                              IN THE
              ARIZONA COURT OF APPEALS
                           DIVISION TWO


                      THE STATE OF ARIZONA,
                             Appellee,

                                 v.

                      DANIEL ALBERTO REYES,
                            Appellant.

                      No. 2 CA-CR 2014-0238
                      Filed December 24, 2015


          Appeal from the Superior Court in Pima County
                       No. CR20121582001
             The Honorable Richard S. Fields, Judge

                            AFFIRMED


                             COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Terry M. Crist, III, Assistant Attorney General, Phoenix
Counsel for Appellee

Steven R. Sonenberg, Pima County Public Defender
By Katherine A. Estavillo, Assistant Public Defender, Tucson
Counsel for Appellant
                         STATE v. REYES
                        Opinion of the Court



                             OPINION

Judge Miller authored the opinion of the Court, in which Presiding
Judge Vásquez and Chief Judge Eckerstrom concurred.


M I L L E R, Judge:

¶1           Daniel Reyes was convicted after a jury trial of multiple
counts of aggravated driving under the influence of an intoxicant
(DUI), criminal damage, and fleeing a law enforcement vehicle. He
was sentenced to concurrent and consecutive terms totaling eighteen
years’ imprisonment. On appeal, he argues the results of alcohol
testing of blood drawn while he was receiving medical treatment
should have been suppressed because there were no exigent
circumstances justifying the warrantless blood draw, and the officer
could not rely in good faith on binding precedent in seeking the
blood draw. For the following reasons, we affirm.

                 Facts From Suppression Hearing

¶2           In reviewing a motion to suppress, we consider only the
evidence presented at the suppression hearing, viewing it in the
light most favorable to sustaining the trial court’s ruling. State v.
Gonzalez, 235 Ariz. 212, ¶ 2, 330 P.3d 969, 970 (App. 2014). In
April 2012, Tucson Police officer Marquis responded to a call that a
car had fled from an officer and crashed into a building. The driver,
Reyes, was taken to the hospital for treatment of non-life-threatening
injuries. Marquis met Reyes at the hospital and observed that he
had watery, bloodshot eyes, a flushed face, slurred speech, and the
odor of alcohol on his breath. Marquis also attempted to perform a
horizontal gaze nystagmus test on him, but Reyes stopped before it
was completed. Reyes also declined the officer’s request to submit
to a preliminary breath test.




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                          STATE v. REYES
                         Opinion of the Court


¶3            Marquis advised Reyes of his rights pursuant to
Miranda , informed him he was under arrest, and read the “Admin
         1

Per Se”2 admonition. Reyes then asked to speak to his attorney, and
he did so shortly thereafter. Marquis again asked Reyes to consent
to the blood draw, but Reyes declined. The hospital nurses,
however, subsequently drew blood for medical purposes. Marquis
provided a nurse two vials to obtain a portion of the medical draw.
At the suppression hearing, Marquis testified he did not seek a
telephonic search warrant because he knew he could obtain a
sample from the medical draw, but acknowledged there was
sufficient time to have requested a warrant.

¶4           The trial court denied the motion to suppress and at
trial the court admitted the results of the blood analysis, which
showed a blood alcohol content of .195. We have jurisdiction
pursuant to A.R.S. § 13-4033(A).

     Exigent Circumstances and Good Faith Reliance on Cocio

¶5            The single issue raised on appeal is whether the trial
court properly denied the motion to suppress when it concluded
Officer Marquis relied in good faith on binding Arizona precedent
that held the dissipation of alcohol in blood alone satisfied the
“exigent circumstances” element of Arizona’s statutory medical
blood draw exception to the warrant requirement. We generally
review the denial of a motion to suppress for an abuse of discretion,
but review constitutional questions de novo. State v. Gay, 214 Ariz.
214, ¶ 4, 150 P.3d 787, 790 (App. 2007).



      1Miranda   v. Arizona, 384 U.S. 436 (1966).
      2An  “Admin Per Se” warning, or implied consent admonition,
generally warns a driver that his or her license will be suspended if
he or she refuses to submit to a test of the alcohol content of his or
her blood, breath, or other bodily substance. See, e.g., State v. Butler,
232 Ariz. 84, ¶ 4, 302 P.3d 609, 611 (2013); see also A.R.S. § 28-1321
(regarding implied consent).


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                          STATE v. REYES
                         Opinion of the Court


¶6           A blood draw is a search under the Fourth Amendment
to the United States constitution, see Missouri v. McNeely, ___ U.S.
___, ___, 133 S. Ct. 1552, 1558 (2013); therefore, to comply with the
Fourth Amendment, law enforcement officers must first obtain a
warrant or consent, or there must be an exception to the warrant
requirement, see State v. Nissley, No. 1 CA-CR 12-0780, ¶¶ 20-23, 2015
WL 6153913 (Ariz. Ct. App. Oct. 20, 2015). Blood obtained pursuant
to A.R.S. § 28-1388(E) is such an exception.

