Opinion
No. 2 CA-CR 2015-0293
02-06-2017
THE STATE OF ARIZONA, Appellee, v. MANUEL DE JESUS ORDUNO-ROCHIN, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By David A. Sullivan, Assistant Attorney General, Tucson Counsel for Appellee Dean Brault, Pima County Legal Defender By Alex Heveri, Assistant Legal Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24. Appeal from the superior court in Pima county
No. CR20142923001
The Honorable Javier Chon-Lopez, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By David A. Sullivan, Assistant Attorney General, Tucson
Counsel for Appellee Dean Brault, Pima County Legal Defender
By Alex Heveri, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Staring and Judge Miller concurred. ESPINOSA, Judge:
¶1 After a jury trial, Manuel De Jesus Orduno-Rochin was convicted of one count aggravated driving under the influence (DUI), and one count aggravated driving with a blood alcohol concentration (BAC) of .08 or more, both committed while his license was restricted. The trial court sentenced him to four months in prison followed by probation. On appeal, Orduno-Rochin contends the trial court erred in denying his motion to suppress evidence, arguing the warrantless breath test administered after his arrest was the result of "involuntary" consent and in violation of his federal and state constitutional rights because the "admin per se" advisory read to him by the arresting officer was unduly coercive. For the following reasons, we affirm.
Factual and Procedural Background
¶2 We discuss only those facts relevant to the suppression ruling challenged on appeal, State v. Navarro, 240 Ariz. 552, ¶ 2, 382 P.3d 1234, 1235 (App. 2016), viewing them "in the light most favorable to sustaining the trial court's ruling," State v. Valenzuela, 239 Ariz. 299, ¶ 3, 371 P.3d 627, 629 (2016), quoting State v. Hausner, 230 Ariz. 60, ¶ 23, 280 P.3d 604, 614 (2012). On July 4, 2014, Orduno-Rochin was stopped by a police officer for speeding. He "stagger[ed]" as he got out of the car, emitted a "strong" to "moderate" odor of alcohol from his breath, and admitted he had been drinking. After conducting a "DUI investigation," the officer arrested Orduno-Rochin and read him an "admin per se" form, which erroneously stated he was "require[d] . . . to submit to and successfully complete tests of breath, blood, or other bodily substance." Cf. Valenzuela, 239 Ariz. 299, ¶¶ 5, 28-30, 371 P.3d at 629, 636 (identical language in admin per se form found erroneous). Orduno-Rochin then agreed to submit to a breath test, which revealed his BAC was .232 percent.
¶3 Orduno-Rochin was charged with aggravated driving under the influence, while his license was suspended, revoked or restricted, and aggravated driving with a BAC of .08 or more while his license was suspended, revoked or in violation of a restriction. Before trial, he moved to suppress the breath test, arguing it was obtained as "a result of coerced 'consent,'" which he contended was based on a misrepresentation contained in the "admin per se" form. The trial court denied the motion, Orduno-Rochin was convicted and sentenced as described above, and this appeal followed.
He was also charged with aggravated DUI having committed two or more prior DUI violations and aggravated driving with a BAC of .08 or more having committed two or more prior DUI violations, but those charges were eventually dismissed by the state.
¶4 While his appeal was pending, our supreme court issued Valenzuela, in which the court held the state must demonstrate more than mere acquiescence to an officer's inaccurate admonition that Arizona law requires submission to chemical tests for DUI in order to prove voluntary consent. 239 Ariz. 299, ¶¶ 2, 28-30, 371 P.3d at 629, 636. The court reasoned that a chemical test for DUI constituted a warrantless search prohibited by the Fourth Amendment "unless one of a few well-established exceptions applies," and voluntary consent was the only exception considered by the court. Id. ¶¶ 10, 12. Two months after Valenzuela was decided, however, the United States Supreme Court announced a categorical rule that "the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving." Birchfield v. North Dakota, ___ U.S. ___, ___, 136 S. Ct. 2160, 2184 (2016). The parties submitted supplemental briefing addressing the application of these cases, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Admissibility of Warrantless Breath Test Results
¶5 On appeal, Orduno-Rochin argues the warrantless breath test violated the Fourth Amendment and the results must be suppressed because they were obtained through coercion and "constitutionally involuntary 'consent.'" The state contends that the search was proper under the Supreme Court's recent decision in Birchfield, ___ U.S. ___, 136 S. Ct. 2160. In reply, Orduno-Rochin asserts that Birchfield "is not necessarily binding on Arizona" in light of article II, § 8 of the Arizona Constitution, which "can be interpreted to afford Arizona citizens with more rights than the [U.S. Constitution]" and therefore Valenzuela's "full holding is binding on this [c]ourt."
