                            IN THE
             ARIZONA COURT OF APPEALS
                         DIVISION TWO


                     THE STATE OF ARIZONA,
                            Appellee,

                               v.

                  JAVIER FRANCISCO NAVARRO,
                           Appellant.

                     No. 2 CA-CR 2016-0020
                      Filed October 7, 2016


         Appeal from the Superior Court in Pima County
                      No. CR20150757001
            The Honorable Jane L. Eikleberry, Judge

                          AFFIRMED


                           COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Kathryn A. Damstra, Assistant Attorney General, Tucson
Counsel for Appellee

Dean Brault, Pima County Legal Defender
By Scott A. Martin and Alex Heveri,
Assistant Legal Defenders, Tucson
Counsel for Appellant
                        STATE v. NAVARRO
                        Opinion of the Court


                             OPINION

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


E C K E R S T R O M, Chief Judge:

¶1           Following a jury trial, appellant Javier Navarro was
convicted of four counts of aggravated driving under the influence
of an intoxicant (DUI). The trial court sentenced him to concurrent
terms of four months’ incarceration, pursuant to A.R.S. § 28-1383(D),
followed by concurrent five-year terms of probation. The sole issue
Navarro raises on appeal is whether the results of his warrantless
breath test should have been suppressed in light of State v.
Valenzuela, 239 Ariz. 299, 371 P.3d 627 (2016). We affirm for the
reasons that follow.

                Factual and Procedural Background

¶2           We discuss only those facts relevant to the suppression
ruling challenged on appeal. See State v. Smith, 228 Ariz. 126, ¶ 2,
263 P.3d 675, 676 (App. 2011).1 Navarro was arrested for DUI on
February 15, 2015. At that time, a police officer read Navarro the
same “admin per se” form that our supreme court later held to be
invalid in Valenzuela, 239 Ariz. 299, ¶¶ 5, 22, 28, 371 P.3d at 629-30,
634, 636. Upon hearing the erroneous admonition that he was

      1When Navarro filed his suppression motion below, he
acknowledged that our now vacated decision in State v. Valenzuela,
237 Ariz. 307, 350 P.3d 811 (App. 2015), was controlling, adverse
authority; the trial court thus declined his request for a suppression
hearing. Because no hearing was held in this case, we draw our
facts from the uncontested material appended to Navarro’s
suppression motion as well as the evidence presented at trial. Cf.
State v. Cañez, 202 Ariz. 133, ¶ 70, 42 P.3d 564, 586 (2002)
(acknowledging suppression arguments are subject to appellate
review “even absent a pretrial motion to suppress”).


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                        STATE v. NAVARRO
                        Opinion of the Court

required by law to submit to blood or breath testing, Navarro agreed
to submit to a breath test. The results revealed that his blood alcohol
concentration was above 0.15. The trial court summarily denied
Navarro’s motion to suppress this evidence and, in January 2016,
entered the judgment and sentence. This appeal followed.

                              Discussion

¶3            In his opening brief, Navarro argued the warrantless
breath test violated the Fourth Amendment because it was the
product of coercion and “involuntary ‘consent.’”             The state
responded that the search was proper under the Supreme Court’s
recent decision in Birchfield v. North Dakota, ___ U.S. ___, 136 S. Ct.
2160 (2016), which we address below. In his reply brief, Navarro
countered that article II, § 8 of our state constitution “can be
interpreted to afford Arizona citizens . . . more rights than the
federal counterpart.”       We need not decide whether Navarro
properly raised this state constitutional claim because we find no
error in the trial court’s refusal to suppress the evidence. See State v.
Diaz, 223 Ariz. 358, ¶ 11, 224 P.3d 174, 176-77 (2010) (stating
appellant must first establish error under any standard of appellate
review).

