                                                                  FILED BY CLERK
                                                                     AUG 31 2010
                        IN THE COURT OF APPEALS
                            STATE OF ARIZONA                          COURT OF APPEALS
                              DIVISION TWO                              DIVISION TWO




THE STATE OF ARIZONA,                          )
                                               )
                                  Appellee,    )     2 CA-CR 2009-0041
                                               )     DEPARTMENT B
                   v.                          )
                                               )     OPINION
GLENDA LORRAINE RUMSEY,                        )
                                               )
                                  Appellant.   )
                                               )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                               Cause No. CR20080258

                         Honorable Richard S. Fields, Judge

                    AFFIRMED IN PART; VACATED IN PART


Terry Goddard, Arizona Attorney General
 By Kent E. Cattani and Amy M. Thorson                                       Tucson
                                                              Attorneys for Appellee

Robert J. Hirsh, Pima County Public Defender
 By Michael J. Miller                                                         Tucson
                                                              Attorneys for Appellant


V Á S Q U E Z, Presiding Judge.
¶1            In this opinion we address whether the trial court erred by not suppressing

evidence of blood-test results after concluding the defendant‟s right to counsel had been

violated at the time the blood draw occurred. For the reasons that follow, we conclude

the court did not so err and affirm its ruling on that issue.1

                                    Facts and Procedure

¶2            We view the facts in the light most favorable to sustaining the jury‟s

verdicts. State v. Miles, 211 Ariz. 475, ¶ 2, 123 P.3d 669, 670 (App. 2005). On the

evening of January 12, 2008, J. and O. were riding their bicycles in the eastbound bicycle

lane on Broadway Boulevard in Tucson. After crossing Vozack Lane, O. felt something

hit him and then saw J. “flying in front of [him].” O. got up from the ground and ran to

J., who was unresponsive. O. looked around and saw a “small SUV or a car, a few yards

maybe, in front of [them.] . . . [I]t was red, [and] driving off.” J. died as the result of

head injuries, and O. suffered a dislocated tailbone, bruises, and scratches.

¶3            Glenda Rumsey, the driver of the vehicle that had struck J., stopped her

vehicle and walked back to the accident scene, where she remained until police officers

arrived. The officers noticed Rumsey had an odor of alcohol and was unable to walk

straight.   One officer administered the horizontal gaze nystagmus (HGN) test, and

Rumsey displayed six out of six possible cues of impairment. She was arrested and

charged with manslaughter, aggravated assault of a minor under fifteen years of age,

       1
        Appellant has raised additional issues that we have addressed in a separately filed
memorandum decision in which we have vacated her conviction for driving with an
alcohol concentration greater than .08. See Ariz. R. Crim. P. 31.26; Ariz. R. Sup. Ct.
111(b), (h); see also State v. Payne, 223 Ariz. 555, ¶ 2, 225 P.3d 1131, 1134 (App. 2009).

                                               2
driving under the influence of an intoxicant (DUI) while impaired to the slightest degree,

driving with an alcohol concentration of .08 or more, driving while under the extreme

influence of intoxicating liquor with an alcohol concentration of .15 or more, and leaving

the scene after causing an accident resulting in death or serious physical injury. The jury

acquitted her of leaving the scene of an accident, found her guilty of the remaining

charges, and found the manslaughter and aggravated assault charges were dangerous-

nature offenses. After an aggravation and mitigation hearing, the trial court sentenced

Rumsey to concurrent, enhanced, partially aggravated terms of fourteen and thirteen

years for manslaughter and aggravated assault respectively and to 180 days in jail for the

DUI offenses. This timely appeal followed.

