IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,

Appellee,

v.

COURTNEY NOELLE WEAKLAND,

Appellant.

No. CR-17-0615-PR

Filed February 25, 2019

Appeal from the Superior Court in Pima County

The Honorable Casey F. McGinley, Judge Pro Tempore

No. CR20153118-001

AFFIRMED

Opinion of the Court of Appeals, Division Two

244 Ariz. 79 (App. 2017)

VACATED

COUNSEL:

Mark Brnovich, Arizona Attorney General, Dominic E. Draye, Solicitor 

General, Joseph T. Maziarz, Chief Counsel, Mariette S. Ambri (argued), 

Assistant Attorney General, Criminal Appeals Section, Tucson, Attorneys

for State of Arizona

Dean J. Brault, Legal Defender, Robb P. Holmes (argued), Assistant Legal 

Defender, Pima County Legal Defender's Office, Tucson, Attorneys for 

Courtney Noelle Weakland

Mary C. Trejo, Tucson Public Defender, Kristina J. Bohn, Supervising Public 

Defender, Tucson, Attorneys for Amicus Curiae Tucson Public Defender's 

Office

David J. Euchner (argued), Pima County Public Defender’s Office, Tucson; 

and Joseph P. St. Louis, Nesci & St. Louis, P.L.L.C., Tucson, Attorneys for 
STATE V. WEAKLAND

Opinion of the Court

2

Amici Curiae Arizona Attorneys for Criminal Justice and National College 

for DUI Defense

JUSTICE LOPEZ authored the opinion of the Court, in which VICE CHIEF

JUSTICE BRUTINEL and JUSTICES TIMMER and GOULD joined. 

JUSTICE PELANDER dissented. JUSTICE BOLICK, joined by CHIEF 

JUSTICE BALES, separately dissented.

JUSTICE LOPEZ, opinion of the Court:

¶1 We here consider whether the good-faith exception to the 

exclusionary rule applies, in a prosecution for driving under the influence 

(“DUI”), to admit blood evidence unconstitutionally obtained after State v. 

Butler, 232 Ariz. 84 (2013), but before State v. Valenzuela (Valenzuela II), 239 

Ariz. 299 (2016). We hold that the good-faith exception applies because 

application of the exclusionary rule in these circumstances would not 

meaningfully deter police misconduct. Butler did not “unsettle” the law,

and it is unreasonable to require police to predict a change in the law when 

our trial and appellate courts failed to do so.

I.

¶2 In February 2015, an Oro Valley police officer arrested 

Courtney Weakland for DUI. The officer handcuffed her, put her in the 

back seat of his patrol car, and read her an “admin per se” form pursuant 

to A.R.S. § 28-1321. The form provided that Arizona law “require[d]” her 

to complete certain tests to determine her blood-alcohol concentration

(“BAC”). She submitted to a blood draw, which revealed a BAC of .218, 

nearly three times the legal limit. Weakland was indicted on one count of 

aggravated DUI while impaired to the slightest degree and one count of 

aggravated DUI with a BAC of .08 or more.

¶3 Before trial, Weakland moved to suppress all evidence 

obtained through the warrantless search and seizure of her blood sample, 

arguing that the “requirement” language in the admin per se admonition 

coerced her consent. The trial court summarily denied her motion. 

Weakland was convicted on both counts.
STATE V. WEAKLAND

Opinion of the Court

3

¶4 On appeal, Weakland argued that, pursuant to Valenzuela II, 

her blood was obtained without a warrant and without valid consent, and 

that the good-faith exception recognized in Valenzuela II did not apply. The 

State implicitly conceded on appeal that Weakland’s consent to the blood 

draw was involuntary and, thus, invalid pursuant to Valenzuela II, but 

argued that the good-faith exception to the exclusionary rule obviated the 

need to suppress the blood evidence. In a divided opinion, the court of 

appeals affirmed. State v. Weakland, 244 Ariz. 79 (App. 2017). The majority 

reasoned that, because Arizona courts had not held that the admin per se

admonition was “coercive, ineffective, or otherwise [affirmatively] negated 

consent” until Valenzuela II, police acted in good faith when they read it to 

Weakland after her arrest. See id. at 83 ¶ 19, 85 ¶ 24. The dissent argued 

that although existing precedent may have justified applying the good-faith

exception to the defendant’s 2012 arrest in Valenzuela II, this Court’s 2013 

Butler decision placed police on notice before Weakland’s 2015 arrest that 

use of the admin per se admonition was constitutionally suspect. Id. at 85

¶¶ 27–28 (Eckerstrom, C.J., dissenting). The applicability of the good-faith

exception to the exclusionary rule for cases involving use of the admin per 

se admonition after Butler, but before Valenzuela II, is a recurring issue of 

statewide importance. We have jurisdiction pursuant to article 6, section 

5(3) of the Arizona Constitution.

II.

¶5 “We review the denial of a motion to suppress evidence for 

abuse of discretion, considering the facts in the light most favorable to 

sustaining the ruling.” Valenzuela II, 239 Ariz. at 302 ¶ 9. We review de 

novo the applicability of the good-faith exception. State v. Havatone, 241 

Ariz. 506, 509 ¶ 11 (2017).

¶6 “The exclusionary rule, which allows suppression of evidence 

obtained in violation of the Fourth Amendment, is a prudential doctrine 

invoked [solely] to deter future violations.” Valenzuela II, 239 Ariz. 

at 308–09 ¶ 31 (citing Davis v. United States, 564 U.S. 229, 236–37 (2011)). 

“Exclusion is ‘not a personal constitutional right,’ nor is it designed to 

‘redress the injury’ occasioned by an unconstitutional search.” Davis, 564 

U.S. at 236 (quoting Stone v. Powell, 428 U.S. 465, 486 (1976)). Because “a 

deterrence purpose can only be served when the evidence to be suppressed 

is derived from a search which the [police] knew or should have known 

was unconstitutional under the Fourth Amendment,” United States v. 
STATE V. WEAKLAND

Opinion of the Court

4

Johnson, 457 U.S. 537, 565 (1982) (White, J., dissenting), the rule is intended 

to deter only “deliberate, reckless, or grossly negligent conduct, or in some 

circumstances recurring or systemic negligence.” Herring v. United States, 

555 U.S. 135, 144 (2009). Therefore, “when the police act with an objectively 

reasonable good-faith belief that their conduct is lawful, or when their 

conduct involves only simple, isolated negligence,” the good-faith 

exception applies because “the deterrence rationale loses much of its force, 

and exclusion cannot pay its way.” Davis, 564 U.S. at 238 (internal citations 

and quotation marks omitted); see also A.R.S. § 13-3925 (codifying goodfaith exception to the exclusionary rule).

¶7 “Real deterrent value is a ‘necessary condition for exclusion,’ 

but it is not ‘a sufficient’ one.” Davis, 564 U.S. at 237 (quoting Hudson v. 

