                                IN THE
              ARIZONA COURT OF APPEALS
                            DIVISION TWO


                       THE STATE OF ARIZONA,
                              Appellee,

                                   v.

                FRANCISCO L. ENCINAS VALENZUELA,
                            Appellant.

                       No. 2 CA-CR 2014-0169
                        Filed May 26, 2015


         Appeal from the Superior Court in Cochise County
                         No. CR201300076
              The Honorable Karl D. Elledge, Judge

                             AFFIRMED


                              COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee

The Law Office of Mark F. Willimann, LLC
By Mark F. Willimann, Tucson
Counsel for Appellant

Law Offices of Jeffrey D. Bartolino
By Jeffrey D. Bartolino, Tucson
Counsel for Amicus Curiae Arizona Attorneys for Criminal Justice
                      STATE v. VALENZUELA
                        Opinion of the Court



                                OPINION

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


M I L L E R, Presiding Judge:

¶1          Francisco Valenzuela was convicted after a bench trial
of two counts of aggravated driving under the influence of alcohol
(DUI) and sentenced to concurrent prison terms totaling 1.5 years.
On appeal, he contends he was coerced into consenting to blood,
breath, or urine tests by the language the arresting officer used to
implement Arizona’s implied consent admonition. He also contends
his consent to testing was involuntary based on the totality of the
circumstances. For the following reasons, we affirm.

                Factual and Procedural Background

¶2           We consider only the evidence introduced at the
hearing on the motion to suppress and view the facts in the light
most favorable to sustaining the trial court’s ruling. State v. Butler,
232 Ariz. 84, ¶ 8, 302 P.3d 609, 612 (2013). In August 2012, a
Department of Public Safety (DPS) officer responded to a call about
an unconscious man behind the wheel of a vehicle on a state
highway. The officer found Valenzuela asleep in a truck with the
gear in drive, an open container of alcohol in the center console, and
the odor of alcohol coming from the vehicle. After waking
Valenzuela, the officer conducted several field sobriety tests and
then arrested him for DUI.1 At the police station, the officer read
Valenzuela an administrative implied consent affidavit (admin per
se) form. According to the officer, he did not threaten Valenzuela or
make any promises to obtain his consent for testing, and Valenzuela

      1 At  the suppression hearing, Valenzuela stipulated that the
results of the field sobriety tests provided the officer with reasonable
suspicion of DUI.


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                       STATE v. VALENZUELA
                         Opinion of the Court

understood the questions asked and agreed to provide breath and
blood samples. Valenzuela’s results on the breath tests were .223
and .241. 2 Valenzuela also provided a blood sample. He was
subsequently charged with five counts of aggravated DUI.

¶3            The trial court denied Valenzuela’s motion to suppress
the results of the chemical testing upon the conclusion of the
hearing. In its oral ruling, the court rejected the argument that a
warrantless search following consent was “per se unreasonable”;
further, it found that Valenzuela’s consent was “unequivocal” as a
matter of fact and “not . . . involuntary” under a Fourth Amendment
totality-of-the-circumstances analysis. Soon after the suppression
hearing, Valenzuela waived his right to a jury trial and proceeded
based on stipulated facts. The court found him guilty on all five
counts, but dismissed three counts at sentencing because they were
lesser-included offenses. He was sentenced as described above, and
this appeal followed. This court granted a motion for Arizona
Attorneys for Criminal Justice to file an amicus brief in support of
Valenzuela’s appeal.

                               Discussion

¶4          Valenzuela argues the trial court erred when it
concluded he freely and voluntarily consented to the breath test and
blood draw. We review a court’s ruling on a motion to suppress for
an abuse of discretion, but we review the court’s legal conclusions
de novo. State v. Peterson, 228 Ariz. 405, ¶ 6, 267 P.3d 1197, 1199-
1200 (App. 2011).

¶5           Arizona’s implied consent statute provides in relevant
part that the driver of a motor vehicle “gives consent . . . [for tests] of
the person’s blood, breath, urine or other bodily substance for the
purpose of determining alcohol concentration” if the person is


      2Valenzuela   stipulated that these were the results of his tests
and that the tests were conducted properly. The trial court’s
sentencing minute entry contains a clerical error in reporting the
results of one of the tests; we correct that error by this decision. See
Ariz. R. Crim. P. 31.17(b).


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                      STATE v. VALENZUELA
                        Opinion of the Court

arrested by a law enforcement officer who has reasonable grounds
to believe the person was in actual physical control of a motor
vehicle while under the influence of liquor. A.R.S. § 28-1321(A).3 If
a driver refuses any test, he “shall be informed” that the license will
be suspended, “unless [he] expressly agrees to submit to and
successfully completes” the tests. § 28-1321(B). The statute does not
specify any particular language or a form to implement the
admonition. Despite the suggestion that consent is given at the time
of licensure, if the driver refuses to submit, § 28-1321(D)(1) prohibits
the officer from giving a test unless he obtains a search warrant or
another exception applies.

¶6           Before the test results can be used in a criminal
proceeding, a blood draw administered pursuant to Arizona’s
implied consent statute must comply with the Fourth Amendment’s
restrictions on warrantless searches. Butler, 232 Ariz. 84, ¶ 10, 302
P.3d at 612; cf. Campbell v. Superior Court, 106 Ariz. 542, 550, 479 P.2d
685, 693 (1971) (license suspension proceedings civil in nature).
Generally, warrantless searches “‘are per se unreasonable under the
Fourth Amendment—subject only to a few specifically established
and well-delineated exceptions.’” Arizona v. Gant, 556 U.S. 332, 338
(2009), quoting Katz v. United States, 389 U.S. 347, 357 (1967). One
such exception is voluntary consent. Butler, 232 Ariz. 84, ¶ 13, 302
P.3d at 612.

¶7          Valenzuela challenges his consent based on portions of
what the arresting officer told him, as well as a general contention
that any time an arresting officer provides a § 28-1321
admonishment, any subsequent consent is the result of coercion. We
begin with the suppression hearing record, which is limited.

¶8          The arresting officer testified that he read Valenzuela
“the admin per se” from a written form he had been using for more
than ten years. Although the officer was cross-examined about the



      3 We  cite the current version of the statute, which has not
changed in material part since Valenzuela committed his offenses.
See 2013 Ariz. Sess. Laws, ch. 128, § 1.


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                     STATE v. VALENZUELA
                       Opinion of the Court

form, it never was offered into evidence. 4 Amicus curiae asserts
that “[t]he admonition which was read to Mr. Valenzuela is identical
to the admonition read to DUI arrestees throughout the state.” It
relies, however, on the officer’s testimony about how he uses the
form. Amicus curiae also provides one page of a sample form which
it contends is used generally by law enforcement. It provides no
citation to statutory or administrative regulations about the source
or authority of the attached document, nor sufficient background for
any court to take judicial notice of it. Amicus curiae does not
explain why the form is dated 2014, which is two years after
Valenzuela’s arrest. Finally, the proffered form referred to “reasons
stated on the front of this form,” but does not provide that page.