                                         Discussion

¶4            Rumsey argues the trial court erred in not suppressing the results of her

blood tests despite finding Detective Barrett had violated her right to counsel before

officers completed the first blood draw. Specifically, she contends this violation required

suppression of the blood test results under Arizona law. Whether evidence should have

been excluded as the result of a deprivation of counsel is “a mixed question of fact and

law implicating constitutional questions. As such [the court‟s determination] is reviewed

de novo.” State v. Hackman, 189 Ariz. 505, 508, 943 P.2d 865, 868 (App. 1997). And

we will affirm the trial court if it is correct for any reason. State v. Cañez, 202 Ariz. 133,

¶ 51, 42 P.3d 564, 582 (2002).

¶5            While at the accident scene, Rumsey spoke with her attorney by telephone

for approximately six minutes and then informed an officer that the attorney would arrive
                                              3
in about fifteen minutes. When he had not arrived within twenty minutes, Rumsey was

taken to the police substation at 8:35 p.m. The attorney arrived at the accident scene

approximately fifteen minutes later and agreed to follow Detective Barrett to the

substation. En route, Barrett noticed the attorney had turned the opposite direction when

Barrett had made a left turn. Barrett continued on to the substation and was notified at

9:27 p.m. that the attorney had arrived.

¶6            Meanwhile, around 9:10, Rumsey had consented to a blood draw. Before

conducting the draw, Barrett decided to obtain a warrant for three separate blood draws,

spaced one hour apart. The search warrant was issued at 9:26 p.m., served on Rumsey at

9:28, and the first blood draw occurred at 9:31, four minutes after Barrett had been

informed that Rumsey‟s lawyer had arrived at the substation. Rumsey then consulted

with counsel before the two subsequent blood draws.

A. Violation of right to counsel

¶7            Before trial, Rumsey moved to suppress statements she had made during

the initial blood draw and the results of all three blood tests, arguing they had been

“obtained in violation of her right to counsel.” The trial court found:

                     The real interference with the right to counsel arises
              when Barrett tells Rumsey, at about 9:10 p.m., you can “talk
              to [counsel] after the first blood draw[.]” . . . That statement
              is made twenty minutes before the first blood draw and before
              Barrett had even attempted the search warrant call to the
              Judge. . . . And, Barrett testified that he knew [the attorney]
              was there at 9:27 p.m. Notwithstanding Barrett‟s wish to
              conclude the search warrant call and blood draw, there is no
              reason [the attorney] could not have been given a minute or
              two with Rumsey prior to the blood draw. The urgency of the


                                             4
              timing of the blood draw is lessened when one considers that
              Rumsey consented to give blood at 9:10 p.m.

                      ....

                     . . . It is the State‟s duty to prove that the exercise [of
              the right to counsel] would unduly interfere with the
              investigation. The State did not.

¶8            Rule 6.1, Ariz. R. Crim. P., provides that a suspect is entitled to the advice

of counsel “as soon as feasible after [he or she] is taken into custody.” “[I]t is only when

the exercise of that right will hinder an ongoing investigation that the right to an attorney

must give way in time and place to the investigation by the police.” Kunzler v. Superior

Court, 154 Ariz. 568, 569, 744 P.2d 669, 670 (1987).             It is the state‟s burden to

demonstrate that allowing the suspect to consult with counsel when requested would have

disrupted the police investigation. State v. Juarez, 161 Ariz. 76, 81, 775 P.2d 1140, 1145

(1989).

¶9            In DUI-related investigations generally, “[i]nforming the driver that he may

not call his attorney before taking [a blood or breath] test misstates the law and violates

the driver‟s right to counsel.” Id. However, that is not what happened in this case.

Under the circumstances here, we disagree with the trial court that Barrett‟s statement to

Rumsey at 9:10 p.m. deprived her of the right to counsel. As noted above, before the

statement was made, officers already had honored Rumsey‟s request to speak with

counsel at the accident scene. She was provided a cellular telephone and spoke with

counsel for six minutes. After the attorney arrived at the accident scene, Barrett invited

him to follow Barrett to the police substation. The attorney stated he would do so but


                                              5
then did not. Consequently, neither Barrett nor any of the officers at the substation knew

where he had gone and when, or even whether, he would arrive.2 Additionally, Rumsey

consented to the blood draw after having already spoken with counsel at the accident

scene. And, when Barrett first learned at 9:27 p.m. that the attorney had arrived at the

substation, he had by then obtained a warrant for the blood draw.

