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

2

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 

 

1 When 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”).
STATE v. NAVARRO

Opinion of the Court

3

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—

 

2It provides: “No person shall be disturbed in his private 

affairs, or his home invaded, without authority of law.”
STATE v. NAVARRO

Opinion of the Court

4

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

 

3Although 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, 
STATE v. NAVARRO

Opinion of the Court

5

¶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.”).