NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

PABLO JAVIER CASTILLO-ISLAS, Appellant.

No. 1 CA-CR 23-0163

Appeal from the Superior Court in Yavapai County

No. P1300CR202001147

The Honorable Krista M. Carman, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Eliza Ybarra

Counsel for Appellee

Harris & Winger, P.C., Flagstaff

By Chad Joshua Winger

Counsel for Appellant

FILED 10-01-2024
STATE v. CASTILLO-ISLAS

Decision of the Court

2

MEMORANDUM DECISION

Judge D. Steven Williams delivered the Court’s decision, in which 

Presiding Judge Daniel J. Kiley and Judge Kent E. Cattani joined.

W I L L I A M S, Judge:

¶1 Defendant Pablo Javier Castillo-Islas appeals his conviction 

and sentence for one count of aggravated driving under the influence 

(“DUI”). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Early one summer morning around 2:00 a.m., a concerned 

citizen called 911 to report a reckless driver. Within minutes, police located 

a vehicle matching the reported description parked on the side of the road.

Castillo-Islas was the only occupant of the vehicle.

¶3 After conducting field sobriety tests, police officers advised

Castillo-Islas of his Miranda rights and placed him under arrest.

1 Despite 

the officers’ admonition, Castillo-Islas admitted he had consumed two 

drinks of vodka, one just twenty minutes before driving. 

¶4 After taking Castillo-Islas into custody, the officers

transported him to a local police station where, with his consent, they 

administered two breath tests at 3:18 a.m. and 3:24 a.m., respectively. The

results showed a blood alcohol concentration (BAC) of .084 (first test) and 

.085 (second test). The officers then gave Castillo-Islas a document 

informing him of his right to seek an independent blood test, which he

signed at 3:51 a.m. 

¶5 To obtain a blood sample, the officers transported CastilloIslas to a neighboring police station with a phlebotomist onsite. When they 

arrived, the officers told Castillo-Islas of their intent to draw his blood and 

he refused, saying: “[N]o one is touching my blood. I want to speak to a 

lawyer.” On this record, it appears the refusal occurred about two hours 

after police first made contact with Castillo-Islas. Given his refusal, the 

officers abandoned their attempt to obtain a blood sample and booked 

Castillo-Islas into jail without asking him any further questions. They did 

1 Miranda v. Arizona, 384 U.S. 436 (1966).
STATE v. CASTILLO-ISLAS

Decision of the Court

3

not, however, provide Castillo-Islas with a phone to call an attorney or 

otherwise accommodate his request to speak to one. 

¶6 The State charged Castillo-Islas with one count of 

endangerment, a Class 6 felony, and two counts of aggravated DUI, both 

Class 4 felonies. Before trial, Castillo-Islas moved to dismiss the charges,

contending the State deprived him of his right to an attorney and to gather 

exculpatory evidence. Following an evidentiary hearing, the trial court 

denied the motion, concluding that Castillo-Islas’s right to an attorney “was 

not violated nor was his right to collect exculpatory evidence.” 

¶7 After a three-day trial, a jury convicted Castillo-Islas of one

count of aggravated DUI but acquitted him of the remaining charges. At 

sentencing, the trial court placed Castillo-Islas on probation for five years 

and imposed the statutory minimum term of incarceration (four months).

This timely appeal followed. We have jurisdiction under Article 6, Section 

9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031 and 

-4033(A)(1).

DISCUSSION

¶8 Castillo-Islas argues the State failed to provide him with

timely access to counsel, thereby preventing him from gathering 

exculpatory evidence. We review constitutional claims de novo but defer to 

a trial court’s factual findings unless they are clearly erroneous. State v. 

Rasul, 216 Ariz. 491, 493, ¶ 4 (App. 2007); State v. Dayton, 257 Ariz. 31, 34, 

¶ 7 (App. 2024).

