Barrett had made a left turn. Barrett continued on to the substation and was notified at
9:27 p.m. that the attorney had arrived.
¶6 Meanwhile, around 9:10, Rumsey had consented to a blood draw. Before
conducting the draw, Barrett decided to obtain a warrant for three separate blood draws,
spaced one hour apart. The search warrant was issued at 9:26 p.m., served on Rumsey at
9:28, and the first blood draw occurred at 9:31, four minutes after Barrett had been
informed that Rumsey‟s lawyer had arrived at the substation. Rumsey then consulted
with counsel before the two subsequent blood draws.
A. Violation of right to counsel
¶7 Before trial, Rumsey moved to suppress statements she had made during
the initial blood draw and the results of all three blood tests, arguing they had been
“obtained in violation of her right to counsel.” The trial court found:
The real interference with the right to counsel arises when Barrett tells Rumsey, at about 9:10 p.m., you can “talk to [counsel] after the first blood draw[.]” . . . That statement is made twenty minutes before the first blood draw and before Barrett had even attempted the search warrant call to the Judge. . . . And, Barrett testified that he knew [the attorney] was there at 9:27 p.m. Notwithstanding Barrett‟s wish to conclude the search warrant call and blood draw, there is no reason [the attorney] could not have been given a minute or two with Rumsey prior to the blood draw. The urgency of the
4 timing of the blood draw is lessened when one considers that Rumsey consented to give blood at 9:10 p.m.
....
. . . It is the State‟s duty to prove that the exercise [of the right to counsel] would unduly interfere with the investigation. The State did not.
¶8 Rule 6.1, Ariz. R. Crim. P., provides that a suspect is entitled to the advice
of counsel “as soon as feasible after [he or she] is taken into custody.” “[I]t is only when
the exercise of that right will hinder an ongoing investigation that the right to an attorney
must give way in time and place to the investigation by the police.” Kunzler v. Superior
Court, 154 Ariz. 568, 569, 744 P.2d 669, 670 (1987). It is the state‟s burden to
demonstrate that allowing the suspect to consult with counsel when requested would have
disrupted the police investigation. State v. Juarez, 161 Ariz. 76, 81, 775 P.2d 1140, 1145
(1989).
¶9 In DUI-related investigations generally, “[i]nforming the driver that he may
not call his attorney before taking [a blood or breath] test misstates the law and violates
the driver‟s right to counsel.” Id. However, that is not what happened in this case.
Under the circumstances here, we disagree with the trial court that Barrett‟s statement to
Rumsey at 9:10 p.m. deprived her of the right to counsel. As noted above, before the
statement was made, officers already had honored Rumsey‟s request to speak with
counsel at the accident scene. She was provided a cellular telephone and spoke with
counsel for six minutes. After the attorney arrived at the accident scene, Barrett invited
him to follow Barrett to the police substation. The attorney stated he would do so but
5 then did not. Consequently, neither Barrett nor any of the officers at the substation knew
where he had gone and when, or even whether, he would arrive.2 Additionally, Rumsey
consented to the blood draw after having already spoken with counsel at the accident
scene. And, when Barrett first learned at 9:27 p.m. that the attorney had arrived at the
substation, he had by then obtained a warrant for the blood draw.
¶10 Although we disagree with the trial court‟s ruling that Barrett‟s statement at
9:10 amounted to a violation of Rumsey‟s right to counsel, we agree that she was denied
that right after the attorney made his presence at the substation known. The state
contends no violation occurred because it established that allowing Rumsey to consult
with counsel after his arrival at the substation would have hindered the investigation.3 In
support of this argument, it cites testimony by the investigating detectives that “her blood
2 Rumsey contends the record does not support the trial court‟s factual determination that the police had not willfully ignored the attorney‟s presence at the substation while he attempted to gain entrance. However, the attorney testified that, after arriving at the substation, he was unable to get the attention of anyone inside the building yet did not dial a telephone number posted on the building to reach a police dispatcher until thirty to forty-five minutes after he had arrived. And, Barrett testified that the attorney had failed to follow him to the substation and that he was unaware the attorney had finally arrived until receiving a call from a dispatcher at 9:27. This evidence was more than sufficient to support the trial court‟s findings. See State v. Herrera, 183 Ariz. 642, 648, 905 P.2d 1377, 1383 (App. 1995) (court‟s factual determinations reviewed for clear error). 3 The state also argues Rumsey‟s right to counsel was not violated because she had been permitted at the scene to speak with counsel “by telephone for approximately six minutes, enough time for him to give her legal advice.” However, we are aware of no authority, and the state has cited none, providing that an initial consultation with counsel is sufficient to cure a subsequent denial of further consultation. The only limitation our courts have put on the exercise of the right to counsel is that it may not interfere with the police investigation. Kunzler, 154 Ariz. at 569, 744 P.2d at 670. 6 alcohol concentration [wa]s diminishing the longer [they] st[oo]d there,” “time was of the
essence,” and blood samples should be obtained “as quickly as possible.”
