IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,

Appellee,

v.

ALFONSO DE ANDA III,

Appellant.

No. CR-18-0286-PR

Filed February 28, 2019

Appeal from the Superior Court in Pima County

The Honorable Richard D. Nichols, Judge

No. CR20161614-001

AFFIRMED

Opinion of the Court of Appeals, Division Two

244 Ariz. 471 (App. 2018)

AFFIRMED

COUNSEL:

Joel Feinman, Pima County Public Defender, David J. Euchner (argued), 

Michael J. Miller, Pima County Public Defender’s Office, Tucson, Attorneys 

for Alfonso De Anda, III

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

General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section, Tanja 

K. Kelly (argued), Assistant Attorney General, Phoenix, Attorneys for State 

of Arizona

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

CHIEF JUSTICE BRUTINEL and JUSTICES PELANDER, TIMMER, 

BOLICK, GOULD, and LOPEZ joined.
STATE V. DE ANDA

Opinion of the Court

2

CHIEF JUSTICE BALES, opinion of the Court:

¶1 Alfonso De Anda III submitted to a blood test after he was 

arrested for driving under the influence. He argues his consent was 

involuntary under the Fourth Amendment to the United States 

Constitution because, before he was asked if he would submit to the test,

the police officer told him his driving privileges would be suspended if he 

refused. We disagree. Unlike the officer in State v. Valenzuela, 239 Ariz. 299 

(2016) (“Valenzuela II”), the officer here did not tell De Anda he was 

required to submit to the test, and the officer’s identifying the consequences 

of refusal before asking whether he would submit to the testing did not in 

itself render De Anda’s consent involuntary. The trial court did not err in 

denying his motion to suppress the test results. 

I. 

¶2 A few weeks before the opinion in Valenzuela II issued, De 

Anda was stopped by police while driving and arrested because he showed 

signs of impairment. At the scene of the arrest, a police officer read De 

Anda an “admin per se form” as follows:

Arizona law states that a person who operates a motor 

vehicle at any time in this state gives consent to a test or tests 

of blood, breath, urine or other bodily substance for the 

purpose of determining alcohol concentration or drug 

content. The law enforcement officer is authorized to request 

more than one test and may choose the types of tests.

If the test results are not available, or indicate an 

alcohol concentration of 0.08 or above (0.04 or above in a 

commercial vehicle,) or indicate any drug defined in ARS 13-

3401 or its metabolite without a valid prescription, then your 

Arizona driving privilege will be suspended for not less than 

90 consecutive days.

If you refuse, do not expressly agree to submit to, or do 

not successfully complete the tests, your Arizona driving 

privilege will be suspended. The suspension will be 

requested for 12 months, or for two years if you’ve had a prior 

implied consent refusal within the last 84 months.
STATE V. DE ANDA

Opinion of the Court

3

Will you submit to the tests?

After the officer finished reading the form, De Anda agreed to submit to a 

test, and the officer performed a blood draw. A test of the blood revealed 

an alcohol concentration of 0.142. De Anda was charged with two counts 

each of aggravated driving under the influence (“DUI”) and aggravated 

DUI with an alcohol concentration of 0.08 or more.

¶3 De Anda moved to suppress the blood test results. He argued 

that under A.R.S. § 28-1321 and Valenzuela II, his consent was involuntary 

because he was told his driving privileges would be suspended if he 

refused the test before he was asked if he would submit. After a hearing, 

the trial court denied the motion, ruling that the blood draw was voluntary, 

“[c]onsidering the circumstances surrounding the arrest, the language in 

the [admin per se form], and the question posed to the defendant regarding 

consent” and the “criteria set forth in State v. Butler, 232 Ariz. 84 (2013).” 

The blood test results were admitted at trial, and De Anda was convicted 

of the four charged DUI counts.

¶4 On appeal, De Anda again argued that the statute and 

Valenzuela II required the officer to ask if he would consent to testing before 

advising him of the administrative consequences of refusal. State v. De 

Anda, 244 Ariz. 471, 473 ¶ 4 (App. 2018). Rejecting these arguments, the 

court of appeals affirmed De Anda’s convictions and sentences. Id. at 

474 ¶ 9.

¶5 We granted review to consider the narrow question whether, 

in light of Valenzuela II, the sequence of the officer’s statements in itself

rendered De Anda’s consent involuntary - a recurring legal issue of 

statewide importance.

II.

