SUPREME COURT OF ARIZONA
En Banc
THE STATE OF ARIZONA, ) Arizona Supreme Court
) No. CV-12-0402-PR
Petitioner, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-SA 12-0065
HON. JANE A. BUTLER, JUDGE PRO )
TEMPORE OF THE SUPERIOR COURT OF ) Pima County
THE STATE OF ARIZONA, in and for ) Superior Court
the County of Pima, ) No. JV19004301
)
Respondent Judge, )
)
TYLER B., ) O P I N I O N
)
Real Party in Interest. )
__________________________________)
Appeal from the Superior Court in Pima County
The Honorable Jane A. Butler, Commissioner Pro Tem
REMANDED
________________________________________________________________
Opinion of the Court of Appeals, Division Two
231 Ariz. 42, 290 P.3d 435 (2012)
REVERSED
________________________________________________________________
BARBARA LAWALL, PIMA COUNTY ATTORNEY Tucson
By Nicolette Kneup, Deputy County Attorney
Attorneys for State of Arizona
HERNANDEZ & ROBLES PC Tucson
By Joshua F. Hamilton
Attorneys for Tyler B.
ARIZONA ATTORNEYS FOR CRIMINAL JUSTICE Chandler
By David J. Euchner
Attorneys for Amicus Curiae Arizona Attorneys for Criminal
Justice
NESCI & ST LOUIS PLLC Tucson
By James Nesci
Attorneys for Amicus Curiae National College for DUI Defense,
Inc.
ACLU FOUNDATION OF ARIZONA Phoenix
By Daniel Pochoda
Kelly J. Flood
And
PERKINS COIE LLP Phoenix
By Jean-Jacques Cabou
Thomas D. Ryerson
Attorneys for Amicus Curiae ACLU Foundation of Arizona
JUVENILE LAW CENTER Philadelphia, PA
By Lourdes M. Rosado
And
NUCCIO & SHIRLY Tucson
By Jeanne Shirly
Attorneys for Amici Curiae Juvenile Law Center, Center on
Children and Families, Central Juvenile Defender Center,
Children and Family Justice Center, The Children’s Law Center
Inc., Children & Youth Law Clinic, Civitas ChildLaw Center,
Juvenile & Special Education Law Clinic/University of the
District of Columbia, Juvenile Justice Project of Louisiana,
Justice Policy Institute, National Association of Criminal
Defense Lawyers, National Center for Youth Law, National
Juvenile Defender Center, National Juvenile Justice Network,
Northeast Juvenile Defender Center, Pacific Juvenile Defender
Center, Public Defender Service for the District of Columbia,
Rutgers School of Law Camden Children's Justice Clinic, Rutgers
Urban Legal Clinic, San Francisco Office of the Public
Defenders, University of Michigan Juvenile Justice Clinic,
Neelum Arya, Tamara Birckhead, Susan L. Brooks, Michele Deitch,
Jeffrey Fagan, Barbara Fedders, Barry Feld, Frank Furstenberg,
Theresa Glennon, Martin Guggenheim, Kristin Henning, Randy
Hertz, Paul Holland, Julie E. McConnell, James R. Merikangas,
Wallace Mlyniec, Catherine J. Ross, Elizabeth Scott, Abbe Smith,
and Barbara Bennett Woodhouse
________________________________________________________________
B A L E S, Vice Chief Justice
¶1 Arizona’s implied consent statute, A.R.S. § 28-1321,
2
outlines how law enforcement officers can obtain consent to
blood and breath tests from persons arrested for driving under
the influence (“DUI”) and provides consequences for arrestees
who refuse to submit to a test. Against this backdrop, we
address whether the Fourth Amendment to the United States
Constitution requires that a juvenile arrestee’s consent be
voluntary to allow a warrantless blood draw. We hold that it
does and that the juvenile court properly ruled that evidence of
a blood draw was inadmissible because the juvenile did not
voluntarily consent.
I.
¶2 On February 17, 2012, Tyler B., a sixteen-year-old
high school student, and two friends arrived late to school. A
school monitor smelled marijuana on the boys and also saw drug
paraphernalia in Tyler’s car. School officials detained the
boys in separate rooms and contacted the sheriff’s office.