¶4            Under the Fourth Amendment to the United States
Constitution, suppression was not required here because, as
Birchfield held, a warrantless breath test is allowed as a search
incident to a lawful DUI arrest. ___ U.S. at ___, 136 S. Ct. at 2184.
With respect to the analogous article II, § 8 of the Arizona
Constitution,2 our own supreme court has long recognized that a
search incident to a lawful arrest does not require any warrant,
Argetakis v. State, 24 Ariz. 599, 606, 608-09, 212 P. 372, 374-75 (1923),
and that non-invasive breath tests for DUI arrestees fall within this
exception. State v. Berg, 76 Ariz. 96, 103, 259 P.2d 261, 266 (1953),
overruled on other grounds by State v. Pina, 94 Ariz. 243, 245, 383 P.2d
167, 168 (1963). Our highest court concluded in Berg—much like the
Supreme Court did in Birchfield, ___ U.S. at ___, 136 S. Ct. at 2184—

      2 It provides: “No person shall be disturbed in his private
affairs, or his home invaded, without authority of law.”


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                        STATE v. NAVARRO
                        Opinion of the Court

that requiring a DUI arrestee to exhale into a testing device is a
“slight inconvenience” that represents a “burden which such
defendant must bear for the common interest.” Berg, 76 Ariz. at 103,
259 P.2d at 266; accord Campbell v. Superior Court, 106 Ariz. 542, 547,
479 P.2d 685, 690 (1971).

¶5            These precedents foreclose the argument that article II,
§ 8 of the Arizona Constitution provides greater privacy protection
than the federal constitution with regard to DUI breath testing. As
an intermediate appellate court, we cannot disaffirm a decision of
the Arizona Supreme Court on a matter under our state constitution,
even if we believe the decision should be revisited. See Sell v. Gama,
231 Ariz. 323, ¶ 31, 295 P.3d 421, 428 (2013); State v. Albe, 148 Ariz.
87, 89, 713 P.2d 288, 290 (App. 1984).

¶6           “The exclusionary rule is, in essence, judge-made law
designed to vindicate the constitutional right to privacy as embodied
in the Fourth . . . [A]mendment[] to the Constitution of the United
States and in article 2 section[] 8 . . . of the Arizona Constitution.”
State v. Coates, 165 Ariz. 154, 157, 797 P.2d 693, 696 (App. 1990).
Under the rule, “[t]he court must exclude from a criminal trial any
evidence obtained in violation of the Fourth Amendment and
article 2, section 8, unless the good-faith exception to the
exclusionary rule applies.” State v. Peoples, ___ Ariz. ___, ¶ 9, 378
P.3d 421, 424 (2016).         This rule exists, in short, to deter
unconstitutional police conduct. See Davis v. United States, 564 U.S.
229, 231-32 (2011); State v. Bolt, 142 Ariz. 260, 267, 689 P.2d 519, 526
(1984). Because the warrantless breath test to which Navarro
submitted did not violate any provision of the United States or
Arizona Constitutions, according to our highest respective courts,
the exclusionary rule is inapplicable to this case.3


      3 Although  our implied consent statute, A.R.S. § 28-1321(B),
(D), normally prohibits law enforcement officers from collecting
samples for chemical testing in the absence of either actual consent
or a search warrant, Navarro has not developed any argument that a
violation of this statute requires the suppression of evidence in a
criminal trial. Because this distinct legal question is not properly
before us, we do not address it. See State v. Bolton, 182 Ariz. 290, 298,

                                   4
                       STATE v. NAVARRO
                       Opinion of the Court

¶7            Questions concerning the validity of Navarro’s consent
and the applicability of the good-faith exception are consequently
irrelevant to the constitutional issue raised on appeal. Valenzuela is
distinguishable insofar as that case involved not a breath test but a
warrantless blood test, the results of which were inadmissible absent
either voluntary consent or the good-faith exception. See 239 Ariz.
299, ¶ 2, 371 P.3d at 629.

                            Disposition

¶8          For the foregoing reasons, the convictions and sentences
are affirmed.




896 P.2d 830, 838 (1995) (“Failure to argue a claim on appeal
constitutes waiver of that claim.”).


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