¶10           Although we disagree with the trial court‟s ruling that Barrett‟s statement at

9:10 amounted to a violation of Rumsey‟s right to counsel, we agree that she was denied

that right after the attorney made his presence at the substation known.          The state

contends no violation occurred because it established that allowing Rumsey to consult

with counsel after his arrival at the substation would have hindered the investigation.3 In

support of this argument, it cites testimony by the investigating detectives that “her blood



       2
        Rumsey contends the record does not support the trial court‟s factual
determination that the police had not willfully ignored the attorney‟s presence at the
substation while he attempted to gain entrance. However, the attorney testified that, after
arriving at the substation, he was unable to get the attention of anyone inside the building
yet did not dial a telephone number posted on the building to reach a police dispatcher
until thirty to forty-five minutes after he had arrived. And, Barrett testified that the
attorney had failed to follow him to the substation and that he was unaware the attorney
had finally arrived until receiving a call from a dispatcher at 9:27. This evidence was
more than sufficient to support the trial court‟s findings. See State v. Herrera, 183 Ariz.
642, 648, 905 P.2d 1377, 1383 (App. 1995) (court‟s factual determinations reviewed for
clear error).
       3
         The state also argues Rumsey‟s right to counsel was not violated because she had
been permitted at the scene to speak with counsel “by telephone for approximately six
minutes, enough time for him to give her legal advice.” However, we are aware of no
authority, and the state has cited none, providing that an initial consultation with counsel
is sufficient to cure a subsequent denial of further consultation. The only limitation our
courts have put on the exercise of the right to counsel is that it may not interfere with the
police investigation. Kunzler, 154 Ariz. at 569, 744 P.2d at 670.
                                             6
alcohol concentration [wa]s diminishing the longer [they] st[oo]d there,” “time was of the

essence,” and blood samples should be obtained “as quickly as possible.”

¶11           However, these considerations apply in every DUI investigation in which

blood alcohol evidence is sought.      Nothing in the officers‟ testimony or the state‟s

argument to the trial court suggested there were any exigent circumstances here

necessitating taking Rumsey‟s blood immediately.          Indeed, as the court noted, the

argument that Rumsey‟s blood needed to be drawn “as quickly as possible” was

undermined to some extent by Barrett‟s decision to delay the blood draw in order to

obtain a warrant, despite the fact that Rumsey already had consented to the test. Barrett

testified at the suppression hearing that “[o]btaining the search warrant was [his] first

priority. Obtaining her blood, within a reasonable amount of time, was [his] second

priority.” Thus, we cannot say the court abused its discretion in concluding the state

failed to meet its burden of establishing that its investigation would have been hindered

by allowing Rumsey to consult with counsel before the blood draw.

B. Remedy for violation of counsel

¶12           We next must address the appropriate remedy for the violation of Rumsey‟s

right to counsel.   She argues that, under Arizona law, the automatic remedy for a

violation of the right to counsel in DUI cases is dismissal of DUI charges and suppression

of the blood test results and any additional evidence obtained after the violation

pertaining to all other charges. Thus, she asserts, the trial court erred in suppressing only

statements she had made “at and about the time of the first blood draw.” The state

counters that suppression of the blood evidence was not required because the blood draw
                                             7
was conducted pursuant to a search warrant and there was no violation of Rumsey‟s due

process right to collect exculpatory evidence. It asserts that Rumsey “asked for and

received an independent [blood] test.”