I. Violation of Right to Counsel

¶9 On appeal, the State concedes that Castillo-Islas was denied 

“timely access to counsel.” We agree.

¶10 Both the federal and state constitutions guarantee criminal 

defendants the right to representation by counsel. U.S. Const. amend. VI; 

Ariz. Const. art. 2, § 24. “The right to be represented by counsel includes 

the right to consult privately with counsel, or the counsel’s agent, as soon as 

feasible after a defendant has been taken into custody[.]” Ariz. R. Crim. P. 

6.1(a) (emphasis added). 

¶11 “[I]n a criminal DUI case, the accused has the right to consult 

with an attorney, if doing so does not disrupt the investigation.” State v. 

Juarez, 161 Ariz. 76, 80 (1989). Once invoked, the right to counsel requires 

the police—unless otherwise justified—to provide the accused with access 
STATE v. CASTILLO-ISLAS

Decision of the Court

4

to counsel because evidence concerning the accused’s physical state—an 

element of the offense—“may be lost unless preserved within a relatively 

brief period of time.” State (Webb) v. City Court, 25 Ariz. App. 214, 216 (1975).

¶12 After officers transported him to the second police station, 

Castillo-Islas unequivocally invoked his right to counsel, stating he wished 

to speak to an attorney. Because police officers did nothing to honor that 

request and the State does not contend that affording him timely access to 

counsel would have impeded the DUI investigation, the only question is 

the proper remedy for the violation of Castillo-Islas’s constitutional right.

II. Remedy

¶13 Castillo-Islas contends that the violation compelled the 

dismissal of all charges against him, alleging the State’s failure to provide

him with timely access to counsel effectively prevented him from

“collecting exculpatory evidence no longer available.” The State, for its part,

argues that the denial of timely access to counsel “did not interfere with 

[Castillo-Islas’s] right to obtain exculpatory evidence under the unique facts 

of the case.” 

¶14 We review a trial court’s denial of a motion to dismiss a 

criminal prosecution for an abuse of discretion. Taylor v. Cruikshank, 214 

Ariz. 40, 43, ¶ 10 (App. 2006). “A trial court abuses its discretion when it 

misapplies the law or predicates its decision on incorrect legal principles.” 

Id. (quotation and citation omitted).

¶15 “The right to counsel is an extension of the doctrine that 

defendants have the right to gather independent exculpatory evidence.” 

State v. Transon, 186 Ariz. 482, 485 (App. 1996). To protect these rights, 

police officers conducting a DUI investigation “may not unreasonably 

interfere with an accused’s reasonable attempts to secure, at his own 

expense, a blood or other scientific test for the purpose of attempting to 

establish evidence of his sobriety at or near the crucial time under 

consideration.” Smith v. Cada, 114 Ariz. 510, 514 (App. 1977); see also A.R.S. 

§ 28-1388(C) (“The person tested shall be given a reasonable opportunity to 

arrange for any physician, registered nurse or other qualified person of the 

person’s own choosing to administer a test or tests in addition to any 

administered at the direction of a law enforcement officer.”). Accordingly, 

when police conduct infringes on an accused’s right to counsel and ability 

“to gather evidence exculpating him on the issue of intoxication,” 

“[d]ismissal of the case with prejudice is the appropriate remedy.” McNutt

v. Superior Court, 133 Ariz. 7, 10 (1982). But when police officers’ failure to 
STATE v. CASTILLO-ISLAS

Decision of the Court

5

provide an accused with timely access to counsel does not impinge upon 

his ability to collect exculpatory evidence, the appropriate remedy is 

suppression of evidence obtained after the request for counsel was made. 