Michigan, 547 U.S. 586, 596 (2006)). “For exclusion to be appropriate, the 

deterrence benefits of suppression must [also] outweigh its heavy costs.” 

Id. (noting that exclusion’s “bottom-line effect, in many cases, is to suppress 

the truth and set the criminal loose in the community without 

punishment”). Consequently, exclusion of evidence should be a “last 

resort.” Id. (quoting Hudson, 547 U.S. at 591). The state bears the burden of 

establishing that the good-faith exception applies. Havatone, 241 Ariz. 

at 511 ¶ 19.

III.

¶8 This case turns on whether police objectively, reasonably 

relied on “binding appellate precedent” in using the admin per se

admonition at the time of Weakland’s arrest after Butler but before 

Valenzuela II. See Havatone, 241 Ariz. at 512 ¶ 24. Stated differently, we must 

determine whether the law regarding the admonition was “unsettled” at 

the time of Weakland’s arrest, meaning law enforcement officers could not 

rely on precedent to authorize the illegal search. Id. at 512–13 ¶ 29 (citing 

Davis, 564 U.S. at 250 (Sotomayor, J., concurring in the judgment)). When 

making this assessment, we do not require police to have a “crystal ball” in 

determining what courts may conclude in future cases but rather require 

them to act in objectively reasonable reliance on then-existing authority. 

State v. Jean, 243 Ariz. 331, 343 ¶ 45 (2018); see United States v. Leon, 468 U.S. 

897, 919 n.20 (1984) (stating that the good-faith exception requires that 

police have “a reasonable knowledge of what the law prohibits”).
STATE V. WEAKLAND

Opinion of the Court

5

¶9 Mindful of tension between Havatone and Jean, we clarify the 

standard for the good-faith exception. We noted in Havatone that “Davis

instructs that law enforcement acts in good faith if ‘binding appellate 

precedent specifically authorizes a particular police practice.’” 241 Ariz. 

at 512 ¶ 24 (quoting Davis, 564 U.S. at 241). Although an accurate statement, 

Davis did not limit the good-faith exception only to circumstances when 

appellate precedent specifically authorizes a police practice. In fact, in Jean, 

we rejected the proposition that “to qualify as ‘binding appellate precedent 

under Davis,’ a case ‘must specifically authorize the precise conduct under 

consideration.’” 243 Ariz. at 343 ¶ 45 (quoting United States v. Katzin, 769 

F.3d 163, 173–76 (3d Cir. 2014)). Instead, we concluded that the good-faith 

exception applies if the search was “conducted in objectively reasonable 

reliance on . . . binding appellate precedent . . . .” Jean, 243 Ariz. at 343 ¶ 47; 

see also Valenzuela II, 239 Ariz. at 309 ¶ 31 (“[W]hen law enforcement officers 

‘act with an objectively reasonable good-faith belief that their conduct is 

lawful,’ deterrence is unnecessary and the exclusionary rule does not 

apply.” (quoting Davis, 564 U.S. at 238)). We find Jean’s approach more 

consistent with Davis’s reasoning and the purpose of the exclusionary rule 

and the good-faith exception to it. See Davis, 564 U.S. at 240–41, 249

(reasoning that the exclusionary rule does not apply where police 

reasonably rely on binding appellate precedent because “[p]olice practices 

trigger the harsh sanction of exclusion only when they are deliberate 

enough to yield ‘meaningfu[l]’ deterrence, and culpable enough to be 

‘worth the price paid by the justice system’” (alteration in original) 

(citations omitted)). We see no reason to limit the good-faith exception to

police practices that appellate precedent specifically authorizes when the 

rationale for the exception applies with equal force where binding appellate 

precedent otherwise supports the practice. To the extent that Havatone and 

Jean conflict, and despite Justice Bolick’s reliance on the “specific 

authorization” standard, infra ¶¶ 41, 48, we reaffirm Jean’s reasonableness 

approach.

¶10 Weakland contends that the good-faith exception does not 

apply in her case because Butler “unsettled” the law. We are unpersuaded. 

Although in Havatone we embraced the somewhat opaque concept (at least 

in its application) that the good-faith exception should not apply when the

law is “unsettled” as to the constitutionality of a police practice, 241 Ariz. 

at 512–13 ¶ 29, merely branding the state of the law between Butler and 

Valenzuela II as “unsettled” does not repudiate Arizona’s appellate courts’ 

repeated authorization of the admin per se admonition.
STATE V. WEAKLAND

Opinion of the Court

6

¶11 The gravamen of Weakland’s argument is that the good-faith 

exception should not apply to her case because, after Butler, the police 

should have known that administering the admin per se admonition, 

pursuant to § 28-1321, would be insufficient as an exception to the Fourth 

Amendment’s warrant requirement or would be insufficient, by itself, to 

establish voluntary consent to the test. In other words, if Butler did not 

expressly invalidate use of the admonition, it at least “unsettled” the law. 

Either way, Weakland contends, Butler put police on notice that use of the 

form was constitutionally dubious. We disagree.

¶12 The issue in Butler was “whether the Fourth Amendment . . .

requires that a juvenile arrestee’s consent be voluntary to allow a 

warrantless blood draw.” 232 Ariz. at 86 ¶ 1. Applying Missouri v. McNeely,

569 U.S. 141 (2013), this Court held that the Fourth Amendment requires 

that, “independent of § 28-1321,” an arrestee’s consent to a warrantless 

blood draw be voluntary under the totality of the circumstances. Id. at 88 

¶ 18. Although this Court assessed the circumstances under which the 

juvenile defendant assented to the warrantless blood draw after hearing the 

admonition, including his age, the duration of his detention, the absence of 

his parents, and his disquieted demeanor, the sufficiency of consent given 

in response to the admin per se admonition alone was not otherwise before 

the Court. Id. at 88–89 ¶¶ 20–21. Indeed, if it were, the Court could have 

found the lack of voluntary consent based solely on use of the admonition 

without discussing other factors. Id. at 91 ¶ 32 (Pelander, J., concurring) 

(noting facts also showed that the juvenile’s consent in response to the 

admonition was voluntary and concluding that “had the juvenile court 

found [the juvenile’s] consent voluntary, I would have had no difficulty 

affirming that ruling, and I doubt my colleagues would have either”). If 

anything, Butler emphasizes that the totality of the circumstances must be 

considered in determining compliance with the Fourth Amendment and 

illustrates that factors such as a juvenile arrestee’s age and circumstances

can override what otherwise may have been voluntary consent to a blood 

test following the admonition. See Butler, 232 Ariz. at 88 ¶ 18. But it did not 

implicitly suggest that consent given in response to the admin per se 

admonition is involuntary, absent other circumstances, as we later held in 

Valenzuela II. 239 Ariz. at 301 ¶ 2.
STATE V. WEAKLAND

Opinion of the Court

7

¶13 In sum, Butler did not address whether use of the admonition 

was inherently coercive, did not clearly address its effect, and did not 

expressly question its validity. In fact, Butler failed to meaningfully

acknowledge the two binding appellate cases authorizing use of the 

language on the admin per se admonition—Campbell v. Superior Court, 106 

Ariz. 542 (1971), and State v. Brito, 183 Ariz. 535 (App. 1995). Consequently, 

Butler did not “unsettle” the law because it failed to repudiate Arizona 

appellate courts’ existing authorization for use of the admonition.

