                                 IN THE
             ARIZONA COURT OF APPEALS
                             DIVISION ONE


                     STATE OF ARIZONA, Appellee,

                                    v.

                      VI ANN SPENCER, Appellant.

                          No. 1 CA-CR 13-0804
                           FILED 09-11-2014


           Appeal from the Superior Court in Yavapai County
                       No. V1300CR201280372
              The Honorable Jennifer B. Campbell, Judge

                     VACATED AND REMANDED


                               COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist
Counsel for Appellee

Craig Williams, Attorney at Law, P.L.L.C., Prescott Valley
By Craig Williams
Counsel for Appellant



                                OPINION

Judge Margaret H. Downie delivered the opinion of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Maurice Portley joined.
                           STATE v. SPENCER
                           Opinion of the Court


D O W N I E, Judge:

¶1            Vi Ann Spencer appeals her convictions for aggravated
driving under the influence (“DUI”). She contends evidence about her
blood alcohol concentration (“BAC”), obtained from a medical blood
draw, should have been suppressed. We agree because Spencer did not
voluntarily consent to the treatment that led to the blood draw. We
therefore vacate Spencer’s convictions and remand for a new trial that
does not include evidence derived from the medical blood draw.

                FACTS AND PROCEDURAL HISTORY

¶2             Spencer was driving when she swerved off the roadway and
hit a guardrail. K.M., who was driving behind Spencer, stopped to check
on her. K.M. drove Spencer to a fire station, where Spencer advised she
had suffered a seizure. Fire station personnel urged Spencer to go to the
hospital, but she refused.

¶3            While Spencer was at the fire station, Deputy Franklin
arrived to investigate the accident. He noted that Spencer had difficulty
answering questions, displayed “slurred and very slow” speech, and
appeared “unfocused” and “generally impaired.” The deputy was
concerned that Spencer “may possibly be under the influence of alcohol or
some type of intoxicating substance” or that “she may have some medical
issues from a possible seizure.” In speaking with Spencer, Deputy
Franklin noted “a slight odor of intoxicating beverage.” Spencer refused
to go to the hospital, perform field sobriety tests, or blow into a portable
breath test device. Deputy Franklin testified that the odor of alcohol “was
slight and I wasn’t sure, 100 percent, that I was looking at just the DUI. I
was very concerned that this was a medical issue.”

¶4             When Spencer continued to refuse medical treatment,
Deputy Franklin told her “she could either go to the hospital and get
checked out medically or I would take her to the jail and begin a DUI
investigation.” When asked why he gave Spencer this ultimatum, the
deputy responded: “Because of her general demeanor. I felt sure that she
was either, A, suffering a medical problem or, B, intoxicated.” Rather than
face arrest, Spencer agreed to go to the hospital and was transported there
by ambulance.

¶5          When Deputy Franklin arrived at the hospital, medical
personnel were evaluating Spencer. The deputy advised that “if they



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                            Opinion of the Court

were going to do a blood sample that [he] would like a sample of it.”
Hospital staff drew Spencer’s blood and gave Deputy Franklin a sample.
Subsequent testing revealed a BAC of .296%.

¶6            Spencer was charged with three counts of aggravated DUI
while on a suspended license: (1) with a BAC above .20%; (2) with a BAC
above .08%; and (3) while impaired to the slightest degree, each a class
four felony. Spencer filed a motion to suppress, arguing the BAC
evidence was obtained without a warrant and in violation of her
constitutional rights. After an evidentiary hearing, the superior court
denied the motion. Spencer then waived her right to a jury trial and
submitted the case to the court for a determination of guilt based on a
stipulated record. The court found her guilty of counts one and three but
dismissed count two as a lesser-included offense of count one. The court
sentenced Spencer to five months’ imprisonment and five years’ probation
but stayed the prison term pending the outcome of this appeal.

¶7           Spencer timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and
-4033(A)(1).