¶13           Generally, “[t]he exclusionary rule requires the suppression at trial of

evidence gained directly or indirectly as a result of a government violation” of the

defendant‟s constitutional rights. Hackman, 189 Ariz. at 508, 943 P.2d at 868. However,

evidence need not be suppressed when “the connection between the lawless conduct of

the police and the discovery of the challenged evidence has „become so attenuated as to

dissipate the taint.‟” Wong Sun v. United States, 371 U.S. 471, 487 (1963), quoting

Nardone v. United States, 308 U.S. 338, 341 (1939); State v. Rosengren, 199 Ariz. 112,

¶ 22, 14 P.3d 303, 310 (App. 2000) (suppression required only when “causal connection

exists between a constitutional violation and the government‟s obtaining of [the]

evidence”); see also State v. Moody, 208 Ariz. 424, n.6, 94 P.3d 1119, 1141 n.6 (2004)

(applying federal exclusionary-rule principles to violation of Rule 6.1 right to counsel).

¶14           Although Arizona courts have found “the exclusionary rule . . . as a matter

of state law [to be] no broader than the federal rule,” State v. Bolt, 142 Ariz. 260, 269,

689 P.2d 519, 528 (1984), in the context of DUI cases, we have endeavored to

“assiduously protect[] the right to counsel” by liberally applying “stringent remedies,

ranging from suppression of any evidence obtained after [a] violation [of the right to

counsel] to outright dismissal of the action,” Rosengren, 199 Ariz. 112, ¶ 27, 14 P.3d at

312. Without citation of authority, Rumsey asserts “the Arizona Supreme Court has

stated that because it is impossible to say what advice may have been given” to a
                                             8
defendant had the right to counsel been respected, “the [DUI] counts should . . . have

been dismissed.” And, she maintains, because the “Arizona Supreme [C]ourt requires

that the DUI counts be dismissed when the right to counsel is violated, the logical

conclusion is that the evidence is not admissible for any purpose” and should have been

suppressed as to the manslaughter and aggravated assault charges as well.

¶15          Our case law provides that

             only when police conduct interferes with both the defendant‟s
             right to counsel and his ability to obtain exculpatory evidence
             is “[d]ismissal of the case with prejudice . . . the appropriate
             remedy because the state‟s action foreclosed a fair trial by
             preventing [the defendant] from collecting exculpatory
             evidence no longer available.” Correspondingly, when the
             interference with the defendant‟s right to counsel does not
             impinge upon his ability to collect exculpatory evidence, the
             appropriate remedy is suppression.

State v. Keyonnie, 181 Ariz. 485, 487, 892 P.2d 205, 207 (App. 1995), quoting McNutt v.

Superior Court, 133 Ariz. 7, 10, 648 P.2d 122, 125 (1982); see State v. Holland, 147

Ariz. 453, 456, 711 P.2d 592, 595 (1985) (dismissal); Juarez, 161 Ariz. at 81, 775 P.2d at

1145 (suppression); Kunzler, 154 Ariz. at 570, 744 P.2d at 671 (suppression). Thus,

because Rumsey has not asserted the violation of her right to counsel here deprived her of

any exculpatory evidence such that a fair trial was impossible, the trial court correctly

concluded that dismissal of the DUI charges was not an appropriate remedy.4 McNutt,

133 Ariz. at 10, 648 P.2d at 125; Rosengren, 199 Ariz. 112, ¶ 19, 14 P.3d at 309.


      4
        In her reply brief, Rumsey notes there was a five-hour delay between the time of
the accident and the time she received her independent blood test, and “[t]here was
therefore no evidence that the independent blood draw was obtained before the evidence
had vanished.” To the extent Rumsey is arguing the delay in obtaining an independent
                                            9
¶16            On the other hand, in every DUI case in which our courts have considered

the remedy for a violation of the right to counsel, even when there has been no denial of

the defendant‟s due process right to a fair trial, the results of any breath- or blood-alcohol

testing have been suppressed as a consequence for the violation. Juarez, 161 Ariz. at 81,