State v. Keyonnie, 181 Ariz. 485, 487 (App. 1995) (“[O]nly when police 

conduct interferes with both the defendant’s right to counsel and his ability 

to obtain exculpatory evidence is [d]ismissal of the case with prejudice . . . 

the appropriate remedy[.]”) (internal quotation and citation omitted); see 

also State v. Rosengren, 199 Ariz. 112, 118, ¶ 18 (App. 2000) (“[D]ismissal is 

not the exclusive or automatic remedy for a denial of the right to counsel, 

even in cases in which the defendant’s alleged intoxication is essential to 

proving the offense.”).

¶16 Guided by the principle that “[c]ourts narrowly tailor 

remedies for a violation of the right to counsel to avoid unnecessarily 

infringing on society’s interest in the administration of criminal justice,”

State v. Penney, 229 Ariz. 32, 36, ¶ 17 (App. 2012) (internal quotation and 

citations omitted), we examine McNutt and Keyonnie to clarify the 

distinction in remedies. 

¶17 In McNutt, the accused in a DUI investigation affirmatively 

requested to speak to an attorney and to obtain an independent blood test 

but was denied both. 133 Ariz. at 9. When police officers released him more 

than two hours after stopping his vehicle, the accused “immediately called 

his attorney who advised him that too much time had passed since the stop 

to obtain an independent blood test of any evidentiary value.” Id. The trial 

court found the State had violated the accused’s right to counsel and 

ordered a dismissal of the charges. Id. On appeal, the supreme court upheld 

the dismissal, determining the police officers’ delay prevented the accused 

and his attorney from obtaining an independent test, thereby hindering 

their collection of exculpatory evidence. Id. at 9-10.

¶18 By contrast, here, Castillo-Islas never affirmatively requested 

independent testing. Had he done so, under McNutt, the police officers 

would have been obligated to provide him with an opportunity to obtain 

it. Otherwise, dismissal would be warranted.

¶19 In Keyonnie, the accused was taken into custody on suspicion 

of DUI, among other things. 181 Ariz. at 485. During the ensuing police 

investigation, the accused requested to speak with an attorney, but police 

did not provide him the opportunity. Id. After administering breath tests, 

police advised the accused of his right to independent testing, and the 

accused affirmatively invoked that right. Id. at 485-86. At that point, the 

officers released the accused and drove him to a nearby hospital so he could 
STATE v. CASTILLO-ISLAS

Decision of the Court

6

arrange for the testing. Id. at 486. After the State charged the accused with 

DUI, the trial court dismissed the charges with prejudice. Id. On the State’s 

appeal, this court held that suppression of all evidence obtained after the 

accused’s invocation of his right to counsel was the proper remedy, not 

dismissal of the case. Id. at 487. Noting that a police officer had advised the 

accused of his right to an independent test, and even driven him to the 

hospital to obtain it, the court found that the violation of the accused’s right 

to counsel did not hinder his ability to gather exculpatory evidence. Id.

¶20 Unlike the accused in Keyonnie, here, Castillo-Islas never 

affirmatively invoked his right to an independent test after police advised 

him of that right. In fact, when questioned about his receipt of the 

independent testing advisory form at the evidentiary hearing, Castillo-Islas 

acknowledged signing it without invoking the right, explaining that he 

“didn’t care about anything at that moment.”

¶21 Because Castillo-Islas never sought independent testing

— either by requesting it directly or by asking for the opportunity to call an 

attorney to arrange such testing—the police officers’ failure to promptly 

accommodate his request for counsel did not hinder Castillo-Islas’s ability 

to collect exculpatory evidence. As such, on this record, the trial court did 

not abuse its discretion by denying Castillo-Islas’s motion to dismiss.

Rather, the appropriate remedy is suppression of evidence obtained after 

Castillo-Islas requested to speak to an attorney. See Keyonnie, 181 Ariz. at 

487. Because police officers asked no additional questions of Castillo-Islas

after he invoked his right to counsel, and because police administered both

breath tests before he invoked his right to counsel, as a practical matter,

there is no evidence to suppress.

CONCLUSION

¶22 Accordingly, we affirm Castillo-Islas’s conviction and 

sentence.