¶11 However, these considerations apply in every DUI investigation in which
blood alcohol evidence is sought. Nothing in the officers‟ testimony or the state‟s
argument to the trial court suggested there were any exigent circumstances here
necessitating taking Rumsey‟s blood immediately. Indeed, as the court noted, the
argument that Rumsey‟s blood needed to be drawn “as quickly as possible” was
undermined to some extent by Barrett‟s decision to delay the blood draw in order to
obtain a warrant, despite the fact that Rumsey already had consented to the test. Barrett
testified at the suppression hearing that “[o]btaining the search warrant was [his] first
priority. Obtaining her blood, within a reasonable amount of time, was [his] second
priority.” Thus, we cannot say the court abused its discretion in concluding the state
failed to meet its burden of establishing that its investigation would have been hindered
by allowing Rumsey to consult with counsel before the blood draw.
B. Remedy for violation of counsel
¶12 We next must address the appropriate remedy for the violation of Rumsey‟s
right to counsel. She argues that, under Arizona law, the automatic remedy for a
violation of the right to counsel in DUI cases is dismissal of DUI charges and suppression
of the blood test results and any additional evidence obtained after the violation
pertaining to all other charges. Thus, she asserts, the trial court erred in suppressing only
statements she had made “at and about the time of the first blood draw.” The state
counters that suppression of the blood evidence was not required because the blood draw 7 was conducted pursuant to a search warrant and there was no violation of Rumsey‟s due
process right to collect exculpatory evidence. It asserts that Rumsey “asked for and
received an independent [blood] test.”
¶13 Generally, “[t]he exclusionary rule requires the suppression at trial of
evidence gained directly or indirectly as a result of a government violation” of the
defendant‟s constitutional rights. Hackman, 189 Ariz. at 508, 943 P.2d at 868. However,
evidence need not be suppressed when “the connection between the lawless conduct of
the police and the discovery of the challenged evidence has „become so attenuated as to
dissipate the taint.‟” Wong Sun v. United States, 371 U.S. 471, 487 (1963), quoting
Nardone v. United States, 308 U.S. 338, 341 (1939); State v. Rosengren, 199 Ariz. 112,
¶ 22, 14 P.3d 303, 310 (App. 2000) (suppression required only when “causal connection
exists between a constitutional violation and the government‟s obtaining of [the]
evidence”); see also State v. Moody, 208 Ariz. 424, n.6, 94 P.3d 1119, 1141 n.6 (2004)
(applying federal exclusionary-rule principles to violation of Rule 6.1 right to counsel).
¶14 Although Arizona courts have found “the exclusionary rule . . . as a matter
of state law [to be] no broader than the federal rule,” State v. Bolt, 142 Ariz. 260, 269,
689 P.2d 519, 528 (1984), in the context of DUI cases, we have endeavored to
“assiduously protect[] the right to counsel” by liberally applying “stringent remedies,
ranging from suppression of any evidence obtained after [a] violation [of the right to
counsel] to outright dismissal of the action,” Rosengren, 199 Ariz. 112, ¶ 27, 14 P.3d at
312. Without citation of authority, Rumsey asserts “the Arizona Supreme Court has
stated that because it is impossible to say what advice may have been given” to a 8 defendant had the right to counsel been respected, “the [DUI] counts should . . . have
been dismissed.” And, she maintains, because the “Arizona Supreme [C]ourt requires
that the DUI counts be dismissed when the right to counsel is violated, the logical
conclusion is that the evidence is not admissible for any purpose” and should have been
suppressed as to the manslaughter and aggravated assault charges as well.
¶15 Our case law provides that
only when police conduct interferes with both the defendant‟s right to counsel and his ability to obtain exculpatory evidence is “[d]ismissal of the case with prejudice . . . the appropriate remedy because the state‟s action foreclosed a fair trial by preventing [the defendant] from collecting exculpatory evidence no longer available.” Correspondingly, when the interference with the defendant‟s right to counsel does not impinge upon his ability to collect exculpatory evidence, the appropriate remedy is suppression.
