                                 IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                PATRICK MCLEOD NISSLEY, Appellant.

                          No. 1 CA-CR 12-0780
                            FILED 10-20-2015


          Appeal from the Superior Court in Maricopa County
                       No. CR2011-110536-001
                The Honorable Bruce R. Cohen, Judge

                      AFFIRMED AS MODIFIED


                                 COUNSEL

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

Ballecer & Segal, LLP, Phoenix
By Natalee E. Segal
Counsel for Appellant



                                 OPINION

Judge Samuel A. Thumma delivered the opinion of the Court, in which
Presiding Judge Lawrence F. Winthrop joined and Judge Kenton D. Jones
dissented in part.
                            STATE v. NISSLEY
                            Opinion of the Court

T H U M M A, Judge:

¶1             Patrick McLeod Nissley appeals from his convictions and
resulting sentences for reckless manslaughter, possession or use of narcotic
drugs and four counts of endangerment. Nissley argues the superior court
erred in denying his motion to suppress blood test results for blood
obtained for law enforcement purposes under Arizona Revised Statute
(A.R.S.) section 28-1388(E) (2015).1 Because Nissley has shown no reversible
error, his convictions and sentences are affirmed as modified to vacate the
requirement that Nissley pay for the cost of his DNA testing.

                FACTS2 AND PROCEDURAL HISTORY

¶2             Shortly after 5:30 p.m. on November 2, 2010, while driving his
car at a high rate of speed in a residential area, Nissley crashed head on into
an oncoming car, injuring four people in the oncoming car and killing a
pedestrian. Witnesses later detailed Nissley’s erratic and dangerous driving
and behavior leading up to and after the fatal crash. A blood sample taken
from Nissley by medical personnel at a hospital less than an hour later
revealed significant concentrations of methamphetamine and an active
metabolite of heroin in his system at the time of the crash. The State charged
Nissley with one count of second degree murder, a Class 1 dangerous
felony; one count of possession or use of narcotic drugs, a Class 4 felony;
and four counts of endangerment, each a Class 6 dangerous felony.

¶3            Nissley moved to suppress the blood test results, asserting the
blood sample was obtained without a warrant or probable cause and that
he expressly refused medical treatment. Nissley argued that

              [a police] officer cannot obtain blood for law
              enforcement purposes pursuant to A.R.S. § 28-
              1388(E) when the person is subjected to medical
              treatment that the person has expressly rejected.



1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

2This court considers only the evidence received at the suppression hearing
and does so in a light most favorable to upholding the superior court’s
ruling on the motion to suppress. See, e.g., State v. Blackmore, 186 Ariz. 630,
631, 925 P.2d 1347, 1348 (1996); State v. Hyde, 186 Ariz. 252, 265, 921 P.2d
655, 668 (1996).


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                            Opinion of the Court

                     In State v. Estrada, 209 Ariz. 287, 100 P.3d
              452 ([App.] 2004), this precise question was
              answered. There, similar circumstances
              resulted in law enforcement obtaining a sample
              of blood drawn from an individual who
              expressly refused medical treatment. The Court
              held the blood inadmissible on the same theory
              raised in this case.

The State’s response argued that the facts were “distinguishable from the
Estrada case relied upon by [Nissley] as the basis for his motion to preclude
the blood test results.” In reply, relying on Estrada, Nissley claimed that if
the “suspect actively rejects medical treatment, then the police may no
longer exploit” A.R.S. § 28-1388(E).

I.     The Evidentiary Hearing.

¶4            At the evidentiary hearing on Nissley’s motion to suppress,
the superior court heard testimony from six witnesses, received numerous
exhibits and heard argument. Nissley, as was his right, elected not to testify
at the hearing. The evidence received addressed the issues raised in
Nissley’s motion to suppress: (1) whether law enforcement had probable
cause and (2) whether Nissley expressly refused medical treatment. Given
the fact-intensive nature of the inquiry, the evidence is summarized here in
some detail.

       A.     The Scene Of The Crash.

¶5             Officer Jay Jones was the first responder, arriving at the scene
between 5:35 and 5:40 p.m. When he arrived, Nissley was being tended to
by a concerned citizen who was a nurse. Jones testified Nissley appeared to
be in distress, “was flailing around” and that his “whole car was crushed in
around him.”

¶6             Officer Deborah Hemshrot arrived a few minutes after Jones
and heard Nissley screaming in his car. When Hemshrot told Nissley to
“stop it,” he complied. Hemshrot testified there was a great deal of blood
in his car, which photographs confirm. Asked whether Nissley was
“refusing assistance,” Hemshrot testified “[n]ot that I’m aware of, no.” She
added that Nissley did not otherwise respond to her and was being
uncooperative. Nissley was screaming and cursing, shoving and punching
first-responders, nonresponsive to questions and apparently unable to
understand what was happening. Hemshrot, who had been an emergency
medical technician (EMT) for approximately 10 years before becoming a


                                      3
                           STATE v. NISSLEY
                           Opinion of the Court

police officer, testified, “[Nissley’s] speech was slurred. I could not smell
any alcohol or anything coming from his breath. But I could not make out
what he was saying. He just had a – like he was on something. He was
appearing to be delirious and just screaming.”

¶7           Officer Nichole Hanson arrived at about the same time as
Hemshrot and controlled traffic and took photographs. Hanson testified to
seeing syringes in Nissley’s car and an uncapped needle stuck between the
car’s windshield and dashboard.

¶8             Andrew McDonald, the primary treating paramedic, and
EMT Aaron Lowery arrived after Hemshrot and Hanson. McDonald
testified Nissley had numerous cuts, was bleeding and had scrapes to the
face and head. Nissley’s car had quite a bit of damage from an apparent
rollover. McDonald asked Nissley for his name and general information to
assess his condition. Nissley responded by stating “‘f’ off, leave me alone”
and refused to provide any additional information. McDonald testified that
Nissley’s response to similar questions was profanity and “leave me alone,
I’m fine” and “just go away.” As McDonald was treating Nissley and
“explaining to him that I was there to help him, I did, numerous times, tell
him he had to give me information if he wanted me to go away,” yet Nissley
did not answer the questions asked and “never responded giving me any
information.” “At no time was [Nissley] able to provide any indication on
his level of consciousness.” McDonald added that Nissley “was aggressive,
he was pushing [paramedics] away,” and “[a]t a few points … attempted to
strike us with a closed fist.” Nissley “was physically combative during the
entire event,” including before McDonald asked him any questions.

¶9             McDonald expressed concern that Nissley may have suffered
a closed head injury and testified that individuals who have closed head
injuries act similarly to how Nissley was acting. McDonald testified that
Nissley’s behavior might be “consistent” with someone with a “closed head
injury,” although he conceded Nissley was “conscious” and “verbally
responsive” and that Nissley “seemed to be like he knew what was going
on. He knew the situation he was in, but he didn’t want anybody around
him, was my opinion.”

