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What Is a Choice?

In Arizona, the State has a right under our implied consent statute to obtain a blood/breath sample if you’re arrested on suspicion of DUI.  However, there have been concerns about the language an officer uses to inform an arrestee of this law and what a suspect faces if he or she refuses to consent to a test.  The warnings given to those arrested has been: “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” and “If you refuse to submit or do not successfully complete the specified testing, your Arizona driving privilege will be suspended for 12 months . . . .”

The court’s ruling in State v. Valenzuela, at its core, says that obtaining consent for testing using coercive means is illegal, and it is the State’s burden to show that any consent provided was truly voluntary.  In this case, the officer’s reading of the admonitions instructed the defendant that he was “required by law” to consent, and if he did not, the police would obtain a search warrant and the defendant would face a year-long license suspension.  The court found that the MVD language that has been used for decades, that one is “required by law” to consent, is tantamount to a form of coercion.  The “choice” the officer gave Mr. Valenzuela gave him no real choice.  Can a DUI arrestee actually voluntarily choose to do something that the law mandates he or she must do?  These oft-repeated phrases gave DUI arrestees the appearance that the officer had the lawful authority to demand their submission to testing, which the court held tainted the consent.

The problem is, as the Chief Justice points out in his dissent, that lawmakers, law enforcement, and MVD have been on notice about the problematic language since 2010 when the Carrillo v. Houser case was decided.  In that case, the court required the State to clearly demonstrate that one’s consent to testing was a voluntary choice.  Still, MVD and police officers continued to use the same script.  Complicating matters is that the U.S. Supreme Court decided Missouri v. McNeely in 2013, finding that an implied consent law cannot be substituted for voluntary consent or a warrant.  It’s our opinion that the Chief Justice got it right by saying that officers and law enforcement should be held liable for coerced consent in similar situations, but also that the good faith exception–that the officers were not aware of the coercive nature of the language used–should not have applied because of the previous Carrillo decision.

Surprisingly, the MVD had already changed the format of the Admin Per Se warnings prior to yesterday’s decision but had not used the changes, so it seems that MVD knew the language was coercive.  Sadly, this change should have been implemented years ago.  Although we now have clear Arizona law stating that coerced consent can no longer be used in this fashion for blood and breath testing, the implied consent issue is also under review by the U.S. Supreme Court in Birchfield v. North Dakota.  We will be anxiously awaiting a ruling in that case to see if there will be even more changes to Arizona’s Admin Per Se law.