¶6 The Fourth Amendment does not require suppression of Orduno-Rochin's BAC results because, as Birchfield held, "a warrantless breath test is allowed as a search incident to a lawful [drunk driving] arrest." Navarro, 240 Ariz. 552, ¶ 4, 382 P.3d at 1236, citing Birchfield, ___ U.S. at ___, 136 S. Ct. at 2184. Orduno-Rochin was administered the warrantless test after his arrest for DUI, the lawfulness of which he does not contest, and the test results were therefore admissible regardless of whether his consent was voluntary. See Birchfield, ___ U.S. at ___, 136 S. Ct. at 2184; Navarro, 240 Ariz. 552, ¶ 4, 382 P.3d at 1236. Furthermore, in light of Birchfield's broad holding, questions concerning the voluntariness of Orduno-Rochin's consent to the test are no longer relevant to the Fourth Amendment issue because the test results squarely fall under the separate search-incident-to-arrest exception. See Navarro, 240 Ariz. 552, ¶¶ 6-7, 382 P.3d at 1236; cf. Arizona v. Gant, 556 U.S. 332, 338 (2009) (warrantless search per se unreasonable under Fourth Amendment unless one of few well-established exceptions applies, including a search incident to a lawful arrest). Therefore, proof of voluntariness was not required.
¶7 Nor does article II, § 8 of the Arizona Constitution provide Orduno-Rochin any greater protection from warrantless breath tests. We recently addressed an identical argument and observed that our supreme court has "long recognized that a search incident to a lawful arrest does not require any warrant and that non-invasive breath tests for DUI arrestees fall within this exception." Navarro, 240 Ariz. 552, ¶¶ 4-5, 382 P.3d at 1236 (citations omitted). We concluded "[t]hese precedents foreclose the argument that article II, § 8 of the Arizona Constitution provides greater privacy protection than the federal constitution with regard to DUI breath testing." Id. Because the warrantless breath test to which Orduno-Rochin submitted did not violate any provision of the United States or Arizona Constitutions, the exclusionary rule is inapplicable and the trial court therefore did not err in denying his motion to suppress. See Navarro, 240 Ariz. 552, ¶ 6, 382 P.3d at 1236.
We also reject Orduno-Rochin's argument that article II, § 10 of the Arizona Constitution "provides even greater protection" because it states "[n]o person shall be compelled in any criminal case to give evidence against himself." Our supreme court concluded long ago that mandatory breath tests for DUI do not violate article II, § 10. State v. Berg, 76 Ariz. 96, 99, 259 P.2d 261, 263 (1953), overruled in part on other grounds by State v. Pena, 94 Ariz. 243, 383 P.2d 167 (1963); see also South Dakota v. Neville, 459 U.S. 553, 560, 564 (1983) (implied consent laws do not unconstitutionally coerce drivers into providing self-incriminating evidence in violation of Fifth Amendment).
Orduno-Rochin additionally maintains that the implied consent statute, A.R.S. § 28-1321, is only applicable to administrative hearings and "the fruits of it cannot be used in a criminal prosecution." He also contends that the admin per se advisory that the officer read to him violated that statute. He has not, however, developed any argument that a violation of § 25-1321 alone requires the suppression of evidence in a criminal trial, but only that the violation rendered his consent involuntary. Because these arguments go to the premise that consent is required for the results of a warrantless breath test to be admissible, we need not address them further. See Birchfield, ___ U.S. at ___, 136 S. Ct. at 2184. --------
Disposition
¶8 For the foregoing reasons, Orduno-Rochin's convictions and sentences are affirmed.