JOSE CARRILLO v. HON. HOUSER/PHOENIX CITY PROSECUTOR'S OFFICE
Annotate this Case
Download PDF
SUPREME COURT OF ARIZONA En Banc JOSE CARRILLO, ) ) Petitioner, ) ) v. ) ) THE HONORABLE ROBERT HOUSER, ) JUDGE OF THE SUPERIOR COURT OF ) THE STATE OF ARIZONA, in and for ) the County of Maricopa, ) ) Respondent Judge, ) ) ) PHOENIX CITY PROSECUTOR'S OFFICE, ) ) ) Real Party in Interest. ) ) __________________________________) Arizona Supreme Court No. CV-09-0285-PR Court of Appeals Division One No. 1 CA-SA 09-0042 Maricopa County Superior Court No. LC2008-000551-001 DT Phoenix Municipal Court No. 20079002017 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 By Nicole T. Farnum Attorney for Jose Carrillo Tempe AARà N J. CARREà N-Aà NSA, PHOENIX CITY PROSECUTOR By Gary L. Shupe, Assistant City Prosecutor Attorneys for Phoenix City Prosecutor s Office Phoenix LAW OFFICE OF STEPHEN PAUL BARNARD, P.C. By Stephen Paul Barnard Tucson 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 determine submit alcohol to testing, concentration such or as drug a blood draw, to If the content. arrestee refuses the test and the statute deems a failure to expressly agree to be a refusal - the arrestee s license is administratively suspended. generally does not administer the test We authorize without today law a hold that enforcement warrant unless the statute officers the to arrestee expressly agrees to the test. I. ¶2 Arizona s implied consent law begins by stating that a person who consent to operates a test a motor for the vehicle purpose in of this state determining gives alcohol concentration or drug content if he or she is arrested for 2 driving . . . under A.R.S. § 28-1321(A).1 the influence of [alcohol] or drugs. 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. ¶3 Police officers arrested Jose under the influence and related offenses. Id. § 28-1321(D)(1).2 Carrillo for driving He was taken to a DUI van, where further action was delayed because Carrillo vomited for about thirty minutes. steps of the van, an While Carrillo was sitting on the 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 evidentiary the hearing, results his blood testified Carrillo of that test. he At spoke an 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 Spanish certified translators, they communicated Carrillo by gesturing and using basic Spanish. with 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. and other offenses. The Carrillo was convicted of DUI superior court affirmed, rejecting Carrillo s argument that the blood draw violated A.R.S. § 281321. ¶6 The court of appeals jurisdiction and granted relief. 356, 214 P.3d 444 (App. 2009). accepted special action Carrillo v. Houser, 222 Ariz. The court held that A.R.S. § 284 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. this issue, we Recognizing the statewide importance of 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 improperly The City Prosecutor argues that the court of appeals 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. ¶9 We consider these arguments in turn. 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 consent, without 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 6 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 (D) Giving force to the language of subsections (B) and does consent not vitiate noted in subsections subsection (A) (A) and (C). statutorily The disclaims asserted right by an arrestee to refuse testing. (B) allows agreeing) arrestees with suspension. the to refuse consequence consent of (by implied any Subsection not expressly administrative license Subsection (D) then makes clear that the statute does not itself authorize warrantless testing upon an arrestee s refusal. Subsection incapable of refusal, (C), which does not concerns affect arrestees the who provisions are 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 subsection (D). of that subsection and refuses in 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 because of intoxication. Ariz. 495, 498, 799 menace to themselves and others Sherrill v. Dep t of Transp., 165 P.2d 836, 839 (1990). One way the legislature chose to achieve this goal was by providing for the prompt suspension testing. of the licenses of arrestees who refuse Rather than statutorily authorizing the warrantless administration of tests on such persons, the legislature instead deemed a expanding sanctions. failure the to class expressly of agree arrestees to be subject a to refusal, administrative 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 thus 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. ¶15 Id. This statutory framework was not unique to Arizona. Many other states adopted implied consent statutes providing that arrestees warrantless who refuse testing administratively but suspended. testing would would See Tina not have W. be subject their Cafaro, to licenses 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, 9 Arizona s statute did not 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. (1971). whether This an 106 Ariz. 542, 553, 479 P.2d 685, 696 definition, officer however, reasonably generated believed that litigation a motorist over had refused to submit. See, e.g., Willis v. State, 145 Ariz. 302, 304-05, 10, 701 legislature P.2d amended the 12-13 (App. implied 1985). consent law In and 1987, the 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 socalled medical purposes exception. See 1984 Ariz. Sess. Laws, ch. 257, §§ 1-2 (2d Reg. Sess.), now codified in A.R.S. § 281388(E) (2004); see also State v. Cocio, 147 Ariz. 277, 285-87, 709 P.2d 1336, 1344-46 (1985) 10 (interpreting this provision). 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 Court Neither the implied consent law nor decisions by this have subsection ever (A) suggested authorizes that the warrantless consent testing arrested for driving under the influence. referenced of all in persons Instead, the statute has always provided that an arrestee may refuse to submit to tests but that doing arrestee s license. that an arrestee s so will result in the loss of the Over time, the legislature has clarified 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 agree to warrantless testing. that an arrestee expressly Expressly, as we have noted in another context, means in direct or unmistakable terms and not merely implied or left to inference. 11 In re Estelle s Estate, 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. A.R.S. § The court of appeals unanimously concluded that 28-1321 to the Carillo, 222 Ariz. at 357 ¶ 1, 214 P.3d at 445. testing. requires Carrillo s actual consent 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 Carrillo s consent. the record sufficiently establishes 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 Schmerber). implied consent law as meritless in light of 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 13 _____________________________________ A. John Pelander, Justice 14
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
