Arizona Supreme Court Rules on Voluntariness of Consent in DUI Testing Case

Voluntariness VS. Submission to Lawful Assertion by Authority

In the recent ruling the Arizona Supreme Court considered a Fourth Amendment issue and Arizona’s implied consent law in DUI case.

The cases centered around two primary issues.  The first was whether or not  consent to a warrantless search to conduct DUI breath and blood tests were voluntary, after suspect agreed to submit to them only after the officer instructed him repeatedly about the law.

The next question for the court was whether or not the advisement by the police officer was given in good faith when the officer believed that his conduct was lawful and not in violation of the suspect’s 4th Amendment rights.

This article provides a case overview, legal principles that applied, and the additional related resource information:

  • Impact of Ruling on Arizona Drivers;
  • Good Faith Exception to the Exclusionary Rule;
  • Arizona Courts on what Constitutes Voluntary Consent to Search;
  • Answers to the question surrounding “Should I consent to a DUI Test in Arizona?”;
  • 10 Common Defenses for DUI Charges in Arizona


Case Overview

The case began when a Department of Public Safety (DPS) officer found the defendant sleeping in the driver’s seat of a truck that was stopped with the engine running.

In Arizona a person may be found guilty of DUI even if they were not driving the vehicle, but were considered to be in actual physical control of it.

The officer saw an open alcohol container and smelled alcohol.  He also saw signs that the defendant was impaired, and the officer arrested the defendant on suspicion of DUI.

At the police station, the officer read an admin per se form that provided that Arizona law required him to submit to a breath, blood, or other bodily substance test, as chosen by a police officer, to determine his blood alcohol levels.

The officer verbally stated that the DUI tests were required by law.  He repeated his advisement of this to the suspect 3 additional times.

The police officer warned the suspect that Arizona law required him to submit, and that his refusal would result in a one-year license suspension.

The defendant then cooperated, claiming he understood the admonition, and submitted to both blood and breath tests.

The tests results showed more than 0.20 percent Blood Alcohol Content (BAC) levels, in violation of Arizona’s Super Extreme Law A.R.S. 28-1382 (A) (2).

The suspect was charged with five counts of aggravated DUI.

The defense filed a motion to suppress the test results, arguing that his consent to the tests was not voluntary.  He challenged the constitutionality of the warrantless search and voluntariness of his consent.

The officer testified at the suppression hearing.  The trial court denied the motion to suppress the DUI test results on the grounds that the “totality of the circumstances” demonstrated the defendant’s consent.

The court then dismissed three counts and convicted the defendant on two counts, and prison sentences were imposed based on other merits of the case.

The appellate court affirmed, but the dissenting judge reasoned that there was no voluntary consent because the police had asserted they had lawful authority to search.

The defendant then asked the Arizona Supreme Court to review the decision.

The Court explained that warrantless searches are generally prohibited under the Fourth Amendment with some exceptions, including free and voluntary consent to search.

However, consent isn’t given freely or voluntarily if the defendant reluctantly gives in to an officer’s claim of lawful authority.

Under Arizona’s implied consent law, those who drive in the state implicitly give consent to DUI blood and breath tests if they are arrested for a DUI.

But A.R.S. § 28-1321(A) doesn’t authorize officers to administer a test without a warrant unless there is an express agreement or consent by the suspect to conduct it.

A compelled blood or breath test administered under § 28-1321 is considered a Fourth Amendment search.

Evidence from a compelled test obtained in violation of the Fourth Amendment is generally inadmissible in a criminal trial.

The defendant in this case argued that his consent must be considered involuntary because he agreed only after the officer repeatedly told him he was required to submit under Arizona law.

The Court noted that under case law, citing multiple cases including Byars v. State, that if the totality of circumstances showed that consent was coerced by threats or force or granted only in submission to an officer’s claim of lawful authority, the consent is invalid.

The Court held that consent given in response to a warning about the law, as in this case, was not freely and voluntarily given.

Once it was concluded, that the consent was not voluntary, the Arizona Supreme Court’s next task was to review whether or not the officer’s conduct fell within the good-faith exception to the exclusionary rule.

In effect, this means if the record shows that the officer reasonably believed in that they were acting in good faith and that their conduct was lawful, the evidence obtained following the invalid consent may still be admitted.

The court determined the good faith exception applied to the DPS officer’s conduct in this case.

Since the admonition in this case was given by an officer relying in good faith on case precedent, the Court ruled it would not be appropriate to exclude the test results.

Accordingly, the DUI conviction was affirmed.

Impact of Ruling on Arizona Drivers

The Court’s ruling in this case didn’t change the outcome for this particular defendant due to the good faith exception to the exclusionary rule.

However, it is important going forward, because it holds that officers must inform arrestees of the rules without implying that officers have lawful authority to compel a defendant to give samples of bodily substances, without a warrant.

An officer can inform an arrestee of the consequences for refusing to permit DUI testing and ask if the arrestee will consent.

Alternatively, the Court explained that the admin per se form should be revised so that it provides an arrestee with a clear choice about whether to submit to the tests.

Consent given solely based on advisement of a law, is not lawful, unless the officer is acting in good faith.

   Good Faith Exception to the Exclusionary Rule

Before we consider the exceptions to the exclusionary rule, we must look at the meaning of the “exclusionary rule”.

The exclusionary rule refers to a doctrine established in criminal cases, recognized in the United States, which allows for evidence to be excluded from trial if it was obtained in violation of a suspect’s constitutional rights.