                               DISCUSSION

¶8             We review the denial of a motion to suppress for an abuse of
discretion, considering only the evidence presented at the suppression
hearing. State v. Peterson, 228 Ariz. 405, 407, ¶ 6, 267 P.3d 1197, 1199 (App.
2011); State v. Gay, 214 Ariz. 214, 223, ¶ 30, 150 P.3d 787, 796 (App. 2007).
We review de novo any mixed questions of law and fact or legal
conclusions. State v. Estrada, 209 Ariz. 287, 288, ¶ 2, 100 P.3d 452, 453
(App. 2004); State v. Wyman, 197 Ariz. 10, 13, ¶ 5, 3 P.3d 392 (App. 2000).

¶9          A blood draw constitutes a search under the Fourth
Amendment. Estrada, 209 Ariz. at 290, ¶ 11, 100 P.3d at 455. Law
enforcement may obtain a blood sample if: (1) a warrant based on
probable cause is obtained; (2) the suspect consents; or (3) exigent
circumstances exist and officers have probable cause to believe the person
has committed a DUI offense. Id. The legislature has codified the third
method in A.R.S. § 28-1388(E), which provides, in relevant part:

       [I]f a law enforcement officer has probable cause to believe
       that a person has violated § 28-1381 and a sample of blood,
       urine or other bodily substance is taken from that person for
       any reason, a portion of that sample sufficient for analysis



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                           Opinion of the Court

      shall be provided to a law enforcement officer if requested
      for law enforcement purposes.

This Court has interpreted § 28-1388(E) to mean that if officers have
probable cause, the blood is “drawn by medical personnel for any medical
reason,” and the suspect has consented to “receiv[e] medical treatment
voluntarily,” law enforcement may obtain a sample of the blood drawn.
Estrada, 209 Ariz. at 290, 292, ¶¶ 13, 23, 100 P.3d at 455, 457.

¶10           Spencer contends suppression of the blood evidence was
required because: (1) there was no probable cause to believe she had
committed a DUI offense; (2) the evidence did not establish that hospital
staff drew her blood for medical purposes; and (3) her consent to medical
treatment was not voluntary.       Because the voluntariness issue is
dispositive, we assume, without deciding, that probable cause existed and
that the blood draw was performed by hospital staff for medical purposes.

¶11           According to Spencer, the medical treatment she received
was not voluntary because Deputy Franklin gave her an ultimatum:
either go to the hospital or be arrested. In responding to the suppression
motion, the State conceded the accuracy of Spencer’s factual claim, stating:

      [T]he deputy told the defendant she needed to go to the
      hospital. The defendant again refused to go to the hospital.
      The deputy told the defendant if she did not go to the
      hospital he was going to have to arrest her and attempt to
      determine what was wrong with her because of her obvious
      level of impairment. The defendant then chose to go to the
      hospital rather than being arrested. (Emphasis added).1

Deputy Franklin’s testimony at the evidentiary hearing confirmed this
version of events:

      Q. And at that time you asked her or you told her that if she
      didn’t go to the hospital, you were going to have to arrest
      her and attempt to determine what was wrong?

      A. That’s correct.


1      The State further conceded that if the court concluded Spencer
“obtained medical treatment at the hospital against her will, the evidence
resulting from the blood draw shall be suppressed.”



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                             Opinion of the Court

       Q. So you gave her the choice of either you arresting her or
       going to the hospital?

       A. That’s correct.

       Q. So those were her only choices that you were providing
       to her at that time?

       A. That’s correct.

       Q. That’s the only time she agreed to go to the hospital?

       A. That is correct.

¶12           The medical blood draw exception to the warrant
requirement does not apply “when a person is receiving medical
treatment against his or her will.” Id. at 291, ¶ 15, 100 P.3d at 456. The
State, as the party seeking to admit evidence seized without a warrant,
had the burden of establishing the medical blood draw exception’s
applicability to these facts. See State v. Fisher, 141 Ariz. 227, 237, 686 P.2d
750, 760 (1984) (warrantless searches are per se unreasonable, and “[t]he
burden is on the party seeking the exemption to show the need for it.”).
This burden includes demonstrating that Spencer’s consent was “freely
and voluntarily given.” See, e.g., State v. Butler, 232 Ariz. 84, 88, ¶ 19, 302
P.3d 609, 613 (2013) (discussing consent to search); State v. Peterson, 228
Ariz. 405, 408, ¶ 9, 267 P.3d 1197, 1200 (App. 2011) (State’s burden to
prove voluntariness of statements).