¶10           When asked whether, at any point, Nissley said “I don’t need
medical treatment,” McDonald testified “I don’t recall him saying that.”
When asked if, at any point before being placed in the ambulance, Nissley
“indicate[d] to you he didn’t want to go to the hospital,” McDonald
answered “[h]is only indication was that he said, I didn’t want your help,
and that he continued to swear at us and act aggressive.” McDonald


                                     4
                            STATE v. NISSLEY
                            Opinion of the Court

testified that, for Nissley “to say, leave me alone, did not indicate that he
didn’t want our medical treatment.” According to McDonald, Nissley’s
refusal to cooperate “indicat[ed] that at that particular time he did not want
anything from us.” After removing Nissley from his car, McDonald treated
him and Nissley continued cursing and being combative. McDonald
testified Nissley kept “pushing us away” and “attempting to hit us with a
closed fist.” Once they “had him strapped to a back board which was then
in turn strapped to a gurney,” Nissley was “able to pull his feet out of the
straps and attempt to kick at” the paramedics.

¶11          McDonald testified he did not believe Nissley ever said he
wanted McDonald’s assistance or treatment or transportation to the
hospital. Given Nissley’s injuries, however, McDonald testified he was
unable to decline transporting Nissley to the hospital without getting
clearance from a doctor. When asked “did it ever occur to you that, because
this person was telling you he didn’t want your help, that you were going
to be transporting him against his will,” McDonald responded “Yes.”
McDonald explained why, given his injuries, Nissley was transported to the
hospital without a doctor being consulted:

              Q      And, I mean, isn’t that when you’re
              supposed to call the doctor at the hospital and
              say, we’ve got somebody that may not want our
              help? I think he needs it?

              A      Per our offline treatments, if they cannot
              respond to our alert and oriented questions, we
              don’t have to call and get permission for that.

              Q      Aren’t you making a distinction? You
              said, cannot respond. I mean, it’s not that he
              couldn’t respond. He just didn’t respond. Isn’t
              that the truth?

              A      He did not.

              Q      All right. So he could have responded?

              A      I don’t know if he could or not. He did
              not respond to the questions I asked.

              Q    He was saying whatever the heck else he
              wanted to say, wasn’t he?



                                      5
                            STATE v. NISSLEY
                            Opinion of the Court

              A.     He said quite a few things. I can’t tell you
              if he could have or not. He didn’t answer my
              questions.

¶12           EMT Lowery testified about significant damage to Nissley’s
car that appeared to be caused by a rollover, that Nissley had a head wound
and had quite a bit of blood “all over” his head and there was blood in the
car from his head wound. Lowery testified Nissley “did state to leave me
alone, don’t touch me,” but he “would not answer our questions.” Lowery
said Nissley was “throwing punches, calling us names” and saying “I don’t
want your help.” Lowery acknowledged Nissley was saying “no” to
transportation to the hospital, but added that Nissley did not have the right
to refuse transportation to the hospital in his condition. “He wasn’t able to
make his own decisions.” Lowery testified that Nissley’s behavior was not
consistent with a diabetic who was hypoglycemic. Even if it had been,
Lowery testified that he would not have left Nissley in the car. Lowery
helped put Nissley on the backboard used to put him in the gurney to take
him to the hospital and held his head down because responders suspected
Nissley had a head or back injury. Lowery never heard Nissley say that he
wanted to go to the hospital or “[p]lease give me medical assistance.”

¶13            Officer Sara Plotnik arrived at the scene after the other first
responders. She testified that Nissley, while “probably traveling at a high
rate of speed, which would be unusual for that area due to the foot traffic”
and the low speed limit, caused a head-on accident killing a pedestrian.
Damage to Nissley’s car, as evidenced by photographs of the scene,
confirmed that Nissley had been driving fast. Plotnik never heard Nissley
reject treatment but she did see him “moving around” continually “yelling
ow, ow,” while he was strapped to the gurney and the paramedics were
trying to work on or move him. Plotnik testified Nissley was screaming and
cursing, shoving and punching first-responders, nonresponsive to
questions and apparently unable to understand what was happening.
Based on her training and experience, Plotnik testified that Nissley’s
behavior was consistent with being under the influence of drugs or alcohol.
She added that Nissley’s behavior was inconsistent with someone who had
simply been in an accident and more consistent with someone under the
influence of drugs or alcohol. Plotnik recounted information provided to
her at the time that “a lot of syringes were seen on the ground” and in
Nissley’s car, which photographs confirm.




                                      6
                           STATE v. NISSLEY
                           Opinion of the Court

      B.     The Ambulance Trip To The Hospital.

¶14           McDonald and Lowery rode with Nissley in the ambulance to
the hospital. McDonald testified that Nissley continued to curse and be
combative in the ambulance. McDonald did not recall Nissley saying he did
not want to go to the hospital while he was in the ambulance, although
Nissley continued to curse and was “extremely combative” during the ride
and was pushing him away, swinging at him and kicking him the entire
time. Lowery acknowledged that Nissley continued to be uncooperative
and combative and was consistent throughout his contact with Lowery.

      C.     At The Hospital.

¶15           Nissley’s first contact with nurses and doctors, which resulted
in the blood draw, did not occur until after he arrived at the hospital.
Plotnik was at the hospital when Nissley was being unloaded from the
ambulance and testified that Nissley “was continually yelling ow, ow ow.”
Lowery, who wheeled Nissley into the hospital, testified that Nissley’s
blood was taken according to hospital protocol, not at Lowery’s direction.
Lowery testified that Nissley behaved the same way at the hospital as he
did at the crash site and treated the nurses and doctors the same way he
treated Lowery at the crash site.

¶16           Plotnik testified that, “[a]s hospital staff tried to work on
[Nissley], he would continually move about.” Plotnik testified that, at the
hospital, Nissley continued to move or jump away, making it “difficult” for
medical professionals to work on him. Plotnik testified Nissley had to be
sedated before they could “assess his situation.” When medical personnel
asked questions, Nissley “said that he didn’t know or he just refused to
answer.” When asked whether she “ever hear[d] Mr. Nissley tell the
doctors [at the hospital], I don’t want medical treatment,” Plotnik
responded “I never did.”

¶17           Plotnik had a portable recorder at the hospital that she used
to record some statements by medical personnel and Nissley, both as
Nissley was unloaded from the ambulance and in the trauma room. At least
portions of that recording were played at the suppression hearing. That
recording, however, was not received as an exhibit, is not part of the record
on appeal and no transcript from the recording is part of the record on
appeal.




                                     7
                          STATE v. NISSLEY
                          Opinion of the Court

II.   The Superior Court’s Ruling On Nissley’s Motion To Suppress.

¶18         After considering the evidence in the context of the parties’
arguments, the superior court issued a detailed minute entry stating, in
part:

                     This Court has painstakingly reviewed
             the record to assess whether [Nissley’s] actions
             rose to the level of “express rejection” of
             medical care contemplated by Estrada. In so
             doing, the Court has not only weighed the
             presentation of the various witnesses, but also
             the tape recording secured by Officer Plotnik at
             the hospital. Throughout the recording, there
             were numerous comments and sounds from
             [Nissley] that included “it hurts,” “ow f…, ow
             f…, ow f…, no” as well as repeated moans
             expected from someone in great pain. None of
             the contents of the recording from the hospital
             would rise even near to the level of express
             rejection of medical care.

                    The noted actions of [Nissley] at the
             scene of the accident are subject to
             interpretation that could include resistance to
             touch due to pain or a delirious state of mind.
             While it is also possible to interpret [Nissley’s]
             actions and words to be a rejection of medical
             care, they do not rise to a clear and
             unambiguous rejection and are certainly not of
             the level of rejection voiced by Estrada.

