                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                  DENISE ANDREE BOWSER, Appellant.

                             No. 1 CA-CR 15-0601
                               FILED 12-27-2016


           Appeal from the Superior Court in Maricopa County
                        No. LC2015-000216-001
            The Honorable Crane McClennen, Judge, Retired

                            APPEAL DISMISSED


                                   COUNSEL

Mesa City Prosecutor's Office, Mesa
By W. Craig Jones
Counsel for Appellee

Cameron A. Morgan, Attorney at Law, Scottsdale
By Cameron A. Morgan
Counsel for Appellant
                            STATE v. BOWSER
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Jon W. Thompson and Judge Paul J. McMurdie joined.


J O H N S E N, Judge:

¶1             Denise Andree Bowser appeals from the superior court's
order affirming the municipal court's denial of her motion to suppress the
results of a blood-alcohol test. For the reasons that follow, we dismiss the
appeal for lack of jurisdiction.

             FACTS AND PROCEDURAL BACKGROUND

¶2            In December 2013, Bowser was arrested and charged with
driving under the influence pursuant to Arizona Revised Statutes ("A.R.S.")
section 28-1381(A)(1), (2) (2016).1 The arresting officer read to Bowser an
admonition based on A.R.S. § 28-1321 (2016). The officer then asked Bowser
if she would consent to a blood test, and she did.

¶3             After a hearing, the Mesa Municipal Court denied Bowser's
motion to suppress the results of the blood test, finding her consent to the
blood draw was voluntary. The matter proceeded to trial, and a jury found
Bowser guilty on the charge at issue in this appeal. The court sentenced her
to ten days in jail, but suspended nine of the days. On appeal to the superior
court, Bowser argued the municipal court abused its discretion by denying
the motion to suppress. The superior court affirmed the municipal court's
judgment and sentence. Bowser filed a timely appeal from the superior
court's order.

                               DISCUSSION

¶4            This court has no jurisdiction over an appeal from a judgment
of the superior court affirming a conviction entered by a municipal court
unless the action "involves the validity of a tax, impost, assessment, toll,
municipal fine or statute." A.R.S. § 22-375(A) (2016). In the municipal court
and before the superior court, Bowser challenged the constitutionality of
the implied-consent statute, A.R.S. § 28-1321. After the superior court

1      Absent material revision after the date of an alleged offense, we cite
a statute's current version.


                                      2
                            STATE v. BOWSER
                           Decision of the Court

ruled, however, our supreme court issued State v. Valenzuela, 239 Ariz. 299
(2016), a case examining the constitutionality of consent granted after law
enforcement admonishes a suspect pursuant to the statute.

¶5            Valenzuela stands for the proposition that consent given only
in acquiescence to an assertion of lawful authority to search, such as the
admonition given in this case based on A.R.S. § 28-1321, is not freely and
voluntarily given. Valenzuela, 239 Ariz. at 304-06, ¶¶ 17-21. Although the
court concluded that such an admonition may implicate voluntariness
issues, the court did not hold § 28-1321 unconstitutional. Id. at 308, ¶¶ 28-
30. Accordingly, on appeal, although Bowser cites Valenzuela in challenging
the constitutionality of her consent, she no longer argues A.R.S. § 28-1321 is
unconstitutional.

¶6             Because Bowser no longer challenges the validity of § 28-1321,
we lack jurisdiction over her appeal pursuant to A.R.S. § 22-375(A). Bowser
does not suggest that we should accept review of her conviction as a special
action. Assuming we could exercise our discretion to accept jurisdiction of
this matter as a special action, we decline to do so because Bowser does not
lack an adequate remedy at law. Ariz. R.P. Spec. Act. 1(a) (special action
jurisdiction is appropriate where petitioner has no equally plain, speedy,
and adequate remedy by appeal); see State v. Aguilar, 170 Ariz. 292, 294
(App. 1991) (relief pursuant to Arizona Rule of Criminal Procedure 32 is
available for criminal convictions that originate in municipal court).

¶7            In Valenzuela, our supreme court plainly changed the law
concerning the use of the admin per se form to coerce consent to a blood
draw. See Valenzuela, 239 Ariz. at 308, ¶¶ 28-29. For that reason, Bowser
may seek relief under Arizona Rule of Criminal Procedure 32. See Ariz. R.
Crim. P. 32.1(g) (a person convicted of a criminal offense may seek relief if
"[t]here has been a significant change in the law that if determined to apply
to defendant's case would probably overturn the defendant's conviction or
sentence").




                                      3
                           STATE v. BOWSER
                          Decision of the Court

                             CONCLUSION

¶8            For the foregoing reasons, we dismiss the appeal for lack of
jurisdiction.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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