¶9           At oral argument, Valenzuela and amicus curiae also
sought to rely on the stipulated facts filed in advance of trial.
Although the stipulation provides what appears to be additional
language from the admonition, the motion to suppress was argued
and decided before the stipulated facts were submitted to the trial
court. Moreover, counsel for the state conceded that it was not
known whether the officer was consulted about the stipulated facts.5
Finally, the parties disagreed whether Valenzuela checked the box
indicating he would submit to the test. Because the stipulated facts
were not before the court at the motion to suppress and the parties
assert different factual assumptions attendant to those facts, we do
not consider them on review.6 See Butler, 232 Ariz. 84, ¶ 8, 302 P.3d

      4 At oral argument, Valenzuela asserted the full admonition
was in the record, but eventually conceded it had not been admitted
as an exhibit.
      5 Theofficer did not testify at the bench trial because the
parties apparently agreed to proceed using only their stipulated
facts.
      6Almost  two weeks after oral argument, Valenzuela moved to
expand the record with the admin per se form he obtained from the
Motor Vehicle Division. There was no suggestion that the trial court
was provided this form or relied upon it to assess the totality of the
circumstances. We declined the invitation to introduce the exhibit in
this court and then speculate about the impact it could have had on

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                      STATE v. VALENZUELA
                        Opinion of the Court

at 612; see also State v. Herrera, 232 Ariz. 536, ¶ 24, 307 P.3d 103, 113
(App. 2013) (noting limitation on review of pre-trial motion to
suppress is consistent with general rule that appellate court’s review
is limited to record before trial court).

¶10         In summary, the record on the motion to suppress is
devoid of evidence and legal authority to evaluate Valenzuela’s
arguments about “the admin per se form” in his case or generally, as
well as how police officers provide § 28-1321 admonitions.
Accordingly, consideration of the parties’ arguments must be based
on and limited to the officer’s testimony at the suppression hearing.
Most important, to the extent that Valenzuela’s principal argument
begins and ends with the first sentence of what he contends are the
admonition’s fatally irrevocable words, the form itself is
unnecessary to our consideration of his arguments.

¶11          Valenzuela focuses on the officer’s statement to him
that “Arizona law requires you to submit to and successfully
complete tests of breath, blood or other bodily substance as chosen
by the law enforcement officer to determine alcohol concentration or
drug content.” Valenzuela relies on Bumper v. North Carolina, 391
U.S. 543, 548-49 (1968), for the proposition that the six-word phrase
“Arizona law requires you to submit” renders any consent
involuntary because it was secured under the claim of lawful
authority.

¶12         In Bumper, the state argued a home search was
consensual, but the person who gave consent stated at the hearing


the trial court. C.f. Ariz. R. Evid. 201. Parties bear the responsibility
of making and preserving the appellate record. See State v. Dixon,
226 Ariz. 545, ¶ 44, 250 P.3d 1174, 1183 (2011) (party did not
preserve objection where document not marked for identification
despite discussion with witness about contents). Record expansion
in the appellate court is rare absent unusual need or extraordinary
circumstances, which do not exist in this case. See, e.g., State v. Mott,
162 Ariz. 452, 456-57, 458 & n.2, 784 P.2d 278, 282-83, 284 & n.2 (App.
1989) (court considered psychiatric records from different case that
trial court relied on for its ruling).


                                   6
                      STATE v. VALENZUELA
                        Opinion of the Court

that one of the officers “walked up and said, ‘I have a search warrant
to search your house,’” before she let them in. Id. at 546. There was
no evidence in the record that the officer had a search warrant.7 Id.
at 549-50. The Supreme Court concluded that a prosecutor cannot
prove consent was voluntary by “showing no more than
acquiescence to a claim of lawful authority.” Id. at 548-49. The
Court held that an officer who says he has a warrant “announces in
effect that the occupant has no right to resist the search.” Id. at 550.

¶13           Drivers in Arizona, however, may refuse a warrantless
search. Section 28-1321(B) explicitly acknowledges and supports a
driver’s right to refuse tests, albeit with civil penalties of increasing
severity. The officer testified he notifies a driver that he has a choice
whether to submit to the test. Additionally, if the driver refuses the
test the officer informs the person that the officer will apply for a
warrant to compel testing. Unlike in Bumper, Valenzuela was
informed by the statute and the officer’s admonition that he had a
choice, not that the officer intended to search him regardless of his
answer or whether the officer had a warrant.8 See People v. Harris,


      7Although   the court noted the state’s assertion at argument
“that the searching officers did, in fact, have a warrant,” it never was
returned and, therefore, could not be evaluated or considered. Id. at
550 n.15.
      8Several   cases cited by amicus curiae are distinguishable for
the same reason—they involve law enforcement officers who
implied or stated that a person had no choice but to consent to a
search or that no warrant was necessary. See Amos v. United States,
255 U.S. 313, 315 (1921); Orhorhaghe v. I.N.S., 38 F.3d 488, 500 (9th
Cir. 1994); United States v. Johnson, 994 F.2d 740, 742, 743 (10th Cir.
1993); State v. Casal, 410 So. 2d 152, 155-56 (Fla. 1982); Commonwealth
v. Krisco Corp., 653 N.E.2d 579, 582, 584-85 (Mass. 1995). Valenzuela
also relies on State v. Kananen, 97 Ariz. 233, 238, 399 P.2d 426, 429
(1965), for his argument. In Kananen, our supreme court implied
that the defendant’s having been handcuffed and under arrest when
he accompanied an officer to search a motel room resulted in
coercion or duress, but ultimately determined the defendant never
provided an unequivocal consent to the search. Id. at 237, 399 P.2d

                                   7
                      STATE v. VALENZUELA
                        Opinion of the Court

184 Cal. Rptr. 3d 198, 210-12 (Ct. App. 2015) (distinguishing Bumper
from state implied consent admonition); State v. Brooks, 838 N.W.2d
563, 571 (Minn. 2013) (same); McCoy v. N.D. Dept. of Transp., 848
N.W.2d 659, ¶¶ 17, 20-24 (N.D. 2014) (same).