¶3 A deputy sheriff soon arrived and read Miranda
warnings to Tyler. In the presence of several school officials,
Tyler admitted that he had driven his car to school after
smoking marijuana and that he owned some of the drug
paraphernalia in the car. The deputy informed Tyler that he was
under arrest for DUI and other offenses. Tyler became agitated
and the deputy placed him in handcuffs. The deputy left Tyler
with the assistant principal for about ten minutes while
3
retrieving a phlebotomy kit to do a blood draw.
¶4 When the deputy returned to the room, he saw that
Tyler had calmed down, so he removed the handcuffs from the
youth. He read Tyler an “implied consent admonition” twice,
first verbatim and then in “plain English.” The admonition
provided in relevant part:
Arizona law requires you to submit to and successfully
complete tests of breath, blood or other bodily
substance as chosen by the law enforcement officer to
determine alcohol concentration or drug content. The
law enforcement officer may require you to submit to
two or more tests. You are required to successfully
complete each of the tests.
If the test results are not available . . . or
indicate any drug defined in ARS 13-3401 or its
metabolite, without a valid prescription, your Arizona
driving privilege will be suspended for not less than
90 consecutive days.
If you refuse to submit or do not successfully
complete the specified tests, your Arizona driving
privilege will be suspended for 12 months, or for two
years if there is a prior implied consent refusal,
within the last 84 months, on your record. You are,
therefore, required to submit to the specified tests.
Tyler agreed verbally and in writing to have his blood drawn,
and the deputy drew two vials of Tyler’s blood.
¶5 The State charged Tyler with DUI. Tyler moved to
suppress evidence of the blood draw, arguing that his consent
had not been voluntary and that, as a minor, he lacked the legal
capacity to consent. The juvenile court granted the motion,
finding that the blood draw violated Arizona’s Parents’ Bill of
4
Rights (“PBR”), A.R.S. § 1-602, and, notwithstanding the PBR,
that Tyler’s consent had been involuntary under the totality of
the circumstances. The court relied in part on In re Andre M.,
in which this Court recognized the “increased susceptibility and
vulnerability of juveniles” in assessing whether a juvenile’s
confession was voluntary under the Fifth Amendment to the United
States Constitution. 207 Ariz. 482, 485 ¶ 9, 88 P.3d 552, 555
(2004).
¶6 On the State’s petition for special action relief, the
court of appeals reversed the juvenile court’s ruling. State v.
Butler, 231 Ariz. 42, 45 ¶ 11, 290 P.3d 435, 438 (App. 2012).
The court first held that the PBR did not apply because the
deputy was acting within the scope of his official duties. Id.
at 44 ¶ 6, 290 P.3d at 437. It then held that the Fifth
Amendment did not apply because the blood was not testimonial
evidence. Id. at 45 ¶ 10, 290 P.3d at 438. Stating that “the
informed consent statute presents no Fourth Amendment issue,”
the court of appeals held that the juvenile court abused its
discretion in suppressing the blood draw evidence. Id. ¶ 10
n.6.
¶7 We granted review because this case raises questions
of first impression and statewide importance. We have
jurisdiction under Article 6, Section 5(3) of Arizona’s
Constitution and A.R.S. § 12-120.24.
5
II.
¶8 The Fourth Amendment provides, “The right of the
people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not
be violated . . . .” U.S. Const. amend. IV. Evidence obtained
in violation of the Fourth Amendment is properly suppressed.
Mapp v. Ohio, 367 U.S. 643, 655 (1961). Trial court rulings on
motions to suppress are reviewed for abuse of discretion. See
State v. Hausner, 230 Ariz. 60, 70 ¶ 23, 280 P.3d 604, 614
(2012). “We consider the evidence presented at the suppression
hearing and view the facts in the light most favorable to
sustaining the trial court’s ruling.” Id.
¶9 Tyler argues that a blood draw is a search subject to
the Fourth Amendment and, to be valid, requires either a warrant
or an exception such as voluntary consent. The State responds
that every Arizona motorist gives “implied consent” under § 28-
1321 and that tests administered under the statute are not
subject to a Fourth Amendment voluntariness analysis. The State
further argues that “adult privileges carry adult
responsibilities,” and thus juveniles should not be treated
differently from adults in assessing the voluntariness of
consent to a blood draw.
¶10 Contrary to the State’s argument, a compelled blood
draw, even when administered pursuant to § 28-1321, is a search
6
subject to the Fourth Amendment’s constraints. See Missouri v.
