IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,

Appellee,

v.

DON JACOB HAVATONE,

Appellant.

No. CR-15-0387-PR

Filed March 9, 2017

Appeal from the Superior Court in Mohave County 

The Honorable Derek C. Carlisle, Judge Pro Tempore

No. CR201201535

REVERSED AND REMANDED 

Memorandum Decision of the Court of Appeals, Division One

1 CA-CR 14-0223

Filed October 27, 2015

VACATED

COUNSEL:

Mark Brnovich, Arizona Attorney General, Dominic Draye, Solicitor 

General, Joseph T. Maziarz, Chief Counsel, Terry M. Crist, III (argued), 

Assistant Attorney General Criminal Appeals, Phoenix, Attorneys for State 

of Arizona
STATE V. HAVATONE

Opinion of the Court

2

David Goldberg (argued), David Goldberg Attorney at Law, Fort Collins, 

CO, Attorney for Don Jacob Havatone

JUSTICE BOLICK authored the opinion of the Court, in which CHIEF 

JUSTICE BALES and JUSTICE TIMMER joined. VICE CHIEF JUSTICE 

PELANDER, joined by JUSTICE BRUTINEL, concurred in part and 

dissented in part.

JUSTICE BOLICK, opinion of the Court:

¶1 This case considers the constitutionality of A.R.S. § 28-

1321(C), the “unconscious clause,” which allows law enforcement officials 

to make or direct nonconsensual blood draws from unconscious DUI 

suspects. We hold that the provision is unconstitutional as applied to the 

facts of this case.

¶2 We also consider whether the good-faith exception to the 

exclusionary rule applies here. Following a collision after which defendant 

was airlifted to Nevada, a blood draw was taken at the request of Arizona 

law enforcement officials, raising the question, unresolved in the trial or 

appeals court, of which state’s law applies to decide whether the blood test 

results should be suppressed. We hold that under Arizona law, the goodfaith exception would not apply, and thus if our state’s law applies, the 

evidence from the blood draw must be suppressed. However, we remand 

to the trial court to determine which jurisdiction’s law applies and, if it is 

Nevada law, whether it supports application of the good-faith exception.

I. 

¶3 On September 17, 2012, Don Jacob Havatone drove his SUV, 

with four other passengers, into an oncoming vehicle on Route 66 northeast 

of Kingman. A witness driving behind Havatone testified that before the 

collision the SUV was driving “erratically” for several miles and repeatedly 

crossed the center line. The other vehicle was occupied only by its driver, 
STATE V. HAVATONE

Opinion of the Court

3

L.S. After the collision, L.S. saw a man with his foot caught in the SUV’s 

windshield crawl out over the hood and lie down in front of the vehicle. 

She saw a second occupant, later identified as Havatone, exit the driver’s 

side of the SUV and lie down behind the vehicle.

 

¶4 Department of Public Safety (“DPS”) Officer M.P. responded 

to the scene. He approached Havatone, whom medics were treating. 

Havatone confirmed he was driving the SUV. When M.P. asked Havatone 

what happened, Havatone did not respond. M.P. detected a “heavy odor” 

of alcohol emanating from all the SUV’s occupants, including Havatone. 

M.P. looked inside the SUV and saw numerous beer cans and an open bottle 

of liquor. 

¶5 Havatone was airlifted to a Las Vegas hospital for treatment. 

Without seeking a warrant, Officer M.P. followed DPS policy and 

instructed DPS dispatch to request that Las Vegas police officers obtain a 

blood sample. Havatone was unconscious when the blood sample was 

taken. The sample showed a blood alcohol concentration (“BAC”) of 0.212.

¶6 The State charged Havatone with driving under the influence 

of intoxicating liquor while his license was suspended or revoked, 

aggravated driving under the extreme influence of intoxicating liquor with 

a BAC of 0.20 or more with a suspended license, aggravated assault of L.S. 

with a deadly weapon or dangerous instrument, recklessly endangering 

L.S. with a substantial risk of imminent death, and four counts of 

aggravated assault of the occupants of his vehicle with a deadly weapon or 

dangerous instrument.

¶7 Havatone moved to suppress the blood test results, arguing 

that the test was a warrantless search prohibited by the Fourth

Amendment. The trial court denied the motion, finding the search 

permissible under both Arizona and Nevada law because the police had 

probable cause to believe that Havatone was driving while intoxicated and

both states’ “implied consent” laws authorize blood draws from 

unconscious DUI suspects. See A.R.S. § 28-1321(C); Nev. Rev. Stat. 