¶14 Although Weakland strives to expand Butler’s holding 

beyond its plain terms, Valenzuela II settles the issue and forecloses

Weakland’s claim that Butler “unsettled” the law concerning use of the 

admin per se admonition. In Valenzuela II, this Court held that Campbell and 

Brito constituted binding appellate precedent, sanctioning the language 

used on the admin per se admonition, and affirmed that “[w]e neither 

suggested that the admonition . . . misstated the law or was coercive, nor 

ha[d] this Court ever questioned or overruled Campbell or Brito.” Valenzuela 

II, 239 Ariz. at 309 ¶ 34. In doing so, we rejected the argument that 

continued use of the admin per se admonition reflected “recurring or 

systemic negligence” in the wake of Carrillo v. Houser, 224 Ariz. 463 (2010).

Id. In fact, Valenzuela II expressly declined to fault police for “failing to 

anticipate that we would disapprove the admin per se [admonition] in the 

wake of Carrillo” when Carrillo was “not dispositive of the issue” and when 

Arizona courts had “continued to approve the admonition.” Id. Valenzuela 

II leaves no doubt that, at the time of the decision, Arizona appellate courts 

had continuously authorized use of the existing admin per se admonition.

¶15 That the defendant’s arrest in Valenzuela II preceded Butler, 

whereas Weakland’s arrest followed it, is immaterial to our analysis and

conclusion that Arizona’s appellate courts continued to authorize use of the 

admonition at the time of Weakland’s arrest. In fact, Valenzuela II cited State 

v. Oliver, No. 2 CA-CR 2014-0359, 2015 WL 4924747 (Ariz. App. Aug. 18, 

2015) (mem. decision), involving a post-Butler DUI arrest and warrantless 

blood seizure that occurred after Weakland’s arrest, to illustrate the 

proposition that “our courts have continued to approve the admonition.” 

Valenzuela II, 239 Ariz. at 309–10 ¶ 34. In other words, this Court surveyed 

the legal landscape pre- and post-Butler and concluded that, until its

decision in Valenzuela II, our appellate courts had continued to authorize 

use of the admonition.
STATE V. WEAKLAND

Opinion of the Court

8

¶16 Indeed, Oliver was only one of several post-Butler appellate 

decisions sanctioning police use of the admonition. See State v. Valenzuela

(Valenzuela I), 237 Ariz. 307, 310 ¶ 7, 315 ¶ 31 (App. 2015); see also State v. 

Okken, 238 Ariz. 566, 571 ¶¶ 17–18 & n.1 (App. 2015) (discussing Butler and 

the statutory requirement of “actual consent before a warrantless search 

may be performed,” yet failing to mention deficiencies with the admonition

and focusing, instead, on “other factors” rendering consent involuntary); 

State v. Pena, No. 2 CA-CR 2013-0241, 2014 WL 3407343, at *2 ¶¶ 6–8 (Ariz. 

App. July 10, 2014) (noting Butler’s requirement that a breath test is “subject 

to the Fourth Amendment’s constraints,” but citing the admonition as a 

basis, in part, for valid consent); State v. Figueroa, No. 2 CA-CR 2012-0458, 

2014 WL 287959, at *4–5 ¶¶ 19–21 (Ariz. App. Jan. 24, 2014) (mem. decision) 

(citing Butler as requiring compliance with the Fourth Amendment for 

blood draws, but finding that defendant consented, in the absence of police 

force, after hearing the admonition).

1 In each of these cases, the court of 

appeals concluded “that the defendants’ consent, obtained in response to 

the admonition, was voluntary” considering the totality of the 

circumstances. See Weakland, 244 Ariz. at 84–85 ¶ 23. The dissents ignore

or dismiss these cases. But if Arizona’s appellate courts did not interpret 

Butler as unsettling the law on the use of the admin per se admonition, it 

would be unreasonable to fault the police for failing to do so. See Davis, 564 

U.S. at 241 (stating that “penaliz[ing] the officer for the appellate judges’ 

error” “cannot logically contribute to the deterrence of Fourth Amendment 

violations” (citations omitted)).

¶17 Justice Bolick assails the reasoning and result in Valenzuela II

concerning the good-faith exception even as he purports to rely upon it. 

Specifically, he contends that Valenzuela II’s analysis of Bumper v. North 

Carolina, 391 U.S. 543 (1968), and Schneckloth v. Bustamonte, 412 U.S. 218

(1973), demonstrates that, after Bumper, police should have known that the 

admin per se admonition was coercive. See infra ¶ 43 (suggesting that 

because Bumper and Johnson v. United States, 333 U.S. 10 (1948), directed the 

 

1 Justice Bolick asserts that our notice of these unpublished decisions does 

not support our position because they cannot constitute binding appellate 

authority pursuant to Arizona Supreme Court Rule 111(c). Infra ¶ 49 n.4.

We do not cite these unpublished decisions as authority, but rather as proof 

of a factual point – that appellate courts continued to approve the 

admonition after Butler.
STATE V. WEAKLAND

Opinion of the Court

9

outcome in Valenzuela II, “[i]t is very difficult to argue” that the holding in 

Valenzuela II “should have come as a surprise”). Necessarily, he suggests 

that Valenzuela II wrongly applied the good-faith exception. But Weakland 

does not urge this Court to overrule Valenzuela II, and we see no reason to 

revisit its holding here.

¶18 Havatone offers Weakland no safe harbor. In Havatone, this 

Court declined to apply the good-faith exception to the exclusionary rule 

when police directed a warrantless blood draw, based on alleged exigent 

circumstances (dissipation of alcohol in the blood), on an unconscious 

driver suspected of DUI who had been transported out of Arizona for 

medical treatment. 241 Ariz. at 508 ¶ 5, 512 ¶ 23. We reasoned that police

“should have known that routinely directing blood draws from DUI 

suspects who were sent out of state for emergency treatment, without 

making a case-specific determination whether a warrant could be timely 

secured, was either impermissible or at least constitutionally suspect”

because the police practice had “been discredited for over fifty years.” Id. 

at 511 ¶ 20, 512 ¶ 24. We noted, further, that “no binding precedents 

specifically authorized” the police practice. Id. at 512 ¶ 28.