                    Based upon the foregoing, it is the
             finding of this Court that law enforcement
             secured the blood sample in accordance with
             ARS Section 28-1388(E) and that the actions of
             [Nissley] did not constitute an express refusal to
             submit to medical treatment sufficient to
             mandate that a warrant be secure. As such, the
             Motion to Suppress is denied.




                                     8
                              STATE v. NISSLEY
                              Opinion of the Court

¶19           After an 18-day trial, the jury found Nissley guilty of the
lesser-included offense of reckless manslaughter on the second degree
murder count, and guilty of the remaining offenses as charged. The
superior court sentenced Nissley to an aggravated prison term of 15 years
for the manslaughter conviction and concurrent prison terms of 3 years on
each of the other convictions. From Nissley’s timely appeal, challenging the
superior court’s denial of his motion to suppress, this court has jurisdiction
pursuant to the Arizona Constitution, Article 6, Section 9, and A.R.S. §§ 12-
120.21(A)(1), 13-4031 and -4033.

                                 DISCUSSION

I.     The Legal Standards Governing The Taking Of Blood Samples.

¶20            A blood draw is a search under the Fourth Amendment to the
United States Constitution, applicable here through the due process clause
of the Fourteenth Amendment. State v. Spencer, 235 Ariz. 496, 498 ¶ 9, 333
P.3d 823, 825 (App. 2014) (citing State v. Estrada, 209 Ariz. 287, 290 ¶ 11, 100
P.3d 452, 455 (App. 2004)). As noted in Spencer and Estrada, there are three
ways police could obtain a blood sample from Nissley consistent with the
directives of the Fourth Amendment.

¶21            First, upon a showing of probable cause, a warrant could be
obtained for a blood sample. Spencer, 235 Ariz. at 498 ¶ 9, 333 P.3d at 825
(citing Estrada, 209 Ariz. at 290 ¶ 11, 100 P.3d at 455); see also Illinois v. Gates,
462 U.S. 213, 236 (1983) (noting “the Fourth Amendment’s strong
preference for searches conducted pursuant to a warrant”). Had the police
done so here, the sole issue raised by Nissley on appeal would have been
avoided. Indeed, the Dissent at ¶ 52 acknowledges that a search warrant
properly would have issued and that the blood sample properly could have
been obtained on this independent basis. However, it is undisputed that no
warrant was obtained for the blood sample taken from Nissley.

¶22            Second, Nissley could have consented to provide a blood
sample, either expressly or impliedly. Spencer, 235 Ariz. at 498 ¶ 9, 333 P.3d
at 825 (citing Estrada, 209 Ariz. at 290 ¶ 11, 100 P.3d at 455); see also A.R.S. §
28-1321(A) (implied consent). The record does not reflect that Nissley
expressly consented, and the parties’ arguments indicated that Nissley
revoked implied consent. When no express consent is provided, when
implied consent is revoked and when no warrant is obtained, police are
limited to the third option. See A.R.S. § 28-1321(D)(1) (noting if person
revokes implied consent, blood test “shall not be given, except as provided
in section 28-1388, subsection E or pursuant to a search warrant”).



                                         9
                            STATE v. NISSLEY
                            Opinion of the Court

¶23          Third, pursuant to the medical blood draw exception to the
warrant requirement,

              if a law enforcement officer has probable cause
              to believe that a person has violated [A.R.S.] §
              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.R.S. § 28-1388(E). As construed, this statutory exception to the Fourth
Amendment’s warrant requirement does not apply when a person
“exercises his or her constitutional right to refuse medical treatment,” and
does so “unambiguously,” “clearly and expressly.” Estrada, 209 Ariz. at 290
n.2 ¶ 9, 291 ¶15, 100 P.3d at 455 n.2, 456.3 The issues presented here are
whether, on the record before it, the superior court erred in finding the State
showed that (1) it had probable cause to believe that Nissley violated A.R.S.
§ 28-1381 and (2) Nissley did not unambiguously, clearly and expressly
refuse medical treatment.

¶24            “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.” Spencer, 235 Ariz. at 499 ¶ 12, 333
P.3d at 826 (citation omitted).4 This court reviews the denial of a motion to

3 The Arizona Supreme Court has restricted the “for any reason” language
“to mean that the blood must be drawn by medical personnel for any
medical reason.” State v. Cocio, 147 Ariz. 277, 284, 709 P.2d 1336, 1345 (1985)
(construing statutory predecessor). The superior court found that “the
necessary medical care of [Nissley] at the hospital meets this prerequisite,”
a finding not challenged on appeal. Nissley apparently remained
hospitalized for several days after the crash.

4 The Dissent at ¶¶ 41 and 46 concludes the superior court improperly
shifted the burden of proof, thereby relieving the State of its burden to
prove voluntary consent to medical treatment, and imposing upon Nissley
the burden of proving the adequacy of his rejection. The record, however,
does not support such a conclusion. During argument at the suppression
hearing, the superior court expressly recognized the State had the burden
of proof, and nothing in its detailed minute entry denying the motion to



                                      10
                            STATE v. NISSLEY
                            Opinion of the Court

suppress for an abuse of discretion. Id. at 498 ¶ 8, 333 P.3d at 825 (citing
cases); Estrada, 209 Ariz. at 288 ¶ 2, 100 P.3d at 453. The superior court, not
this court, weighs and assesses witness credibility. Estrada, 209 Ariz. at 288,
¶ 2, 100 P.3d at 453. This court defers to the superior court’s factual findings
that are supported by the record and not clearly erroneous. Id. Legal
conclusions and mixed questions of law and fact are reviewed de novo.
Spencer, 235 Ariz. at 498 ¶ 8, 333 P.3d at 825 (citing cases).

II.    The Superior Court Properly Found The Police Had Probable
       Cause To Believe Nissley Violated A.R.S. § 28–1381 Before The
       Blood Draw.

¶25            Because law enforcement is not required “to show that the
operator was in fact under the influence[,] only the probability and not a
prima facie showing of intoxication is the standard for probable cause.”
State v. Aleman, 210 Ariz. 232, 237 ¶ 15, 109 P.3d 571, 576 (App. 2005)
(citation omitted). The police must have “collective knowledge” of
“reasonably trustworthy information of facts and circumstances which are
sufficient in themselves to lead a reasonable person to believe an offense
has been committed and that the person to be arrested did commit it.” Id.
(citation omitted). As applied, the testimony of first-responder police
officers demonstrates there was probable cause to believe Nissley violated
A.R.S. § 28-1381 before the blood draw.

¶26           On appeal, Nissley focuses on other evidence considered by
the superior court, suggesting the crash may have been caused by a medical
emergency, the initial investigation did not include determining “if drugs
(legal or otherwise) were present” and Plotnik “had not even made an
assessment as to whether she believed [Nissley] was under the influence of
alcohol or drugs.” It is true that the testimony at the hearing was not always
consistent or definitive, causing the superior court to conclude that each of
the first-responders who testified at the suppression hearing “had a
somewhat different perspective but there were inherent similarities to their
versions of events.” Resolving such issues involves the assessment of


suppress was inconsistent with that recognition. Nissley’s opening and
reply briefs on appeal do not argue the superior court shifted the burden of
proof from the State. On appeal, this court allowed supplemental briefing
on the applicability of Spencer, which was decided after Nissley’s
sentencing and appeal, and the burden of proof. The parties’ supplemental
briefs acknowledged that the State had the burden of proof and, consistent
with his prior positions, Nissley did not argue the superior court shifted the
burden of proof from the State.