McNeely, 133 S. Ct. 1552, 1556 (2013) (holding that a compelled
blood draw taken pursuant to Missouri’s implied consent law is
subject to the Fourth Amendment’s restrictions on warrantless
searches). “Such an invasion of bodily integrity implicates an
individual’s ‘most personal and deep-rooted expectations of
privacy.’” Id. at 1558 (quoting Winston v. Lee, 470 U.S. 753,
760 (1985)).
¶11 McNeely also forecloses the State’s arguments that
requiring warrants for blood draws will unduly burden law
enforcement officials or render Arizona’s implied consent law
meaningless. “In those drunk-driving investigations where
police officers can reasonably obtain a warrant before a blood
sample can be drawn without significantly undermining the
efficacy of the search, the Fourth Amendment mandates that they
do so.” Id. at 1561.
¶12 In general, under the Fourth Amendment, warrantless
searches “are per se unreasonable . . . subject only to a few
specifically established and well-delineated exceptions.”
Arizona v. Gant, 556 U.S. 332, 338 (2009). One such exception
is exigent circumstances, but the State has not argued that this
exception authorized the blood draw here.
¶13 Consent can also allow a warrantless search, provided
the consent is voluntary. Schneckloth v. Bustamonte, 412 U.S.
7
218, 226-28 (1973). Voluntariness is assessed from the totality
of the circumstances. Id. at 227. Relevant circumstances
include the suspect’s age and intelligence as well as the length
of detention. See id. at 226-27, 229.
¶14 We reject the State’s contention that age should be
disregarded in assessing a juvenile’s consent to a blood draw.
In various contexts, the law recognizes a juvenile’s age as a
relevant consideration. See, e.g., J.D.B. v. North
Carolina, 131 S. Ct. 2394, 2399, 2406 (2011) (holding that
child’s age is relevant, although not necessarily determinative,
in assessing whether a child is in custody); Roper v. Simmons,
543 U.S. 551, 571-73 (2005) (recognizing the “diminished
culpability” of juveniles under 18 and holding that “[t]he
differences between juvenile and adult offenders are too marked
and well understood to risk allowing a youthful person to
receive the death penalty”). Juveniles tend to possess less
maturity and are “more vulnerable or susceptible to negative
influences and outside pressures.” Id. at 569-70. Courts
should not blind themselves to this reality when assessing the
voluntariness of consent to a blood draw.
¶15 Consent can be voluntary for purposes of the Fourth
Amendment in circumstances that would not establish
voluntariness under the Fifth Amendment. See Bustamonte, 412
U.S. at 234, 240 (holding that, although Miranda v. Arizona, 384
8
U.S. 436 (1966), requires an arrestee to be advised of right to
remain silent in order for waiver to be valid, knowledge of
right to withhold consent is just one factor in determining
voluntariness of a consent to search). But, when the accused is
a juvenile, factors such as age and the presence of parents are
properly considered when assessing the voluntariness of consent
to a search, just as they are relevant in assessing the
voluntariness of a confession. Cf. In re Andre M., 207 Ariz. at
485 ¶ 11, 88 P.3d at 555 (noting in the Fifth Amendment context
that parents can “help ensure that a juvenile will not be
intimidated, coerced or deceived”).
¶16 This Court has previously held that, for an officer to
administer a test of breath or bodily fluids on an arrestee
without a search warrant under § 28-1321, consent must be
express. Carrillo v. Houser, 224 Ariz. 463, 463 ¶ 1, 232 P.3d
1245, 1245 (2010). Carrillo turned, however, on statutory
grounds and did not address any constitutional issues. Id. at
467 ¶ 21, 232 P.3d at 1249.
¶17 The State unconvincingly argues that the “consent” in
§ 28-1321(A) either constitutes an exception to the warrant
requirement or satisfies the Fourth Amendment’s requirement that
consent be voluntary. We explained previously that “[t]he
‘consent’ by motorists referenced in subsection (A) does not
always authorize warrantless testing of arrestees.” Carrillo,
9
224 Ariz. at 465 ¶ 10, 232 P.3d at 1247. Rather, the officer is
directed to ask the arrestee to submit to the test, and the
arrestee may then refuse by declining to expressly agree to take
the test. A.R.S. § 28-1321(B); Carrillo, 224 Ariz. at 465 ¶ 11,
232 P.3d at 1247. If the arrestee refuses, the statute
specifies that a warrant is required to administer the test and
the arrestee shall have his license suspended. A.R.S. § 28-
1321(D); Carrillo, 224 Ariz. at 465 ¶ 11, 232 P.3d at 1247.
