Cited by

¶¶ 8–10 (App. 2005) (failing to address alternative grounds for a ruling may result in waiver of the issue altogether).

This standard is one of probability or substantial likelihood, not certainty, and “depends on the totality of the circumstances.” Morris, (“Probable cause is something less than the proof needed to convict and something more than suspicions.” ()).

¶ 24 (App. 2005) (waiver is a procedural concept this court does not “rigidly employ in mechanical fashion”).

State v. Aleman , , ¶ 15, (quoting State v. Howard , , 50, , 1238 (App. 1989) ).

See State v. Aleman , , ¶ 24, , 579 (App. 2005) ("[W]aiver is a procedural concept that courts do not rigidly employ in mechanical fashion.").

“[W]aiver is a procedural concept that courts do not rigidly employ in mechanical fashion,” and we may employ our discretion when determining whether “to address a significant, albeit waived, issue,” n.2, n.2 (App. 2010).

(noting “pertinent Arizona cases clearly refute” argument that there were no exigent circumstances justifying medical blood draw); (declining invitation to address Cocio because court of appeals is “bound

§ 28- 1388(E).” ¶ 11 (App. 2005).

¶25 Because law enforcement is not required “to show that the operator was *453 in fact under the influence!,] only the probability and not a prima facie showing of intoxication is the standard for probable cause.” , 237 ¶ 15, (citation omitted).

But cf., ¶ 10 (App. 2005) (appellate court has discretion in whether to consider dispositive issues not raised in opening brief).

¶15 While probable cause is generally required for a seizure to be reasonable under the Fourth Amendment, Dunaway v. New York, 442 U.S. 200, 213 (1979), “[p]robable cause is something less than the proof needed to convict and something more than suspicions.” ¶ 15

See Harakaly, 734 F.3d at 96 (trial court’s finding defendant responsible for more than fifty grams of methamphetamine harmless where overwhelming evidence indicated greater weights); (Blakely error in trial court’s findings of sentencing aggravators harmless where evidence indisputably showed victims were minors and defendant had prior conviction).

In the DUI context, “probable cause does not require law enforcement ‘to show that the operator was in fact under the influence’; ‘[o]nly the probability and not a prima facie showing of intoxication is the standard for probable cause.’” quoting Smith v. Ariz. Dep’t of Transp., (alteration in Aleman).

Additionally, waiver is a procedural concept that we “do not rigidly employ in [a] mechanical fashion,” and we may use our discretion in determining whether to address issues not raised below, see Kinney, n.2, 241 P.3d at 918 n.2.

("[W]aiver is a procedural concept that courts do not rigidly employ in mechanical fashion.”); , (appellate court may address argument otherwise waived); n. 8 , , 1145 n

(“[W]aiver is a procedural concept that courts do not rigidly employ in mechanical fashion.”); n. 8 , , 1145 n. 8 (App.2009) (“ ‘If application of a legal principle, even if not raised below, would dispose of an action on appeal and

We address appellants’ statutory arguments first “because courts should decide cases on nonconstitutional grounds if possible and should determine a[n] [ordinance’s] constitutionality only if absolutely necessary.” , see also City of Tempe v. Outdoor Sys., Inc., , (“[T]he constitutionality of a statute or ordinance becomes an issue only if it is necessary to resolve the issue to decide the ease.”).

We address appellants’ statutory arguments first “because courts should decide cases on nonconstitutional grounds if possible and should determine a[n] [ordinance’s] constitutionality only if absolutely necessary.” see also City of Tempe v. Outdoor Sys., Inc., (“[T]he constitutionality of a statute or ordinance becomes an issue only if it is necessary to resolve the issue to decide the case.”).

See, ¶ 4 , (arguments not presented until the reply brief will not be considered); ¶ 9 , (same).

Co., , (arguments not presented until reply brief may not be considered by appellate court); , (generally, an appellant may not raise issues for the first time in a reply brief; if appellant does so, appellate court may disregard the new substantive issues raised).

Support Found., Inc., , depublished by , and by disregarding this Court's opinion in State ex rel.

2004) (effect of admission tantamount to jury waiver and absent express, knowing waiver, use of aggravating factors not found by jury invalid); ¶ 42 , (Florez, J., concurring in part and dissenting in part) (finding Boykin standard must be satisfied before defendant’s admissions of fact may be used for sentencing enhancements).

See Apprendi, 530 U.S. at 490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455 (“[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.”) (emphasis added); (misdemeanor convictions Blakely exempt if secured in a Sixth Amendment-compliant manner).

In addition, “it is now clear that Blakely’s analysis and conclusion apply with equal force to Arizona’s sentencing structure under § 13-702(B) and (C).” n.6, n.6 (App. 2005).

(Flórez, J., concurring in part and dissenting in part) (finding Boykin standard must be satisfied before defendant’s admissions of fact may be used for sentencing purposes); Aleman , ¶ 39 (Es-pinosa, J., specially concurring) (rejecting notion that “routine stipulation or admissio