Opinion text
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
BRETT STEVEN STEMPEL, Appellant.
No. 1 CA-CR 24-0682
FILED 07-24-2026
Appeal from the Superior Court in Maricopa County
No. CR2020-146335-001
The Honorable Justin Beresky, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph A. Newberg, II, Katherine Donaldson
Counsel for Appellee
Koplow Law Firm, Phoenix
By Lawrence S. Koplow
Co-Counsel for Appellant
Law Offices of John Penner, Scottsdale
By John Penner
Co-Counsel for Appellant
Law Offices of Rhonda Neff, PLLC, Phoenix
By Rhonda Elaine Neff
Co-Counsel for Appellant
STATE v. STEMPEL
Opinion of the Court
OPINION
Presiding Judge Samuel A. Thumma delivered the opinion of the Court, in
which Judge Andrew J. Becke and Judge Kent E. Cattani joined.
T H U M M A, Judge:
¶1 Defendant Brett Steven Stempel appeals his convictions and
resulting sentences for second-degree murder and endangerment. Stempel
argues that, because he was denied the right to counsel, under the
exclusionary rule, the superior court was required to either dismiss the
charges or suppress blood draw evidence. This opinion addresses
Stempel’s argument that admission of the blood draw evidence was
structural error and that the superior court’s order addressing possible
remedies in applying the exclusionary rule should be reviewed de novo.1
FACTS2 AND PROCEDURAL HISTORY
¶2 At 2:15 p.m. one day in November 2020, Stempel was driving
north on Third Street in Phoenix, approaching McDowell Road. Driving far
faster than the 35 mile per hour speed limit, Stempel ran a red light and hit
a car driven by the first victim. The force of that crash caused the first
victim’s car to hit a car driven by a second victim. The first victim later died
from resulting injuries; the second victim was not injured. Stempel also was
injured, including fracturing a hip, and he was taken to the hospital at about
2:25 p.m., accompanied by a Phoenix police officer.
¶3 Soon after arriving at the hospital, Stempel’s blood was
drawn for medical purposes and without any law enforcement
involvement. Testing later showed a blood alcohol content (BAC) of 0.336
for that first draw.
1 Stempel’s other arguments are addressed in a separate memorandum
decision. See Ariz. R. Crim. P. 31.19(f); Ariz. R. Sup. Ct. 111(h).
2 This court reviews the trial evidence in the light most favorable to
sustaining the jury’s verdicts. See State v. Karr, 221 Ariz. 319, 320 ¶ 2 (App.
2008) (citing cases).
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STATE v. STEMPEL
Opinion of the Court
¶4 A Phoenix police officer later obtained a search warrant for a
second blood draw, which was taken at 5:34 p.m. Testing later showed a
BAC of 0.274 for that second blood draw. Stempel was arrested and charged
with one count of second-degree murder, a Class 1 dangerous felony, and
one count of endangerment, a Class 6 dangerous felony.
¶5 After significant pretrial proceedings, Stempel moved to
dismiss the charges or, alternatively, suppress the blood draw evidence. In
ruling on those requests, the superior court ultimately concluded that
Stempel was improperly denied his right to counsel before the second blood
draw. The court noted that the Phoenix police officer asked a hospital social
worker to not contact Stempel’s family members and that Stempel “was
considered in police custody and that the police would contact any family
members as needed.” The court concluded that a reasonable person in
Stempel’s position “would believe they were not free to leave or terminate
the encounter” with the police, and that Stempel showed a violation of his
right to counsel when the police did nothing to assist or facilitate his stated
desire to speak with counsel.
¶6 Applying State v. Rosengren, 199 Ariz. 112 (App. 2000) and
State v. Rumsey, 225 Ariz. 374 (App. 2010), analogous manslaughter cases,
the superior court found that the violation of the right to counsel did not
foreclose a fair trial. Noting Stempel was not prevented from collecting
exculpatory evidence, the court denied Stempel’s motion to dismiss the
charges. As to suppression, the court noted the second blood draw was
taken pursuant to a warrant. Ultimately concluding “there was no nexus
between the deprivation of [Stempel’s] right to counsel and the lawfully
obtained blood evidence pursuant to the warrant,” the court denied
Stempel’s motion to suppress.
¶7 After an eight-day trial, the jury found Stempel guilty as
charged. After sentencing, Stempel filed this timely appeal.
DISCUSSION
I. The Admission of the Blood Draw Evidence Was Not Structural
Error.
¶8 Noting that alcohol in a person’s body dissipates quickly,
Stempel claims that his denial of counsel is “analogous” to the types of cases
in which courts have found structural error. Neither McNutt v. Superior
Court, 133 Ariz. 7 (1982) nor Kunzler v. Pima County Superior Court, 154 Ariz.
