In an important decision, the Arizona Court of Appeals held on September 1, 2009, that a drunk driving suspect did not legally consent to alcohol testing by his failure to object to a blood draw by a police officer. Arizona law is clear: people suspected of drunk driving must expressly consent to invasive alcohol testing or police must first get a valid search warrant.
Implied Consent Law
Most states, including Arizona, have so-called implied consent laws on the books. Implied consent is a legal concept broadly meaning that the act of driving on a state's highways implies that the driver has given consent for the state to chemically test his or her body for an illegal level of alcohol, usually by measuring the content of breath or blood.
Arizona's implied consent statute provides that after an arrest on suspicion of driving under the influence (DUI), an officer with reasonable grounds can ask the suspect to submit to alcohol testing without a warrant. If the suspect refuses, he or she faces a driver's license suspension. Consent to warrantless testing must be express and if it is not, the defendant is presumed to have refused testing. At that point, testing may only be legally administered after police procure a warrant.
Carrillo v. Houser
The DUI arrestee in this case, Jose Carrillo, testified that he spoke Spanish, not English. It is disputed whether the police were able to communicate with him in Spanish regarding the blood test. The testimony is also in conflict about whether Carrillo held his arm out for the blood draw or the police took it. Carrillo said he let the officer draw the blood because he was afraid, but that he did not consent. Both sides agree that he did not resist.
The court wrote that "mere failure to communicate clear objection" cannot meet the statute's clear requirement that agreement be express. The suspect's consent must be "affirmatively and unequivocally" communicated by words or actions. The law's language makes it clear that failure to expressly agree is presumed to be a refusal, and that any speech or behavior that do not clearly give permission to test may not be assumed to be express consent. When a suspect's communication of consent is unclear, officers should get a warrant instead of proceeding with testing.
Ramifications
By firmly enforcing the express consent requirement to warrantless chemical testing, the court speaks strongly in the spirit of protecting a criminal suspect's right to privacy and right to be free from unlawful search and seizure. The criminal defense community, both in Arizona and across the nation, will watch for future court interpretation of the express consent requirement in other difficult situations where clear communication may be impeded by things like injury, developmental disability, mental illness, intoxication or English aptitude.