775 P.2d at 1145; Kunzler, 154 Ariz. at 570, 744 P.2d at 671; Rosengren, 199 Ariz. 112,

¶ 19, 14 P.3d at 309; Keyonnie, 181 Ariz. at 487, 892 P.2d at 207. Rumsey maintains that

the trial court should have done so here. But none of those prior cases compel the

conclusion that every violation of the right to counsel in the DUI context automatically

necessitates suppression of the test results; the general exclusionary rule survives—

suppression is not required unless a nexus exists between the violation and the evidence

obtained. See Herring v. United States, ___ U.S. ___, ___, 129 S. Ct. 695, 700 (2009)

(“We have repeatedly rejected the argument that exclusion is a necessary consequence of

a . . . violation [of a constitutional right]. Instead we have focused on the efficacy of the

rule in deterring . . . violations in the future.”) (citations omitted).

¶17            In each of the cases cited above, the defendant had requested and was

denied the opportunity to speak with counsel before deciding whether to give a breath or

blood sample voluntarily pursuant to Arizona‟s implied consent law, A.R.S. § 28-1321.

Under § 28-1321(A), any


blood draw deprived her of the right to collect exculpatory evidence, she has raised this
contention for the first time in the reply brief and has failed to provide any relevant
argument or citation to authority. The argument therefore is waived. See Ariz. R. Crim.
P. 31.13(c)(1)(vi); State v. Guytan, 192 Ariz. 514, ¶ 15, 968 P.2d 587, 593 (App. 1998)
(arguments first raised in reply brief waived); State v. Felkins, 156 Ariz. 37, 38 n.1, 749
P.2d 946, 947 n.1 (App. 1988) (claim waived when supported by inadequate argument).
                                                10
              person who operates a motor vehicle in this state gives
              consent . . . to a test or tests of the person‟s blood, breath,
              urine or other bodily substance for the purpose of determining
              alcohol concentration . . . if the person is arrested for any
              offense arising out of acts alleged to have been committed . . .
              while the person was driving or in actual physical control of a
              motor vehicle while under the influence of intoxicating
              liquor.

And, upon arrest, the “violator shall be requested to submit to and successfully complete

any test or tests prescribed by subsection A.” § 28-1321(B). Failure to expressly consent

to or successfully complete a requested test is deemed a refusal and automatically results

in suspension of the person‟s driver‟s license for a minimum of twelve months. Id. And

evidence of the defendant‟s refusal to take a test is admissible at trial “to show that the

defendant was conscious of his guilt.” State v. Vannoy, 177 Ariz. 206, 211, 866 P.2d

874, 879 (App. 1993).

¶18           Because a suspect must be arrested before the implied consent provisions

are triggered, there is no dispute that he or she is entitled to counsel upon request. See

Ariz. R. Crim. P. 6.1; Kunzler, 154 Ariz. at 570, 744 P.2d at 671. And, when a defendant

is deprived of counsel at this point in the investigation, the defendant lacks counsel‟s

advice about whether to submit to a breath or blood sample. See Mack v. Cruikshank,

196 Ariz. 541, ¶ 11, 2 P.3d 100, 104 (App. 1999) (“Although a DUI suspect does not

have a „right‟ to refuse to submit to a test, he or she does have the „physical power‟ to

refuse.”). A sample thus obtained, whether pursuant to consent or a warrant, necessarily

is tainted by the defendant‟s inability to have consulted counsel before making that

decision.   Under those circumstances, a nexus exists between the violation and the


                                            11
evidence collected. Because under the most common scenarios such a nexus exists, our

courts have concluded that suppressing the test results is generally required. See Juarez,

161 Ariz. at 81, 775 P.2d at 1145; Rosengren, 199 Ariz. 112, ¶ 19, 14 P.3d at 309;

Keyonnie, 181 Ariz. at 487, 892 P.2d at 207. But see Rosengren, 199 Ariz. 112, ¶ 24, 14

P.3d at 311 (when defendant refused to consent to blood test after denial of right to

counsel, sample obtained pursuant to warrant not subject to suppression under federal

exclusionary rule).