§ 484C.160(1), (3). Alternatively, the court ruled that even if a warrant was 

required, the police acted in reliance on statutes and cases in effect when 

the blood was seized, thus satisfying the good-faith exception to the 
STATE V. HAVATONE

Opinion of the Court

4

exclusionary rule.

¶8 The jury found Havatone guilty of four offenses as charged 

and guilty of lesser included offenses for other charges. The trial court 

imposed concurrent sentences of 17.5 years in prison.

¶9 On appeal, Havatone argued that the statute authorizing his 

blood draw while unconscious violated his Fourth Amendment rights. The 

court of appeals affirmed. It did not reach the constitutional question but 

reasoned that even if the blood draw violated Havatone’s Fourth 

Amendment rights, it was shielded by the good-faith exception to the 

exclusionary rule. State v. Havatone, 1 CA-CR 14-0223, at *5 ¶ 20, *6 ¶ 25

(Ariz. App. Oct. 27, 2015) (“[T]he search was objectively reasonable in either 

state, so we—like the trial court—need not decide whether Arizona or 

Nevada law applies.”).

 

¶10 We granted review because the issues presented are of first 

impression and statewide importance. We have jurisdiction under article 

6, section 5(3) of the Arizona Constitution and A.R.S. § 12-120.24.

II.

¶11 We review rulings on motions to suppress for an abuse of 

discretion, considering only the evidence presented at the suppression 

hearing and viewing it in the light most favorable to sustaining the trial 

court’s ruling. State v. Butler, 232 Ariz. 84, 87 ¶ 8, 302 P.3d 609, 612 (2013). 

“An error of law constitutes an abuse of discretion.” State v. Bernstein, 237 

Ariz. 226, 228 ¶ 9, 349 P.3d 200, 202 (2015). Both a statute’s constitutionality 

under the Fourth Amendment and the applicability of the good-faith 

exception to the exclusionary rule are questions of law that we decide de 

novo. Gallardo v. State, 236 Ariz. 84, 87 ¶ 8, 336 P.3d 717, 720 (2014); State v. 

Crowley, 202 Ariz. 80, 91 ¶ 32, 41 P.3d 618, 629 (App. 2002).

¶12 Arizona’s “implied consent” statute, A.R.S. § 28-1321, reads 

in pertinent part:
STATE V. HAVATONE

Opinion of the Court

5

A. A person who operates a motor vehicle in this state gives 

consent . . . to a test or tests of the person’s blood, breath, 

urine or other bodily substance for the purpose of 

determining alcohol concentration or drug content if the 

person is arrested for any offense arising out of acts alleged to 

have been committed . . . while the person was driving or in 

actual physical control of a motor vehicle while under the 

influence of intoxicating liquor or drugs. The test or tests 

chosen by the law enforcement agency shall be administered 

at the direction of a law enforcement officer having 

reasonable grounds to believe that the person was driving or 

in actual physical control of a motor vehicle in this state . . . 

(1) [while] under the influence of intoxicating liquor or drugs.

. . . .

C. A person who is dead, unconscious or otherwise in a 

condition rendering the person incapable of refusal is deemed 

not to have withdrawn the consent provided by subsection 

A . . . .

Subsection C, at issue here, is known as the “unconscious clause.”

¶13 After we granted review, the State acknowledged that the 

unconscious clause is unconstitutional as applied to the facts of the case. 

The State takes the position that blood may be taken from a DUI suspect 

under the unconscious clause only if case-specific exigent circumstances

exist. We agree.

¶14 A blood draw taken or directed by the government implicates 

privacy rights protected by the Constitution. The Fourth Amendment 

provides, 

The right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and 

seizures, shall not be violated, and no warrants shall issue, but 

upon probable cause, supported by oath or affirmation, and 

particularly describing the place to be searched, and the 
STATE V. HAVATONE

Opinion of the Court

6

persons or things to be seized.

