Carrillo v. Houser

SUPREME COURT OF ARIZONA
En Banc

JOSE CARRILLO, ) Arizona Supreme Court
) No. CV-09-0285-PR
Petitioner, )
) Court of Appeals
v. ) Division One
) No. 1 CA-SA 09-0042
THE HONORABLE ROBERT HOUSER, )
JUDGE OF THE SUPERIOR COURT OF ) Maricopa County
THE STATE OF ARIZONA, in and for ) Superior Court
the County of Maricopa, ) No. LC2008-000551-001 DT
)
Respondent Judge, ) Phoenix Municipal Court
) No. 20079002017
)
PHOENIX CITY PROSECUTOR'S OFFICE, )
)
)
Real Party in Interest. ) O P I N I O N
)
__________________________________)

Appeal from the City of Phoenix Municipal Court
The Honorable Carol Berry, Judge

REMANDED
________________________________________________________________

Special Action from the Superior Court in Maricopa County
The Honorable Robert C. Houser, Judge

VACATED
________________________________________________________________

Opinion of the Court of Appeals, Division One
222 Ariz. 356, 214 P.3d 444 (2009)

VACATED
________________________________________________________________

LAW OFFICE OF NICOLE FARNUM Tempe
By Nicole T. Farnum
Attorney for Jose Carrillo
AARÓN J. CARREÓN-AÍNSA, PHOENIX CITY PROSECUTOR Phoenix
By Gary L. Shupe, Assistant City Prosecutor
Attorneys for Phoenix City Prosecutor’s Office

LAW OFFICE OF STEPHEN PAUL BARNARD, P.C. Tucson
By Stephen Paul Barnard

And

THE LAW FIRM OF NESCI & ST. LOUIS, P.L.L.C. Tucson
By Joseph P. St. Louis
Attorneys for Amicus Curiae Arizona Attorneys for
Criminal Justice
________________________________________________________________

B A L E S, Justice

¶1 Under Arizona’s implied consent law, A.R.S. § 28-1321

(Supp. 2009), a person arrested for driving under the influence

is asked to submit to testing, such as a blood draw, to

determine alcohol concentration or drug content. If the

arrestee refuses the test – and the statute deems a failure to

expressly agree to be a refusal - the arrestee’s license is

administratively suspended. We today hold that the statute

generally does not authorize law enforcement officers to

administer the test without a warrant unless the arrestee

expressly agrees to the test.

I.

¶2 Arizona’s implied consent law begins by stating that a

“person who operates a motor vehicle in this state gives

consent” to a test “for the purpose of determining alcohol

concentration or drug content” if he or she is arrested for

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“driving . . . under the influence of [alcohol] or drugs.”

A.R.S. § 28-1321(A).1 Despite this broad statement, the next

subsection of the statute provides, in part, that:

After an arrest a violator shall be requested to
submit to and successfully complete any test [to
determine alcohol concentration or drug content], and
if the violator refuses the violator shall be informed
that the violator’s license . . . will be suspended
. . . unless the violator expressly agrees to submit
to and successfully completes the test or tests. A
failure to expressly agree to the test or successfully
complete the test is deemed a refusal.

Id. § 28-1321(B). The statute also provides that if the

arrestee “refuses to submit” the test generally shall not be

given except pursuant to a search warrant. Id. § 28-1321(D)(1).2

¶3 Police officers arrested Jose Carrillo for driving

under the influence and related offenses. He was taken to a DUI

van, where further action was delayed because Carrillo vomited

for about thirty minutes. While Carrillo was sitting on the

steps of the van, an officer placed a large toolbox on

1
Although the arrest in this case occurred in 2006, we cite
the current version of the statute because intervening
amendments are not material to the issues presented.
2
Under A.R.S. § 28-1321(D)(1), tests may also be given as
provided in § 28-1388(E) (2004), which concerns samples of blood
or other bodily substances taken for other purposes, such as
when an individual receives medical care, and allows law
enforcement officers to obtain and test a sample without consent
or a search warrant. This “medical purposes exception” is not
at issue here. Also not at issue is A.R.S. § 28-1321(C), which
allows testing of persons who are dead, unconscious or otherwise
incapable of refusing a test.
3
Carrillo’s lap and another officer drew a blood sample. The

officers did not obtain a warrant before administering the test.

