AZ Supreme Court: Implied Consent admonitions do not create consent

4/27/16  Arizona Implied Consent Law says that a person arrested on suspicion of DUI charges must submit to whatever chemical tests (breath, blood or urine) that the police say they must submit to. The admonition officers read to the arrested person also provides that if the person does not submit to the designated tests their Arizona driver’s license or privilege to drive will be suspended for at least 12 months.

In a criminal case, except in very limited circumstances or exceptions, a person has constitutional rights to be free from unreasonable searches without a court-ordered warrant. One of those exceptions is that an arrestee may freely consent to the search of their body for breath or blood samples to be tested for alcohol or drugs. On April 26, 2016, in State v. Valenzuela, the Arizona Supreme Court (citing a 1968 United States Supreme Court case, Bumper v. North Carolina, 391 U.S. 543) said an arrestee’s consent given after having been told by police officers that if they do not submit to the tests their license or privilege to drive will be suspended, is not consent freely given and therefore cannot be considered consent for constitutional proposes.

However, the court went on to say the appropriate test to determine if consent is freely given is “the totality of the circumstances”, which means in light of all the interaction between the arrestee and the police, did the arrestee consent to the tests without being coerced into it by officers’ assertion of their legal ability to get the samples through threat of license suspension. The court suggested the proper procedure an officer should follow to avoid the appearance of trying to coerce the arrestee is:

After making a DUI arrest, the officer should ask whether the arrestee will consent to provide samples of blood, breath, or other bodily substances for testing. If the arrestee expressly agrees and successfully completes testing, the officer need not advise the arrestee of the statutory consequences for refusing consent. The officer must, however, advise the arrestee before testing that the outcome of the tests may result in the penalties set forth in § 28-1321(B)(1) and (2)([Implied Consent Law]. If the arrestee refuses to consent to testing or fails to successfully complete the tests, the officer should advise the arrestee of the consequences for refusal or incomplete testing as provided in § 28-1321(B), and then ask again whether the arrestee will consent to testing. Although this choice “will not be an easy or pleasant one for a suspect to make,” this difficulty does not make the decision coerced. South Dakota v. Neville, 459 U.S. 553, 564 (1983) (considering Fifth Amendment challenge to admission in evidence of refusal given in response to implied consent admonition). If the arrestee again refuses to agree to the testing or fails to successfully complete testing, a test must not be given unless the officer secures a search warrant, except that the officer may validly obtain a sample of blood or other bodily substances taken for medical purposes.

The court applied “the totality of the circumstances” test and determined Valenzuela did not freely consent to the blood draw, and therefore the samples were unconstitutionally taken from him by the police. The remedy for this violation would normally be suppression, which means the prosecution could not use the test results against him at trial. The court however applied the “Good Faith Exception” to the Exclusionary Rule to deny the remedy of suppression. The Exclusionary Rule holds that if the police obtain evidence by violating a person’s constitutional rights the prosecutor cannot use that evidence at trial. The reason for the rule is to deter illegal police activity. The Good Faith Exception to the Exclusionary Rule holds that if the police acted in good faith relying on existing case law the use of evidence at trial should not be suppressed. The rationale for the exception is society wants the police to rely on court interpretation of what the law is, and it would serve no purpose to penalize the police for doing so if the courts later change the law. In Valenzuela the Supreme Court said because the police were acting in good faith as to what they thought was lawfully permitted to do and say they should not be penalized with the remedy of suppression of the chemical test results.

Ultimately, the result of the case is the defendant Valenzuela won and lost. He won his argument that the blood sample was unconstitutionally taken from him but the victory was only partial, because by applying the Good Faith Exception the Supreme Court upheld his conviction and sentence.

This case should lead to many arguments in court for future cases. Since this case is now the law of the state, the good faith exception will not apply to future situations where the police fail to comply with the court’s guidelines when trying to obtain consent to submission to chemical tests. Also, since the court said the test for consent is “the totality of the circumstances”, and that is always something for the trial court to determine on a case-by-case basis, there will be arguments in many cases that consent was not freely given and the use of the test results must be suppressed. For this and similar reasons, it is all the more important to have an experienced DUI attorney to represent you on a DUI case.

The case can be found at the following link:

If you’ve been charged with DUI or another criminal offense, getting help from an experienced and knowledgeable lawyer is one of the best things you can do for your case. Gordon Thompson has been practicing criminal and DUI law since 1979, and has used his vast experience to help countless people charged with DUI and other criminal offenses get the best result. Call Gordon Thompson now, 24/7, so he can put his many years of experience to use and help you get the best result for your DUI or criminal case.