About a week ago, the Supreme Court of Arizona issued its decision in the case of Carrillo v. Houser, No. CV-09-0285-PR (Ariz. 2010), which presented a dispute about Arizona's implied consent law. The State contended that the consent that the law implied extended to a warrantless chemical alcohol test unless the person to be tested explicitly refused. Jose Carrillo took the flip side position, arguing that the law required the police to obtain a warrant to test unless the defendant explicitly agreed to the test.
Mr. Carrillo was arrested on suspicion of DUI at a checkpoint and taken to a DUI van set up nearby. He was too sick for the officers who arrested him to give him a breath test but after half an hour they attempted to secure a blood sample. Mr. Carrillo did not respond when the officer told him what they were going to do in English, but when they set the machine on his lap and repeated themselves in broken Spanish, he put out his arm. The result of the test showed Mr. Carrillo was intoxicated.
At his trial in city court, Mr. Carrillo asked that the test be suppressed because he did not consent to it and the officer had not obtained a warrant before performing it. The court rejected this request, ruling that because nothing in Mr. Carrillo's conduct indicated that he refused the test, the "implied consent" of A.R.S. 28-1321 included consent to the test. Because consent to a search or seizure eliminates the need for a warrant, the test was legal. Mr. Carrillo appealed this ruling to the Superior Court of Maricopa County, which affirmed the city court's ruling.
Mr. Carrillo then took his case to the Arizona Court of Appeals. There, the State relied on A.R.S. section 28-1321(A) and (C). Subsection 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." Subsection 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who is dead, unconscious or otherwise in a condition rendering the person incapable of refusal is deemed not to have withdrawn the consent provided by subsection A...and the test...may be administered." The State argued that it would be absurd to allow blood to be taken from an unconscious person but not from one who was conscious but said nothing in protest.
The Court of Appeals, however, pointed out that subsection B provides that anything other than an express agreement to take the test counts as a refusal for purposes of a license suspension and that subsection D says "If a person under arrest refuses to submit to the test, the test shall not be given...unless pursuant to a search warrant." The court therefore ruled that when the entire stature is read as a whole, it allows warrantless testing of DUI defendants only when they expressly agree to be tested. The State petitioned the Arizona Supreme Court for review of that decision, and the court granted it.
The Supreme Court agreed with the Court of Appeals, writing:
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 other because of intoxication. 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.
The Arizona Supreme Court sent the case back to the city court so that it could determine whether Mr. Carrillo consented to the test. Under the court's reasoning, if the city court finds that Mr. Carrillo did not agree to the warrantless test, the result will be inadmissible.
