                                 IN THE

    SUPREME COURT OF THE STATE OF ARIZONA
                           STATE OF ARIZONA,
                               Appellee,

                                    v.

                         ALFONSO DE ANDA III,
                              Appellant.

                           No. CR-18-0286-PR
                         Filed February 28, 2019

             Appeal from the Superior Court in Pima County
               The Honorable Richard D. Nichols, Judge
                         No. CR20161614-001
                              AFFIRMED

             Opinion of the Court of Appeals, Division Two
                       244 Ariz. 471 (App. 2018)
                              AFFIRMED

COUNSEL:

Joel Feinman, Pima County Public Defender, David J. Euchner (argued),
Michael J. Miller, Pima County Public Defender’s Office, Tucson, Attorneys
for Alfonso De Anda, III

Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Tanja
K. Kelly (argued), Assistant Attorney General, Phoenix, Attorneys for State
of Arizona

CHIEF JUSTICE BALES authored the opinion of the Court, in which VICE
CHIEF JUSTICE BRUTINEL and JUSTICES PELANDER, TIMMER,
BOLICK, GOULD, and LOPEZ joined.
                            STATE V. DE ANDA
                            Opinion of the Court

CHIEF JUSTICE BALES, opinion of the Court:

¶1             Alfonso De Anda III submitted to a blood test after he was
arrested for driving under the influence. He argues his consent was
involuntary under the Fourth Amendment to the United States
Constitution because, before he was asked if he would submit to the test,
the police officer told him his driving privileges would be suspended if he
refused. We disagree. Unlike the officer in State v. Valenzuela, 239 Ariz. 299
(2016) (“Valenzuela II”), the officer here did not tell De Anda he was
required to submit to the test, and the officer’s identifying the consequences
of refusal before asking whether he would submit to the testing did not in
itself render De Anda’s consent involuntary. The trial court did not err in
denying his motion to suppress the test results.

                                       I.

¶2           A few weeks before the opinion in Valenzuela II issued, De
Anda was stopped by police while driving and arrested because he showed
signs of impairment. At the scene of the arrest, a police officer read De
Anda an “admin per se form” as follows:

              Arizona law states that a person who operates a motor
       vehicle at any time in this state gives consent to a test or tests
       of blood, breath, urine or other bodily substance for the
       purpose of determining alcohol concentration or drug
       content. The law enforcement officer is authorized to request
       more than one test and may choose the types of tests.

             If the test results are not available, or indicate an
       alcohol concentration of 0.08 or above (0.04 or above in a
       commercial vehicle,) or indicate any drug defined in ARS 13-
       3401 or its metabolite without a valid prescription, then your
       Arizona driving privilege will be suspended for not less than
       90 consecutive days.

              If you refuse, do not expressly agree to submit to, or do
       not successfully complete the tests, your Arizona driving
       privilege will be suspended. The suspension will be
       requested for 12 months, or for two years if you’ve had a prior
       implied consent refusal within the last 84 months.

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                            Opinion of the Court


              Will you submit to the tests?

After the officer finished reading the form, De Anda agreed to submit to a
test, and the officer performed a blood draw. A test of the blood revealed
an alcohol concentration of 0.142. De Anda was charged with two counts
each of aggravated driving under the influence (“DUI”) and aggravated
DUI with an alcohol concentration of 0.08 or more.

¶3             De Anda moved to suppress the blood test results. He argued
that under A.R.S. § 28-1321 and Valenzuela II, his consent was involuntary
because he was told his driving privileges would be suspended if he
refused the test before he was asked if he would submit. After a hearing,
the trial court denied the motion, ruling that the blood draw was voluntary,
“[c]onsidering the circumstances surrounding the arrest, the language in
the [admin per se form], and the question posed to the defendant regarding
consent” and the “criteria set forth in State v. Butler, 232 Ariz. 84 (2013).”
The blood test results were admitted at trial, and De Anda was convicted
of the four charged DUI counts.

¶4             On appeal, De Anda again argued that the statute and
Valenzuela II required the officer to ask if he would consent to testing before
advising him of the administrative consequences of refusal. State v. De
Anda, 244 Ariz. 471, 473 ¶ 4 (App. 2018). Rejecting these arguments, the
court of appeals affirmed De Anda’s convictions and sentences. Id. at
474 ¶ 9.

¶5            We granted review to consider the narrow question whether,
in light of Valenzuela II, the sequence of the officer’s statements in itself
rendered De Anda’s consent involuntary - a recurring legal issue of
statewide importance.

                                      II.

