Opinion
No. 1 CA-CR 13-0896
01-13-2015
STATE OF ARIZONA, Appellee, v. JONATHAN LEE DUFFY, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Jana Zinman Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Paul J. Prato Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2012-102201-001
The Honorable Jerry Bernstein, Judge Pro Tempore
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Jana Zinman
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Paul J. Prato
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Peter B. Swann delivered the decision of the Court, in which Judge Kenton D. Jones and Judge Michael J. Brown joined. SWANN, Judge:
¶1 Jonathan Lee Duffy appeals from his convictions of four counts of aggravated DUI. The sole issue raised on appeal is whether the trial court abused its discretion when it denied Duffy's motion to suppress his blood/breath-alcohol-concentration test results. Duffy argues that because he was not arrested for DUI, the provision of Arizona's implied consent statute that penalizes individuals who refuse consent after an arrest did not apply to him. See A.R.S. § 28-1321 (2014). He reasons that because his consent to testing was given out of fear of those penalties, his consent was involuntary.
¶2 We affirm. Duffy was arrested for an offense arising out of acts committed while he was in actual physical control of a motor vehicle and under the influence of intoxicating liquor, as described in subsection (A) of the implied consent statute. Because his arrest fell within the scope of the implied consent statute, we perceive no defect in the manner in which the state obtained his consent.
FACTS AND PROCEDURAL HISTORY
¶3 On the day of Duffy's arrest, officers from the Glendale Police Department were at a convenience store conducting an investigation when Sergeant Livingston observed Duffy carrying a box of beer across the store's parking lot. He then saw Duffy open and drink a beer from the box. Duffy put the box of beer in the trunk of his car and appeared to sway back and forth. He then sat in the driver's seat of his car, put the key in the ignition, and started the car. Sgt. Livingston knocked on the passenger window and told Duffy he couldn't let him drive away because he had seen Duffy drink a beer. Sgt. Livingston testified that Duffy exhibited signs of possible alcohol impairment, including slurred speech and the odor of alcohol on his breath. The officer told Duffy to wait on the curb until he could determine whether Duffy was impaired.
¶4 For a few minutes, Duffy waited on the curb while Sgt. Livingston continued with his other investigation. Duffy then fled and jumped into a backyard across the street. Sgt. Livingston instructed other officers at the scene to pursue Duffy and detain him because they had cause to arrest him for "at least drinking in public and now . . . potentially criminal trespass into somebody's yard." Once Duffy had been apprehended, Sgt. Livingston "made the determination that [they] were going to arrest him for criminal trespass." Duffy was handcuffed, transported to the Glendale Police Department, placed in a booking facility where arrestees are held, and informed he had been arrested. Sgt. Livingston then instructed Officer Johnston, who was assigned to the DUI Motor Squad, to go to the booking facility and investigate Duffy for a possible DUI. Ofc. Johnston also observed that Duffy smelled of alcohol and had watery and glassy eyes.
¶5 Believing that Duffy had been placed under arrest for DUI, Ofc. Johnston did not take any additional steps to arrest him for a DUI offense. Instead, he read Duffy the A.R.S. § 28-1321 admonishments, explaining that if he refused to submit to blood and breath tests, or if he failed to complete either test, his license could be suspended for up to two years. Duffy consented to the blood and breath tests. His test results showed that his blood contained an alcohol concentration of .196 and his breath contained an alcohol concentration of .187.
¶6 Before trial, Duffy filed a motion to suppress the test results. He argued that the implied consent statute only becomes operative when someone is arrested for DUI; because he was not arrested for DUI, the statute and its "admonishments" did not apply to him. The trial court denied the motion.
We note that Duffy's contention that he only consented to the tests out of fear of having his driver's license revoked is questionable. At the time of his arrest, his license had already been suspended for the past five years, and Duffy was aware of 10 other active suspensions on his license. Because we conclude that the statute applies in this case as a matter of law, we need not address this factual question.
¶7 Duffy was convicted of four counts of aggravated DUI. He timely appeals.
STANDARD OF REVIEW
¶8 We review the denial of a motion to suppress for a clear abuse of discretion, viewing the evidence presented at the suppression hearing in the light most favorable to affirming the superior court's ruling. State v. Moore, 183 Ariz. 183, 186, 901 P.2d 1213, 1216 (App. 1995). We defer to the court's factual findings, but review de novo mixed questions of law and fact and the court's ultimate legal conclusions. See State v. Teagle, 217 Ariz. 17, 22, ¶ 19, 170 P.3d 266, 271 (App. 2007).
DISCUSSION
¶9 "[A] compelled blood draw, even when administered pursuant to § 28-1321, is a search subject to the Fourth Amendment's constraints." State v. Butler, 232 Ariz. 84, 87, ¶ 10, 302 P.3d 609, 612 (2013). "[T]he Fourth Amendment requires an arrestee's consent to be voluntary to justify a warrantless blood draw." Id. at ¶ 18, 302 P.3d at 613. Additionally, law enforcement may not administer a breathalyzer test without a warrant unless the arrestee expressly agrees to the test. See Carrillo v. Houser, 224 Ariz. 463, 463, ¶ 1, 232 P.3d 1245, 1245 (2010).
¶10 A.R.S. § 28-1321(A) provides:
A person who operates a motor vehicle in this state gives consent . . . to a test . . . of the person's blood [or] breath . . . for the purpose of determining alcohol concentration . . . if the person is arrested for any offense arising out of acts alleged to have been committed in violation of this chapter . . . while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs.By its terms, the statute applies not only to persons arrested for DUI, but more broadly to those arrested for "any offense arising out of" acts committed in violation of Title 28, Chapter 4, while driving or in actual physical control of a motor vehicle under the influence.
¶11 Though Duffy was first arrested for criminal trespass and not DUI, his arrest arose out of acts committed in violation of Title 28, Chapter 4, while he was in actual physical control of a motor vehicle and under the influence. Sgt. Livingston observed Duffy, after drinking a beer, put the keys in the ignition of a car, start the car, and put it in reverse. Suspecting that Duffy was intoxicated and attempting to drive, Sgt. Livingston asked Duffy to exit his vehicle and wait on the curb until he could determine whether Duffy was impaired. Duffy was under the influence of intoxicating liquor as evidenced by the results of his blood/breath-alcohol-concentration tests. Duffy was being detained for a suspected violation of Title 28, Chapter 4, while he was in actual physical control of a motor vehicle and under the influence when he ran away from Sgt. Livingston and committed criminal trespass. Duffy's flight from Sgt. Livingston "arose out of" that detention. We therefore conclude that A.R.S. § 28-1321 applied to the arrest, and reject Duffy's argument.
CONCLUSION
¶12 For the foregoing reasons, we affirm Duffy's convictions and sentences.