¶19           This court‟s reasoning in Rosengren provides a helpful comparison

assessing the application of the exclusionary rule in this case. There, after being arrested

for DUI, the defendant asked several times to speak with counsel; when officers denied

his requests, the defendant refused to consent to a blood draw. 199 Ariz. 112, ¶¶ 4-5, 14

P.3d at 306. Officers then obtained and executed a telephonic search warrant for his

blood. Id. ¶ 6. Rosengren later moved for dismissal of all charges based on the violation

of his right to counsel. Id. ¶ 7. The trial court denied the motion to dismiss but

suppressed the blood-test results and additional evidence obtained after his request for

counsel had been denied, and this court affirmed on appeal. Id.

¶20           In affirming the lower court‟s ruling, we concluded that the search warrant

could not remedy the deprivation of counsel. Id. ¶ 30 (rejecting out-of-state case holding

alcohol test results admissible despite violation of right to counsel on theory of inevitable

discovery).   We noted that “had Rosengren succumbed to the police pressure by

voluntarily giving a blood sample after the officers violated his right to counsel, evidence

of the blood test would have been suppressed.” We therefore found it “incongruous to
                                             12
allow the state to introduce the . . . test result when Rosengren resisted the officers‟

tactics, refused to waive his rights, and ultimately had blood extracted pursuant to the

warrant.” Id. Thus, in Rosengren, we declined to find the warrant valid when the

officers had “sought [it] to prevent the defendant from exercising his right to . . .

counsel,” and, in doing so, had “subverted” his constitutional right to speak with an

attorney. Moody, 208 Ariz. 424, n.8, 94 P.3d at 1142 n.8.

¶21          Here, in contrast, before Rumsey‟s right to counsel had been violated,

officers already had permitted her to speak with an attorney. They had accommodated

her request at the accident scene by providing her a cellphone and waiting for twenty

minutes for the attorney to arrive before taking Rumsey to the substation.           And,

notwithstanding Rumsey‟s eventual consent to the blood draw after her initial

consultation with counsel, Barrett nevertheless obtained the search warrant for the draw.

Unlike Rosengren, in which the basis for the warrant was Rosengren‟s refusal to consent

without the advice of counsel, the basis for obtaining the warrant here was not related in

any way to the subsequent violation of Rumsey‟s right to counsel. Nor can we say the

warrant was obtained in an attempt to thwart Rumsey‟s invocation of that right, as she

already had been permitted to exercise it. As the Supreme Court stated in Herring,

___U.S. at ___, 129 S. Ct. at 702:

             To trigger the exclusionary rule, police conduct must be
             sufficiently deliberate that exclusion can meaningfully deter
             it, and sufficiently culpable that such deterrence is worth the
             price paid by the justice system. As laid out in our cases, the
             exclusionary rule serves to deter deliberate, reckless, or
             grossly negligent conduct, or in some circumstances recurring


                                           13
              or systemic negligence. The error in this case does not rise to
              that level.

¶22           In short, there was no nexus between the deprivation of Rumsey‟s right to

counsel and the lawfully obtained blood evidence Rumsey sought to suppress. The trial

court did not err in denying her motion to suppress the blood evidence and in precluding

only that evidence tainted by the violation—the statements Rumsey had made during the

blood draw without the benefit of counsel.

                                       Disposition

¶23           Although we conclude Rumsey‟s right to counsel was violated at the time

her blood was drawn, for the reasons set forth above, the trial court did not err in denying

Rumsey‟s motion to suppress the results of the blood tests.


                                              /s/ Garye L. Vásquez
                                              GARYE L. VÁSQUEZ, Presiding Judge

CONCURRING:


/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Judge


/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge




                                             14