                                      11
                             STATE v. NISSLEY
                             Opinion of the Court

credibility, which is for the superior court alone. Estrada, 209 Ariz. at 288 ¶
2, 100 P.3d at 453. Moreover, the standard for probable cause “is not a
subjective standard but an objective one.” State v. Turner, 142 Ariz. 138, 141,
688 P.2d 1030, 1033 (App. 1984). The issue is whether the evidence supports
the finding that the “collective knowledge” of the police showed probable
cause. Aleman, 210 Ariz. at 237 ¶ 15, 109 P.3d at 576. The record from the
suppression hearing supports the superior court’s finding that the police had
probable cause to believe that Nissley was driving while impaired to the
slightest degree and, therefore, had violated A.R.S. § 28-1381(A)(1). See
Aleman, 210 Ariz. at 237 ¶ 15, 109 P.3d at 576; see also State v. Quinn, 218 Ariz.
66, 69-70 ¶ 10, 178 P.3d 1190, 1193-94 (App. 2008) (depending on
circumstances, unexplained erratic driving may give rise to probable cause
for DUI) (dicta). Accordingly, the superior court did not err in finding the
police had probable cause to believe Nissley violated A.R.S. § 28–1381
before the blood draw.

III.   The Superior Court Properly Found The State Showed Nissley Did
       Not Unambiguously, Clearly And Expressly Refuse Medical
       Treatment.

¶27            Nissley argued to the superior court that Estrada “answered”
the “precise question” presented here. Under Estrada, the medical blood
draw exception to the warrant requirement does not apply when a person
“exercises his or her constitutional right to refuse medical treatment,” and
does so “unambiguously,” “clearly and expressly.” Estrada, 209 Ariz. at 290
n.2 ¶ 9, 291 ¶ 15, 100 P.3d at 455 n.2, 456; see also Spencer, 235 Ariz. at 499 ¶
13, 333 P.3d at 826 (citing Estrada). Nissley argues he unambiguously,
clearly and expressly refused medical treatment. Nissley also claims “it is
undisputed that” he did not want to be transported to the hospital and did
not want medical assistance on the trip to the emergency room. The State
argues Nissley was not “alert and oriented” when contacted by paramedics
and that his statements to paramedics were not the clear and express refusal
of medical treatment required by Estrada.

       A.     The Concerns Expressed In Estrada And Spencer Are Not
              Present In This Case.

¶28            In Estrada, after a fatal accident, the defendant initially agreed
to go to the hospital but then, while en route to the hospital in an
ambulance, “apparently changed his mind.” 209 Ariz. at 289 ¶ 4, 100 P.3d at
454. A police officer “then handcuffed and shackled [defendant] to the
gurney.” 209 Ariz. at 289 ¶ 5, 100 P.3d at 454. After being “secured to the
gurney, he still expressed a desire to get out of the ambulance.” Id. Following
an evidentiary hearing, the superior court granted defendant’s motion to


                                       12
                             STATE v. NISSLEY
                             Opinion of the Court

suppress test results of blood drawn at the hospital. 209 Ariz. at 289 ¶ 7, 100
P.3d at 454. On appeal, deferring to the superior court’s finding that the
defendant “unambiguously,” “clearly and expressly” refused medical
treatment, Estrada found no abuse of discretion in granting defendant’s motion
to suppress. Id. at 292 ¶ 23, 100 P.3d at 457. In doing so, Estrada stated the
medical draw exception did not apply “when the person is subjected to
medical treatment that the person has expressly rejected,” finding that a
contrary holding would allow “an unscrupulous police officer . . . [to] have the
person forcibly taken to the hospital under the pretext of needing medical
treatment in order to procure a blood sample without first obtaining a
warrant.” 209 Ariz. at 290-91 ¶¶ 13, 14, 100 P.3d at 455-56.

¶29            Here, by contrast, nothing in the record suggests that police
officers directed or had anything to do with the decision to take Nissley to the
hospital or to draw his blood at the hospital. Officer Jones testified that he did
not tell the paramedics he wanted Nissley transported to the hospital and
did not assist in doing so. Similarly, EMT Lowery testified that no police
officer told him that they wanted Nissley taken to the hospital. Lowery
added that Nissley’s blood was taken according to hospital protocol, not at
his direction. Accordingly, the concerns identified in Estrada about “an
unscrupulous police officer” directing medical treatment to obtain a blood
sample are not present here.

¶30             In Spencer, decided after Nissley was convicted and
sentenced, the defendant “steadfastly refused medical treatment. She
capitulated only after being told [by a police officer] she would be arrested
if she did not go to the hospital.” 235 Ariz. at 499-500 ¶ 15, 333 P.3d at 826-
27. Given this “ultimatum,” Spencer found the defendant’s decision to go to
the hospital (rather than jail) was “the product of coercion or duress” by the
police officer and, accordingly, involuntary. 235 Ariz. at 499-500 ¶¶ 14, 16,
333 P.3d at 826-27. Thus, Spencer held that the police officer’s directive to
either go to jail or go to the hospital removed from the defendant the ability
to voluntarily refuse medical care. Id. at 500 ¶ 16, 333 P.3d at 827. Unlike
Spencer, however, there is no suggestion that any police officer had any
involvement in the decision to transport Nissley to the hospital, threatened
jail if he did not or had any involvement in the decision to draw his blood
at the hospital. As a result, there was no “ultimatum” or police directive
leading to the decision to draw blood from Nissley. Accordingly, Nissley
did not face the Hobson’s choice presented to the defendant by the police
in Spencer.




                                       13
                              STATE v. NISSLEY
                              Opinion of the Court

       B.      Under Estrada And Spencer, Nissley Has Not Shown The
               Superior Court Abused Its Discretion In Denying The
               Motion to Suppress.

¶31             Even if the facts here implicated the concerns expressed in
Estrada and Spencer about “an unscrupulous police officer,” the issue would be
whether the superior court abused its discretion on this record in finding that
the State proved Nissley did not unambiguously, clearly and expressly refuse
medical treatment. Estrada, 209 Ariz. at 290 n.2 ¶ 9, 291 ¶15, 100 P.3d at 455
n.2, 456; see also Spencer, 235 Ariz. at 499 ¶ 13, 333 P.3d at 826 (citing Estrada).
As applied, this inquiry focuses on three locations: (1) at the scene of the crash;
(2) in the ambulance on the way to the hospital and (3) at the hospital. See
Estrada, 209 Ariz. at 289 ¶¶ 4-5, 100 P.3d at 454 (where defendant consented to
medical treatment and then revoked consent and, by implication, recognizing
the opposite could occur).

¶32            As the superior court’s ruling reflects, the record includes no
statement by Nissley specifically refusing medical assistance at the scene of
the crash. He repeatedly stated he did not want help from first responders
(including paramedics), for them to “leave him alone” and physically
resisted efforts at aid and struck at first responders with closed fists. He also
kicked his legs free when he was on a gurney and attempted to kick at
medical personnel as they were placing him into an ambulance. As the
superior court noted, the actions at the scene of the crash

               are subject to interpretation that could include
               resistance to touch due to pain or a delirious
               state of mind. While it is also possible to
               interpret [Nissley’s] actions and words to be a
               rejection of medical care, they do not rise to a
               clear and unambiguous rejection and are
               certainly not of the level of rejection voiced by
               Estrada.