U.S. Const. amend. IV.1

¶15 In Missouri v. McNeely, 133 S. Ct. 1552 (2013), decided after the 

arrest here, the United States Supreme Court considered the 

constitutionality of nonconsensual, warrantless blood draws in DUI cases

where police relied solely upon the natural dissipation of alcohol in the 

blood. Such a “compelled physical intrusion” beneath the skin and into the 

veins “to obtain a sample of his blood for use as evidence in a criminal 

investigation . . . implicates an individual’s ‘most personal and deep-rooted 

expectations of privacy.’” Id. at 1558 (citation omitted). The Court 

confirmed the view, expressed in prior cases, that such searches could be 

justified only by exigent circumstances. “In short,” the Court ruled, “while 

the natural dissipation of alcohol in the blood may support a finding of 

exigency in a specific case, . . . it does not do so categorically. Whether a 

warrantless blood test of a drunk-driving suspect is reasonable must be 

determined case by case based on the totality of the circumstances.” Id. at 

1563.

¶16 Following McNeely, we ruled in State v. Butler that Arizona’s 

implied consent statute, A.R.S. § 28-1321, does not relieve the state of 

establishing voluntary consent or another exception to the warrant 

requirement, such as exigent circumstances, to justify warrantless blood 

draws from DUI suspects. 232 Ariz. at 87–88 ¶¶ 12–13, 18, 302 P.3d at 612–

13. Furthermore, in Birchfield v. North Dakota, 136 S. Ct. 2160, 2180 (2016), 

the United States Supreme Court noted that the exigency exception “always 

requires case-by-case determinations.” 

¶17 McNeely and Butler establish that absent an exception to the 

warrant requirement, nonconsensual, warrantless blood draws from DUI 

suspects are unconstitutional. We conclude that the unconscious clause can 

 

1 Article 2, section 8 of the Arizona Constitution also provides, “No person 

shall be disturbed in his private affairs, or his home invaded, without 

authority of law.” Havatone did not invoke his rights under this provision.
STATE V. HAVATONE

Opinion of the Court

7

be constitutionally applied only when case-specific exigent circumstances 

prevent law enforcement officers from obtaining a warrant. Here, the State 

concedes that exigent circumstances did not exist. Rather, Officer M.P. 

testified he was following department practice to procure a blood draw 

anytime a DUI suspect was sent out of state for emergency treatment.

Because the test was taken pursuant to a blanket policy rather than the 

presence of case-specific exigent circumstances, Havatone’s Fourth 

Amendment rights were violated.

¶18 Our decision does not vitiate § 28-1321(C). Where police have 

probable cause to believe a suspect committed a DUI, a nonconsensual 

blood draw from an unconscious person is constitutionally permissible if,

under the totality of the circumstances, law enforcement officials 

reasonably determine that they cannot obtain a warrant without significant 

delay that would undermine the effectiveness of the testing. Cf. McNeely, 

133 S. Ct. at 1561 (noting that “where police officers can reasonably obtain 

a warrant before a blood sample can be drawn without significantly 

undermining the efficacy of the search, the Fourth Amendment mandates 

that they do so”).

 

III.

¶19 Although the dissent attempts gamely to resuscitate the 

argument, ¶ 40, the State expressly concedes that the record “does not show 

exigent circumstances beyond the natural dissipation of alcohol in 

Appellant’s blood.” Hence, the search violated the Fourth Amendment and 

the only issue is whether the good-faith exception to the exclusionary rule 

applies. Cf. State v. Valenzuela, 239 Ariz. 299, 309 ¶ 31, 371 P.3d 627, 637

(2016) (“[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.”). To resolve that issue, we must 

decide whether before McNeely, DPS reasonably applied a policy of 

directing warrantless blood draws from unconscious DUI suspects being 

flown out of state for medical treatment based on the belief that the natural 

dissipation of alcohol in the blood constituted a per se exigency. The State 

bears the burden of proving the good-faith exception applies. See, e.g.,

Crowley, 202 Ariz. at 91 ¶ 32, 41 P.3d at 629.
STATE V. HAVATONE

Opinion of the Court

8

¶20 The State argues that the blood test results should not be 

suppressed for two reasons: (1) at the time of the blood draw here, the 

unconscious clause expressly authorized the blood draw and had not been 

ruled unconstitutional; and (2) nonconsensual, warrantless blood draws 

were permitted based on natural alcohol dissipation in the blood prior to 

McNeely, which was not decided until after Havatone’s blood was taken. 

For those reasons, the State asserts that the blood draw satisfies the goodfaith exception to the exclusionary rule. We disagree. DPS 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. Thus, the good-faith 

exception does not apply.