¶6 In addition to arguing that his consent was involuntary for

Fourth Amendment purposes, De Anda in his supplemental brief and at 

oral argument urged the Court to hold that police officers generally should 

be required, as a matter of state law, to advise DUI suspects of their rights 

to refuse warrantless testing and to attempt to contact an attorney. Because 

the latter issues were not raised below, we deem them waived and decline 
STATE V. DE ANDA

Opinion of the Court

4

to address them here. See e.g., Weitz Co. L.L.C. v. Heth, 235 Ariz. 405, 412 

¶ 24 (2014).

¶7 Whether consent to a search is voluntary under the Fourth 

Amendment is assessed from the totality of the circumstances. Butler, 232 

Ariz. at 87 ¶ 13. Because voluntariness is a factual question, we review the 

trial court’s finding for an abuse of discretion. Id. at 88 ¶ 19. “We consider 

the evidence presented at the suppression hearing and view the facts in the 

light most favorable to sustaining the trial court’s ruling.” Id. at 87 ¶ 8

(quoting State v. Hausner, 230 Ariz. 60, 70 ¶ 23 (2012)).

¶8 DUI investigations involve the interplay of the Fourth 

Amendment and Arizona’s implied consent statute, § 28-1321. Subsection 

A of the statute declares that “[a] person who operates a motor vehicle in 

this state gives consent” to certain testing if arrested for driving while 

impaired. § 28-1321(A). This “consent,” however, does not by its terms 

authorize warrantless testing of arrestees. Butler, 232 Ariz. at 88 ¶ 17. 

Instead, subsection B directs the 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. (citing § 28-1321(B)). “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. (citing § 28-1321(D)).

¶9 “[I]ndependent of § 28-1321, the Fourth Amendment requires 

an arrestee’s consent to be voluntary to justify a warrantless blood draw.” 

Id. ¶ 18. Thus, the “implied” consent referenced in § 28-1321(A) does not 

itself satisfy “the Fourth Amendment’s requirement that consent be 

voluntary.” Id. ¶ 17. Instead, an arrestee’s consent must be “freely and 

voluntarily given.” Valenzuela II, 239 Ariz. at 302 ¶ 11. In Valenzuela II, we 

recognized that consent is not voluntary “if the subject of a search merely 

acquiesces to a claim of lawful authority.” Id. ¶ 1 (citing Bumper v. North 

Carolina, 391 U.S. 543, 548-49 (1968)).

¶10 Valenzuela II considered whether a driver arrested for DUI 

had voluntarily consented to testing “after a police officer advised him that 

‘Arizona law requires you to submit’” to tests selected by the officer. 

Id. ¶ 2. 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.” Id. The Court expressly noted, however, “[w]e do not 

hold today that § 28-1321 violates the Fourth Amendment or that officers 
STATE V. DE ANDA

Opinion of the Court

5

must cease advising arrestees about the law’s requirements and the civil 

consequences for refusal.” Id. at 308 ¶ 28.

¶11 We explained that “[a] law enforcement officer can invoke the 

implied consent law without infringing on an arrestee’s Fourth 

Amendment rights by following the procedure set forth in § 28-1321(B).” 

Id. ¶ 29. That is, the officer first asks if the arrestee will consent, which may 

obviate the need to explain the statutory consequences for refusing consent. 

Id. But if the arrestee refuses to consent, the officer should advise the 

arrestee of the consequences provided in § 28-1321(B), “and then ask again 

whether the arrestee will consent to testing.” Id. Alternatively, the Court 

noted that “the state might revise its implied consent admin per se form to 

mirror one used in South Dakota, which provides the arrestee with a clear 

choice whether to submit to testing or refuse consent.” Id. (citing South 

Dakota v. Neville, 459 U.S. 553, 555 n.2 (1983)).

¶12 De Anda argues that his consent given in response to the 

admin per se form here was involuntary under Valenzuela II because he was 

not first asked if he would consent to testing and the form did not otherwise 

present him with “a clear choice whether to submit to testing or refuse 

consent.” He notes that the form begins by declaring, “Arizona law states 

that a person who operates a motor vehicle at any time in this state gives 

consent to a test or tests . . . for the purpose of determining alcohol 

concentration or drug content” - accurately paraphrasing the first sentence 

of § 28-1321(A). He contends that both § 28-1321(B) - which states that “a 

violator shall be requested to submit to and successfully complete any test 

or tests prescribed by [§ 28-1321(A)] . . . and if the violator refuses, the 

violator shall be informed that the violator’s license or permit to drive will 

be suspended . . .” - and Valenzuela II contemplate the arresting officer will 

ask if the arrestee will consent before describing the consequence for 

refusing. Thus, De Anda contends that the admin per se form read to him 

was inherently coercive because it began by saying that state law provides 

that operators consent to testing and then describes the administrative 

penalty for refusing a test before asking if the arrestee will submit. 