¶14           Further, in another context, the United States Supreme
Court has considered whether a state’s attachment of consequences
to refusing to submit to alcohol testing is coercive. In South Dakota v.
Neville, 459 U.S. 553, 564 (1983), the Court held that a driver is not
coerced into testifying against himself in violation of his Fifth
Amendment rights when the state uses his refusal against him at
trial. The Court concluded that the driver was given the choice
between submitting and refusing, and although it was “not . . . an
easy or pleasant [choice] for a suspect to make,” it was “not an act
coerced by the officer.” Id. Similarly here, the choice between two
civil penalties does not result in coerced consent. See Harris, 184 Cal.
Rptr. 3d at 211-13; Brooks, 838 N.W.2d at 570; McCoy, 848 N.W.2d
659, ¶ 21.9




at 428-29. There is no argument here that Valenzuela’s consent was
equivocal.
      9 Amicus     curiae cites several cases in which consent was
deemed involuntary because it was given after a claim of lawful
authority. In each of those cases, however, it was the officer’s
misstatement of the law, rather than the correct use of the state’s
implied consent statute, that resulted in coercion. See Cooper v. State,
587 S.E.2d 605, 612 (Ga. 2003) (consent invalid where driver not
suspected of violating DUI law, rendering implied consent law
inapplicable; choice of consenting to chemical test or losing license
not legally authorized); Hannoy v. State, 789 N.E.2d 977, 988 (Ind. Ct.
App. 2003) (deputy never discussed implied consent law, stating
instead, “‘[I]t is my duty to check your blood for blood alcohol’”),
aff’d on reh’g, 793 N.E.2d 1109 (Ind. Ct. App. 2003); State v. Edgar, 294
P.3d 251, 255, 262 (Kan. 2013) (officer’s misstatement that driver
“d[id] not have a right to refuse” breath test resulted in involuntary
consent).


                                   8
                      STATE v. VALENZUELA
                        Opinion of the Court

¶15           The choice is analogous to a party’s decision whether to
invoke the Fifth Amendment in a civil case if the answers could
expose the person to criminal liability. The person may invoke the
privilege against self-incrimination, State v. Ott, 167 Ariz. 420, 425,
808 P.2d 305, 310 (App. 1990), or may choose to testify to increase
the likelihood of a favorable civil judgment. But even if a witness is
not instructed on his Fifth Amendment rights during the civil
litigation, his testimony is admissible in a later criminal trial, absent
additional findings of coercion or duress. State v. Tudgay, 128 Ariz.
1, 4-5, 623 P.2d 360, 363-64 (1981).

¶16         Valenzuela also contends he should have been asked
whether he consented to testing before being warned about civil
penalties. We find persuasive the reasoning of the Oregon Supreme
Court in State v. Moore, 318 P.3d 1133, 1138 (Or. 2013), when it
confronted a similar argument:

             [I]t is difficult to see why the disclosure of
             accurate information about a particular
             penalty that may be imposed—if it is
             permissible for the state to impose that
             penalty—could          be   unconstitutionally
             coercive. Rather, advising a defendant of
             the lawful consequences that may flow
             from his or her decision to engage in a
             certain behavior ensures that that
             defendant makes an informed choice
             whether to engage in that behavior or not.
             Indeed, the failure to disclose accurate
             information regarding the potential legal
             consequences of certain behavior would
             seem to be a more logical basis for a
             defendant to assert that his or her decision
             to engage in that behavior was coerced and
             involuntary.

Id. Courts in North Dakota and California also have adopted this
reasoning. Harris, 184 Cal. Rptr. 3d at 212; McCoy, 848 N.W.2d 659,
¶¶ 18, 21. We agree it is more beneficial to provide full information
before requesting consent.         Moreover, persons contesting

                                   9
                      STATE v. VALENZUELA
                        Opinion of the Court

administrative suspension of their driver’s licenses would argue
they would not have declined the test had they been told beforehand
that their decisions could result in the loss of their driving
privileges.

¶17           Valenzuela also argues that two recent cases, Missouri v.
McNeely, ___ U.S. ___, ___, 133 S. Ct. 1552, 1556 (2013), and Butler,
232 Ariz. 84, ¶ 10, 302 P.3d at 612, equate “implied consent” with a
“compelled blood draw,” thereby negating the voluntary nature of
any consent to a test that followed the admonishment. But these
decisions cannot be stretched so far. McNeely was limited to the
question of whether the potential dissipation of alcohol in a
defendant’s blood over time constitutes a per se exception to the
Fourth Amendment warrant requirement. ___ U.S. at ___, 133 S. Ct.
at 1556. In concluding that it does not, the Court reaffirmed its
holding in Schmerber v. California, 384 U.S. 757, 770 (1966), that a
warrant generally is required to draw a DUI suspect’s blood.
McNeely, ___ U.S. at ___, 133 S. Ct. at 1558. There was no argument
that actual consent given at the time of the blood draw would be
invalid or involuntary based on an implied consent warning.
Further, a plurality of the Court noted that all fifty states have
implied consent laws that impose penalties on drivers who refuse to
submit to a blood alcohol test, characterizing these laws as “legal
tools” designed to help states enforce drunk-driving laws without
resorting to warrantless nonconsensual blood draws. Id. at ___, 133
S. Ct. at 1566.

¶18          Regarding Butler, Valenzuela is correct that the court
concluded, “[A] compelled blood draw, even when administered
pursuant to [the implied consent statute], is a search subject to the
Fourth Amendment’s constraints.” 232 Ariz. 84, ¶ 10, 302 P.3d at
612. But Valenzuela is mistaken that the court concluded all blood
draws pursuant to the implied consent statute were “compelled.”
Rather, in Butler, the state had argued actual consent was not
required at the time of the blood draw because the driver already
had given consent by driving and subjecting himself to the terms of
the statute. Id. ¶ 9. The court concluded the Fourth Amendment
applied to a blood draw despite the statute, requiring voluntary
consent before blood is drawn. Id. ¶ 10. Indeed, the court then


                                  10
                      STATE v. VALENZUELA
                        Opinion of the Court

proceeded to analyze whether the driver’s consent was voluntary
under the totality of the circumstances. Id. ¶¶ 18-21. The court did
not hold, as Valenzuela argues, that one could never voluntarily
consent to a blood draw after being informed of the statute’s
provisions. See id.

¶19          Valenzuela also appears to argue his actual consent was
involuntary due to all of the surrounding circumstances. He
specifically contends the trial court failed to consider all
voluntariness factors listed in United States v. Jones, 286 F.3d 1146,
1152 (9th Cir. 2002).

¶20          Our dissenting colleague enlarges Valenzuela’s
contention with the assertion of a “categorical rule” that “reasonable
persons do not—and should not—believe themselves free to decline
an officer’s demand that they follow the requirements of law.” He
reasons this rule forecloses the totality of the circumstances analysis,
relying on Bumper, 391 U.S. at 550. We disagree, both under Arizona
law and the recent, well-reasoned decisions from other states
employing virtually identical admonition language.

¶21           To the extent we addressed Valenzuela’s conceptually
similar argument that the first six words spoken by the officer
rendered any subsequent consent involuntary and coerced, we will
not repeat the entire analysis here. Simply stated, Arizona statutory
law gives notice to drivers that officers cannot perform the test if an
arrested driver refuses to submit, except pursuant to a search
warrant. § 28-1321(D)(1). Moreover, the officer asked Valenzuela if
he consented, and the officer was prepared to explain that he would
apply for a search warrant if Valenzuela refused to submit.
Therefore, those six words do not assume an importance that dwarfs
other laws and the full context of the admonition, as well as the
actual facts. In this respect, Arizona is markedly similar to several
other states that reviewed their admonition statutes post-McNeely.