568 (1987), cited by Stempel for that proposition, hold that the denial of
counsel in a similar context is structural error. Indeed, Stempel cites no
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STATE v. STEMPEL
Opinion of the Court
authority supporting his structural error argument, and this court is
unaware of any. See State v. Henderson, 210 Ariz. 561, 565 ¶ 12 (2005)
(“[T]here are ‘relatively few instances in which we should regard error as
structural.’ Structural errors, as opposed to trial errors, are those which
‘deprive defendants of basic protections without which a criminal trial
cannot reliably serve its function as a vehicle for guilt or innocence.’”)
(citing cases); see also State v. Ring, 204 Ariz. 534, 552-53 ¶ 46 (2003) (listing
examples of structural error). Stempel has not shown that admission of the
blood draw evidence was structural error.
II. A Ruling Addressing Possible Remedies for a Violation of the
Right to Counsel Implicating the Exclusionary Rule is Reviewed
for an Abuse of Discretion.
¶9 Asserting de novo review applies, Stempel argues that the
superior court’s finding that he was improperly denied his right to counsel
mandated that the superior court either dismiss the charges or suppress the
blood draw evidence. During oral argument before this court, Stempel also
argued dismissal or suppression was required because he was denied the
right to independently gather his own evidence or obtain an independent
forensic blood draw, even though the superior court found he could
independently test both blood draws and had access to other evidence
(including body camera recordings and observations by medical
personnel).
¶10 In pressing these arguments, Stempel cites Rumsey for the
proposition that this court should review de novo the denial of his
requested dismissal or suppression. In opposition, the State cites Rosengren
for the proposition that this court reviews the denial of the requested
dismissal or suppression for an abuse of discretion, deferring to the
superior court’s factual findings but reviewing legal conclusions de novo.
¶11 Although Rumsey and Rosengren could be read to be in conflict
on the point, generally applicable principles show that the abuse of
discretion standard should be applied here. The denial of a motion to
dismiss or to suppress is reviewed for an abuse of discretion. See State v.
Strong, 258 Ariz. 184, 197 ¶ 22 (2024) (dismissal); State v. Alvarez-Soto, 261
Ariz. 21, 24 ¶ 13 (2025) (suppression). Similarly, a ruling on the
admissibility of evidence is reviewed for an abuse of discretion. See State v.
Johnson, 247 Ariz. 166, 186 ¶ 45 (2019). Although this court is not bound by
the superior court’s legal conclusions, see Schwichtenberg v. State, 190 Ariz.
574, 576 ¶ 12 (1997), a superior court’s ruling will be affirmed if it is correct
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STATE v. STEMPEL
Opinion of the Court
for any reason, see State v. Canez, 202 Ariz. 133, 151 ¶ 51 (2002), abrogated on
other grounds by State v. Valenzuela, 239 Ariz. 299, 303 ¶ 11 n.1 (2016).
¶12 Under the exclusionary rule, dismissing charges — the most
drastic remedy — is not mandated. See State v. Pecard, 196 Ariz. 371, 379-80
¶¶ 38-44 (App. 1999) (reversing dismissal and citing cases providing
“[e]xamples of less drastic remedies”); see also State v. Mitcham, 258 Ariz.
432, 441 ¶ 33 (2024) (the exclusionary rule is applied only “where its
deterrence benefits outweigh its ‘substantial social costs’”) (citing cases).
Moreover, “suppression is not required unless a nexus exists between the
violation and the evidence obtained.” Rumsey, 225 Ariz. at 380 ¶ 16 (citation
omitted). Where, as here, a defendant’s right to counsel is violated, the
superior court has discretion in fashioning an appropriate remedy. See
Pecard, 196 Ariz. at 379 ¶ 38 (quoting United States v. Morrison, 449 U.S. 361,
365 (1981)). Exercising that discretion requires consideration of the
defendant’s constitutional rights as well as “society’s interest in the
administration of criminal justice,” necessitating a narrowly tailored
remedy “to avoid unnecessarily infringing on this societal interest.” Id.
(quoting Morrison).
¶13 Here, Stempel had a right to counsel to, among other things,
advise him about whether to consent to blood testing. State v. Stanley, 217
Ariz. 253, 258 ¶24 (App. 2007) (citing cases). But Stempel was not asked to
consent to blood testing. Accordingly, the question is whether the superior
court fashioned an appropriate remedy in light of its finding that Stempel
was denied his right to counsel for a period of time when he did not make
any incriminating statements and was not asked to (and did not consent to)
a blood draw. See Rumsey, 225 Ariz. at 378 ¶ 12. Reviewing the superior
court’s consideration of the appropriate remedy for an abuse of discretion,
Rosengren, 199 Ariz. at 116 ¶ 9, this court affirms.
CONCLUSION
¶14 Applying these standards, as set forth in the separate
memorandum decision, Stempel’s convictions and resulting sentences are
affirmed.
MATTHEW J. MARTIN • Clerk of the Court
FILED: JR
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