                                 IN THE

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

                                    v.

                       PATRICK MCLEOD NISSLEY,
                              Appellant.

                           No. CR-15-0393-PR
                          Filed February 1, 2017


          Appeal from the Superior Court in Maricopa County
                The Honorable Bruce R. Cohen, Judge
                         No. CR2011-110536
                            REMANDED

             Opinion of the Court of Appeals, Division One
                238 Ariz. 446, 362 P.3d 493 (App. 2015)
                              VACATED

COUNSEL:

Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Terry
M. Crist, III, (argued), Assistant Attorney General, Phoenix, Attorneys for
State of Arizona

Natalee Segal (argued), Ballecer & Segal, LLP, Phoenix, Attorneys for
Patrick McLeod Nissley

Mikel Steinfield (argued) and Kevin Heade, Maricopa County Public
Defender’s Office, Attorneys for Amicus Curiae Arizona Attorneys for
Criminal Justice
                            STATE V. NISSLEY
                           Opinion of the Court

JUSTICE TIMMER authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
BRUTINEL and BOLICK joined.

JUSTICE TIMMER, opinion of the Court:

¶1            A law enforcement officer must ordinarily obtain a search
warrant to take an involuntary blood sample from a suspect. Arizona’s
medical blood draw exception to the warrant requirement, however,
requires medical personnel to provide upon request a portion of any blood
sample taken from a patient when the officer has probable cause to believe
that the patient had been driving under the influence of alcohol or other
drugs. A.R.S. § 28-1388(E). This exception applies only when the sample is
drawn for medical reasons and exigent circumstances exist. See State v.
Cocio, 147 Ariz. 277, 286, 709 P.2d 1336, 1345 (1985).

¶2            The issue here is whether and under what circumstances the
exception can apply when a suspect contends that medical personnel
rendered treatment against the suspect’s will. We hold that the state is
required to prove that a suspect expressly or impliedly consented to
medical treatment or that medical personnel acted when the suspect was
incapable of directing his or her own medical treatment.

                           I. BACKGROUND

¶3            In reviewing the denial of a motion to suppress, “we consider
only evidence presented at the suppression hearing and view the facts in
the light most favorable to sustaining the trial court’s ruling.” State v.
Valenzuela, 239 Ariz. 299, 301 ¶ 3, 371 P.3d 627, 629 (2016) (citation and
internal quotations omitted).

¶4             On a late afternoon in November 2010, Patrick Nissley drove
his car erratically and at a high speed through Scottsdale traffic, crossing
lanes and swerving onto a sidewalk. Tragically, Nissley crashed into an
oncoming car, injuring four people and killing a pedestrian. Emergency
personnel quickly arrived, including city-employed paramedics. They
found Nissley delirious, flailing his arms, and screaming incoherently.

¶5         Nissley had suffered a head wound and was covered in blood
from numerous cuts. He was uncooperative with paramedics, yelling

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                             STATE V. NISSLEY
                            Opinion of the Court

obscenities and demanding to be left alone. The paramedics ignored these
demands, concluding that Nissley could not make coherent decisions for
his own care. They restrained him and loaded him into an ambulance. He
fought them throughout the ride to the hospital. Once there, medical
personnel sedated him for treatment and took a blood sample for medical
purposes.

¶6           A police officer came to the hospital. She asked for and
received a portion of Nissley’s blood sample without first procuring a
warrant. Subsequent testing of the blood revealed the presence of
methamphetamine and an active metabolite of heroin. The State indicted
Nissley on charges of second degree murder, endangerment (four counts),
and possession or use of narcotic drugs.

¶7            Nissley moved to suppress the results of his blood test for lack
of a warrant or a valid exception to the warrant requirement. He argued
that because he was treated against his will, the medical blood draw
exception did not apply. After an evidentiary hearing, the trial court denied
the motion, finding that Nissley did not expressly reject treatment and that
the exception applied. A jury subsequently found Nissley guilty of reckless
manslaughter (a lesser-included offense of second degree murder) and the
remaining charges, and the court imposed sentences. In a split decision, the
court of appeals affirmed. State v. Nissley, 238 Ariz. 446, 362 P.3d 493 (App.
2015).

¶8           We granted review to clarify application of the medical blood
draw exception, a matter of statewide importance. We have jurisdiction
pursuant to article 6, section 5, of the Arizona Constitution and A.R.S. § 12-
120.24.

                             II. DISCUSSION

¶9             We review the denial of a motion to suppress for an abuse of
discretion. Valenzuela, 239 Ariz. at 302 ¶ 9, 371 P.3d at 630. We defer to the
trial court’s factual findings if they are supported by the record, but we
review legal determinations de novo. See State v. Moore, 222 Ariz. 1, 7 ¶ 17,
213 P.3d 150, 156 (2009). An error of law may constitute an abuse of
discretion. Valenzuela, 239 Ariz. at 302 ¶ 9, 371 P.3d at 630.