¶7            Section 28-1388(E) provides that when blood is collected
for any reason, a portion must be provided upon request to a law
enforcement officer who has probable cause to believe the person
has violated the DUI statute. Nissley, 2015 WL 6153913, ¶ 23. In
State v. Cocio, 147 Ariz. 277, 283-84, 709 P.2d 1336, 1344-45 (1985), our
supreme court considered whether the predecessor statute to
§ 28-1388 violated the constitution. To comply with existing
constitutional case law, the court enumerated three requirements
before a law enforcement officer may obtain a sample pursuant to
this exception: (1) the officer must have probable cause to believe
the person has violated the DUI statutes, (2) exigent circumstances
must exist, and (3) the blood must be drawn “for medical purposes
by medical personnel.” Id. at 284, 709 P.2d at 1345.

¶8           Because Reyes refused to consent to a blood draw for
law enforcement purposes, and Marquis did not seek a warrant, the
only issue was whether the state demonstrated compliance with the
three requirements authorizing the medical blood draw exception.
At the suppression hearing, Reyes conceded the blood was drawn
for medical purposes and that the officer had probable cause to
believe he was driving under the influence of alcohol; therefore, the
only remaining issue was whether exigent circumstances were
present. Id. Relying in part on McNeely, ___ U.S. at ___, 133 S. Ct. at
1556, in which the Supreme Court held that the dissipation of
alcohol was not a “per se exigency” justifying an exception to the
warrant requirement, Reyes contended that the officer’s
acknowledgment that there was sufficient time to seek a warrant
vitiated the state’s argument that the dissipation of alcohol
constituted the exigency.


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                          STATE v. REYES
                         Opinion of the Court


¶9            The trial court agreed with the state that exigent
circumstances existed because as time passed, the alcohol in Reyes’s
blood stream dissipated. The court also noted, however, that it
would have suppressed the evidence had the blood draw occurred
after April 2013, when McNeely was issued. Id. It finally noted that
the officer relied on Arizona precedent “in good faith.”

¶10         On appeal, the state argues that the officer relied in
good faith on Arizona precedent that held the dissipation of alcohol
in the blood was an exigent circumstance. It does not argue that
Arizona’s statutory medical exception cases are still valid or that the
blood draw would otherwise have been proper even had it occurred
post-McNeely. But we need not address these issues because, as
explained below, we agree with the state that the officer relied in
good faith on binding precedent at the time of the blood draw.

¶11          Absent a warrant or consent, or if the necessary
requirements to an exception are not met, a court generally applies
the exclusionary rule to bar the admission of evidence obtained in
violation of the constitution. See Davis v. United States, ___ U.S. ___,
___, 131 S. Ct. 2419, 2426 (2011). The exclusionary rule, however, is
subject to exceptions. Id. at ___, 131 S. Ct. at 2429. At issue here is
the good-faith exception that allows admission of evidence
“obtained during a search conducted in reasonable reliance on
binding precedent.” Id.

¶12          To determine whether the good-faith exception applies,
“courts generally agree that the authority must be binding in the
jurisdiction where the police conduct occurred.” State v. Mitchell,
234 Ariz. 410, ¶ 28, 323 P.3d 69, 77 (App. 2014). Tucson Police are
bound by precedent set by the Arizona appellate courts and the
United States Supreme Court. See id. ¶ 31. We therefore review the
applicable precedent at the time of Reyes’s blood draw.

¶13          In 1966, the United States Supreme Court considered
whether a warrantless blood draw performed by a physician at the
direction of a police officer while a driver under arrest for DUI was
in the hospital receiving treatment violated the constitution.
Schmerber v. California, 384 U.S. 757, 758-59 (1966). The court


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                         STATE v. REYES
                        Opinion of the Court


concluded the officer “might reasonably have believed that he was
confronted with an emergency,” and could not wait for a warrant,
due to the fact that blood alcohol diminishes after drinking stops. Id.
at 770. The court held that the driver’s Fourth Amendment rights
were not violated. Id. at 772.

¶14          Nearly twenty years later, the Arizona Supreme Court
relied on Schmerber to uphold the warrantless blood draw of a DUI
suspect receiving medical treatment. Cocio, 147 Ariz. at 283-85, 709
P.2d at 1344-46.       In Cocio, after determining that exigent
circumstances must be present in order to apply Arizona’s statutory
medical blood draw exception, the court held that exigent
circumstances existed 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. at 284,
709 P.2d at 1345.