¶19 Here, police operated in a distinctly different legal landscape 

from that in Havatone. Unlike there, where courts had discredited the police 

practice for over fifty years and no binding precedents specifically 

authorized it, Arizona appellate courts had authorized police reliance on the 

language used in the statutory admin per se admonition for over forty years

at the time of Weakland’s arrest. And even if Butler presaged future court 

disavowal of the admonition, it did not foreclose its use. Cf. Leon, 468 U.S. 

at 919 n.20 (holding that the good-faith exception requires “a reasonable 

knowledge of what the law prohibits”). To the contrary, in Butler’s wake,

Arizona’s trial and appellate courts continued to implicitly or expressly

authorize use of the admonition.

IV.

¶20 We reaffirm our conclusion in Valenzuela II that, until that 

decision, our courts had continued to authorize use of the admonition. It is 

unreasonable to require the police to predict a shift in the law when our 

trial and appellate courts failed to do so. The deterrent purpose of the 

exclusionary rule does not apply here because the police followed binding 

appellate precedent that persisted in Butler’s wake. We should not 
STATE V. WEAKLAND

Opinion of the Court

10

endeavor to divine “unsettled” law where none exists merely to constrain 

application of the good-faith exception. Such an approach turns the 

purpose of the exclusionary rule on its head. It is the exclusionary rule, not 

the good-faith exception to it, that we turn to as a “last resort.” See, e.g.,

Leon, 468 U.S. at 918–19 (reasoning that “even assuming that the 

[exclusionary] rule effectively deters some police misconduct and provides 

incentives for the law enforcement profession as a whole to conduct itself 

in accord with the Fourth Amendment, it cannot be expected, and should 

not be applied, to deter objectively reasonable law enforcement activity”). 

We decline to invoke the rule to penalize the police for what can, at worst,

be described as appellate judges’ error in continuing to approve consent in 

response to the admin per se admonition after Butler, and we will not

prescribe the “bitter pill” of exclusion where we find that police engaged in 

neither deliberate, reckless, or grossly negligent conduct, nor recurring or 

systemic negligence. See Davis, 564 U.S. at 237, 240–41.

¶21 We vacate the court of appeals’ opinion and affirm 

Weakland’s convictions and sentences.
STATE V. WEAKLAND

JUSTICE PELANDER, Dissenting

11

PELANDER, J., dissenting.

¶22 I respectfully disagree with the majority’s conclusion that the 

good-faith exception to the exclusionary rule applies to this case.2 Although 

I agree with Justice Bolick’s conclusion that “the continued use of the 

admonition alone to establish voluntary consent was of dubious 

constitutionality following [State v.] Butler, [232 Ariz. 84 (2013)],” infra ¶ 40

(Bolick, J., dissenting), I write separately to explain my reasoning because 

my approach differs from his.

¶23 Weakland’s consent to a blood draw directly followed the 

arresting officer’s telling her twice, pursuant to an “admin per se” form, 

that “Arizona law requires you to submit to and successfully complete” the 

blood test. In State v. Valenzuela (Valenzuela II), 239 Ariz. 299, 301 ¶ 2, 309 

¶ 33 (2016), we held that “showing only that consent was given in response 

to this admonition fails to prove that an arrestee’s consent was freely and 

voluntarily given” for providing a blood sample and “cannot excuse the 

failure to secure a warrant.” But we found that “[t]he good-faith exception 

applie[d]” because the arresting officer “followed binding precedent that 

had sanctioned use of the admonition read to Valenzuela” at the time of his 

2012 arrest. Id. at 309 ¶¶ 32–33 (citing Campbell v. Superior Court, 106 Ariz. 

542, 546 (1971), and State v. Brito, 183 Ariz. 535, 538–39 (App. 1995)).

¶24 The next year, in State v. Havatone, 241 Ariz. 506, 512 ¶ 28 

(2017), this Court found the good-faith exception inapplicable when “no 

binding precedents specifically authorized” the practice of warrantless, 

nonconsensual blood draws from unconscious DUI suspects, and “Arizona 

case law regarding a per se exigency was, at most, unsettled.” I dissented 

in that case and would have applied the good-faith exception. Id. at 521 

¶ 62 (Pelander, J., concurring in part and dissenting in part). But unlike 

 

2 The United States Supreme Court has repeatedly debated the purported 

costs and benefits of the judicially created exclusionary rule in its Fourth 

Amendment jurisprudence. See, e.g., Utah v. Strieff, 136 S. Ct. 2056 (2016); 

Hudson v. Michigan, 547 U.S. 586 (2006). But this case involves only the 

good-faith exception to the exclusionary rule, not the underlying purposes, 

policies, or continued viability of the rule itself, which the Supreme Court 

still recognizes. And, as the majority acknowledges, the State “bears the 

burden of establishing that the good-faith exception applies.” Supra ¶ 7.
STATE V. WEAKLAND

JUSTICE PELANDER, Dissenting

12

Havatone, this case does not involve “a presumptively valid state statute” 

that “specifically and expressly” authorized the practice in question. Id.

at 515 ¶ 38, 521 ¶ 63 (citing A.R.S. § 28-1321(C)). Nor does application of 

the exclusionary rule in this case impose on officers an “expect[ation] to 

anticipate or predict a future change in our case law.” Id. at 521 ¶ 63.

¶25 More recently, addressing facts predating United States v. 

Jones, 565 U.S. 400 (2012), this Court found the good-faith exception applied 

to officers’ installation of a GPS device on a suspect’s vehicle in 2010. State 

v. Jean, 243 Ariz. 331, 342–43 ¶¶ 40–47 (2018). We reasoned that the officers 

conducted the search “in objectively reasonable reliance” on prior, binding 

United States Supreme Court cases, id. at 343 ¶ 47, and we rejected the 

argument that “to qualify as ‘binding appellate precedent under Davis [v. 

United States, 564 U.S. 229 (2011)],’ a case ‘must specifically authorize the 

precise conduct under consideration,’” id. ¶ 45 (quoting United States v. 

Katzin, 769 F.3d 163, 176 (3d Cir. 2014)).

¶26 One could argue, as the amicus curiae Arizona Attorneys for 

Criminal Justice does, that some tension exists between Havatone and Jean. 

Havatone interpreted and applied the good-faith exception narrowly, 

finding “recurring or systemic negligence” that precluded application of 

the exception, 241 Ariz. at 511 ¶ 21, in part because “Arizona case law in 

effect at the time of Havatone’s blood test did not specifically authorize[]” 

the precise conduct at issue, namely, the “particular police practice of 

directing warrantless, nonconsensual blood draws from unconscious DUI 

suspects absent exigent circumstances,” id. at 513 ¶ 30 (alteration in 

original) (citation omitted) (internal quotation marks omitted); see also id.

at 512 ¶ 24. Jean, in contrast, took a less restrictive view, concluding that 

the good-faith exception applied because “the rationale underpinning” the 

prior Supreme Court precedent authorized the limited GPS monitoring in 

that case, even though the Court had not specifically authorized that precise 

conduct but only similar conduct in beeper cases. 243 Ariz. at 343 ¶ 45 

(internal quotation marks omitted). These divergent views regarding the 

scope of the good-faith exception are also illustrated in the majority and 

dissenting opinions in Jean. Compare id. at 342–43 ¶¶ 40–47, with id. at 343–

45 ¶¶ 49–57 (Bales, C.J., dissenting in part and dissenting from the 

judgment).