On this record, and given the deference owed to the superior court’s factual
findings that provide the foundation for this conclusion, Nissley has not
shown that the court erred in concluding that the State had shown Nissley
did not unambiguously, clearly and expressly reject medical care at the
scene of the crash. Estrada, 209 Ariz. at 290 n.2 ¶ 9, 291 ¶ 15, 100 P.3d at 455
n.2, 456; see also Spencer, 235 Ariz. at 499 ¶ 13, 333 P.3d at 826 (citing Estrada).

¶33           Nor does the evidence from the ambulance ride alter the
analysis. The testimony of McDonald and Lowery, who rode with Nissley
in the ambulance, does not suggest Nissley took a different position during


                                        14
                             STATE v. NISSLEY
                             Opinion of the Court

the ride to the hospital. On this record, Nissley has not shown that the
superior court erred in concluding the State showed Nissley did not
unambiguously, clearly and expressly reject medical care during the
ambulance trip to the hospital. Estrada, 209 Ariz. at 290 n.2 ¶ 9, 291 ¶15, 100
P.3d at 455 n.2, 456; see also Spencer, 235 Ariz. at 499 ¶ 13, 333 P.3d at 826
(citing Estrada).

¶34            Finally, the testimony from Lowery and Plotnik suggests
Nissley did not unambiguously, clearly and expressly reject medical care at
the hospital, where he first was treated by nurses and doctors and where
his blood was drawn. Plotnik testified that Nissley never told the nurses or
doctors he did not want medical treatment. And the recording from the
hospital, the substance of which is not of record on appeal, is presumed to
support the superior court’s ruling, including the conclusion that “[n]one
of the contents of the recording from the hospital would rise even near to
the level of express rejection of medical care.” See Cullison v. City of Peoria,
120 Ariz. 165, 168 n.2, 584 P.2d 1156, 1159 n.2 (1978) (“where an incomplete
record is presented to an appellate court, the missing portions of that record
are to be presumed to support the action of the trial court”) (citing cases).

¶35            Referring to the medical treatment provided at the hospital,
the Dissent at ¶ 48 states “an eventual capitulation to the persistent
demands of medical personnel” cannot “qualify as ‘free’ and ‘voluntary’
submission to treatment.” The record, however, does not reflect any
“demands of medical personnel” at the hospital and the missing recording
is presumed to support a contrary finding. Moreover, the superior court
properly could find the records received in evidence do not show a rejection
of medical treatment by Nissley at the hospital, any demands of medical
personnel or a capitulation to such demands by Nissley. These records do
not run counter to the superior court’s factual finding that the State showed
Nissley did not expressly reject medical treatment at the hospital. Nissley
has not shown that the superior court erred in concluding that the State
showed Nissley did not unambiguously, clearly and expressly reject
medical care at the hospital. See Estrada, 209 Ariz. at 290 n.2 ¶ 9, 291 ¶15,
100 P.3d at 455 n.2, 456; see also Spencer, 235 Ariz. at 499 ¶ 13, 333 P.3d at 826
(citing Estrada).5


5Although the Dissent at ¶ 49 states the superior court’s ruling “arguably
results in structural error, . . . which cannot be harmless and need not have
been raised” with the superior court, Nissley has never claimed structural
error and his motion to suppress preserved the issue discussed above.



                                       15
                             STATE v. NISSLEY
                             Opinion of the Court

                                     *****

¶36            The Dissent advocates for a standard different than Estrada
and, in concluding the superior court applied the incorrect legal standard,
takes exception to the application of Estrada to this case. The Dissent does
not, however, argue that the analysis in Estrada was incorrect or that Estrada
was wrongly decided. And it bears repeating that Nissley’s motion to
suppress relied exclusively on Estrada, argued Estrada answered the
“precise question” presented here and stated Estrada’s test was whether the
blood was “drawn from an individual who expressly refused medical
treatment.” Having been asked by Nissley to apply the legal standard set
forth in Estrada, the superior court cannot be faulted for then applying
Estrada’s test to the facts presented. It is also hard to find fault with the
superior court not applying a standard that Nissley has not advocated and
that does not appear in Estrada.6

¶37           Nor did Nissley change course on appeal. Although citing
cases supporting the proposition that a person typically may refuse medical
treatment and that a blood draw is a seizure under the Fourth Amendment,
Nissley’s opening brief on appeal argues that the blood draw ran afoul of
Estrada. At no point does Nissley challenge the Estrada analysis. “The rule
that issues not clearly raised in the opening brief are waived serves to avoid
surprising the parties by deciding their case on an issue they did not present


Moreover, the Dissent cites no case applying structural error to an appeal
from the denial of a motion to suppress. See State v. Tucker, 215 Ariz. 298,
316 ¶ 66, 160 P.3d 177, 195 (2007) (“We have recognized structural error in
only a few instances,” such as “when trial judge biased; defendant denied
counsel, access to counsel, self-representation, and public trial; reasonable
doubt instructions defective; and jurors excluded because of race or views
on death penalty”) (citing authority).

6 An additional reason for the requirement that a defendant unambiguously,
clearly and expressly refuse medical treatment as set forth in Estrada is to allow
law enforcement to timely assess alternatives. Here, had Nissley
unambiguously, clearly and expressly refused medical treatment, law
enforcement likely would have obtained a warrant to secure a blood sample.
Cf. Missouri v. McNeely, 133 S. Ct. 1552, 1563 (2013) (noting that blood alcohol
content “is lost gradually and relatively predictably,” such that the “natural
dissipation of alcohol in the blood” does not support a finding of exigency
“categorically”).




                                       16
                            STATE v. NISSLEY
                            Opinion of the Court

and to prevent the court from deciding cases with no research assistance or
analytical input from both parties.” State v. Lopez, 223 Ariz. 238, 240 ¶ 6, 221
P.3d 1052, 1054 (App. 2009) (citations omitted). Although Nissley argues
the superior court misapplied Estrada, the time for Nissley to argue that an
analysis different than Estrada should apply has long since passed.

¶38           Finally, it is true that the evidence considered by the superior
court was not entirely consistent. The superior court acknowledges as much
in noting Nissley’s actions at the scene were “subject to interpretation.” This
court, however, defers to the superior court’s factual findings that are
supported by the record and not clearly erroneous. Estrada, 209 Ariz. at 288
¶ 2, 100 P.3d at 453. On this record, Nissley has not shown that the superior
court erred in weighing and assessing the testimony and other evidence
received at the suppression hearing and concluding that the State showed
Nissley did not unambiguously, clearly and expressly reject medical care at
the hospital. See Estrada, 209 Ariz. at 290 n.2 ¶ 9, 291 ¶ 15, 100 P.3d at 455
n.2, 456; see also Spencer, 235 Ariz. at 499 ¶ 13, 333 P.3d at 826 (citing
Estrada).7 Accordingly, Nissley has not shown that the court erred in
denying his motion to suppress.

                               CONCLUSION

¶39           At sentencing, the superior court ordered Nissley to “pay the
applicable fee for the cost of” his DNA testing. In State v. Reyes, 232 Ariz.
468, 472 ¶ 14, 307 P.3d 35, 39 (App. 2013), this court held that A.R.S. § 13–
610 does not authorize the court to impose a DNA testing fee on a convicted
defendant. Accordingly, pursuant to Reyes, which was issued after Nissley
was sentenced, his sentence is modified to vacate the requirement that
Nissley pay for the cost of DNA testing. In all other respects, Nissley’s
convictions and sentences are affirmed.