¶6             In addition to arguing that his consent was involuntary for
Fourth Amendment purposes, De Anda in his supplemental brief and at
oral argument urged the Court to hold that police officers generally should
be required, as a matter of state law, to advise DUI suspects of their rights
to refuse warrantless testing and to attempt to contact an attorney. Because
the latter issues were not raised below, we deem them waived and decline

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                            Opinion of the Court

to address them here. See e.g., Weitz Co. L.L.C. v. Heth, 235 Ariz. 405, 412
¶ 24 (2014).

¶7              Whether consent to a search is voluntary under the Fourth
Amendment is assessed from the totality of the circumstances. Butler, 232
Ariz. at 87 ¶ 13. Because voluntariness is a factual question, we review the
trial court’s finding for an abuse of discretion. Id. at 88 ¶ 19. “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. at 87 ¶ 8
(quoting State v. Hausner, 230 Ariz. 60, 70 ¶ 23 (2012)).

¶8             DUI investigations involve the interplay of the Fourth
Amendment and Arizona’s implied consent statute, § 28-1321. Subsection
A of the statute declares that “[a] person who operates a motor vehicle in
this state gives consent” to certain testing if arrested for driving while
impaired. § 28-1321(A). This “consent,” however, does not by its terms
authorize warrantless testing of arrestees. Butler, 232 Ariz. at 88 ¶ 17.
Instead, subsection B directs the officer “to ask the arrestee to submit to the
test, and the arrestee may then refuse by declining to expressly agree to take
the test.” Id. (citing § 28-1321(B)). “If the arrestee refuses, the statute
specifies that a warrant is required to administer the test and the arrestee
shall have his license suspended.” Id. (citing § 28-1321(D)).

¶9             “[I]ndependent of § 28-1321, the Fourth Amendment requires
an arrestee’s consent to be voluntary to justify a warrantless blood draw.”
Id. ¶ 18. Thus, the “implied” consent referenced in § 28-1321(A) does not
itself satisfy “the Fourth Amendment’s requirement that consent be
voluntary.” Id. ¶ 17. Instead, an arrestee’s consent must be “freely and
voluntarily given.” Valenzuela II, 239 Ariz. at 302 ¶ 11. In Valenzuela II, we
recognized that consent is not voluntary “if the subject of a search merely
acquiesces to a claim of lawful authority.” Id. ¶ 1 (citing Bumper v. North
Carolina, 391 U.S. 543, 548-49 (1968)).

¶10           Valenzuela II considered whether a driver arrested for DUI
had voluntarily consented to testing “after a police officer advised him that
‘Arizona law requires you to submit’” to tests selected by the officer.
Id. ¶ 2. We held “that showing only that consent was given in response to
this admonition fails to prove that an arrestee’s consent was freely and
voluntarily given.” Id. The Court expressly noted, however, “[w]e do not
hold today that § 28-1321 violates the Fourth Amendment or that officers

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                             Opinion of the Court

must cease advising arrestees about the law’s requirements and the civil
consequences for refusal.” Id. at 308 ¶ 28.

¶11           We explained that “[a] law enforcement officer can invoke the
implied consent law without infringing on an arrestee’s Fourth
Amendment rights by following the procedure set forth in § 28-1321(B).”
Id. ¶ 29. That is, the officer first asks if the arrestee will consent, which may
obviate the need to explain the statutory consequences for refusing consent.
Id. But if the arrestee refuses to consent, the officer should advise the
arrestee of the consequences provided in § 28-1321(B), “and then ask again
whether the arrestee will consent to testing.” Id. Alternatively, the Court
noted that “the state might revise its implied consent admin per se form to
mirror one used in South Dakota, which provides the arrestee with a clear
choice whether to submit to testing or refuse consent.” Id. (citing South
Dakota v. Neville, 459 U.S. 553, 555 n.2 (1983)).

¶12            De Anda argues that his consent given in response to the
admin per se form here was involuntary under Valenzuela II because he was
not first asked if he would consent to testing and the form did not otherwise
present him with “a clear choice whether to submit to testing or refuse
consent.” He notes that the form begins by declaring, “Arizona law states
that a person who operates a motor vehicle at any time in this state gives
consent to a test or tests . . . for the purpose of determining alcohol
concentration or drug content” - accurately paraphrasing the first sentence
of § 28-1321(A). He contends that both § 28-1321(B) - which states that “a
violator shall be requested to submit to and successfully complete any test
or tests prescribed by [§ 28-1321(A)] . . . and if the violator refuses, the
violator shall be informed that the violator’s license or permit to drive will
be suspended . . .” - and Valenzuela II contemplate the arresting officer will
ask if the arrestee will consent before describing the consequence for
refusing. Thus, De Anda contends that the admin per se form read to him
was inherently coercive because it began by saying that state law provides
that operators consent to testing and then describes the administrative
penalty for refusing a test before asking if the arrestee will submit.