¶13 De Anda also notes that while Valenzuela II was pending 

before this Court, the admin per se form was revised (to the form used here)

such that officers no longer told arrestees that they were required to submit 

to testing, but after De Anda’s arrest and the issuance of our opinion, the 

form was revised yet again so that officers now first ask if the arrestee will 
STATE V. DE ANDA

Opinion of the Court

6

submit to testing. Finally, De Anda urges us to follow State v. Medicine, 865 

N.W.2d 492 (S.D. 2015), which held that an arrestee had not voluntarily

consented to testing after being read an advisement that began by saying 

that under the state’s implied consent law, vehicle operators consent to 

testing; then stated the officer requests the arrestee to submit to testing; and 

ended by asking if the arrestee consents. Id. at 496-97 ¶ 10.

¶14 We are not persuaded that the admin per se form read to De 

Anda by its terms “coerce[d] consent by stating or implying that officers 

have lawful authority, without a warrant, to compel samples of blood, 

breath, or other bodily substances.” Valenzuela II, 239 Ariz. at 308 ¶ 28. 

Although De Anda was told, accurately, that Arizona law states that a 

person operating a vehicle gives consent to certain testing if arrested for 

DUI, the form did not state or imply the officer could compel him to provide 

samples. Nor did the admin per se form - unlike the one used in Valenzuela

II - repeatedly state that Arizona law required De Anda to submit to testing. 

Instead, the form implicitly acknowledged De Anda could refuse by asking 

whether he would submit, although correctly stating that his driving 

privileges would be suspended if he did not expressly agree to testing.

¶15 Valenzuela II did not suggest that warning arrestees of the 

consequences of refusal before asking if they will consent is itself inherently 

coercive. We acknowledged that arrestees can be told of the consequences, 

and that the “difficulty” of deciding whether to submit “does not make the 

decision coerced.” Id. ¶ 29. We also approvingly referenced South Dakota’s

implied consent form that itself identified the consequences of refusal 

before asking the arrestee to submit to testing. Id. (citing Neville, 495 U.S. at 

555 n.2). Moreover, if it is not coercive for an officer to tell an arrestee that 

refusal will result in a license suspension after the arrestee initially refuses 

but before again requesting consent, it is difficult to understand why first 

identifying the consequences of refusal would imply that any subsequent 

assent is involuntary.

¶16 Although Valenzuela II recognized ways that police officers 

can invoke the implied consent law without violating the Fourth 

Amendment, id. at 308 ¶ 28, we did not state that any departure from those 

procedures would alone show that consent was involuntary. Instead, 

Valenzuela II expressly held that the voluntariness of consent given after an 

admonition turns on the totality of the circumstances, even when consent 

follows an officer’s assertion of lawful authority to search. Id. at 305-06 ¶21.
STATE V. DE ANDA

Opinion of the Court

7

¶17 Medicine does not avail De Anda, because it too embraces a 

totality of the circumstances approach. See 865 N.W.2d at 500 ¶ 17. There, 

the South Dakota Supreme Court declined to hold that the language in the 

advisement card “necessarily precludes voluntary consent,” id., and instead 

concluded, consistent with the trial court’s ruling, that the defendant’s 

consent was involuntary under the circumstances, including the language 

of the advisement, the custodial arrest, and the arrestee’s lack of knowledge 

of his right to refuse consent. There, unlike in this case, consent came only 

after the suspect was arrested, handcuffed, and placed in a police vehicle 

and an officer twice asserted authority to perform the test. Id. at 499 ¶ 15.

¶18 Here, the admin per se form read to De Anda did not in itself 

establish that his consent was voluntary – a fact recognized by the trial court 

in considering the totality of the circumstances in denying the motion to 

suppress – but it also did not alone render any resulting consent 

involuntary. Combined with other circumstances, the form’s use, like the 

form used in Medicine, might lead a trial court to reasonably find that 

consent was not freely and fairly given. To help avoid this prospect, the 

state would be well advised to use the more recently revised version of the 

implied consent form, as amended after Valenzuela II, to follow the 

procedure set forth in § 28-1321(B) or otherwise provide “the arrestee a clear 

choice whether to submit to testing or refuse consent.” Valenzuela II, 239 

Ariz. at 308 ¶ 29.

III.

¶19 The trial court did not abuse its discretion by finding that De 

Anda voluntarily consented to the blood draw and denying the motion to 

suppress. We affirm the opinion of the court of appeals and De Anda’s 

convictions and sentences.