State v. Keyonnie, 181 Ariz. 485, 487, 892 P.2d 205, 207 (App. 1995), quoting McNutt v.
Superior Court, 133 Ariz. 7, 10, 648 P.2d 122, 125 (1982); see State v. Holland, 147
Ariz. 453, 456, 711 P.2d 592, 595 (1985) (dismissal); Juarez, 161 Ariz. at 81, 775 P.2d at
1145 (suppression); Kunzler, 154 Ariz. at 570, 744 P.2d at 671 (suppression). Thus,
because Rumsey has not asserted the violation of her right to counsel here deprived her of
any exculpatory evidence such that a fair trial was impossible, the trial court correctly
concluded that dismissal of the DUI charges was not an appropriate remedy.4 McNutt,
133 Ariz. at 10, 648 P.2d at 125; Rosengren, 199 Ariz. 112, ¶ 19, 14 P.3d at 309.
4 In her reply brief, Rumsey notes there was a five-hour delay between the time of the accident and the time she received her independent blood test, and “[t]here was therefore no evidence that the independent blood draw was obtained before the evidence had vanished.” To the extent Rumsey is arguing the delay in obtaining an independent 9 ¶16 On the other hand, in every DUI case in which our courts have considered
the remedy for a violation of the right to counsel, even when there has been no denial of
the defendant‟s due process right to a fair trial, the results of any breath- or blood-alcohol
testing have been suppressed as a consequence for the violation. Juarez, 161 Ariz. at 81,
775 P.2d at 1145; Kunzler, 154 Ariz. at 570, 744 P.2d at 671; Rosengren, 199 Ariz. 112,
¶ 19, 14 P.3d at 309; Keyonnie, 181 Ariz. at 487, 892 P.2d at 207. Rumsey maintains that
the trial court should have done so here. But none of those prior cases compel the
conclusion that every violation of the right to counsel in the DUI context automatically
necessitates suppression of the test results; the general exclusionary rule survives—
suppression is not required unless a nexus exists between the violation and the evidence
obtained. See Herring v. United States, ___ U.S. ___, ___, 129 S. Ct. 695, 700 (2009)
(“We have repeatedly rejected the argument that exclusion is a necessary consequence of
a . . . violation [of a constitutional right]. Instead we have focused on the efficacy of the
rule in deterring . . . violations in the future.”) (citations omitted).
¶17 In each of the cases cited above, the defendant had requested and was
denied the opportunity to speak with counsel before deciding whether to give a breath or
blood sample voluntarily pursuant to Arizona‟s implied consent law, A.R.S. § 28-1321.
Under § 28-1321(A), any
blood draw deprived her of the right to collect exculpatory evidence, she has raised this contention for the first time in the reply brief and has failed to provide any relevant argument or citation to authority. The argument therefore is waived. See Ariz. R. Crim. P. 31.13(c)(1)(vi); State v. Guytan, 192 Ariz. 514, ¶ 15, 968 P.2d 587, 593 (App. 1998) (arguments first raised in reply brief waived); State v. Felkins, 156 Ariz. 37, 38 n.1, 749 P.2d 946, 947 n.1 (App. 1988) (claim waived when supported by inadequate argument). 10 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 . . . if the person is 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.
And, upon arrest, the “violator shall be requested to submit to and successfully complete
any test or tests prescribed by subsection A.” § 28-1321(B). Failure to expressly consent
to or successfully complete a requested test is deemed a refusal and automatically results
in suspension of the person‟s driver‟s license for a minimum of twelve months. Id. And
evidence of the defendant‟s refusal to take a test is admissible at trial “to show that the
defendant was conscious of his guilt.” State v. Vannoy, 177 Ariz. 206, 211, 866 P.2d
874, 879 (App. 1993).