¶4 Before his trial in Phoenix Municipal Court, Carrillo

moved to suppress the results of his blood test. At an

evidentiary hearing, Carrillo testified that he spoke only

Spanish, the officers did not speak to him in Spanish, and he

did not consent to the blood draw but did not resist it because

he was afraid. The officers testified that although they were

not certified Spanish translators, they communicated with

Carrillo by gesturing and using basic Spanish. One officer said

that they told Carrillo they were “going to take his blood” and

he responded by holding out his arm. The officer also testified

that he said the Spanish word for blood when indicating he was

going to draw Carrillo’s blood and Carrillo did not resist the

test.

¶5 The municipal court denied the motion to suppress,

stating that nothing in Carrillo’s conduct indicated that he

refused to consent to the test. Carrillo was convicted of DUI

and other offenses. The superior court affirmed, rejecting

Carrillo’s argument that the blood draw violated A.R.S. § 28-

1321.

¶6 The court of appeals accepted special action

jurisdiction and granted relief. Carrillo v. Houser, 222 Ariz.

356, 214 P.3d 444 (App. 2009). The court held that A.R.S. § 28-
4
1321 does not allow a warrantless blood draw unless the suspect

“expressly agrees” to the test, and the “‘express agreement’

required by the statute must be affirmatively and unequivocally

manifested by words or conduct, and may not be inferred from a

suspect’s mere failure to communicate clear objection to the

test.” Id. at 357 ¶ 1, 214 P.3d at 445. The court vacated

Carrillo’s convictions and remanded to the municipal court to

determine whether Carrillo had consented to the blood draw under

the appropriate standard. Id. at 360 ¶ 14, 214 P.3d at 448.

Dissenting, Judge Irvine agreed that the implied consent law

generally does not authorize a blood draw without the person’s

consent or a warrant, but concluded that the record established

that Carrillo had consented. Id. at 360-62 ¶¶ 15-22, 214 P.3d

at 448-50.

¶7 The Phoenix City Prosecutor’s Office petitioned for

review, arguing that the court of appeals had misinterpreted the

implied consent law. Recognizing the statewide importance of

this issue, we granted review. We have jurisdiction under

Article 6, Section 5(3) of Arizona’s constitution and A.R.S.

§ 12-120.24 (2003).

II.

¶8 The City Prosecutor argues that the court of appeals

improperly “rewrote” A.R.S. § 28-1321 and ignored its two

provisions that imply consent to testing by impaired motorists.
5
This result, the Prosecutor contends, not only is contrary to

the statutory language, but also undermines the purpose of the

implied consent statute and conflicts with prior decisions by

this Court. We consider these arguments in turn.

¶9 As the Prosecutor notes, A.R.S. § 28-1321(A) declares

that a “person who operates a motor vehicle in this state gives

consent” to a test “for the purpose of determining alcohol

concentration or drug content” if he or she is arrested for

“driving . . . under the influence of [alcohol] or drugs.” In

turn, A.R.S. § 28-1321(C) provides that “[a] person who is dead,

unconscious or otherwise in a condition rendering the person

incapable of refusal is deemed not to have withdrawn the consent

provided by subsection A . . . and the test or tests may be

administered.” If a blood draw can be taken from an unconscious

person without consent, the Prosecutor argues, no different

result can obtain when the arrestee is simply silent.

¶10 These provisions of the implied consent law, however,

cannot be interpreted in isolation from the rest of the statute.

The “consent” by motorists referenced in subsection (A) does not

always authorize warrantless testing of arrestees. The

legislature has explicitly provided otherwise in subsections (B)

and (D). Notwithstanding subsection (A), subsection (B)

requires that the law enforcement officer “shall” request the

arrestee to submit to a test and, if the arrestee “refuses,” the
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officer must explain that the arrestee’s license will be

suspended unless the arrestee “expressly agrees to submit to and

successfully completes the test.” Id. § 28-1321(B). Subsection

(B) also specifies that “[a] failure to expressly agree to the

test or successfully complete the test is deemed a refusal.”

Id. Subsection (D) then states that, “[i]f a person under

arrest refuses to submit to the test,” the test “shall not be

given . . . [unless] pursuant to a search warrant.” Id. § 28-

1321(D)(1).