7 Given this conclusion, this court need not address the State’s argument
that Nissley lacked the capacity to deny consent to receive medical care,
which may justify a warrantless blood draw where applicable. See Estrada,
209 Ariz. at 290 n.2 ¶ 9, 100 P.3d at 455 n.2 (noting person who is
unconscious or otherwise rendered incapable of refusing medical treatment
“’is deemed not to have withdrawn’” implied consent) (quoting A.R.S. § 28-
1321(C)).


                                      17
                            STATE v. NISSLEY
                         Jones, J., dissenting in part
J O N E S, J., dissenting in part:

¶40           In my view, the trial court applied the incorrect legal standard
in denying the motion to suppress. Although the majority correctly notes
there has never been any dispute that the State bears the burden of
establishing “the lawfulness in all respects of the acquisition of all evidence
which [it] will use at trial,” Ariz. R. Crim. P. 16.2(b), the question remains
as to what the State must prove to admit blood evidence obtained pursuant
to the “medical purpose” exception to the warrant requirement,
enumerated within A.R.S. § 28-1388(E). This provision allows law
enforcement to obtain and test a sample of a person’s blood taken for
medical purposes if probable cause exists to believe the person has violated
Arizona’s DUI laws. See State v. Cocio, 147 Ariz. 277, 284, 709 P.2d 1336,
1345 (1985); State v. Aleman, 210 Ariz. 232, 236, ¶ 11, 109 P.3d 571, 575 (App.
2005). We have held that the statute does not apply “when a person is
receiving medical treatment against his or her will.” State v. Estrada, 209
Ariz. 287, 291, ¶ 15, 100 P.3d 452, 456 (App. 2004).

¶41            Here, the trial court admitted the challenged blood evidence
after finding the State had proven Nissley’s actions “d[id] not constitute an
express refusal to submit to medical treatment” in the manner
“contemplated by Estrada.” The majority accepts this as the standard and
defers to the trial court’s findings. However, a discussion limited to
whether the rejection of medical treatment is unequivocal, and therefore
sufficient to preserve the defendant’s constitutionally protected right to
bodily integrity, is misleading and contrary to established Fourth
Amendment jurisprudence. Predicating suppression of the blood evidence
upon the sufficiency of a rejection of medical care upends the historical
requirement of consent in the absence of a warrant. At a minimum, this
relieves the State of its full burden of proving the admissibility of the blood
evidence, and in application may result in a de facto shifting of the burden
of proof to the defendant to prove the “adequacy” of his rejection, upon no
greater evidence being presented than the suggestion by the State that the
rejection was unclear or ambiguous. For these reasons, I would hold the
proper inquiry is not whether the defendant was able to prove he
adequately rejected medical care, but rather, whether he freely and
voluntarily consented to medical treatment. See State v. Spencer, 235 Ariz.
496, 499, ¶ 12, 333 P.3d 823, 826 (App. 2014). Even viewing the facts in the
light most favorable to affirming the trial court’s order, the State did not
present any evidence of consent. Therefore, I respectfully dissent from the
majority’s conclusion that Nissley failed to demonstrate reversible error.




                                      18
                             STATE v. NISSLEY
                          Jones, J., dissenting in part
                                DISCUSSION

¶42             In State v. Estrada, we held the medical purpose exception
does not apply “when a person is receiving medical treatment against his
or her will.” 209 Ariz. at 291, ¶ 15, 100 P.3d at 456. Apparently guided by
the specific facts of Estrada, where the defendant “changed his mind about
going [to the hospital] voluntarily and became agitated and attempted to
get out of the ambulance,” we attempted to further define the issue by
adding: “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 . . . he or she cannot be forced to accommodate law enforcement’s
desire for a blood sample.” Id. at 289, 291, ¶¶ 4, 15, 100 P.3d at 454, 456. It
is the “other words” the majority focuses upon in affirming the trial court’s
denial of Nissley’s motion to suppress, see infra ¶ 9, and which the State
relies upon in arguing its responsibility was “to show the defendant did not
expressly reject treatment.” However, the two statements, while leading to
the same result in Estrada, are not the same. In my view, it is the initial
statement which was intended to fix the standard for determining the
applicability of A.R.S. § 28-1388(E).

¶43             The phrase “against his will,” as articulated in Estrada, is
admittedly problematic. Indeed, it is unworkable to require the State to
prove medical treatment was “against the will” of the defendant; the State
has no interest or incentive to offer proof illustrating the inapplicability of
the statute it is relying upon to establish the admissibility of its evidence. It
would be equally inappropriate and unconstitutional to place the burden
upon the defendant to prove the statutory exception to the warrant
requirement does not apply, i.e., that the treatment was given “against his
will.” See State v. Ault, 150 Ariz. 459, 464, 724 P.2d 545, 550 (1986) (“The
burden is on the state when it seeks an exception to the warrant
requirement.”) (citation omitted). And, because the parties in Estrada did
not dispute that the defendant was transported to the hospital “against his
will,” the opinion does not address what, precisely, the State must prove in
order to establish the admissibility of blood evidence obtained pursuant to
A.R.S. § 28-1388(E).

¶44           The majority settles the semantical problem presented by the
phrase “against his will” by allowing the State to proceed solely upon
evidence that the defendant’s attempted rejection of medical care was
insufficient. This interpretation is not consistent with the commonly
understood meaning of the phrase “against the will,” which is typically
used to indicate a lack of consent. See Large v. Superior Court, 148 Ariz. 229,
234, 714 P.2d 399, 404 (1986) (noting drugs administered to petitioner were
“against his will” where he refused to consent to treatment); State v. Miguel,


                                       19
                             STATE v. NISSLEY
                          Jones, J., dissenting in part
125 Ariz. 538, 542, 611 P.2d 125, 129 (App. 1980) (holding that consent is a
defense to a crime that requires the State to prove a taking was “against the
will” of the victim); Fonseca v. Hall, 568 F. Supp. 2d 1110, 1131 (C.D. Cal.
2008) (“[A] finding that the victims were confined against their will
necessarily implied that the victims had not consented.”) (internal
quotation and citation omitted); Against the Will, Black’s Law Dictionary
(10th ed. 2014) (noting “against the will” is used in indictments to indicate
a lack of consent). Estrada itself suggests some lesser level of resistance
would be sufficient, noting that its holding would apply to an “attempt[] to
decline medical treatment by refusing to go to the hospital” — something
less than an express rejection of care. 209 Ariz. at 291 n.3, ¶ 15, 100 P.3d at
456 n.3.