The remedy in Arizona criminal courts reflects this principle.  Thereby, if police obtain evidence unconstitutionally, the defense may file a motion to suppress that evidence so that it may not be used against a defendant.  Thus the evidence is “excluded” from trial giving rise to the Exclusionary Rule.

The exception that applied in this case was the fact that the court found the officer acted in good faith.  If the police officer believes the conduct in searching or seizure of the evidence was lawful, then the evidence may be admitted as an exception to the exclusionary rule.

Another illustration of what the courts considered to be a good faith exception to the exclusionary rule, by law enforcement was in the ruling of Arizona v. Evans 1995.

In that case, the U.S. Supreme Court held that evidence obtained after an officer acted on an outstanding warrant, had been obtained in good faith.

However, it was later discovered that the warrant was actually resolved several weeks before the stop.  The warrant was still showing active as a result of a clerical error.

The US Supreme Court noted that the exclusionary rule was designed to discourage law enforcement from intentionally gaining evidence unlawfully.  In Evans, the officer acted on the information available to him on record, that he later learned was incorrect due to an administrative error.  Thus the US Supreme Court felt the good faith exception to the exclusionary rule applied.

Arizona Courts on what Constitutes Voluntary Consent to Search

In this case, the Arizona Supreme Court found that court found that if consent is given by the suspect solely on the basis of the Police Officer’s warning about the implied consent the consent is not considered voluntary.

Below are some additional cases in which Arizona courts ruled on voluntariness of the suspect’s consent for DUI testing was considered:

  • A driver’s consent to testing must be freely and voluntarily given (State v. Butler 2016);
  • A driver’s consent must not be compelled by an ultimatum (State v. Spencer 2014);    
  • For DUI blood tests drawn incidental to medical treatment, the blood draw is not given freely and voluntarily if the suspect expressly refused (State v. Estrada 2004);   
  • When an officer asserts lawful authority to search, the consent is not voluntary, (State v. Valenzuela 4/16, citing Bumper)
  • A DUI Test is not voluntary if consent was the result of coercion or duress (State v. Alder 1985).

The courts have recognized that all decisions on cases involving consent, should be based upon consideration of totality of the circumstances.

“Should I consent to a DUI Test in Arizona?”

One of the most frequently asked questions by drivers at a DUI stop is suspects in Arizona is “Should I consent to a DUI Test?”  

 There are three factors to consider before making your decision to consent or refuse a DUI breath, blood or urine test:

  • The laws in the state where the DUI stop occurs;
  • Whether or not you can do without your driver’s license for a year;
  • Your individual circumstances

Under Arizona’s Implied Consent law A.R.S. 28-1321, any person driving in Arizona gives their consent to have alcohol or drug testing if they are arrested for DUI, or for being under the influence of alcohol if they are under 21 years of age.

The type of test to be done such as DUI breathalyzer, blood tests, or other chemical testing, will be done at the officer’s discretion.

A person has the right to refuse breath, blood, urine or other chemical tests, but not without consequences.

If a person refuses, a one year loss of driving privileges will be suspended or denied for one year.

If a person fails to complete the test or expressly consent to it, will be considered to have refused the DUI testing resulting in a one year loss of their driver’s license.

If a person refuses, in many cases the police will usually be able to obtain a search warrant to administer the DUI breath, blood, or chemical test anyway.

Before the age of technology, obtaining a warrant was a more time consuming task for police.  Now most police agencies have are equipped with electronic means for officers to obtain a DUI search warrant.  A can be achieved within a fraction of the time it formerly took.

10 Common Defenses for DUI Charges in Maricopa County, AZ

An experienced DUI defense attorney will be aware of what defenses may apply, or other challenges that can be made, that may lead to a favorable resolution of your charges.

DUI charges may be challenged on different fronts.  Your defense case should be tailored to the circumstances unique to your case.   This may include moving to suppress evidence that was obtained in violation of your constitutional rights.  In this case, the courts ruled that the good faith exception to the exclusionary rule applied.  But not all evidence obtained in violation of a person’s rights, is done in good faith.

Below are 10 common defenses that may be used to defend DUI charges (This list is not inclusive):

  • Evidentiary Challenges to blood test, urine, or other chemical tests including inconsistent independent lab results;
  • Challenging the reason for the stop (no reasonable suspicion);
  • Challenging probable cause for arrest;
  • Violation of 4th amendment search and seizure rights;
  • Field Sobriety Test results invalid;
  • Evidentiary Challenges of breath test instructions, procedures, or results;
  • Failure to prove driver impairment;
  • Violations in police procedures;
  • Trial defenses;
  • Miranda warning, 5th Amendment, and other Constitutional violations.

If you are charged with any type of impaired driving offense, you have the right to defend your charges.

Though you were arrested and charged, that does not necessarily mean you will be convicted of impaired or drunk driving.

It is important that you consult a criminal defense attorney as soon as possible if you were arrested, or for a criminal or DUI offense.

If you are not aware of your rights, you could inadvertently jeopardize them for your defense.

For effective legal representation you should choose an attorney who understands the gravity of a DUI charge, and the nuances of the case law in this area.  Your attorney should also be familiar with the court in which your case will be heard.

DUI Defense Attorney Mesa Arizona

“Prepared to Defend”

If you are charged with a DUI, consult James E. Novak, a DUI defense attorney, in  Tempe, Arizona.

James Novak is a former prosecutor and experienced trial lawyer.

He provides a strong defense, make sure your rights are protected, and work hard to obtain the best possible resolution to your charges.

James Novak offers a free consultation Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona.  Contact or call The Law Office of James Novak at (480) 413-1499.  Speak directly with James E. Novak, experienced DUI and criminal defense attorney regarding your charges and defense options.

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