¶18 We hold now that, independent of § 28-1321, the Fourth
Amendment requires an arrestee’s consent to be voluntary to
justify a warrantless blood draw. If the arrestee is a
juvenile, the youth’s age and a parent’s presence are relevant,
though not necessarily determinative, factors that courts should
consider in assessing whether consent was voluntary under the
totality of the circumstances.
¶19 Voluntariness is a question of fact, Bustamonte, 412
U.S. at 248-49, and “[w]e review the trial court's voluntariness
finding for abuse of discretion,” State v. Cota, 229 Ariz. 136,
144 ¶ 22, 272 P.3d 1027, 1035 (2012) (reviewing voluntariness of
confession). The State has the burden of proving that consent
to a search is “freely and voluntarily given.” Bumper v. North
Carolina, 391 U.S. 543, 548-50 (1968).
¶20 Although Tyler did not testify at the suppression
hearing, sufficient evidence supports the juvenile court’s
10
finding that he did not voluntarily consent to the blood draw.
At the time, Tyler was nearly seventeen and in eleventh grade.
He had been arrested once previously, but not adjudicated
delinquent. Tyler was detained for about two hours in a school
room in the presence of school officials and a deputy. Neither
of his parents was present. Tyler initially was shaking and
visibly nervous. When he became loud and upset after being told
he was being arrested, the deputy placed him in handcuffs until
he calmed down. A second deputy sheriff arrived before the
blood draw was taken. After removing the handcuffs, the first
deputy read the implied consent admonition to Tyler, once
verbatim and once in what the deputy termed “plain English,”
concluding with the statement, “You are, therefore, required to
submit to the specified tests.” Tyler then assented to the
blood draw.
¶21 Viewing the facts in the light most favorable to
sustaining the ruling below, we hold that the juvenile court did
not abuse its discretion by ruling that Tyler’s consent was
involuntary and granting the motion to suppress. We decline to
address Tyler’s arguments that he lacked the legal capacity to
consent and that the Arizona Constitution provides greater
protection than the Fourth Amendment in this context.
III.
¶22 We also decline to address Tyler’s argument that the
11
blood draw must be suppressed because it violated the PBR. The
statute provides that parents have a “right to consent in
writing before any record of the minor child’s blood or
deoxyribonucleic acid is created, stored or shared.” A.R.S.
§ 1-602(A)(8). The PBR, however, concerns the rights of parents
and does not purport to affect a juvenile’s right to consent to
a search. See id. § 1-602(A) (referencing “parental rights”).
Nor does the statute provide that evidence will be suppressed if
the statute is violated. See id. § 1-602. Even if the blood
draw was taken in violation of the rights of Tyler’s parents (an
issue we do not decide), Tyler would not have standing to argue
that this violation required suppression of the blood draw
evidence. Cf. Rakas v. Illinois, 439 U.S. 128, 133-34 (1978)
(holding that person lacks standing to suppress evidence seized
in violation of another’s Fourth Amendment rights).
IV.
¶23 For the foregoing reasons, we reverse the decision of
the court of appeals and remand the case to the superior court
for proceedings consistent with this opinion.
__________________________________
Scott Bales, Vice Chief Justice
CONCURRING:
__________________________________
Rebecca White Berch, Chief Justice
12
__________________________________
Robert M. Brutinel, Justice
__________________________________
Ann A. Scott Timmer, Justice
P E L A N D E R, Justice, concurring
¶24 As a matter of statutory interpretation, we previously
held that, absent a search warrant, Arizona’s “implied consent”
statute, A.R.S. § 28-1321, requires an arrestee’s express
consent to a chemical test. Carrillo v. Houser, 224 Ariz. 463,
463 ¶ 1, 232 P.3d 1245, 1245 (2010). The Court now holds that
the Fourth Amendment also applies to a blood draw administered
under the statute and thus an arrestee’s consent must be
voluntary. Supra ¶ 18. I have no quarrel with that holding,
but reluctantly concur only because the parties acknowledge, and
our case law indicates, that voluntariness determinations are
reviewed for abuse of discretion. Under that standard of
appellate review, I cannot say that the juvenile court erred in
finding Tyler’s consent involuntary when some evidence arguably
supports an inference to that effect. Cf. State v. Chapple, 135
Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n.18 (1983) (A court
abuses its discretion when “the reasons given by the court for
its action are clearly untenable, legally incorrect, or amount
to a denial of justice.”).