¶22          Minnesota and North Dakota require law enforcement
officers to advise drivers arrested for DUI that state law requires
them to take a blood or alcohol test. Minn. Stat. § 169A.51
(“Minnesota law requires the person to take a test“); N.D. Cent.
Code § 39-20-01 (“North Dakota law requires the individual to take


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                      STATE v. VALENZUELA
                        Opinion of the Court

the test“). Both statutes were challenged on a variety of grounds
after McNeely, including the allegedly coercive effect of the
statement that the “law requires” the driver to take the test. In
Brooks, 838 N.W.2d at 571, the Minnesota Supreme Court rejected the
driver’s blanket validity argument, principally on the basis that the
driver was informed he had a choice whether to submit and “the
police are required to honor that refusal and not perform the test.”
Although it is true the drivers also are informed that they can confer
with counsel, the fact of such consultation only pertains to whether
there was coercion. Id. Moreover, advice of counsel may be
particularly prudent in Minnesota because the refusal to submit to
the test can result in criminal liability. Id. at 569.

¶23          North Dakota’s statute also guarantees a driver’s right
to refuse testing. N.D. Cent. Code § 39-20-04. The North Dakota
Supreme Court found that the choice embodied within that statute
defeated the driver’s argument that he was coerced. State v. Smith,
849 N.W.2d 599, 606 (2014). The special concurrence simplified the
reasoning to a single sentence: “While the voluntariness of consent
is decided from the totality of the circumstances, submitting to a
blood alcohol test is not rendered involuntary merely by an officer
fairly giving the implied consent advisory including the criminal
penalty for refusing to take the test.” Id. at 606-07.

¶24           Even when statutes do not require a law enforcement
officer to inform a driver about what the law ‘requires,’ it is not a per
se violation of the Fourth Amendment if the officer phrases the
admonition as a requirement. In Harris, 184 Cal. Rptr. 3d at 204, 210-
12, the arresting deputy told the driver that refusal to submit to
testing would result in license suspension, it could be used against
him in court, and he was required to submit to the test. The court
declined Harris’s invitation to view the deputy’s “requirement”
statement as the only factor to consider in the totality analysis. Id. at
215. Instead, it recognized the trial court is vested with the power to
judge credibility of the witnesses, resolve conflicts in facts, and to
draw the inferences as to whether consent was voluntary. Id. at 214.

¶25          Construing a legally-accurate six-word phrase as a
constitutional barrier that nullifies the totality of the circumstances
analysis finds no support in McNeely. For instance, Chief Justice

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                      STATE v. VALENZUELA
                        Opinion of the Court

Roberts proposed giving guidance to officers on whether to apply
for a search warrant: if there is time to secure a warrant before the
alcohol dissipates, then it must be done. ___ U.S. at ___, 133 S. Ct. at
1574. The Court characterized his suggestion as a “categorical,”
“modified per se rule.” Id. ___, 133 S. Ct. at 1563. In stating its
preference for a traditional totality of the circumstances analysis,10
the Court observed that a bright line may distort police practices
and, implicitly, does not take into account the wide variety of
circumstances in this regular police-driver interaction. Id. at ___, 133
S. Ct. at 1563-64. There is little reason to believe the Supreme Court
would apply the conclusion in Bumper to abandon the totality-of-
the-circumstances analysis it recently re-affirmed in McNeely.

¶26          We also examine McNeely and Butler to determine
whether the respective courts intended their decisions to change law
enforcement procedures that had been in place for many decades. If
the logical extension of a holding would be to preclude the great
majority of DUI blood tests for a significant period of time, it is
reasonable to expect those courts to signal anticipation of such a
change. Compare, e.g., Escobedo v. Illinois, 378 U.S. 478, 488 (1964)
(frequency of pre-indictment confessions “points up its critical
nature” as stage when legal advice “surely needed”), with Miranda v.
Arizona, 384 U.S. 436, 504 (1966) (Harlan, J., dissenting) (decision
establishes new constitutional rules for confessions).

¶27          In McNeely, the court granted certiorari to resolve a split
in authority among the states. ___ U.S. at ___, 133 S. Ct. at 1558. It
rejected the per se exigency rule adopted by several states in favor of
the case-by-case analysis it established in Schmerber forty-seven
years earlier. Id. at ___, 133 S. Ct. at 1561. A plurality of the court
noted in its review of state laws that the holding essentially had
been adopted by many of the states.11 Id. at ___, 133 S. Ct. at 1566.

      10We   recognize that the totality-of-the-circumstances analysis
in McNeely pertains to exigent circumstances rather than the absence
of coercion, but the principle remains the same for either question.
      11The Court included Arizona in the category of states that do
not permit nonconsensual blood tests, instead requiring officers to
obtain a search warrant. Id. at ___, 133 S. Ct. at 1566 nn.9 & 10. It is

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                      STATE v. VALENZUELA
                        Opinion of the Court

McNeely is more accurately read as an affirmance of state laws and
police procedures that advanced with the times. Similarly, our
supreme court in Butler accepted jurisdiction to reject the state’s
argument that all drivers give “implied consent” and to affirm the
totality of the circumstances analysis. 232 Ariz. 84, ¶¶ 10, 14, 18, 302
P.3d at 612-13. There was no criticism of the admonition, which was
given in two different versions, but presumably contained the same
“requirement” language.12 Id. ¶ 4. The majority did not suggest the
admonition was problematic. In fact, concurring Justice Pelander
stated he would have concluded consent was voluntary had review
been de novo rather than abuse of discretion. Id. ¶ 31. Certainly, if
an admonition in use for many decades constituted a per se
violation of the constitution such that the remainder of the
interaction between officer and driver would not even be subject to a
totality of the circumstances analysis, the issue would have been
foreshadowed by one or both of the courts. The absence of any such
indication also persuades us McNeely and Butler do not require the
dissent’s categorical, per se rule. Therefore, we turn next to whether
Valenzuela voluntarily consented to the test.

¶28           Voluntariness of consent is a question of fact
determined by reviewing the totality of the circumstances. See
Butler, 232 Ariz. 84, ¶ 13, 302 P.3d at 613, citing Schneckloth v.
Bustamonte, 412 U.S. 218, 227 (1973). In Jones, the Ninth Circuit listed
five factors to consider in determining voluntariness: “(1) whether
the defendant was in custody; (2) whether the arresting officers had
their guns drawn; (3) whether Miranda warnings were given;
(4) whether the defendant was notified that [he] had a right not to
consent; and (5) whether the defendant had been told a search
warrant could be obtained.” 286 F.3d at 1152. The factors are
“guideposts, not a mechanized formula to resolve the voluntariness

significant, though not dispositive, that the Court did not criticize or
question Arizona law, or any other state law, for an admonition that
begins with the phrase that is the subject of this case.
      12 Theofficer read the admonition and then re-stated it “in
‘plain English.’” Id. ¶ 4. The officer’s paraphrasing was not
provided.


                                  14
                      STATE v. VALENZUELA
                        Opinion of the Court

inquiry.” United States v. Patayan Soriano, 361 F.3d 494, 502 (9th Cir.
2003).