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                              STATE V. NISSLEY
                             Opinion of the Court

¶10           Section 28-1388(E), the medical blood draw exception,
provides:

       Notwithstanding any other law, if 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 shall be provided to a law
       enforcement officer if requested for law enforcement
       purposes. A person who fails to comply with this subsection
       is guilty of a class 1 misdemeanor.

In Cocio, 147 Ariz. at 286, 709 P.2d at 1345, this Court held that a warrantless
blood draw seizure is constitutionally permissible under the predecessor to
§ 28-1388(E) if (1) probable cause existed to believe that the person was
driving under the influence, (2) exigent circumstances were present, and (3)
the blood was drawn by medical personnel for a medical reason.

¶11             Before addressing the applicability of the medical blood draw
exception when treatment is rendered against the suspect’s will, we
highlight one aspect of Cocio that is no longer valid. The Cocio Court found
that exigency existed in that case because “[t]he highly evanescent nature
of alcohol in the defendant’s blood stream guaranteed that the alcohol
would dissipate over a relatively short period of time.” Id. Insofar as this
language suggests that the natural dissipation of alcohol in the bloodstream
itself establishes a per se exigency that authorizes a warrantless blood test,
we disavow that suggestion.

¶12            In Missouri v. McNeely, the Supreme Court reaffirmed that
Schmerber requires courts to consider all facts in the particular case to
determine whether an exigency exists and expressly rejected a per se
exigency based on the dissipation rate of alcohol in the bloodstream. 133 S.
Ct. 1552, 1563 (2013) (“[W]hile the natural dissipation of alcohol in the blood
may support a finding of exigency in a specific case, as it did in Schmerber,
it does not do so categorically.”); see also id. (“In finding the warrantless
blood test reasonable in Schmerber, we considered all of the facts and
circumstances of the particular case and carefully based our holding on
those specific facts.”). Exigency is not at issue here because Nissley did not
contest its existence before the trial court. Cf. State v. Newell, 212 Ariz. 389,
398 ¶ 34, 132 P.3d 833, 842 (2006) (noting that a defendant waives issues

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                             STATE V. NISSLEY
                            Opinion of the Court

concerning the suppression of evidence that were not raised to the trial
court). But in future cases, consistent with McNeely, the state must establish
exigency by showing that under circumstances specific to those cases, it was
impractical to obtain a warrant. See McNeely, 133 S. Ct. at 1561 (“We do not
doubt that some circumstances will make obtaining a warrant impractical
such that the dissipation of alcohol from the bloodstream will support an
exigency justifying a properly conducted warrantless blood test. That,
however, is a reason to decide each case on its facts . . . not to accept the
considerable overgeneralization that a per se rule would reflect.” (internal
quotation marks and citation omitted)). We now address the issues
presented by this case.

¶13           The Fourth Amendment protects individuals against
unreasonable searches and seizures by the government and its agents, and
a warrantless search is per se unreasonable unless a recognized exception,
like the medical blood draw exception, applies. Valenzuela, 239 Ariz. at 302
¶ 10, 371 P.3d at 630. The Fourth Amendment applies to the search here.
As the State concedes, state action occurred when medical personnel turned
over the blood sample at the officer’s request. Medical personnel did not
voluntarily provide the sample to the officer; they were compelled to do so
by § 28-1388(E) under the threat of criminal prosecution. Cf. Skinner v. Ry.
Labor Execs.’ Ass’n, 489 U.S. 602, 614 (1989) (stating that a private railroad
which complies with a federal regulation to collect blood and urine samples
from train personnel after an accident for testing by the Federal Railroad
Administration “does so by compulsion of sovereign authority, and the
lawfulness of its acts is controlled by the Fourth Amendment”).

¶14           The federal and state constitutions and common law also
safeguard an individual’s due process right to direct his or her own course
of medical treatment. See Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261,
278 (1990) (“[A] competent person has a constitutionally protected liberty
interest [under the Fourteenth Amendment] in refusing unwanted medical
treatment.”); Rasmussen v. Fleming, 154 Ariz. 207, 214–15, 741 P.2d 674, 681–
82 (1987) (deciding that common law and Arizona Constitution article 2, § 8
Right to Privacy encompasses a person’s “right to chart his or her own plan
of medical treatment”). This Court has not addressed whether and under
what circumstances the medical blood draw exception to the Fourth
Amendment’s warrant requirement applies when medical personnel draw
blood over a suspect’s refusal to be treated. Before this case, our court of


                                      5
                              STATE V. NISSLEY
                             Opinion of the Court

appeals addressed the issue in State v. Estrada, 209 Ariz. 287, 100 P.3d 452
(App. 2004), and State v. Spencer, 235 Ariz. 496, 333 P.3d 823 (App. 2014).