¶27 Importantly, contrary to Justice Bolick’s suggestion, infra ¶ 48, 

Davis does not resolve this dispute. The outcome in Davis is consistent with 

either approach, and language in Davis supports both views. In Davis, 
STATE V. WEAKLAND

JUSTICE PELANDER, Dissenting

13

police officers engaged in the precise conduct specifically authorized by 

Eleventh Circuit precedent. 564 U.S. at 239. The Court concluded that 

relying on that precedent to engage in the same conduct authorized by it 

was objectively reasonable. Id. at 239–41. But the Court did not limit 

application of the good-faith exception to those circumstances. Instead, it 

broadly held that “the exclusionary rule does not apply” “when the police 

conduct a search in objectively reasonable reliance on binding appellate 

precedent,” without setting forth the boundaries of that rule. Id. at 249–50; 

see also id. at 232.

¶28 In my view, Jean’s formulation and application of the goodfaith exception is correct and better serves the values supporting the 

exclusionary rule and this exception to it. See Davis, 564 U.S. at 240, 249; 

Jean, 243 Ariz. at 343 ¶ 46. Thus, I agree with the majority on that point. See 

supra ¶ 9. In a world with evolving technology and limited judicial 

resources, the validity of police officers’ conduct should not hinge on 

appellate courts previously having specifically authorized every particular 

practice that officers might engage in or bear the risk that evidence will be 

suppressed if a practice is subsequently declared unconstitutional. This, of 

course, is especially true when a police officer can reasonably interpret 

those appellate decisions that do exist as authorizing related or similar 

practices based upon the rationales, principles, and reasoning that those 

decisions set forth. Under those circumstances, it is hard to understand 

what the deterrent value is in suppressing evidence when a future court 

later determines that a practice is unconstitutional. As this Court aptly 

observed in Jean, “Davis requires good faith and reasonableness, not a

crystal ball.” 243 Ariz. at 343 ¶ 45.

¶29 Any disparity between Havatone and Jean, however, is 

inconsequential and neither affects nor changes the outcome here. Under 

either approach to the good-faith exception, Butler sufficiently unsettled the 

aggregate of relevant Arizona case law relating to police officers’ use of this 

“admin per se” form to preclude application of the exception in this case. 

Applying Havatone, Justice Bolick’s dissent explains why, at the time of 

Weakland’s post-Butler arrest in 2015, “a blanket policy to read the 

admonition but not to otherwise establish consent could not have been 

made in good faith, and therefore the good-faith exception to the 

exclusionary rule should not apply.” Infra ¶ 53. But in reaching that 

conclusion, Justice Bolick’s dissent implicitly questions the reasoning and 
STATE V. WEAKLAND

JUSTICE PELANDER, Dissenting

14

result in Valenzuela II and disregards Jean, while neither the majority nor I 

do. See supra ¶¶ 9, 17.

¶30 Nonetheless, the same conclusion obtains under Jean. The 

rationale, principles, and reasoning underlying this Court’s analysis in 

Butler undermine the State’s claim that the aggregate of relevant Arizona 

case law at the time of Weakland’s arrest could reasonably be understood 

as authorizing the practice of obtaining constitutionally adequate consent 

to blood testing by reading an “admin per se” form to an arrestee that 

instructs the arrestee that he or she is “require[d]” to submit to testing. 

Three reasons support this conclusion.

¶31 First, Butler expressly rejected the notion that Arizona’s 

implied consent statute “requires” a person to submit to blood testing, 

which directly contradicts the language in the “admin per se” form later 

used when Weakland was arrested. This Court stated that the “consent” 

under that statute “does not always authorize warrantless testing of 

arrestees.” Butler, 232 Ariz. at 88 ¶ 17 (quoting Carrillo v. Houser, 224 Ariz. 

463, 465 ¶ 10 (2010)). Rather, we stated that the implied consent law directs 

an officer “to ask the arrestee to submit to the test, and the arrestee may then 

refuse by declining to expressly agree to take the test.” Id. (emphasis added). 

“If the arrestee refuses, the statute specifies that a warrant is required to 

administer the test and the arrestee shall have his license suspended.” Id.

(emphasis added). These statements cannot reasonably be understood in 

good faith as authorizing an officer to admonish DUI arrestees that they are 

“require[d]” to submit to testing.

¶32 Second, Butler held that “independent” of the implied consent 

statute, “the Fourth Amendment requires an arrestee’s consent to be 

voluntary to justify a warrantless blood draw.” Id. ¶ 18. That statement 

cannot reasonably be understood in good faith as authorizing an officer to 

assume or infer that an arrestee’s consent for Fourth Amendment purposes 

is voluntary based solely on (i.e., entirely dependent upon) the fact that the 

arrestee submitted to testing pursuant to an admonition that, for the 

reasons discussed above, Butler concluded erroneously misstates the 

implied consent statute.

¶33 Third, in support of the Butler trial court’s finding that 

voluntary consent was lacking in that case, we noted that the officer 

(pursuant to the admin per se form) had twice told the suspect that he was 

“required to submit” to blood testing. Id. at 89 ¶ 20. Far from authorizing 
STATE V. WEAKLAND

JUSTICE PELANDER, Dissenting

15

the practice of reading that form to an arrestee and then assuming or 

implying based on that fact alone that the arrestee’s subsequent submission 

to testing constituted voluntary consent, this Court included that precise 

fact as a reason for upholding the trial court’s finding that the suspect’s 

consent was involuntary. Our including that fact as a reason for finding an 

arrestee’s consent involuntary for Fourth Amendment purposes cannot 

reasonably be understood in good faith as authorizing an officer to obtain 

constitutionally adequate consent to blood testing by reading an “admin 

per se” form to an arrestee that instructs the arrestee that he or she is 

“require[d]” to submit to testing.

¶34 The majority contends, however, that “Butler did not 

‘unsettle’ the law.” Supra ¶ 13. According to the majority, “the sufficiency 

of consent given in response to the admin per se form alone” was not at 

issue in Butler, supra ¶ 12, and that case “failed to meaningfully 

acknowledge the two binding appellate cases authorizing use of the 

language on the admin per se form—Campbell v. Superior Court, 106 Ariz. 

542 (1971), and State v. Brito, 183 Ariz. 535 (App. 1995).” Supra ¶ 13. These 

assertions are unpersuasive.