¶29           In its oral ruling on Valenzuela’s motion, the trial court
only expressly mentioned the fourth factor—whether he had been
affirmatively notified he had a right to refuse the tests. Despite
acknowledging the factor, the court did not make an explicit finding,
ultimately determining consent was voluntary based on the totality
of the circumstances. Valenzuela now contends the arresting
officer’s failure to tell him he had a right to refuse is the most
important factor and “alone should have been sufficient for the trial
Court to suppress the evidence.” The Supreme Court in Schneckloth,
however, rejected an argument that a Miranda-style warning
informing the defendant of his right to refuse consent was necessary.
412 U.S. at 246-48. The Court concluded knowledge of a right to
refuse is not “an indispensable element of a valid consent” to a
search. Id. at 246. Valenzuela provides no further support for his
argument that the trial court improperly weighed the Jones factors,
and we find no abuse of discretion in the trial court’s determination.

¶30          Valenzuela does, however, argue the trial court erred in
its analysis of voluntariness by considering his demeanor when he
consented. He relies on United States v. McWeeney, 454 F.3d 1030,
1034 (9th Cir. 2006), to argue “subjective” factors such as age,
intelligence, and length of detention should not be considered in
determining voluntariness. But McWeeney concerned the physical
scope of a consensual search, and is not applicable here. Id. at 1034-
35. Rather, the voluntariness of consent is based on a totality-of-the-
circumstances test. Schneckloth, 412 U.S. at 226. Relevant factors
may include age, education, intelligence, advice regarding
constitutional rights, length of detention, and deprivation of food or
sleep. Id. at 226, 248. Thus, in Butler, the court considered age,
criminal history, the length of detention, the absence of parents,
physical demeanor, and emotional state. 232 Ariz. 84, ¶ 20, 302 P.3d
at 613. Despite Valenzuela’s contention, such factors are valid
considerations in determining voluntariness.

¶31        Here, the trial court concluded the officer provided the
implied consent admonition to Valenzuela, and he unequivocally
agreed to the testing. Although the court did not identify all

                                  15
                      STATE v. VALENZUELA
                        Opinion of the Court

circumstances that might be relevant, no evidence was presented
that Valenzuela was upset, lacked intelligence, felt threatened, or
had been detained for a long time. The court did not err in
determining Valenzuela’s consent was voluntary based on the
totality of the circumstances.

¶32           Valenzuela also argues his consent was limited to
administrative use—that is, he maintains he had agreed the blood
test results could be used against him only for license suspension,
but not in a criminal case. He cites McWeeney for this argument but
that case is inapplicable. In McWeeney, the defendant agreed to let
an officer “‘look’” in the car, but argued his consent did not extend
to the officer searching the trunk and lifting the carpet liner. 454
F.3d at 1034. The Ninth Circuit Court of Appeals concluded the
defendant’s general consent included the trunk and under the
carpet, but ultimately held that the officers might have coerced the
defendant into believing he had no right to withdraw or modify
consent when the officers told him he was not allowed to observe
the search. Id. at 1033-37.

¶33          Additionally, Valenzuela’s argument has limited factual
support. He asserts he consented only to a search for administrative
purposes because the admonition did not refer to the Fourth
Amendment. But this ignores the fact that the admonition was
given only after he was arrested for DUI. See § 28-1321(B). Further,
nothing in the officer’s testimony about his statements to Valenzuela
suggested the test results would only be used in administrative
proceedings. Finally, Valenzuela fails to further develop any
argument that the fruits of an administrative search could not be
used against him in a criminal trial.13 The trial court did not err in



      13  Valenzuela cites Skinner v. Railway Labor Executives’
Association, 489 U.S. 602 (1989), to argue that the results of chemical
testing under the implied consent statute could not be used in a
criminal trial. But the Court did not conclude that results of
administrative searches never could be so used. Id. at 618-19.
Rather, it merely cited the fact that the railroad employees’ drug and
alcohol test results were not intended to be used by prosecutors as

                                  16
                      STATE v. VALENZUELA
                        Opinion of the Court

concluding Valenzuela’s consent was not limited to administrative
proceedings.

¶34          Finally, Valenzuela appears to make a facial challenge
to the Arizona implied consent statute by noting that he “questions
whether Arizona’s ‘implied consent’ statute is Fourth Amendment
compliant.” 14 However, he engages in no statutory analysis and
principally relies on purported language from the form throughout
the rest of his brief, not the language of the statute. Any facial
challenge to the language of the actual statute is therefore waived.
See Ariz. R. Crim. P. 31.13(c)(1)(vi) (argument in brief shall include
“citations to the authorities, statutes and parts of the record relied
on”); see also State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838
(1995).

                             Disposition

¶35         For the foregoing reasons, Valenzuela’s convictions and
sentences are affirmed.

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

¶36          When a law enforcement officer instructs a person who
has been arrested for DUI that “Arizona law requires” him to
“submit to” warrantless chemical tests to determine his blood
alcohol concentration (BAC), as occurred here, the officer is asserting
a claim of legal authority to conduct a search. As the Supreme Court
held in Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968), a
person’s “acquiescence to a claim of lawful authority” makes the
evidence obtained from it inadmissible under a theory of voluntary
consent.


one factor of many in its determination that the warrantless tests
were “reasonable” under the Fourth Amendment. Id. at 620, 623-24.
      14Valenzuela    also argued below that the question before the
court was whether “Arizona’s implied consent law [is] compliant
with the Fourth Amendment.” In context, and as the trial court
clarified, the issue was whether his consent was voluntary in light of
the admonition read to him.


                                  17
                      STATE v. VALENZUELA
                        Opinion of the Court

¶37         The admonition here does not merely explain the
“adverse consequences resulting from a refusal” to take a test, State
v. Moore, 318 P.3d 1133, 1137 (Or. 2013), and it does not simply
present a suspect with an unpleasant but permissible choice such as
that addressed in South Dakota v. Neville, 459 U.S. 553, 564 (1983).
Nor does it suggest or imply that the suspect has a legally
recognized right to refuse the search. To the contrary, the
admonition emphasizes expressly and repeatedly—no less than four
times—that submission to the search is “required.”

¶38          As the United States Supreme Court has made clear, a
person’s consent to a search can be voluntary only so long “as the
police do not convey a message that compliance with their requests
is required.” Florida v. Bostick, 501 U.S. 429, 435 (1991). But when, as
here, police assert that compliance is required, they effectively
announce that the person “has no right to resist the search.” Bumper,
391 U.S. at 550. Such “colorably lawful coercion” by an officer
precludes a finding of voluntariness, because “[w]here there is
coercion there cannot be consent.” Id. Thus, a straightforward
reading and application of controlling jurisprudence requires
suppression of the BAC test results.