¶13            De Anda also notes that while Valenzuela II was pending
before this Court, the admin per se form was revised (to the form used here)
such that officers no longer told arrestees that they were required to submit
to testing, but after De Anda’s arrest and the issuance of our opinion, the
form was revised yet again so that officers now first ask if the arrestee will

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                             Opinion of the Court

submit to testing. Finally, De Anda urges us to follow State v. Medicine, 865
N.W.2d 492 (S.D. 2015), which held that an arrestee had not voluntarily
consented to testing after being read an advisement that began by saying
that under the state’s implied consent law, vehicle operators consent to
testing; then stated the officer requests the arrestee to submit to testing; and
ended by asking if the arrestee consents. Id. at 496-97 ¶ 10.

¶14            We are not persuaded that the admin per se form read to De
Anda by its terms “coerce[d] consent by stating or implying that officers
have lawful authority, without a warrant, to compel samples of blood,
breath, or other bodily substances.” Valenzuela II, 239 Ariz. at 308 ¶ 28.
Although De Anda was told, accurately, that Arizona law states that a
person operating a vehicle gives consent to certain testing if arrested for
DUI, the form did not state or imply the officer could compel him to provide
samples. Nor did the admin per se form - unlike the one used in Valenzuela
II - repeatedly state that Arizona law required De Anda to submit to testing.
Instead, the form implicitly acknowledged De Anda could refuse by asking
whether he would submit, although correctly stating that his driving
privileges would be suspended if he did not expressly agree to testing.

¶15            Valenzuela II did not suggest that warning arrestees of the
consequences of refusal before asking if they will consent is itself inherently
coercive. We acknowledged that arrestees can be told of the consequences,
and that the “difficulty” of deciding whether to submit “does not make the
decision coerced.” Id. ¶ 29. We also approvingly referenced South Dakota’s
implied consent form that itself identified the consequences of refusal
before asking the arrestee to submit to testing. Id. (citing Neville, 495 U.S. at
555 n.2). Moreover, if it is not coercive for an officer to tell an arrestee that
refusal will result in a license suspension after the arrestee initially refuses
but before again requesting consent, it is difficult to understand why first
identifying the consequences of refusal would imply that any subsequent
assent is involuntary.

¶16            Although Valenzuela II recognized ways that police officers
can invoke the implied consent law without violating the Fourth
Amendment, id. at 308 ¶ 28, we did not state that any departure from those
procedures would alone show that consent was involuntary. Instead,
Valenzuela II expressly held that the voluntariness of consent given after an
admonition turns on the totality of the circumstances, even when consent
follows an officer’s assertion of lawful authority to search. Id. at 305-06 ¶21.

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                            STATE V. DE ANDA
                            Opinion of the Court

¶17            Medicine does not avail De Anda, because it too embraces a
totality of the circumstances approach. See 865 N.W.2d at 500 ¶ 17. There,
the South Dakota Supreme Court declined to hold that the language in the
advisement card “necessarily precludes voluntary consent,” id., and instead
concluded, consistent with the trial court’s ruling, that the defendant’s
consent was involuntary under the circumstances, including the language
of the advisement, the custodial arrest, and the arrestee’s lack of knowledge
of his right to refuse consent. There, unlike in this case, consent came only
after the suspect was arrested, handcuffed, and placed in a police vehicle
and an officer twice asserted authority to perform the test. Id. at 499 ¶ 15.

¶18            Here, the admin per se form read to De Anda did not in itself
establish that his consent was voluntary – a fact recognized by the trial court
in considering the totality of the circumstances in denying the motion to
suppress – but it also did not alone render any resulting consent
involuntary. Combined with other circumstances, the form’s use, like the
form used in Medicine, might lead a trial court to reasonably find that
consent was not freely and fairly given. To help avoid this prospect, the
state would be well advised to use the more recently revised version of the
implied consent form, as amended after Valenzuela II, to follow the
procedure set forth in § 28-1321(B) or otherwise provide “the arrestee a clear
choice whether to submit to testing or refuse consent.” Valenzuela II, 239
Ariz. at 308 ¶ 29.

                                     III.

             The trial court did not abuse its discretion by finding that De
Anda voluntarily consented to the blood draw and denying the motion to
suppress. We affirm the opinion of the court of appeals and De Anda’s
convictions and sentences.




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