¶35 Butler did address the sufficiency of consent after the 

admonition—indeed, we expressly rejected the State’s arguments that “the 

‘consent’ in § 28–1321(A) either constitutes an exception to the warrant 

requirement or satisfies the Fourth Amendment’s requirement that consent 

be voluntary.” 232 Ariz. at 88 ¶ 17. Because the minor involved in Butler 

did consent—both verbally and in writing—after being given the per se 

admonition, see id. at 86 ¶ 4, our affirming the juvenile court’s ruling that 

the consent nonetheless was involuntary necessarily implies that the mere 

fact that a suspect agrees to the test after the admonition does not suffice to 

establish voluntariness. With respect to Campbell and Brito, neither of those 

cases expressly discussed whether, apart from the implied consent statute, 

voluntary consent is required for a warrantless blood draw or whether 

acquiescence to a blood draw after the admonition itself establishes such 

consent (the issues Butler did decide). Thus, the majority’s assertion that 

Butler failed to acknowledge “binding appellate cases” is incorrect. Supra

¶ 13. Indeed, in Butler the State did not contend that Campbell—much less 

Brito—somehow established that the consent involved in Butler was 

voluntary. Thus, there was no reason in Butler to discuss Campbell or Brito 

because they were not pertinent to the issues before the Court, much less 

“binding.” Although those cases justified an officer’s good-faith use in 2012 
STATE V. WEAKLAND

JUSTICE PELANDER, Dissenting

16

of the admin per se form that contained the “Arizona law requires” 

language, see Valenzuela II, 239 Ariz. at 301 ¶¶ 4–5, 309–10 ¶¶ 32–34, that 

cannot be said post-Butler for the 2015 arrest and search of Weakland here. 

¶36 Application of the good-faith exception in this case requires 

the Court to take an even broader view of that exception than set forth in 

Jean. In Jean, we applied the good-faith exception because “the rationale 

underpinning” prior Supreme Court precedent could be logically and 

reasonably extended from beepers to GPS monitoring. 243 Ariz. at 343 ¶ 45 

(quoting Katzin, 769 F.3d at 173–74). Significantly, though, at the time of the 

police officers’ GPS monitoring in Jean, no United States Supreme Court 

case had explicitly or implicitly overruled or questioned its prior case law 

or otherwise suggested that GPS monitoring might be or likely is 

impermissible. That is precisely what made the officers’ reliance on “the 

rationale underpinning” the prior cases reasonable. Stated differently, the 

officers in Jean could extract principles from the beeper cases and 

reasonably extend those principles to a new fact pattern, GPS monitoring, 

but they did so without ignoring authority cutting the other direction. 

Under those circumstances, this Court correctly found no deterrent value 

in suppressing the GPS monitoring evidence and correctly applied the 

good-faith exception. Id. ¶¶ 45–47.

¶37 But that is not the situation here. If we assume (and absent 

any facts in the record, we can only assume) that the police officer in this 

case relied on this Court’s interpretation of the implied consent statute in 

Campbell (a 1971 decision) and the court of appeals’ decision in Brito (a 1995 

decision), the officer did so while ignoring this Court’s contrary 

interpretation of the implied consent statute and analysis of constitutionally 

adequate consent in a subsequent, and much more recent, case. Butler (our 

2013 decision) plainly cast doubt on whether the “admin per se” form 

accurately stated the law and whether a person’s submission to testing after 

merely being read those admonitions could constitute voluntary consent 

for purposes of the Fourth Amendment, obviating the need for a search 

warrant.3 Unlike in Jean, arguably there was authority on both sides of the 

 

3 Indeed, given this Court’s ruling in Butler, I warned that “the safest course 

of action for law enforcement might simply be to obtain search warrants, 

when reasonably feasible, for obtaining blood samples in DUI 

investigations.” 232 Ariz. at 92 ¶ 37 (Pelander, J., concurring). Had that 
STATE V. WEAKLAND

JUSTICE PELANDER, Dissenting

17

scale here. Furthermore, unlike in Davis, the police officers did not follow, 

act in “strict compliance” with, or “scrupulously adhere[]” to the aggregate 

of relevant Arizona case law “to the letter.” 564 U.S. at 239, 249. Nor could 

they have done so because the relevant law was, at best, unclear. But rather 

than “err on the side of constitutional behavior,” Havatone, 241 Ariz. at 513 

¶ 29 (quoting United States v. Johnson, 457 U.S. 537, 561 (1982)), the officer 

proceeded in the face of “unsettled” law, id. at 512 ¶ 28.

¶38 Therefore, under these circumstances, unlike in Jean and 

Davis, there is deterrent value in suppressing the blood draw evidence. 

Although Havatone, in my view and the majority’s, interpreted the goodfaith exception too narrowly, this Court correctly stated there that in “‘close’ 

cases” police officers should err on the side of protecting citizens’ 

constitutional rights. See id. at 513 ¶ 29 (quoting Johnson, 457 U.S. at 561). 

The arresting officer did not do so here.

¶39 Finally, in determining for Fourth Amendment purposes 

whether a DUI arrestee’s consent was voluntary, we consider the totality of 

circumstances, which might include but are not necessarily limited to the 

arrestee submitting to blood testing after being given the (now invalid) 

“required by law” admonition. See Valenzuela II, 239 Ariz. at 305–06 ¶ 21 

(holding that “a trial court should examine the totality of the circumstances 

to decide whether consent was voluntary, even when given after a law 

enforcement officer’s assertion of lawful authority to search”); Butler, 232 

Ariz. at 87 ¶ 13 (“Voluntariness is assessed from the totality of the 

circumstances.”). In this case, however, the record does not reflect any facts 

that bear on or might support a finding of voluntary consent other than 

Weakland’s submission to blood testing after the “required by law” 

admonition was given to her. And, at oral argument in this Court, the State 

conceded that no other facts suggest voluntary consent under the totality of 

circumstances. Accordingly, I respectfully dissent from the majority’s 

holding that the good-faith exception applies to this case and would instead 

apply the exclusionary rule and reverse the trial court’s order denying 

Weakland’s motion to suppress.

 

warning been heeded almost two years later when Weakland was arrested, 

the State’s reliance on the good-faith exception would be unnecessary.
STATE V. WEAKLAND

JUSTICE BOLICK, joined by CHIEF JUSTICE BALES, Dissenting

18

BOLICK, J., joined by BALES, C.J., dissenting.

¶40 The sole question before the Court is whether, following our 

decision in State v. Butler, 232 Ariz. 84 (2013), it was objectively reasonable 

for a police department to view acquiescence to the admonition at issue, 

standing alone, to establish voluntary consent to a blood draw, thus 

allowing admission of the blood test as evidence notwithstanding that the 

search violated Weakland’s constitutional rights. Because the continued 

use of the admonition alone to establish voluntary consent was of dubious 

constitutionality following Butler, I respectfully dissent.