¶15           In both Estrada and Spencer, the court concluded that the
medical blood draw exception only applies if the suspect receives medical
treatment voluntarily. Estrada, 209 Ariz. at 457 ¶ 23, 100 P.3d at 292; Spencer,
235 Ariz. at 498 ¶ 9, 333 P.3d at 825. But language used in those decisions
has created confusion about what the state must show to invoke the medical
blood draw exception. Cf. State v. Ault, 150 Ariz. 459, 464, 724 P.2d 545, 550
(1986) (noting that the state bears the burden of proving an exception to the
warrant requirement).

¶16            In Estrada, the court stated:

       [W]hen a person is receiving medical treatment against his or
       her will, the exception of § 28-1388(E) allowing blood draws
       without a warrant does not apply. In other words, if a person
       exercises his or her constitutional right to refuse medical
       treatment in the first place, and does so clearly and expressly,
       as Estrada did, he or she cannot be forced to accommodate
       law enforcement’s desire for a blood sample.

Estrada, 209 Ariz. at 291 ¶ 15, 100 P.3d at 456; see also id. at 292 ¶ 23, 100 P.3d
at 457 (“In sum, we construe § 28-1388(E) to implicitly require that a person
must be receiving medical treatment voluntarily for that statute to allow a
warrantless blood draw.”). Spencer relied on Estrada but did not suggest
that a suspect can only exercise his or her due process rights by “clearly and
expressly” refusing medical treatment. Instead, Spencer declared that the
state must demonstrate that a suspect’s consent “was freely and voluntarily
given.” Spencer, 235 Ariz. at 499 ¶ 12, 333 P.3d at 826 (internal quotations
omitted). After these cases, it was unclear whether the state was required
to prove that a suspect did not “clearly and expressly” refuse medical
treatment (as Estrada arguably suggested) or instead that the suspect
voluntarily consented to treatment (as stated in Spencer). The court of
appeals’ majority in this case adopted the former approach as a standard
while the dissent favored the latter approach. Nissley, 238 Ariz. at 454 ¶ 31,
362 P.3d at 501; see also id. at 457 ¶ 41, 362 P.3d at 504 (Jones, J., dissenting).

¶17         Nissley and Amicus argue that the trial and appellate courts
mistakenly placed the burden on him to show that he expressly and

                                        6
                             STATE V. NISSLEY
                            Opinion of the Court

unambiguously rejected medical treatment. (Nissley adequately raised this
argument on appeal, so we reject the State’s waiver argument.) To the
contrary, neither court disputed that the State had the burden of proving
that it obtained the blood sample lawfully. See Nissley, 238 Ariz. at 454 ¶ 31,
362 P.3d at 501 (stating that the State had to “prove[] Nissley did not
unambiguously, clearly and expressly refuse medical treatment”). The
question is whether the courts correctly delineated the showing required to
carry that burden.

¶18           Nissley and Amicus assert that just as the state must prove
that a defendant freely and voluntarily consented to a blood draw to use
the consent exception to the Fourth Amendment’s warrant requirement, it
must prove that a defendant freely and voluntarily consented to medical
treatment to use the medical blood draw exception. See Valenzuela, 239
Ariz. at 301 ¶ 1, 371 P.3d at 629 (discussing consent exception for Fourth
Amendment purposes). The State counters that this standard is not
constitutionally required and would prevent law enforcement from using
the exception when a defendant is incapable of giving consent, as occurs in
many medical emergencies.

¶19            To identify the correct standard, we begin by examining the
scope of an individual’s right to direct his or her own medical treatment.
To exercise the right, the person must have “the capacity to reason and
make judgments.” Rasmussen, 154 Ariz. at 216, 731 P.2d at 683 (citation
omitted) (discussing the common law doctrine of informed consent); see also
Cruzan, 497 U.S. at 280 (recognizing that “[a]n incompetent person is not
able to make an informed and voluntary choice” to refuse treatment). The
right is not absolute. “[T]he right may be limited by the state’s interest in
preserving life, safeguarding the integrity of the medical profession,
preventing suicide, and protecting third parties.” Rasmussen, 154 Ariz. at
216, 731 P.2d at 683; see also Cruzan, 497 U.S. at 279 (“[W]hether respondent’s
constitutional rights [to refuse unwanted medical treatment] have been
violated must be determined by balancing his liberty interests against the
relevant state interests.”) (citation and internal quotation marks omitted);
Washington v. Harper, 494 U.S. 210, 225–26 (1990) (recognizing that the
liberty interest in refusing consent to an antipsychotic drug injection can be
outweighed by a state’s interest in maintaining prison security).