¶11 Giving force to the language of subsections (B) and

(D) does not vitiate subsections (A) and (C). The implied

consent noted in subsection (A) statutorily disclaims any

asserted “right” by an arrestee to refuse testing. Subsection

(B) allows arrestees to refuse consent (by not expressly

agreeing) with the consequence of administrative license

suspension. Subsection (D) then makes clear that the statute

does not itself authorize warrantless testing upon an arrestee’s

refusal. Subsection (C), which concerns arrestees who are

incapable of refusal, does not affect the provisions in

subsections (B) or (D) regarding arrestees who can refuse.

¶12 The Prosecutor also suggests that the requirement in

subsection (B) that an arrestee expressly agree to a test only

applies to those initially refusing a test. This argument,

however, implies that the word “refuses” in the first sentence
7
of subsection (B) means something different from “refusal” in

the second sentence of that subsection and “refuses” in

subsection (D). The more plausible interpretation is that the

legislature intended the words to mean the same thing when used

in different subsections of the same statute.

¶13 Interpreting the implied consent law generally to

require that an arrestee expressly agree to warrantless testing

also comports with the statutory purpose. The key purpose of

the implied consent law “is to remove from Arizona highways

those drivers who may be a menace to themselves and others

because of intoxication.” Sherrill v. Dep’t of Transp., 165

Ariz. 495, 498, 799 P.2d 836, 839 (1990). One way the

legislature chose to achieve this goal was by providing for the

prompt suspension of the licenses of arrestees who refuse

testing. Rather than statutorily authorizing the warrantless

administration of tests on such persons, the legislature instead

deemed a failure to expressly agree to be a refusal, thus

expanding the class of arrestees subject to administrative

sanctions. As this Court explained in Sherrill:

The sanction of administrative license suspension for
refusal to submit to the test was enacted to assure
that licenses of dangerous drivers are revoked
quickly, and to increase the certainty that a drunk
driver receives a penalty even if that driver provided
no evidence of intoxication. The “consent” aspect of
the statute also assures that no physical violence or
coercion will occur against a person who is
noncooperative with a law officer’s effort to obtain
8
 necessary chemical evidence of intoxication.

Id. (internal citations omitted).

¶14 Our interpretation of the statute is confirmed by its

history and our prior decisions. The legislature first enacted

the implied consent law in 1969. 1969 Ariz. Sess. Laws, ch. 41,

§ 1 (1st Reg. Sess.). The statute then provided in subsection

(A) that persons operating a motor vehicle “shall be deemed to

have given consent” to testing if arrested for driving under the

influence, directed in subsection (B) that officers shall warn

an arrestee that his license will be suspended upon refusal to

submit to the test, and further declared in subsection (D) that

if a person “refuses” to submit to a test as provided in the

statute, no test “shall be given.” Id.

¶15 This statutory framework was not unique to Arizona.

Many other states adopted “implied consent” statutes providing

that arrestees who refuse testing would not be subject to

warrantless testing but would have their licenses

administratively suspended. See Tina W. Cafaro, Fixing the

Fatal Flaws in OUI Implied Consent Laws, 34 J. Legis. 99, 103-04

(2008) (discussing history of implied consent laws); Phillip T.

Bruns, Driving While Intoxicated and the Right to Counsel: The

Case Against Implied Consent, 58 Tex. L. Rev. 935, 941-44 (1980)

(same).

¶16 As originally enacted, Arizona’s statute did not
9
define the word “refuses.” This Court held in Campbell v.

Superior Court that a refusal occurs when “the conduct of the

arrested motorist is such that a reasonable person in the

officer’s position would be justified in believing that such

motorist was capable of refusal and manifested an unwillingness

to submit to the test.” 106 Ariz. 542, 553, 479 P.2d 685, 696

(1971). This definition, however, generated litigation over

whether an officer reasonably believed that a motorist had

refused to submit. See, e.g., Willis v. State, 145 Ariz. 302,

304-05, 701 P.2d 10, 12-13 (App. 1985). In 1987, the

legislature amended the implied consent law and adopted the

language that now appears in A.R.S. § 28-1321(B) providing that

“[a] failure to expressly agree to the test or successfully

complete the test is deemed a refusal.” 1987 Ariz. Sess. Laws,

ch. 262, § 2 (1st Reg. Sess.).