¶15          Based on the holding in Cocio, this court has repeatedly
refused to revisit arguments that exigent circumstances other than
the dissipation of alcohol in blood were necessary to meet the
requirements of the medical blood draw exception. See State v.
Aleman, 210 Ariz. 232, ¶ 14, 109 P.3d 571, 576 (App. 2005) (noting
“pertinent Arizona cases clearly refute” argument that there were no
exigent circumstances justifying medical blood draw); Lind v.
Superior Court, 191 Ariz. 233, ¶ 20, 954 P.2d 1058, 1062 (App. 1998)
(declining invitation to address Cocio because court of appeals is
“bound by our supreme court’s determinations”); State v. Howard,
163 Ariz. 47, 50, 785 P.2d 1235, 1238 (App. 1989) (finding exigent
circumstances argument failed due to Cocio).

¶16          Reyes argues that despite those cases, the law was
“unsettled” and there was no binding precedent upon which Officer
Marquis could find exigent circumstances. He relies on Mitchell, a
case in which this court declined to apply the Davis exception
because the case law was unsettled. 234 Ariz. 410, ¶ 31, 323 P.3d at
78. Mitchell, however, is distinguishable. The state supreme court
precedent regarding medical blood draws had been well-developed
over two decades. In contrast, Mitchell involved the placement of a
GPS tracking device on the defendant’s vehicle, for which there was

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                         STATE v. REYES
                        Opinion of the Court


no Arizona or controlling federal authority. Id. ¶ 31. The state relied
instead on a distinguishable case from the Ninth Circuit Court of
Appeals and Arizona cases the court determined were not
sufficiently apposite because they did not address GPS technology.
Id. ¶¶ 28-32. The lack of settled case law in Mitchell is not present
here.

¶17          Reyes also argues there has been a “shift[] away from”
Cocio, relying on State v. Flannigan, 194 Ariz. 150, 978 P.2d 127 (App.
1998). There, the defendant drove his truck through a red light and
struck a car, causing the death of the driver and injuring the
passengers. Id. ¶ 2. Flannigan was suspected of being under the
influence of a central nervous system stimulant because his
physiological measures were elevated and he displayed nervous
tendencies. Id. ¶¶ 3-6. He was transported to the police station
where a drug recognition expert performed various tests. Id. ¶ 5.
Because of a police department policy that regarded a manslaughter
investigation as sufficient to constitute an exigency, a phlebotomist
at the police station drew the defendant’s blood without a search
warrant or express consent. Id. ¶¶ 6, 9, 16. The state relied on
Schmerber to argue exigent circumstances were present because the
officer believed Flannigan was under the influence of drugs, and
those drugs were dissipating in his blood. See id. ¶¶ 9-11. In
holding the state did not meet its burden of showing exigent
circumstances, the court concluded that Schmerber required both the
dissipation of alcohol in the defendant’s system and a lack of time to
seek out a warrant before the circumstances would be deemed
exigent. Id. ¶¶ 20, 25.

¶18          Flannigan did not signal a shift away from Cocio.
Indeed, the court specifically noted, citing Lind, that “because
[Flannigan] did not sustain any injuries in the accident that required
medical personnel to draw his blood, this case does not involve the
medical purposes exception of A.R.S. section 28-692(J), which would
have entitled the police to receive a sample of his blood regardless of




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                          STATE v. REYES
                         Opinion of the Court


his consent.”3 Flannigan, 194 Ariz. 150, ¶ 14, 978 P.2d at 130. The
court specifically distinguished its holding from cases involving the
medical blood draw exception, indicating that dissipation of alcohol
in blood still served as an exigent circumstance in such cases. Id.
Moreover, the court’s principal holding was based on the “officers’
rote application of the department’s untenable policy that exigent
circumstances always exist in vehicular manslaughter and
aggravated assault cases.” Id. ¶ 25. Flannigan did not vitiate Cocio,
nor could it. See Lind, 191 Ariz. 233, ¶ 20, 954 P.2d at 1062 (declining
to “revisit” Cocio “[b]ecause we are bound by our supreme court’s
determinations”).

¶19           As of 2012, when Reyes’s blood was drawn, Arizona
courts had uniformly held that dissipation of alcohol in blood was in
itself a sufficient exigent circumstance for purposes of the medical
exception. Cocio, 147 Ariz. at 284, 709 P.2d at 1345; Aleman, 210 Ariz.
232, ¶ 14, 109 P.3d at 576; Lind, 191 Ariz. 233, ¶ 20, 954 P.2d at 1062;
Howard, 163 Ariz. at 50, 785 P.2d at 1238. Therefore, it was
reasonable for officer Marquis to rely on the evanescent nature of
alcohol in Reyes’s blood in requesting the blood sample with no
warrant. See Davis, ___ U.S. at ___, 131 S. Ct. at 2429. The trial court
did not err in denying Reyes’s motion to suppress.

                             Disposition

¶20         For the foregoing reasons, Reyes’s convictions and
sentences are affirmed.




      3 A.R.S. § 28-692(J) was the predecessor statute to today’s
medical blood draw exception, § 28-1388(E). Compare § 28-1388(E),
with 1996 Ariz. Sess. Laws, ch. 161, § 8.


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