13
¶25 As the majority notes, voluntariness issues often are
fact-intensive and are assessed from the totality of the
circumstances. Supra ¶ 13 (citing Schneckloth v. Bustamonte,
412 U.S. 218, 227 (1973)). The majority correctly observes that
we generally review rulings on motions to suppress evidence for
an abuse of discretion, supra ¶¶ 8, 19, and finds no such abuse
in the trial court’s ruling, supra ¶ 21. I write separately to
express concern with indiscriminately applying those principles
and to suggest, for future purposes only, that abuse-of-
discretion review might not be appropriate in cases such as
this.
¶26 Only the deputy sheriff and Tyler’s father testified
at the suppression hearing in this case. Significantly, the
pertinent facts are undisputed and the juvenile court’s ruling
is not based on witness credibility, weighing of conflicting
evidence, or discretionary determinations. Accordingly, the
court’s ultimate ruling on voluntariness could, and arguably
should, be deemed a mixed question of fact and law subject to
our de novo review. That approach, although admittedly
conflicting with extant Arizona case law, would be consistent
with our approach in other criminal-case contexts involving
constitutional issues. See State v. Moore, 222 Ariz. 1, 7 ¶ 17,
213 P.3d 150, 156 (2009) (noting that, although we review trial
court rulings on pretrial identifications for abuse of
14
discretion and defer to factual findings supported by the
record, the ultimate question of constitutionality is “a mixed
question of law and fact” subject to our de novo review); State
v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778
(1996) (applying same principles to question of whether
sufficient legal basis existed for vehicular stop); State v.
Blackmore, 186 Ariz. 630, 632, 925 P.2d 1347, 1349 (1996) (same
regarding question of whether an arrest was illegal); State v.
Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996) (same
regarding question of whether there was reasonable suspicion for
an investigatory stop of a pedestrian).
¶27 Recently, the Vermont Supreme Court thoroughly
expounded on the appropriate standard of appellate review for
voluntariness-of-consent issues. State v. Weisler, 35 A.3d 970
(Vt. 2011). An appellate court, of course, appropriately defers
“to the trial court’s underlying findings of historical fact” as
a “fundamental principle of appellate review.” Id. at 976, 985;
see also Chapple, 135 Ariz. at 297 n.18, 660 P.2d at 1224 n.18.
But as the Vermont court observed, Schneckloth did not address
the subject of appellate review, and “[s]imply labeling consent
to search as a question of fact to be determined from the
totality of the circumstances” at the trial court level “does
little to advance the standard-of-review analysis.” Weisler, 35
A.3d at 977. Noting that “appellate courts have traditionally
15
reviewed and resolved independently the question of
voluntariness in order to ‘guide police, unify precedent, and
stabilize the law,’” id. at 985 (quoting Thompson v. Keohane,
516 U.S. 99, 115 (1995)), the Weisler court held that “a trial
court’s decision on the question of the voluntariness of a
consent to search, and thus the ultimate constitutional validity
of the search, must be reviewed independently . . . on appeal,”
id. at 983.
¶28 Vermont is not alone. Other courts also follow this
approach. See, e.g., United States v. Lewis, 921 F.2d 1294,
1301 (D.C. Cir. 1990) (conducting de novo review of a trial
court’s finding of involuntary consent when facts were
uncontested and government presented uncontroverted evidence on
that issue); United States v. Garcia, 890 F.2d 355, 359–60 (11th
Cir. 1989) (same); State v. $217,590.00 in U.S. Currency, 18
S.W.3d 631, 633 (Tex. 2000) (assessing whether the trial court’s
factual findings demonstrate voluntariness under the totality of
the circumstances is a question of law); State v. Hansen, 63
P.3d 650, 663 (Utah 2002) (“While consent is a factual finding,
voluntariness is a legal conclusion, which is reviewed for
correctness.”); State v. Phillips, 577 N.W.2d 794, 800 (Wis.