¶13            In Estrada, the trial court suppressed blood draw evidence,
and this Court affirmed. Estrada, 209 Ariz. at 288, ¶ 1, 100 P.3d at 453.
Estrada had initially agreed to go to the hospital, but changed his mind en
route, and “became agitated and attempted to get out of the ambulance.”
Id. at 289, ¶ 4, 100 P.3d at 454. A police officer arrived, and Estrada was
handcuffed and shackled to the gurney “at the request of . . . medics
because of safety concerns.” Id. at 289, ¶ 5, 100 P.3d at 454. Hospital staff
drew Estrada’s blood and gave a sample to law enforcement. Id. On
appeal, we concluded that the § 28-1388(E) exception does not apply
“when the person is subjected to medical treatment that the person has
expressly rejected.” Id. at 290, ¶ 13, 100 P.3d at 455. Such an
interpretation is necessary, we held, to prevent officers from




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                            Opinion of the Court

circumventing the warrant requirement or a suspect’s right of refusal
under the implied consent statute.2 Id. at 290-91, ¶ 14, 100 P.3d at 455-56.

¶14             We recognize that the facts of this case are not as extreme as
Estrada but nevertheless conclude the State failed to establish Spencer’s
voluntary consent to medical treatment. Voluntariness exists when a
choice is “the result of a free choice of the individual,” but not when the
individual’s “will has been overborne and [her] capacity for decision
diminished.” State v. Edwards, 111 Ariz. 357, 361, 529 P.2d 1174, 1178
(1974) (discussing voluntariness of confession). A choice is not voluntary
if it is the product of coercion or duress. State v. Alder, 146 Ariz. 125, 128,
704 P.2d 255, 258 (App. 1985).

¶15           Spencer steadfastly refused medical treatment.            She
capitulated only after being told she would be arrested if she did not go to
the hospital. If probable cause existed to arrest Spencer, as the State
insists, then other options were available, including obtaining a warrant
for a blood draw and invoking implied consent. And the record simply
does not support the State’s assertion that Deputy Franklin “merely
informed [Spencer] that whatever she chose, she would not be permitted
to drive home unattended.” Nothing suggests, let alone establishes, that
Spencer was ever advised she had the option of going home if someone
else drove her.

¶16           Merely asking or directing a person to act, by itself, does not
render a choice involuntary when such a request is made “in the absence
of protest or coercion.” State v. Winegar, 147 Ariz. 440, 447, 711 P.2d 579,
586 (1985) (considering voluntariness of defendant’s movement to a
building in terms of an illegal arrest). Deputy Franklin’s ultimatum,
though, occurred in the face of Spencer’s repeated and unwavering refusal
to obtain medical treatment. See Butler, 232 Ariz. at 88-89, ¶ 20, 302 P.3d at
613-14 (consent to blood draw involuntary when juvenile was detained
without parents, handcuffed, and told he was “required to submit” to the
test).




2      The implied consent statute states that “[i]f a person under arrest
refuses to submit to the test designated by the law enforcement agency as
provided in subsection A of this section . . . [t]he test shall not be given,
except as provided in § 28-1388, subsection E or pursuant to a search
warrant.” A.R.S. § 28-1321(D)(1).



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                          STATE v. SPENCER
                          Opinion of the Court


                            CONCLUSION3

¶17          For the stated reasons, we vacate Spencer’s convictions and
remand for a new trial that does not include evidence derived from the
medical blood draw.




                                 :gsh




3     After the suppression motion was denied and it was clear the BAC
evidence would be admitted at trial, Spencer stipulated that, for purposes
of her submission to the court, her BAC “was greater than .20% within
two hours of driving.” We disagree with the State’s contention that this
stipulation renders the suppression ruling irrelevant.            Spencer’s
stipulation was clearly based on the denial of her suppression motion and
a desire to preserve her appellate challenge to that ruling, while avoiding
a trial on the substantive merits.




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