¶18 Because a suspect must be arrested before the implied consent provisions
are triggered, there is no dispute that he or she is entitled to counsel upon request. See
Ariz. R. Crim. P. 6.1; Kunzler, 154 Ariz. at 570, 744 P.2d at 671. And, when a defendant
is deprived of counsel at this point in the investigation, the defendant lacks counsel‟s
advice about whether to submit to a breath or blood sample. See Mack v. Cruikshank,
196 Ariz. 541, ¶ 11, 2 P.3d 100, 104 (App. 1999) (“Although a DUI suspect does not
have a „right‟ to refuse to submit to a test, he or she does have the „physical power‟ to
refuse.”). A sample thus obtained, whether pursuant to consent or a warrant, necessarily
is tainted by the defendant‟s inability to have consulted counsel before making that
decision. Under those circumstances, a nexus exists between the violation and the
11 evidence collected. Because under the most common scenarios such a nexus exists, our
courts have concluded that suppressing the test results is generally required. See Juarez,
161 Ariz. at 81, 775 P.2d at 1145; Rosengren, 199 Ariz. 112, ¶ 19, 14 P.3d at 309;
Keyonnie, 181 Ariz. at 487, 892 P.2d at 207. But see Rosengren, 199 Ariz. 112, ¶ 24, 14
P.3d at 311 (when defendant refused to consent to blood test after denial of right to
counsel, sample obtained pursuant to warrant not subject to suppression under federal
exclusionary rule).
¶19 This court‟s reasoning in Rosengren provides a helpful comparison
assessing the application of the exclusionary rule in this case. There, after being arrested
for DUI, the defendant asked several times to speak with counsel; when officers denied
his requests, the defendant refused to consent to a blood draw. 199 Ariz. 112, ¶¶ 4-5, 14
P.3d at 306. Officers then obtained and executed a telephonic search warrant for his
blood. Id. ¶ 6. Rosengren later moved for dismissal of all charges based on the violation
of his right to counsel. Id. ¶ 7. The trial court denied the motion to dismiss but
suppressed the blood-test results and additional evidence obtained after his request for
counsel had been denied, and this court affirmed on appeal. Id.
¶20 In affirming the lower court‟s ruling, we concluded that the search warrant
could not remedy the deprivation of counsel. Id. ¶ 30 (rejecting out-of-state case holding
alcohol test results admissible despite violation of right to counsel on theory of inevitable
discovery). We noted that “had Rosengren succumbed to the police pressure by
voluntarily giving a blood sample after the officers violated his right to counsel, evidence
of the blood test would have been suppressed.” We therefore found it “incongruous to 12 allow the state to introduce the . . . test result when Rosengren resisted the officers‟
tactics, refused to waive his rights, and ultimately had blood extracted pursuant to the
warrant.” Id. Thus, in Rosengren, we declined to find the warrant valid when the
officers had “sought [it] to prevent the defendant from exercising his right to . . .
counsel,” and, in doing so, had “subverted” his constitutional right to speak with an
attorney. Moody, 208 Ariz. 424, n.8, 94 P.3d at 1142 n.8.
¶21 Here, in contrast, before Rumsey‟s right to counsel had been violated,
officers already had permitted her to speak with an attorney. They had accommodated
her request at the accident scene by providing her a cellphone and waiting for twenty
minutes for the attorney to arrive before taking Rumsey to the substation. And,
notwithstanding Rumsey‟s eventual consent to the blood draw after her initial
consultation with counsel, Barrett nevertheless obtained the search warrant for the draw.
Unlike Rosengren, in which the basis for the warrant was Rosengren‟s refusal to consent
without the advice of counsel, the basis for obtaining the warrant here was not related in
any way to the subsequent violation of Rumsey‟s right to counsel. Nor can we say the
warrant was obtained in an attempt to thwart Rumsey‟s invocation of that right, as she
already had been permitted to exercise it. As the Supreme Court stated in Herring,
___U.S. at ___, 129 S. Ct. at 702:
To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring
13 or systemic negligence. The error in this case does not rise to that level.
¶22 In short, there was no nexus between the deprivation of Rumsey‟s right to
counsel and the lawfully obtained blood evidence Rumsey sought to suppress. The trial
court did not err in denying her motion to suppress the blood evidence and in precluding
only that evidence tainted by the violation—the statements Rumsey had made during the
blood draw without the benefit of counsel.
Disposition
¶23 Although we conclude Rumsey‟s right to counsel was violated at the time
her blood was drawn, for the reasons set forth above, the trial court did not err in denying
Rumsey‟s motion to suppress the results of the blood tests.
/s/ Garye L. Vásquez GARYE L. VÁSQUEZ, Presiding Judge
CONCURRING:
/s/ Peter J. Eckerstrom PETER J. ECKERSTROM, Judge
/s/ Philip G. Espinosa PHILIP G. ESPINOSA, Judge