¶45            More importantly, the majority’s approach conflicts with
long-standing federal and state constitutional authority intended to protect
persons from unreasonable bodily intrusion. This authority applies
independent from the legislative direction contained in A.R.S. § 28-1388(E).
State v. Butler, 232 Ariz. 84, 88, ¶ 18, 302 P.3d 609, 613 (2013). Indeed, in
over two hundred years of Fourth Amendment jurisprudence, I am
unaware of any court, in any jurisdiction, having ever upheld the validity
of a warrantless intrusion premised purely upon the inadequacy of the
defendant’s objection to the search; instead, courts have inerrantly required
the State to affirmatively establish consent. See, e.g., United States v. Murphy,
516 F.3d 1117, 1124-25 (9th Cir. 2008) (noting a “refusal to grant consent”
effectively bars a warrantless search); Karwicki v. United States, 55 F.2d 225,
226 (4th Cir. 1932) (“The fact that [the defendant] did not protest against the
search of his living quarters is without significance. He was not required
to protest. The officers had no right to search same without a warrant,
unless they had his consent to the search.”); United States v. Lerner, 100 F.
Supp. 765, 767 (N.D. Cal. 1951) (declining to find consent where it was
“apparent that the attitude of the defendant was one of protest rather than
consent”). This Court recognized as much in State v. Spencer, which recently
articulated the State’s burden, “as the party seeking to admit evidence
seized without a warrant [and] establish[] the medical [purpose]
exception’s applicability,” to include “demonstrating that . . . consent [to
medical treatment] was ‘freely and voluntarily given.’” 235 Ariz. at 499,
¶ 12, 333 P.3d at 826 (citing Butler, 232 Ariz. at 88, ¶ 19, 302 P.3d at 613, and
State v. Peterson, 228 Ariz. 405, 408, ¶ 9, 267 P.3d 1197, 1200 (App. 2011)).
And requiring consent is consistent with statutory and judicially
recognized exceptions to the warrant requirement. See A.R.S. § 28-1321(A)
(implied consent); Butler, 232 Ariz. at 87, ¶ 13, 302 P.3d at 612 (2013)
(recognizing “[c]onsent can also allow a warrantless search” in the context
of blood drawn during a DUI investigation).


                                       20
                             STATE v. NISSLEY
                          Jones, J., dissenting in part
¶46            Yet, the trial court did not require the State to prove Nissley
consented to medical treatment, and the State’s evidence objectively fails to
establish consent. Whether consent is given is a question determined by the
totality of the circumstances, State v. Paredes, 167 Ariz. 609, 612, 810 P.2d
607, 610 (App. 1991) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 248-49
(1973), and State v. King, 140 Ariz. 602, 604, 684 P.2d 174, 176 (App. 1984)),
and an exception to the warrant requirement must be proven “‘by clear and
positive evidence in unequivocal words or conduct expressing consent,’”
State v. Canez, 202 Ariz. 133, 151, ¶ 53, 42 P.3d 564, 582 (2002) (quoting State
v. Kananen, 97 Ariz. 233, 235, 399 P.2d 426, 427 (1965)); see also United States
v. Shaibu, 920 F.2d 1423, 1427-28 (9th Cir. 1990) (“The consent [to a search]
must be unequivocal and specific and freely and intelligently given.”)
(internal quotations omitted). “Failing to actively resist or vocally object to
a test does not itself constitute express agreement. Instead, . . . the arrestee
must unequivocally manifest assent to the [warrantless chemical] testing by
words or conduct.”8 Carrillo v. Houser, 224 Ariz. 463, 466-67, ¶ 19, 232 P.3d
1245, 1248-49 (2010) (holding actual consent is required prior to chemical
testing initiated under A.R.S. § 28-1321 and noting the legislature’s
clarification that a “failure to expressly agree constitutes a refusal” to take
the test under A.R.S. § 28-1321(B)); see also Stoner v. California, 376 U.S. 483,
489 (1964) (noting defendant could waive Fourth Amendment rights only
“by word or deed”). Upon these principles, the trial court was tasked with
determining whether the State met its burden of showing Nissley freely and
voluntarily exhibited a manifestation of consent to medical treatment.
Although the trial court acknowledged that the State had the burden of
proof, it considered only the sufficiency of Nissley’s objection to medical

8       An eloquent and detailed statement of refusal is not and cannot be
required to overcome the State’s burden of showing free and voluntary
consent. The necessity of uttering a specific phrase at the precisely correct
moment would create an artificial predicate to finding a refusal that is
neither mandated by, nor consistent with, the broad protections against
bodily invasion contained within the U.S. and Arizona Constitutions. See
United States v. Ramirez, 79 F.3d 298, 304 (2d Cir. 1996) (“A suspect need not
rely on talismanic phrases or any special combination of words to invoke
his Fifth Amendment right to remain silent.”) (cited with approval by State
v. Cota, 229 Ariz. 136, 145, ¶ 26, 272 P.3d 1027, 1036 (2012)). Under some
circumstances, a verbal announcement may not be necessary or even
possible, and our supreme court has already recognized that active
resistance and vocal objections are not necessary to negate consent. Carrillo,
224 Ariz. at 466-67, ¶ 19, 232 P.3d at 1248-49. It necessarily follows that such
activity is, at a minimum, affirmative evidence of a lack of consent.



                                       21
                             STATE v. NISSLEY
                          Jones, J., dissenting in part
treatment — ultimately determining that, while Nissley may have rejected,
he did not reject enough.

¶47            The trial court’s conclusion that Nissley’s rejection was
insufficient places in stark contrast the difference between requiring proof
from the State that the defendant consented to medical treatment, and
requiring proof that he “unambiguously, clearly and expressly rejected”
treatment. The record is replete in its characterization of Nissley’s lack of
consent, having been strapped to a backboard for placement in the
ambulance, working his feet free, cursing and screaming as he tried to kick
the emergency medical personnel to prevent them from putting him into
the ambulance for transportation to the hospital, and wiggling his body
furiously in an attempt to keep the paramedics from touching him or
otherwise providing aid. The record indicates that from the moment
emergency personnel arrived at the scene of the accident at approximately
5:40 p.m., until his forced sedation and subsequent blood draw nearly an
hour later, Nissley was “extremely combative,” screaming “leave me
alone,” “don’t touch me,” “I don’t want your help,” “I’m fine,” and “just go
away,” interlaced with near-constant profanity and name-calling. There is
no legal interpretation capable of being given this conduct or these phrases,
especially when uttered to a paramedic actively attempting to render
medical care, that stands apart from their ordinary everyday meaning,
which would give rise to a finding of free and voluntary consent.9 Yet, the
trial court concluded, and the majority affirms, that these facts are
insufficient to establish rejection of medical care.

¶48            Similarly, even accepting the trial court’s suggestion that
Nissley may have been reacting to pain at the time he arrived at the
hospital, an expression of pain does not equate to free and voluntary
consent to medical treatment. See Rasmussen v. Fleming, 154 Ariz. 207, 216-
17, 741 P.2d 674, 683-84 (1987); see also Hales v. Pittman, 118 Ariz. 305, 309,
576 P.2d 493, 497 (1978) (noting “the fundamental right of every adult of
sound mind to determine what should be done to his body”); see also Cruzan
ex rel. Cruzan v. Dir. Mo. Dep’t of Health, 497 U.S. 261, 305-06 (1990) (Brennan,
J., dissenting) (noting “each man is considered to be master of his own body,


9      The majority implicitly recognizes the lack of evidence to establish
Nissley’s consent to medical treatment by limiting its use of the word
“consent” to a discussion of inapplicable alternatives to A.R.S. § 28-1388(E),
supra ¶¶ 22, 38 n.6, and a parenthetical explanation of revocation, supra
¶ 31, instead focusing its attention entirely upon the conclusion that
“Nissley did not unambiguously, clearly and expressly reject medical care,”
supra ¶¶ 22, 31-35, 38.