¶20         From these authorities, we conclude that in addition to
showing probable cause, exigency, and that blood was drawn in the course

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                              STATE V. NISSLEY
                             Opinion of the Court

of medical treatment for medical purposes, the state must prove that a
blood sample obtained under the medical blood draw exception was drawn
in compliance with the defendant’s right to direct his or her own treatment.
See Ariz. R. Crim. P. 16.2(b) (providing that prosecutor has burden of
proving lawful acquisition of all evidence to be used at trial). Other than
when the defendant was incapable of providing consent, see infra ¶ 21, the
state must show that the defendant freely and voluntarily consented to
treatment. See Spencer, 235 Ariz. at 499 ¶ 12, 333 P.3d at 826. Consent may
be express or implied. See Bronneke v. Rutherford, 89 P.3d 40, 43 (Nev. 2004).
In deciding whether the state has met its burden, a court should examine
the totality of circumstances, which may include whether the defendant
communicated an unwillingness to be treated. Cf. Jones v. Malloy, 412
N.W.2d 837, 841 (Neb. 1987) (“[I]mplied consent may be inferred from the
patient’s action of seeking treatment or some other act manifesting a
willingness to submit to a particular course of treatment.”).

¶21             Because the right to direct treatment is not absolute, the state
can also satisfy its burden by showing that medical personnel acted when
consent could not be obtained, such as when the defendant was
unconscious or delirious, thereby rendering the defendant incapable of
giving consent. Cf. Canterbury v. Spence, 464 F.2d 772, 788–89 (D.C. Cir.
1972) (concluding that in an emergency, when the person is “unconscious
or otherwise incapable of consenting, and harm from a failure to treat is
imminent and outweighs any harm threatened by the proposed
treatment . . . the impracticality of conferring with the patient dispenses
with need for it”); see also In re Estate of Allen, 848 N.E.2d 202, 211 (Ill. App.
2006) (“In ordinary circumstances, when a physician is confronted with a
patient who is unable to consent and is in need of prompt medical attention,
it is logical to assume that the patient would consent to the procedure and
imply the patient’s consent from the circumstances.” (citation omitted)).

¶22           Nissley argues against application of the medical blood draw
exception when a defendant is treated while unconscious or otherwise
incapable of giving consent. But when both probable cause and exigent
circumstances exist, law enforcement can direct its own warrantless blood
draw under the unconscious exception, A.R.S. § 28-1321(C). Cf. State v.
Huffman, 137 Ariz. 300, 302–03, 670 P.2d 405, 407–08 (App. 1983) (“All that
is required under the facts here is that there be probable cause to believe
that the defendant is intoxicated and that the officer might reasonably
believe that he is confronted with an emergency so that the delay necessary

                                        8
                             STATE V. NISSLEY
                            Opinion of the Court

to obtain a warrant, under the circumstances, threatens destruction of the
evidence.”). No reason exists to preclude law enforcement from obtaining
a portion of a blood sample validly drawn during medical treatment.
Indeed, obtaining part of an existing sample would be less intrusive than
getting a second sample under the unconscious exception. See Cocio, 147
Ariz. at 286–87, 709 P.2d at 1345–46 (suggesting that police intrusion is
minimized by sampling blood drawn for medical reasons in lieu of
directing a new blood draw).

¶23           In determining the scope of the state’s burden, we have relied
somewhat on medical battery cases addressing a person’s right to direct
treatment. Amicus asserts that this reliance is misplaced because
“[t]reatment and seizure are two different questions.” It urges us to rely
only on Fourth Amendment authorities. We decline to do so. Because this
case implicates both Fourth Amendment rights and Nissley’s right to direct
his own medical treatment, it is appropriate not only to require exigency
and probable cause, but also to consider due process and common law
principles, even if developed in part in tort cases.

¶24           In sum, to invoke the medical blood draw exception set forth
in § 28-1388(E), the state must establish that (1) probable cause existed to
believe that the suspect was driving under the influence, (2) exigent
circumstances made it impractical for law enforcement to obtain a warrant,
(3) the blood was drawn by medical personnel for a medical reason, and (4)
the provision of medical services did not violate the suspect’s right to direct
his or her own medical treatment.

                            III. CONCLUSION

¶25           We vacate the court of appeals’ opinion. The record here does
not conclusively establish whether Nissley was able or competent to direct
his own medical treatment and whether medical personnel acted against
that right. We therefore remand to the trial court to apply the standards set
forth in this opinion and to determine in the first instance whether law
enforcement lawfully obtained the blood sample. If it did not, the court
must vacate Nissley’s convictions and sentences, suppress the blood
alcohol evidence, and order a new trial.




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