¶41 In Davis v. United States, the U.S. Supreme Court held that 

evidence resulting from an unconstitutional search would be suppressed 

unless the police were acting in good faith on “binding appellate precedent 

[that] specifically authorizes a particular police practice.” 564 U.S. 229, 241 

(2011). In State v. Havatone, we held that “[w]hen the Fourth Amendment 

violation occurred not as the result of an officer’s fact-specific 

determination that obtaining a warrant is infeasible but pursuant to 

department practice making such determination unnecessary, we impute 

to the law enforcement agency the responsibility to assure that unlawful 

seizures will not occur.” 241 Ariz. 506, 511 ¶ 22 (2017) (citing Davis, 564 U.S. 

at 240). Application of the exclusionary rule where the law is “unsettled,” 

or the constitutionality of a practice is “dubious,” provides deterrence 

against unconstitutional behavior. Id. at 512–13 ¶ 29. Indeed, if the rule “is 

not applied in ‘close’ cases, ‘law enforcement officials would have little 

incentive to err on the side of constitutional behavior.’” Id. at 513 ¶ 29 

(quoting United States v. Johnson, 457 U.S. 537, 561 (1982)).

¶42 The use of the admonition alone to establish voluntary 

consent was questionable long before Butler. The U.S. Supreme Court held 

in Bumper v. North Carolina that “[w]hen a prosecutor seeks to rely upon 

consent to justify the lawfulness of a search, he has the burden of proving 

that the consent was, in fact, freely and voluntarily given. This burden 

cannot be discharged by showing no more than acquiescence to a claim of 

lawful authority.” 391 U.S. 543, 548–49 (1968) (footnote omitted). Yet that 

is exactly the practice on which the majority bases the good-faith exception 

here, fifty years later.
STATE V. WEAKLAND

JUSTICE BOLICK, joined by CHIEF JUSTICE BALES, Dissenting

19

¶43 Indeed, when we ruled the practice unconstitutional in State 

v. Valenzuela (Valenzuela II), the Court acknowledged that it was applying 

well-settled law when it stated that “[t]he Bumper line of cases survives to 

invalidate any consent given only in acquiescence to an assertion of a lawful 

authority to search.” 239 Ariz. 299, 304 ¶ 17 (2016) (citing Florida v. Royer, 

460 U.S. 491, 497 (1983) (plurality opinion)). The Court read Bumper and 

Schneckloth v. Bustamonte, 412 U.S. 218 (1973), in tandem “as requiring a 

court to examine the circumstances surrounding an assertion of lawful 

authority to search to determine whether the consent was sufficiently 

independent of the assertion to remove its taint. If not, the consent was not 

freely and voluntarily given.” Valenzuela II, 239 Ariz. at 304 ¶ 17. In 

concluding that the State failed to meet its burden to demonstrate that 

Valenzuela’s consent to the tests was voluntary, the Court remarked that 

“Bumper and Johnson [v. United States, 333 U.S. 10 (1948)] direct this 

outcome.” Valenzuela II, 239 Ariz. at 306 ¶ 22. It is very difficult to argue 

that an outcome directed by decisions more than a half-century ago should 

have come as a surprise.

¶44 After our ruling in Butler, reliance solely on acquiescence to 

an admonition asserting legal authority to establish voluntariness was even 

more untenable. At the very least, the law was at best unsettled, which is 

an insufficient basis for the good-faith exception to the exclusionary rule. 

See Havatone, 241 Ariz. at 512–13 ¶ 29; see also United States v. Lara, 815 F.3d 

605, 613 (9th Cir. 2016) (holding the good-faith exception does not apply 

where “the appellate precedent, rather than being binding, is (at best) 

unclear”). In Butler, the State argued that tests administered under 

A.R.S. § 28-1321 were not subject to a Fourth Amendment voluntariness 

analysis—an argument we rejected. 232 Ariz. at 87 ¶¶ 9–10. And we 

rejected the State’s argument that “consent” in the statute satisfies the 

Fourth Amendment’s requirement that consent be voluntary. Id. at 88 

¶¶ 17–18. We held that, based on the totality of the circumstances, “the 

Fourth Amendment requires an arrestee’s consent to be voluntary to justify 

a warrantless blood draw.” Id. ¶ 18. Given that it was already well 

established that a prosecutor could not prove voluntariness based solely on 

assertion of authority, it should have been clear after Butler that 

acquiescence to the admonition alone would not suffice. Indeed, it is 

difficult to imagine a lawyer advising a police department that Butler raised 

no serious doubt about such a policy.
STATE V. WEAKLAND

JUSTICE BOLICK, joined by CHIEF JUSTICE BALES, Dissenting

20

¶45 The majority does not dispute that the police should not rely 

on unsettled doctrine. Instead, it asserts that the term “unsettled” is 

“opaque,” supra ¶ 10, which it is not. See Unsettled, Webster’s Third New 

International Dictionary (3d ed. 2002) (defining “unsettled” as “not decided 

or determined” or “not resolved or worked out”). The majority contends 

that Butler did not leave the law unsettled because Butler “did not address 

whether use of the admonition was inherently coercive, did not clearly 

address its effect, and did not expressly question its validity.” Supra ¶ 13. 

The majority is conflating two distinct issues: (1) whether acquiescence in a 

search after the admonition establishes that it was voluntary for Fourth 

Amendment purposes without regard to other circumstances, a proposition 

Butler clearly rejects; and (2) whether the use of the admonition is inherently 

coercive and any consent given in response is therefore involuntary, the 

issue later addressed in Valenzuela II. The holding in Butler on the first issue 

was sufficient to cast doubt on resolution of the second issue. The Court 

noted that even under § 28-1321(A), “the officer is directed to ask the 

arrestee to submit to the test, and the arrestee may then refuse by declining 

to expressly agree to take the test. . . . We hold now that, independent of 

§ 28-1321, the Fourth Amendment requires an arrestee’s consent to be 

voluntary to justify a warrantless blood draw.” Butler, 232 Ariz. at 88 

¶¶ 17–18. Weakland’s arrest was after Butler, and consent was not 

voluntarily conferred, as required by Butler. Thus, the warrantless blood 

draw, which all now concede was unconstitutional, could not have 

occurred in good faith.

¶46 The majority then says that “even if Butler presaged future 

court disavowal of the admonition, it did not foreclose its use.” Supra ¶ 19. 

That depiction states the constitutional equation backward: we do not 

determine good faith based on whether the police have engaged in a 

practice the courts have clearly foreclosed, but rather on whether the courts 

have expressly authorized the practice. Davis, 564 U.S. at 241. And it is not 

enough if the question is debatable. See Havatone, 241 Ariz. at 512–13 ¶ 29. 

The exclusionary rule’s deterrent effect against unconstitutional 

warrantless searches is hardly advanced if the state can avoid consequence 

merely by plausibly asserting that it did not read binding precedent as 

unequivocally foreclosing a particular practice.