1998) (rejecting proposition that the standard of appellate
review “turn[s] on whether the underlying determination of the
[trial] court was fact-specific”); see also Weisler, 35 A.3d at
16
976, 980 (collecting cases).
¶29 The analyses of those courts would support de novo
review of rulings on whether an arrestee’s consent to search was
voluntary or involuntary, at least when, as here, the underlying
facts are undisputed and the trial court’s ruling is not based
on conflicting evidence or credibility determinations. This
Court has not yet engaged in the type of nuanced explication
found in cases such as Weisler on the appropriate standard of
appellate review for Fourth Amendment voluntariness rulings.
This, however, is not the case in which we should do so. The
parties have not raised or argued any issues relating to the
standard of review, but rather concede that abuse-of-discretion
review applies. Accordingly, the Court appropriately applies
that standard in deciding this particular case.
¶30 Stating that voluntariness determinations are fact-
intensive inquiries, based on the totality of circumstances, and
subject to abuse-of-discretion review, however, does not
directly answer the ultimate question: What is the test or
standard for establishing valid, voluntary consent to a
warrantless search under the Fourth Amendment? Generally, to be
voluntary, “[c]onsent must ‘not be coerced, by explicit or
implicit means, by implied threat or covert force.’” State v.
Guillen, 223 Ariz. 314, 317 ¶ 11, 223 P.3d 658, 661 (2010)
(quoting Schneckloth, 412 U.S. at 228). “Consent to search is
17
voluntary if it is ‘the product of an essentially free and
unconstrained choice by its maker,’ and not the result of
circumstances which overbear the consenting party’s will and
critically impair his or her capacity for self-determination.”
People v. Magallanes-Aragon, 948 P.2d 528, 530 (Colo. 1997)
(quoting Schneckloth, 412 U.S. at 225). Stated differently,
“before a court may conclude that consent was voluntarily given,
it must find no objective evidence of coercion, duress,
deception, promises, threats, intrusive conduct or other undue
influence by the police, which critically impaired the
defendant’s judgment.” Id. at 531; see also id. at 533 (“The
essential consideration in determining voluntariness of a
consent to search is the impact of overbearing, coercive, or
deceptive police conduct on a person with the knowledge and
particular characteristics of the defendant.”).
¶31 Applying those standards, only with some difficulty do
I agree with the majority that the juvenile court did not abuse
its discretion in finding Tyler’s consent was involuntary. Cf.
Chapple, 135 Ariz. at 297 n.18, 660 P.2d at 1224 n.18 (When
trial court determinations hinge not on “conflicting procedural,
factual or equitable considerations,” but rather are made on
undisputed facts, “resolution of the question is one of law or
logic,” obligating us “to ‘look over the shoulder’ of the trial
judge and, if appropriate, substitute our judgment for his or
18
hers.”). But based on the uncontroverted facts in this case,
were de novo review applicable here, I would readily conclude
that the State met its burden of proving by a preponderance of
the evidence that Tyler’s consent to the warrantless blood draw
was voluntary and, therefore, complied with the Fourth
Amendment. See Ariz. R. Crim. P. 16.2(b) (prescribing burden
and standard of proof on whether evidence was lawfully
obtained).
¶32 The majority appropriately recites certain facts to
support the conclusion that the juvenile court did not abuse its
discretion in finding Tyler’s consent involuntary. Supra ¶¶ 2–
4, 20. The totality of the circumstances, however, includes
other undisputed facts indicating that Tyler’s verbal and
written consent to the blood draw was indeed voluntary and not
obtained by any “overbearing, coercive, or deceptive police
conduct.” Magallanes-Aragon, 948 P.2d at 533. Without
belaboring all those facts, suffice it to say that had the
juvenile court found Tyler’s consent voluntary, I would have had
no difficulty affirming that ruling, and I doubt my colleagues
would have either. But, as noted above, I cannot conclude under
an abuse-of-discretion standard of review that the juvenile
court erred and, therefore, join in the Court’s opinion.
¶33 In addition, In re Andre M., on which the juvenile
court relied, is materially distinguishable. Unlike this case,
19
In re Andre M. involved issues of voluntariness under the Fifth
Amendment’s self-incrimination clause and was heavily influenced
by “the absence of a parent who attempted to attend the
[minor’s] interrogation but was prevented from doing so by the
police officers.” 207 Ariz. 482, 485 ¶ 12, 88 P.3d 552, 555
(2004). Here, Tyler and his father (who had been contacted by
the school, came there, and waited in the lobby) never asked to
see or speak with each other, and the deputy was not informed
until after the blood draw that a parent was present at the
school. Once he learned of that, the deputy spoke with the
parents, who understood the reasons for Tyler’s arrest and had
no questions.