¶17 In addition to clarifying the meaning of refusal, the

legislature also amended the implied consent law to specify

circumstances in which tests may be administered even if the

arrestee refuses to submit. In 1984, the legislature added a

provision to subsection (D) allowing tests pursuant to the so-

called “medical purposes exception.” See 1984 Ariz. Sess. Laws,

ch. 257, §§ 1-2 (2d Reg. Sess.), now codified in A.R.S. § 28-

1388(E) (2004); see also State v. Cocio, 147 Ariz. 277, 285-87,

709 P.2d 1336, 1344-46 (1985) (interpreting this provision).
10
This Court subsequently held that the statute did not authorize

the administration of tests “solely as a result of a search

warrant” after an arrestee had refused to submit to the test.

Collins v. Superior Court, 158 Ariz. 145, 146, 761 P. 2d 1049,

1050 (1988). In response, the legislature again amended

subsection (D), adding language providing that tests may also be

administered “pursuant to a search warrant” if a person refuses

to submit. See 1990 Ariz. Sess. Laws, ch. 375, § 7 (2d Reg.

Sess.).

¶18 Neither the implied consent law nor decisions by this

Court have ever suggested that the “consent” referenced in

subsection (A) authorizes warrantless testing of all persons

arrested for driving under the influence. Instead, the statute

has always provided that an arrestee may refuse to submit to

tests but that doing so will result in the loss of the

arrestee’s license. Over time, the legislature has clarified

that an arrestee’s failure to expressly agree constitutes a

refusal, and that if the arrestee refuses, tests may not be

administered except under the medical purposes exception

identified in A.R.S. § 28-1388(E) or a search warrant.

¶19 The statute requires that an arrestee “expressly

agree” to warrantless testing. “Expressly,” as we have noted in

another context, means “in direct or unmistakable terms” and not

merely implied or left to inference. In re Estelle’s Estate,
11
122 Ariz. 109, 113, 593 P.2d 663, 667 (1979). Failing to

actively resist or vocally object to a test does not itself

constitute express agreement. Instead, to satisfy the statutory

requirement, the arrestee must unequivocally manifest assent to

the testing by words or conduct.

¶20 Whether Carrillo expressly agreed to the blood draw is

not before us. The court of appeals unanimously concluded that

A.R.S. § 28-1321 requires Carrillo’s actual consent to the

testing. Carillo, 222 Ariz. at 357 ¶ 1, 214 P.3d at 445. The

majority held that a remand is necessary so the municipal court

may determine, under the correct legal standard, whether

Carrillo agreed to the blood draw; one judge dissented in part

because he thought the record sufficiently establishes

Carrillo’s consent. Id. at 360 ¶¶ 14, 18, 214 P.3d at 448. The

Prosecutor did not seek review of the remand order, but instead

asked this Court to review only whether the court of appeals had

correctly interpreted the implied consent law to require express

agreement.

¶21 Other limits of our decision also merit comment. Our

holding reflects the requirements of A.R.S. § 28-1321; because

we resolve this case as a matter of statutory interpretation, we

need not address any constitutional issues raised by Carrillo.

Cf. South Dakota v. Neville, 459 U.S. 553, 559 (1983) (stating

that under Schmerber v. California, 384 U.S. 757 (1966), a state
12
may “force a person suspected of driving while intoxicated to

submit to a blood alcohol test”) (footnote omitted); Campbell,

106 Ariz. at 554, 479 P.2d at 697 (rejecting Fourth Amendment

challenge to implied consent law as meritless in light of

Schmerber). We also do not consider here circumstances in which

subsection (C) of the implied consent law or other statutes,

such as A.R.S. § 28-673(F) (Supp. 2009), may allow warrantless

testing of persons incapable of refusing a test.

III.

¶22 For the foregoing reasons, we vacate the opinion of

the court of appeals and remand this case to the municipal court

to determine whether Carrillo expressly agreed to the blood draw

in accordance with the implied consent law.

_____________________________________
W. Scott Bales, Justice

CONCURRING:

_____________________________________
Rebecca White Berch, Chief Justice

_____________________________________
Andrew D. Hurwitz, Vice Chief Justice

_____________________________________
Michael D. Ryan, Justice

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_____________________________________
A. John Pelander, Justice

14