¶39           In most instances, the voluntariness of consent is a
question of fact to be determined from the totality of the
circumstances. State v. Butler, 232 Ariz. 84, ¶ 13, 302 P.3d 609, 612
(2013). But Bumper establishes that when the facts show the police
have asserted a claim of lawful authority to conduct a search, then a
court’s analysis has reached its end; voluntary consent cannot be
found as a matter of law. In Bumper, one of several law enforcement
officers had asserted, “I have a search warrant to search your
house,” and the resident subsequently opened her door to permit
entry. 391 U.S. at 546. The dissent maintained that the search
should be upheld because the totality of the circumstances
suggested nonetheless that she had invited the officers to search of
her own free will and had no objection to it. Id. at 555-56 (Black, J.,
dissenting). The majority, however, declined to consider such
factors in its analysis. See id. at 547-48 & 547 n.8. In so doing, the
Court construed a person’s acquiescence to a claim of authority as
showing an intent to abide by the law; it is not interpreted as a


                                  18
                      STATE v. VALENZUELA
                        Opinion of the Court

waiver of rights, but rather as a submission to lawful authority. See
id. at 549 n.14.

¶40          The majority suggests that Missouri v. McNeely, 133 S.
Ct. 1552 (2013), rather than Bumper, should control here. But
McNeely did not address any question of consent, much less consent
in the context of an officer’s claim of lawful authority. Rather,
McNeely addressed the circumstances under which police may
conduct a warrantless blood draw in the absence of consent. 133 S.
Ct. at 1556.      Contrary to the majority’s assertion, therefore,
adherence to the Court’s holding in Bumper does not conflict with
the analytically distinct question presented in McNeely.15 Bumper has
neither been overruled nor narrowed by subsequent opinions of the
Court, and it squarely addresses the claim before us. I submit we
are duty bound to apply it.

¶41           Indeed, the categorical rule from Bumper conforms to
the traditional test for determining voluntary consent to a search.
That test is whether a “‘reasonable person’” in the same
circumstances would have understood that he or she was free to
decline the officer’s request. United States v. Drayton, 536 U.S. 194,
202 (2002), quoting Bostick, 501 U.S. at 436. Categorically, reasonable
persons do not—and should not—believe themselves free to decline
an officer’s demand that they follow the requirements of the law. Cf.


      15 Despite the majority’s suggestion, our supreme court’s
decision in Butler, 232 Ariz. 84, ¶ 21, 302 P.3d at 613—which upheld
a finding of involuntary consent—did not address the argument
presented here, nor did its quotation of the admin per se affidavit
imply that the court approved of that document’s language. Id. ¶ 4;
see Calnimptewa v. Flagstaff Police Dep’t, 200 Ariz. 567, ¶ 24, 30 P.3d
634, 639 (App. 2001) (“[I]t is always inappropriate to read an
appellate opinion as authority for matters neither specifically
presented and discussed, nor even accorded footnote mention.”).
Notably, the language of “require[ment]” found in the admin per se
affidavit has no basis in Arizona’s implied consent statute, § 28-1321.
Therefore, while the principles set forth in Bumper require some
revision of the admin per se affidavit, no changes are required to
§ 28-1321 to comply with that precedent.

                                  19
                      STATE v. VALENZUELA
                        Opinion of the Court

State v. Rodriguez, 186 Ariz. 240, 246, 921 P.2d 643, 649 (1996) (“A
reasonable person would assume that police understood the
boundaries of the law.”).

¶42           This is the only rule that can be harmonized with safe
and orderly interactions between law enforcement officers and
suspects. Were our laws to permit persons to second-guess or refuse
commands made under color of law, we would undermine the
“‘[o]rderly submission to law-enforcement officers,’” Bumper, 391
U.S. at 549 n.14, quoting United States v. Elliott, 210 F. Supp. 357, 360
(D. Mass. 1962), thereby increasing risks to both officer and public
safety. As our own supreme court has observed, “if resistance to an
arrest or a search made under the color of law is allowed, violence is
not only invited but can be expected.” State v. Hatton, 116 Ariz. 142,
147-48, 568 P.2d 1040, 1045-46 (1977).16

¶43          The admonition given to Valenzuela here would cause
any reasonable person to believe a chemical test is demanded under
color of law, and required rather than voluntary.17 The admonition

      16 Although   the majority cites Schneckloth v. Bustamonte to
support a totality-of-the-circumstances approach to voluntariness
deviating from Bumper, it overlooks that Schneckloth emphasized the
“narrow” scope of its decision and stated that its holding applied
“only . . . when the subject of a search is not in custody.” 412 U.S.
218, 248 (1973). Here, by contrast, we are faced with an in-custody
defendant who was advised by an officer of the putative
requirements of Arizona law to submit to a search, meaning Bumper
should control. Despite the majority’s suggestion, the custodial
status of a DUI arrestee, with its attendant coercive pressures,
clearly distinguishes the present situation from an ordinary civil
subpoena to testify, and we derive no benefit from the comparison.
See Maryland v. Shatzer, 559 U.S. 98, 106-07 (2010) (acknowledging
coercive influences arrestees face in unfamiliar, police-dominated
atmosphere when police persist in seeking cooperation with active
criminal investigation).
      17The DPS officer testified at the suppression hearing that he
had read the admonition from “the admin per se affidavit” from the
Arizona Department of Transportation, which is a standard

                                   20
                      STATE v. VALENZUELA
                        Opinion of the Court

begins with the statement that “Arizona law requires you to submit
to and successfully complete [the] tests,” proceeds thereafter to
assert that “[t]he law enforcement officer may require you to submit
to two or more tests,” that “[y]ou are required to successfully
complete each of the tests,” and, at its conclusion, that “[y]ou are,
therefore, required to submit to the specified tests.” 18 In short, the
admonition begins and ends with the officer’s assertion that the tests
are required—and, if that were not enough, it reminds the suspect of
that claim twice in between.

¶44          That a DUI arrestee is asked, “Will you submit to the
specified tests?” at the conclusion of the admonition does not alter
the voluntariness analysis. As noted above, immediately before that
question suspects are informed, “You are, therefore, required to
submit to the specified tests.” Moreover, a law enforcement officer
who asks a DUI arrestee whether he will “submit” to a legally
“required” test neither semantically nor logically presents the
suspect with a voluntary, uncoerced choice. See Bostick, 501 U.S. at
435 (police request for consent must not “convey a message that
compliance with their requests is required”). Indeed, the word

document substantially set forth in Butler, 232 Ariz. 84, ¶ 4, 302 P.3d
at 611, and used as an exhibit at the hearing, though not formally
admitted into evidence. See State v. Gaffney, 198 Ariz. 188, ¶¶ 3, 11, 8
P.3d 376, 377, 379 (App. 2000) (describing document as standard
administrative form); see also Tornabene v. Bonine, 203 Ariz. 326, ¶ 5,
54 P.3d 355, 359 (App. 2002). The state does not dispute the content
of the admonition here, and the officer’s testimony about the form—
which included a partial but verbatim quotation—establishes and
confirms its essential features. Nonetheless, the precise author and
authority of the form are irrelevant to the present voluntariness
analysis. Furthermore, if this court were inclined to work with a
more complete appellate record rather than emphasize its
limitations, we could order the record supplemented to include this
exhibit under the terms of Rule 31.8(a)(2)(iii), Ariz. R. Crim. P.
      18 A similar but conditional provision not implicated in this
case advises anyone who delays testing, “You are not entitled to
further delay taking the tests for any reason.”