¶47 The majority counters that “Arizona appellate courts had

authorized police reliance on the language used in the statutory admin per 

se admonition for over forty years at the time of Weakland’s arrest.” Supra 
STATE V. WEAKLAND

JUSTICE BOLICK, joined by CHIEF JUSTICE BALES, Dissenting

21

¶ 19. Indeed, courts frequently focused on the admonition’s language, 

especially in the context of suspending a driver’s license for failure to 

consent. But what our courts have never done, and what is at issue here, is 

to authorize the use of the admonition, standing alone, to establish 

voluntary consent under the Fourth Amendment, precisely the issue 

presented in Butler. Absent such authority, or in light of an unsettled state 

of law, we should not find the good-faith exception applicable.

¶48 The majority contends we were wrong in Havatone to require 

binding appellate authority specifically authorizing the practice in 

question, instead preferring the more flexible good-faith standard 

articulated in State v. Jean, 243 Ariz. 331 (2018). Supra ¶ 9. Of course, the 

requirement of binding appellate precedent specifically authorizing the 

practice in question originated not in Havatone but in the U.S. Supreme 

Court’s decision in Davis. See 564 U.S. at 241. Regardless, Justice Pelander, 

who authored the relevant standard in Jean, points out in his separate 

dissenting opinion that under either the Jean or Havatone standard, it is clear 

that “Butler sufficiently unsettled the aggregate of relevant Arizona case 

law relating to police officers’ use of this ‘admin per se’ form to preclude 

application of the exception in this case.” Supra ¶ 29.

¶49 The majority contends, supra ¶ 13, that the requisite binding 

appellate authorization is supplied by Campbell v. Superior Court, 106 Ariz. 

542 (1971), and State v. Brito, 183 Ariz. 535 (App. 1995), abrogated by 

Valenzuela II, 239 Ariz. 299, which as the Court observed in Valenzuela II had 

not been “questioned or overruled,” 239 Ariz. at 309 ¶ 34.4 But neither case 

provides the express authorization necessary to avoid consequence for the 

Fourth Amendment violation.

¶50 In Campbell, the Court considered various challenges to the 

implied consent law in the context of a DUI suspect’s refusal to take a breath 

test, which resulted in a suspended license. 106 Ariz. at 544–45. As relevant 

here, the Court concluded in a single sentence that the statute did not 

violate the Fourth Amendment. Id. at 554 (citing Schmerber v. California, 384 

 

4 The majority also cites unpublished court of appeals decisions that

ostensibly support its position that appellate decisions sanctioned police 

use of the admonition. Supra ¶ 16. But they cannot constitute the requisite 

binding appellate authority required to trigger the application of the goodfaith exception. See Ariz. R. Sup. Ct. 111(c).
STATE V. WEAKLAND

JUSTICE BOLICK, joined by CHIEF JUSTICE BALES, Dissenting

22

U.S. 757 (1966)). Nor have we ruled the statute unconstitutional in 

Valenzuela II or here. The Court’s core holding in Campbell, applicable in the 

context of a civil proceeding, was that it is “reasonable under the 

circumstances to require a person to submit to a chemical test of his blood, 

brea[t]h or urine if arrested for driving while intoxicated or face a six 

months suspension of his driver’s license.” 106 Ariz. at 546. No warrant or 

voluntariness issues were before the Court in Campbell, and no issues 

relating to civil penalties are before us here. Given the markedly different 

context and issues presented, Campbell provides scant (if any) support for 

the proposition that acquiescence to the admonition establishes voluntary 

consent.

¶51 In Brito, the court of appeals dealt with a criminal defendant 

who also refused to take a breath test—again presenting no issues involving 

consent or warrants. 183 Ariz. at 537. Rather, the defendant argued that 

the admonition misstated the law. Id. at 538. It is somewhat difficult to 

understand the court’s holding, for it says both that a defendant does not 

have an “unfettered right to refuse” the tests, but also that “he may refuse 

the request” although “the refusal has consequences.” Id. Regardless, like 

Campbell, the opinion says nothing about when a warrant is required or 

whether acquiescence to the admonition establishes voluntariness. Thus, 

neither decision authorizes reliance on the admonition to establish consent.

¶52 Our subsequent discussions of Butler demonstrate that the 

decision, at the least, unsettled the law. In Havatone, we emphasized that 

Butler held that § 28-1321 “does not relieve the state of establishing 

voluntary consent . . . to justify warrantless blood draws from DUI 

suspects.” 241 Ariz. at 510 ¶ 16 (citing Butler, 232 Ariz. at 87–88 ¶¶ 12–13, 

18). In Valenzuela II, the Court observed that “we have rejected the 

contention that the implied consent law operates to prospectively provide 

consent to a search for Fourth Amendment purposes.” 239 Ariz. at 307 ¶ 25 

(citing Butler, 232 Ariz. at 88 ¶ 18). The Court stated that it has “focused on 

the totality of the circumstances, including but not limited to an officer’s reading 

of an admin per se form, in determining whether a DUI suspect’s consent to 

search was freely and voluntarily given.” Id. at 305 ¶ 20 (emphasis added) 

(citing Butler, 232 Ariz. at 88–89 ¶¶ 19–20). Given these apt readings of 

Butler, it is difficult to apprehend Valenzuela II’s holding as upending settled 

and binding appellate precedent rather than as a logical next step that 

resolved any lingering uncertainty.
STATE V. WEAKLAND

JUSTICE BOLICK, joined by CHIEF JUSTICE BALES, Dissenting

23

¶53 By the time of Weakland’s 2015 arrest, our decisions clearly 

established that the implied consent statute “generally does not authorize 

law enforcement officers to administer the test without a warrant unless the 

arrestee expressly agrees to the test,” Carrillo v. Houser, 224 Ariz. 463, 463 

¶ 1 (2010); and that constitutionally, the State must prove under the totality 

of the circumstances that the consent was voluntary and express, and not 

merely implied, Butler, 232 Ariz. at 88 ¶¶ 18–19. At that point, a blanket 

policy to read the admonition but not to otherwise establish consent could 

not have been made in good faith, and therefore the good-faith exception 

to the exclusionary rule should not apply. At the same time, excluding the 

evidence here would incentivize law enforcement officials to more carefully 

monitor and apply the law, to err on the side of obtaining a warrant, and 

therefore to avoid the need for a court to exclude evidence in future cases.

¶54 The majority’s opinion significantly expands the good-faith 

exception. Instead of requiring binding appellate precedent that expressly 

authorizes the practice, it finds good faith where there is a smidgeon of 

authority and an abundance of doubt. As Justice Pelander aptly 

characterizes it, instead of erring on the side of constitutional behavior, the 

police “proceeded in the face of ‘unsettled’ law.” Supra ¶ 37. For those 

reasons, with great respect to my colleagues, I dissent.