                                       22
                             STATE v. NISSLEY
                          Jones, J., dissenting in part
and he may, if he be of sound mind, expressly prohibit . . . medical
treatment” and therefore the right to bodily integrity protects the right to
decline even lifesaving treatment) (quotation and citations omitted). Nor
can an eventual capitulation to the persistent demands of medical
personnel qualify as “free” and “voluntary” submission to treatment. See
Spencer, 235 Ariz. at 499-500, ¶ 15, 333 P.3d at 826-27; see also State v.
Flannigan, 194 Ariz. 150, 153, ¶ 16, 978 P.2d 127, 130 (App. 1998) (finding
mere “‘acquiescence to a claim of lawful authority’” insufficient to meet
burden of establishing a person consented to a search) (quoting Bumper v.
North Carolina, 391 U.S. 543, 548-49 (1968)). Yet, again, the trial court
concluded, and the majority affirms, that the conduct was not an
unambiguous rejection of medical care.

¶49             The concept of consent is materially different from that of
rejection. I would find the trial court applied the wrong standard in
determining the applicability of A.R.S. § 28-1388(E) and, in doing so, abused
its discretion. State v. Mohajerin, 226 Ariz. 103, 108, ¶ 18, 244 P.3d 107, 112
(App. 2010) (“When a trial court predicates its decision on an incorrect legal
standard, . . . it commits an error of law and thereby abuses its discretion.”)
(citing State v. Mangum, 214 Ariz. 165, 167, ¶ 6, 150 P.3d 252, 254 (App.
2007)). The test adopted by the trial court puts the cart before the horse, see
United States v. Gray, 369 F.3d 1024, 1026-27 (8th Cir. 2004) (considering
whether defendant withdrew his consent only after recognizing that
consent was originally granted), permits the State to introduce evidence
obtained without a warrant based upon something less than the
constitutionally required free and voluntary consent,10 and arguably results
in structural error, see State v. Glassel, 211 Ariz. 33, 53, ¶ 74, 116 P.3d 1193,
1213 (2005) (finding structural error where circumstance improperly
reduces the state’s burden of proof) (citing Sullivan v. Louisiana, 508 U.S. 275,
280-82 (1993), and State v. Portillo, 182 Ariz. 592, 594, 898 P.2d 970, 972
(1995)); see also State v. Henderson, 210 Ariz. 561, 565, ¶ 12, 115 P.3d 601, 605
(2005) (defining structural errors as “those which ‘deprive defendants of
basic protections without which a criminal trial cannot reliably serve its


10     Requiring the State to prove a defendant consented to medical
treatment in order to admit evidence obtained pursuant to A.R.S. § 28-
1388(E) would not affect the admissibility of bodily evidence obtained from
an unconscious driver. See supra ¶ 38 n.6. Under A.R.S. § 28-1321(A), the
unconscious driver has already given consent to chemical testing under
certain circumstances when he operates a motor vehicle in this state and is
incapable of revoking that consent under A.R.S. § 28-1321(C). Where the
State chooses to proceed under this section, it need not separately prove
consent to medical treatment.


                                       23
                            STATE v. NISSLEY
                         Jones, J., dissenting in part
function as a vehicle for guilt or innocence.’”) (quoting State v. Ring, 204
Ariz. 534, 552, ¶ 45, 65 P.3d 915, 933 (2003)), which cannot be harmless and
need not have been raised below, see State v. Valverde, 220 Ariz. 582, 585, ¶
10, 208 P.3d 233, 236 (2009) (“If an appellate court finds structural error,
reversal is mandated regardless of whether an objection is made below or
prejudice is found.”); see also United States v. Atkinson, 297 U.S. 157, 160
(1936) (“In exceptional circumstances, especially in criminal cases, appellate
courts, in the public interest, may, of their own motion, notice errors to
which no exception has been taken, if the errors are obvious, or if they
otherwise seriously affect the fairness, integrity, or public reputation of
judicial proceedings.”).

                              CONCLUSION

¶50           In the absence of consent to medical treatment, freely and
voluntarily given, the medical purpose exception does not apply. Given
the record before us, the State did not prove by a preponderance of the
evidence that Nissley freely and voluntarily consented to medical care.11
Therefore, I would find the warrantless seizure of Nissley’s blood was
improper, vacate Nissley’s convictions and sentences, and remand for a
new trial that does not include evidence derived from the blood draw.

¶51           I appreciate the concerns of the majority regarding the
challenges faced by law enforcement in assessing available alternatives to
gather what may be time-sensitive evidence. See supra ¶ 36 n.5. However,
“a grudging or negative attitude by reviewing courts toward warrants . . .
is inconsistent with the Fourth Amendment’s strong preference for searches
conducted pursuant to a warrant.” Illinois v. Gates, 462 U.S. 213, 236 (1983).
Constitutional protections are not subject to exception simply for the

11     The State argues a defendant must show it had some hand in forcing
unwanted medical care upon him before the blood evidence can be
suppressed. To read an additional requirement into the statute would run
contrary to the legislature’s chosen language, which articulates only the
need for probable cause and a blood draw resulting from medical treatment
voluntarily received. See A.R.S. § 28-1388(E); Spencer, 235 Ariz. at 499, ¶ 12,
333 P.3d at 826. And the law is express: in the absence of these elements,
implied consent, or a warrant, “the [blood] test shall not be given.” A.R.S.
§ 28-1321(A), (D)(1) (emphasis added). Given the clear statutory language,
it is unsurprising no argument or evidence was presented at the
suppression hearing, and the trial court made no findings, regarding law
enforcement’s willingness to allow Nissley to be removed from the accident
scene, despite his protests, and transported to the hospital to receive
medical treatment.


                                      24
                             STATE v. NISSLEY
                          Jones, J., dissenting in part
convenience of a criminal investigation, see, e.g., United States v. Taylor, 934
F.2d 218, 220 (9th Cir. 1991) (“We recognize that individual interests
outrank government convenience in the fourth amendment balancing.”)
(citing United States v. Martinez-Fuerte, 428 U.S. 543, 557-58 (1976)), and our
supreme court has rejected the notion that requiring law enforcement
officers to obtain warrants for blood draws is unduly burdensome, Butler,
232 Ariz. at 87, ¶ 11 (“‘In those drunk-driving investigations where police
officers can reasonably obtain a warrant before a blood sample can be
drawn without significantly undermining the efficacy of the search, the
Fourth Amendment mandates that they do so.’”) (quoting Missouri v.
McNeeley, 133 S. Ct. 1552, 1561 (2013)). Moreover, while consideration of
the degree of rejection is subjective, the concept of consent is not subject to
a continuum; consent is either given or it is not. See Illinois v. Rodriguez, 497
U.S. 177, 188 (1990) (holding factual determination of consent must be
judged against an objective standard) (citing Terry v. Ohio, 392 U.S. 1, 21-22
(1968)); People v. Smith, 638 P.2d 1, 6 (Colo. 1981) (“Whether consent existed
at the relevant time is an objective fact.”) (citing People v. Edmonds, 578 P.2d
655 (Colo. 1978)). The objective standard advanced herein will only assist
law enforcement in the fair and orderly collection and preservation of
evidence.

¶52           I agree with the trial court’s conclusion that probable cause
existed to believe Nissley had violated A.R.S. § 28-1381. Based upon such
probable cause, and where there was any question as to the applicability of
A.R.S. § 28-1388(E), the officers could and should have secured a warrant
to obtain a sample of Nissley’s blood.

¶53           For these reasons, I respectfully dissent.




                                    :ama




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