                                  21
                       STATE v. VALENZUELA
                         Opinion of the Court

“submit” suggests that the arrestee is being asked to “accept or give
in to the authority” of the officer. The American Heritage Dictionary
1737 (5th ed. 2011).

¶45         By its plain terms, therefore, the admonition asserts a
claim of lawful authority that precludes a finding of voluntariness.
In the context of the officer’s unambiguous statement to
Valenzuela—that “Arizona law require[d]” him to submit to
testing—I cannot agree with my colleagues that Valenzuela’s
subsequent submission can reasonably be viewed as anything other
than acquiescence to a claim of lawful authority.

¶46          Nor does the admonition given here, by describing the
civil penalties for refusal, “explicitly acknowledge[]” any “right to
refuse tests.” 19 Supra ¶ 13. Before McNeely and Butler recently
clarified DUI suspects’ federal constitutional rights with respect to
chemical testing, we repeatedly had distinguished a right to refuse
testing from the mere power to do so, recognizing only the latter.
E.g., Campbell v. Superior Court, 106 Ariz. 542, 549, 479 P.2d 685, 692
(1971) (“[Statutory] language does not give a person a ‘right’ to
refuse to submit to the test only the physical power. . . . [A] person
does not have a right to refuse to submit to the test . . . .”); Tornabene
v. Bonine, 203 Ariz. 326, ¶ 19, 54 P.3d 355, 363 (App. 2002) (“‘[T]he
law does not give motorists charged with DUI the right to refuse the

      19The   majority’s focus on the language of the implied consent
statute is misplaced, because it is the admonition given to a suspect
that is relevant to the consent analysis—the claim of authority, as
opposed to the authority itself. Cf. Bumper, 391 U.S. at 549-50 & 550
n.15 (assessing admissibility of evidence based solely on consent, not
putative search warrant). Despite a suspect’s legal rights or
awareness thereof, an admonition given by an officer may be
coercive if it makes an unqualified demand under color of law and
does not indicate that the officer will respect the suspect’s invocation
of his right to refuse to cooperate. Cf. Miranda v. Arizona, 384 U.S.
436, 468 (1966) (noting Miranda advisory designed to overcome
inherent pressures of interrogation and “show the individual that
his interrogators are prepared to recognize his privilege should he
choose to exercise it”).


                                   22
                       STATE v. VALENZUELA
                         Opinion of the Court

test; it only gives them the power to refuse and provides for certain
consequences of such a refusal.’”), quoting State v. Krantz, 174 Ariz.
211, 215, 848 P.2d 296, 300 (App. 1992); see also State ex rel. Verburg v.
Jones, 211 Ariz. 413, ¶ 8, 121 P.3d 1283, 1285 (App. 2005) (“A person
always has the power to refuse to submit to lawful authority.”).

¶47           Notably, the pertinent language in the admonition used
here has remained the same since this pre-McNeely and Butler period
of jurisprudence and therefore was crafted with that understanding
in mind. See, e.g., Tornabene, 203 Ariz. 326, ¶ 5, 54 P.3d at 359
(“Arizona law requires you to submit to and successfully complete
tests of breath, blood or other bodily substance as chosen by the law
enforcement officer . . . .”). Thus, both the description of penalties
for refusal and the ultimate query—asking if the suspect will submit
to the test—implicitly acknowledge only that a suspect has the
power to decline to follow the “require[ments]” of the law.
Understood in the context of contemporary case law, such language
was not designed to suggest that a suspect enjoys any right to refuse
to take the test.

¶48           In fact, our law acknowledges numerous circumstances
in which defendants possess the power, rather than the right, to
refuse to comply with the requirements of the law. State law
requires that arrestees submit to fingerprinting, A.R.S. § 13-3890(A),
even though it too can be “refused” by an arrested person and
compelled by a later court order. § 13-3890(B); see Mario W. v. Kaipio,
230 Ariz. 122, ¶¶ 9, 21, 281 P.3d 476, 479, 481 (2012). Persons who
appropriately pull over when a patrol vehicle activates its
emergency lights also theoretically have the power to instead engage
in a high-speed chase. Nonetheless, we do not characterize their
compliance with that command as a waiver of any later assertion
that the officer lacked adequate cause to perform the stop. This is
because pulling over is required by law regardless of whether a
person chooses to do so. See A.R.S. §§ 28-622.01, 28-624(C); see also
A.R.S. § 28-622(A) (“A person shall not willfully fail or refuse to
comply with any lawful order or direction of a police officer
invested by law with authority to direct, control or regulate
traffic.”). Similarly, when officers ask DUI arrestees whether they
will submit to tests that “Arizona law requires,” the officers no more


                                   23
                      STATE v. VALENZUELA
                        Opinion of the Court

suggest that the arrestees may lawfully refuse than when they ask
suspects whether they will submit to an arrest and thereby avoid
additional consequences for resistance, pursuant to A.R.S. § 13-2508.
Neither query implies that submission is optional rather than
mandatory.20

¶49           Although the majority would impute knowledge of
§ 28-1321(D)(1) to arrestees by operation of law—a provision which
might be construed to imply a right to refuse testing—such an
imputation finds no clear precedent in the law of search and seizure.
“It is often stated that every person is ‘presumed’ to know the law.
This ‘conclusive presumption’ is merely a restatement of the
substantive rule that ignorance of the law is not a defense.” Edwards
v. United States, 334 F.2d 360, 366 (5th Cir. 1964). We generally
impute knowledge of the law—or what it forbids—for purposes of
imposing criminal liability. See Cheek v. United States, 498 U.S. 192,
199 (1991). But we do not do so when assessing whether police have
asserted a claim of lawful authority or whether a person’s consent to
a search was voluntarily given. This is evident from the relevant
legal tests controlling those inquiries.

¶50          In evaluating whether a person has provided voluntary
consent to a search, we are instructed to pragmatically assess
whether “a reasonable person would feel free to decline the officers’
requests.” Bostick, 501 U.S. at 436. To support its contention that
Valenzuela knew he could decline the testing here, the majority
imputes to him (1) a sophisticated knowledge of the interplay
between Arizona’s implied consent statute and the Fourth
Amendment, a contentious issue resolved only recently by the
United States Supreme Court, see Butler, 232 Ariz. 84, ¶¶ 9-10, 302
P.3d at 612; and (2) an interpretation of Arizona law (that a statutory
right of refusal exists) at odds with longstanding Arizona

      20The   evident purpose of the question here is to clarify the
moment at which administrative sanctions can be imposed and an
officer can take the next step in the law enforcement process. Rather
than suggesting a right to refuse, the affidavit’s interrogatory merely
provides a formal mechanism for establishing an unambiguous
refusal.