¶34 It is also clear from its ruling that the juvenile
court deemed very significant the alleged violation of the
Parents’ Bill of Rights, A.R.S. § 1-602. The majority, however,
correctly rejects that as an appropriate basis for ordering
suppression. Supra ¶ 22.
¶35 Finally, I understand that Fourth Amendment issues
usually, and necessarily, entail “case-by-case,” “fact-
intensive, totality of the circumstances analyses.” Missouri v.
McNeely, 133 S. Ct. 1552, 1564 (2013). But a core objective of
our criminal-case jurisprudence should be “to ‘guide future
decisions’ as well as to ‘guide police, unify precedent, and
stabilize the law.’” Weisler, 35 A.3d at 979 (quoting Thompson,
20
516 U.S. at 114–15). In that regard, I have concerns similar to
those recently expressed by Chief Justice Roberts in McNeely:
“A police officer reading this Court’s opinion would have no
idea — no idea — what the Fourth Amendment requires of him, once
he decides to obtain a blood sample from,” in this case, a
juvenile DUI arrestee to ensure that the juvenile’s consent to a
blood draw is voluntary. 133 S. Ct. at 1569 (Roberts, C.J.,
concurring in part and dissenting in part). The majority here
says that “[i]f the arrestee is a juvenile, the youth’s age and
a parent’s presence are relevant, though not necessarily
determinative, factors that courts should consider in assessing
whether consent was voluntary under the totality of the
circumstances.” Supra ¶ 18. The Court also refers generally to
juveniles’ relative immaturity, and specifically to Tyler’s
interactions with the deputy and his fluctuating emotional
states during the arrest. Supra ¶¶ 14, 20.
¶36 But faced with the not uncommon scenario presented in
this case, a reasonable officer, before drawing blood pursuant
to the juvenile’s ostensibly valid consent, surely will now
wonder whether he or she must first take steps to have a parent
notified and present, and inquire about the juvenile’s maturity,
general comprehension levels, and emotional status, lest the
juvenile’s consent later be deemed involuntary. Those
individualized, unpredictable variables afford little guidance
21
and certainty to law enforcement officers, school
administrators, parents, minor drivers, or juvenile courts. Nor
does such unpredictability advance the overarching purpose of
the implied consent law — “to remove from the highways of this
state drivers[, including juvenile motorists,] who are a menace
to themselves and to others because they operate a motor vehicle
while under the influence of intoxicating liquor” or drugs.
Campbell v. Superior Court, 106 Ariz. 542, 546, 479 P.2d 685,
689 (1971); see also Carrillo, 224 Ariz. at 465 ¶ 13, 232 P.3d
at 1247; cf. State v. Randy J., 265 P.3d 734, 742 (N.M. Ct. App.
2011) (holding that state’s implied consent law applies to any
person, including juveniles, who drives a vehicle in the state).
¶37 Possibly compounding the problem, our opinion today
might well engender dubious involuntariness claims and related
suppression hearings aimed at excluding evidence derived from
chemical testing of impaired drivers whose express consent was
ostensibly voluntary and valid under Arizona’s implied consent
law. Such challenges can be made by defendants who, because
they submitted to testing, retain their driving privileges in
the interim. Audio or video recording of a suspect’s consent
might be a solution. But in view of the various contingencies
and uncertainties surrounding determinations by officers in the
field (and subsequently by courts) on whether express consent of
DUI arrestees (particularly juveniles) is voluntary, the safest
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course of action for law enforcement might simply be to obtain
search warrants, when reasonably feasible, for obtaining blood
samples in DUI investigations. See A.R.S. §§ 13-3914, -3915,
28-1321(D)(1). That default approach, although arguably
diluting the effectiveness of the implied consent law, and not
constitutionally required under McNeely (which neither involved
nor discounted consent as a valid exception to the Fourth
Amendment’s warrant requirement), would certainly comport with
the Fourth Amendment and alleviate many potential, foreseeable
problems in this area.
__________________________________
John Pelander, Justice
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