                                  24
                      STATE v. VALENZUELA
                        Opinion of the Court

jurisprudence holding that a suspect possessed only the power, not
the right, to refuse testing. Campbell, 106 Ariz. at 549, 479 P.2d at
692. In so doing, I fear the majority has held Valenzuela to the
standard of an especially gifted criminal lawyer rather than to the
standard of a reasonable, ordinary person. Moreover, a legal
presumption imputing to suspects such a comprehensive knowledge
of the law cannot be harmonized with the fact-intensive inquiry into
voluntariness and would render superfluous the consideration of
any “advice to the accused of his constitutional rights,” a factor
indisputably relevant to evaluating consent to a search. Schneckloth,
412 U.S. at 226.

¶51          One further implication of imputing such knowledge to
suspects is especially troubling. Under the majority’s logic, an
officer may incorrectly advise suspects that they are required by law
to submit to the officer’s commands, yet they will be held to know
otherwise. By so removing official negligence or malfeasance from a
voluntariness analysis, a court incentivizes police misinformation
and actual coercion under color of law.

¶52           For these reasons, our analysis must be controlled by
the admonition actually provided to Valenzuela rather than by the
majority’s novel, post-Butler reading of Arizona’s implied consent
statute. Under that admonition, no reasonable persons would
logically construe the itemization of negative consequences for
refusing the test as a signal that they have a legal entitlement to do
so. To the contrary, substantial penalties, whether civil or criminal,
are commonly reserved for violations of law, and sanctions usually
may not be imposed for the assertion of a constitutional right. Thus,
the articulation of civil penalties set forth in the admonition fails to
meaningfully qualify or mitigate the accompanying assertions that
the officer has the lawful authority to conduct the test.21


      21 The  majority emphasizes the officer’s testimony that if a
person refused the test, the officer then would apply for a search
warrant to compel testing. Supra ¶¶ 13, 21. But the officer’s possible
actions after a defendant’s acquiescence are irrelevant to an analysis
of the voluntariness of a suspect’s consent and what was said to
secure it. Furthermore, it is unclear from the testimony whether the

                                  25
                      STATE v. VALENZUELA
                        Opinion of the Court

¶53          In sum, the typical DUI stop and arrest presents a driver
with a number of legal obligations and choices. Yet the admonition
here utterly fails to distinguish one’s submission to a chemical test as
a voluntary act among the many mandates. Simply presenting an
arrested motorist with a yes-or-no choice to comply with a duty—
whether that duty be real, colorable, or entirely false—does not
transform the interaction into a consensual one. When an arresting
officer repeatedly says that something is required of an arrestee, no
reasonable person would take that admonition to mean that
submission to the officer’s authority is not actually required, but
rather voluntary. And the contrary conclusion reached by the
majority suggests a significant flaw in its reasoning.

¶54          Whereas other possible admonitions might allow a
finding of voluntary consent, as other states’ decisions may indicate,
the present admonition does not. The majority’s reliance on State v.
Brooks, 838 N.W.2d 563 (Minn. 2013), is misplaced. Minnesota’s
implied consent statute and admonition are distinguishable because
they inform drivers of their “right to talk to a lawyer before deciding
whether to take a test,” id. at 565, which was a significant factor in
Brooks’s voluntariness analysis. Id. at 571-72.22



officer addressed the topic of search warrants with Valenzuela prior
to obtaining consent for the tests. The standard implied consent
admonition read here makes no reference to warrants, and the
officer appeared to describe a distinct two-step process in the
remainder of his testimony:

             [I]f they say, well, no, I’m not going to give
             you my blood or my breath, then [we]’re
             also telling them you have another choice,
             and the choice is that we will get a warrant.
             . . . We ask for consent first. If they refuse
             consent, they’re informed at that time that
             we’re gonna obtain a warrant and to get the
             blood sample.
      22 Both
            Brooks, 838 N.W.2d at 569, and State v. Smith, 849
N.W.2d 599, ¶ 9 (N.D. 2014), are also distinguishable because

                                  26
                      STATE v. VALENZUELA
                        Opinion of the Court

¶55           The case of People v. Harris, 184 Cal. Rptr. 3d 198 (Ct.
App. 2015), is more analogous to the present situation, although its
reasoning is unpersuasive. There, the appellate court noted that the
defendant repeatedly was told the chemical tests were “required,”
id. at 204, but it nevertheless reasoned that “a motorist [being] told
he will face serious consequences if he refuses to submit to a blood
test does not, in itself, mean that his submission was coerced.” Id. at
211. That reasoning fails to address how a suspect’s acquiescence to
a “required” test can ever logically demonstrate voluntary consent.
And, assuming arguendo that an advisory such as that here—which
both asserts that the test is compulsory and emphasizes only the
negative consequences of refusal—is not coercive, the mere absence
of coercion falls far short of demonstrating any equivalence between
submission and consent.

¶56         The admonition here flatly and incorrectly provides that
“Arizona law requires” a person arrested for DUI to submit to
chemical tests, without identifying any countervailing legal right. It
does not advise an arrestee of the additional terms of our implied
consent law explaining that “[t]he test shall not be given, except . . .
pursuant to a warrant” or under certain limited circumstances, if the
person refuses to consent to the tests. § 28-1321(D)(1). Nor does it
inform a person of the constitutional right to refuse warrantless
testing under the Fourth Amendment to the United States
Constitution and article II, § 8 of the Arizona Constitution. By both
omitting any reference to the constitutional right or the statutory
option to refuse testing, and by implying that the requirement to



statutes in those states criminalize the refusal to submit to testing,
whereas Arizona imposes only administrative penalties of which
Valenzuela was advised here. See State v. Brito, 183 Ariz. 535, 538,
905 P.2d 544, 547 (App. 1995). Insofar as Brooks and Smith
nonetheless found DUI suspects’ consent to be voluntary in their
respective statutory environments, the obvious question remains
without a satisfying answer: If criminalizing the exercise of a
constitutional right to refuse warrantless testing is not coercive, then
what exactly is?


                                  27
                      STATE v. VALENZUELA
                        Opinion of the Court

submit to testing is broad and unqualified, the current advisory is
misleading and coercive.

¶57          In short, the language found in the admonition and read
to Valenzuela is subject to only one reasonable understanding of its
purpose: to induce acquiescence to a warrantless test. The
document was manifestly not designed to advise suspects of their
constitutional right or implicit statutory choice to refuse. It contains
no language that even suggests the suspect possesses any option but
to submit. I fear the majority opinion therefore errs in construing
mere acquiescence to that advisory as anything other than what is:
submission to a claim of lawful authority.

¶58          Given that persons driving in Arizona possess a
constitutional right to refuse to submit to testing of their blood or
breath in the absence of a search warrant, I would hold that it is not
appropriate for our state’s officers to repeatedly suggest otherwise.
A revised admonition that eliminates the mandatory language
would likely be permissible; however, the warning in its current
form is not. Accordingly, I respectfully dissent from the majority’s
opinion upholding the suppression ruling. I would reverse that
ruling, order the BAC results suppressed, and remand the case to be
retried solely on the aggravated DUI charges concerning
impairment to the slightest degree under A.R.S. § 28-1381(A)(1).




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