¶21 The dissent suggests that the good-faith exception applies 

unless the police officers exhibit deliberate, reckless, or grossly negligent 

disregard for Fourth Amendment rights. See ¶ 50 (citing Davis v. United 

States, 564 U.S. 229, 240 (2011)). Because the exclusionary rule also serves 

to deter “recurring or systemic negligence,” the good-faith exception will 

not apply in such circumstances. See Herring v. United States, 555 U.S. 135, 

144 (2009); see also Davis, 564 U.S. at 239 (relying on Herring in concluding 

that isolated, nonrecurring police negligence “lacks the culpability required 

to justify the harsh sanction of exclusion”). Such “recurring or systemic 

negligence” is present in this case.

¶22 Here, the officer followed DPS policy and training that 

seeking a warrant was unnecessary under the circumstances. When the 

Fourth Amendment violation occurred not as the result of an officer’s factspecific 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. See Davis, 564 U.S. at 240 (contrasting “‘recurring 

or systemic negligence’ on the part of law enforcement,” with conduct that 

“involves only simple, ‘isolated’ negligence”). “We should reasonably 

presume that law enforcement officials, who stand in the best position to 

monitor such errors as occurred here, can influence mundane 

communication procedures in order to prevent those errors. That 

presumption comports with the notion that the exclusionary rule exists to 
STATE V. HAVATONE

Opinion of the Court

9

deter future police misconduct systemically.” Arizona v. Evans, 514 U.S. 1, 

21 (1995) (Stevens, J., dissenting) (citing, inter alia, Stone v. Powell, 428 U.S. 

465, 492 (1976)); accord State v. Mitchell, 234 Ariz. 410, 419 ¶ 31, 323 P.3d 69, 

78 (App. 2014) (good-faith exception provides “meaningful deterrence 

because . . . it incentivizes law enforcement to err on the side of 

constitutional behavior”). Suppression of the blood test results here will 

have a deterrent effect on police practices that fail to take individual 

circumstances into account as the United States Supreme Court has long 

required. Cf. Ybarra v. Illinois, 444 U.S. 85, 87, 96 (1979) (striking down 

statute allowing officers to detain or search any persons in premises subject 

to a search warrant, holding such searches must be based on individual 

circumstances); Richards v. Wisconsin, 520 U.S. 385, 387–88 (1997) 

(invalidating per se rule that no knock to announce police presence is 

permissible in drug warrant cases).

¶23 The record here shows that the DPS officer followed the 

department’s regular practice, in which he was trained, to request blood 

draws without a warrant whenever a DUI suspect was flown out of state 

for treatment. As the dissent aptly puts it, DPS was acting on the belief that 

the dissipation of alcohol in the blood created a “per se exigency” that, 

before McNeely, ostensibly justified blood draws from DUI suspects. ¶ 57.

¶24 That belief was mistaken. Davis instructs that law 

enforcement acts in good faith if “binding appellate precedent specifically 

authorizes a particular police practice.” 564 U.S. at 241. But warrantless 

blood draws from DUI suspects based on a “per se exigency” rather than 

the totality of individual circumstances have been discredited for over fifty 

years. In Schmerber v. California, 384 U.S. 757 (1966), the United States 

Supreme Court upheld admission of a blood test taken from a defendant 

whom police had probable cause to believe had committed a DUI offense. 

The Court observed, “Search warrants are ordinarily required for searches 

of dwellings, and absent an emergency, no less could be required where 

intrusions into the human body are concerned.” Id. at 770 (emphasis 

added). 

¶25 The dissent suggests that the emergency in Schmerber was 

based on the natural dissipation of alcohol in the blood—that is, a per se 

exigency—rather than individualized circumstances making a warrant 
STATE V. HAVATONE

Opinion of the Court

10

untenable. ¶ 53. It was not. The Court concluded that the emergency 

justifying the warrantless, nonconsensual blood draw was based on the 

“special facts” of the case, “where time had to be taken to bring the accused 

to the hospital and to investigate the scene of the accident,” thus “there was 

no time to seek out a magistrate and secure a warrant.” Id. at 770–71.

¶26 It is true that alcohol dissipation starts a fast time clock, but 

under Schmerber, additional facts are necessary to show it was not feasible 

to obtain a warrant during that time frame. As McNeely observes, in the 

decades since Schmerber, technology has made it possible to quickly obtain 

warrants by phone or otherwise. 133 S. Ct. at 1561–63. The State does not 

allege any such “special facts” justifying a warrantless blood draw. Indeed, 

the State concedes that no exigency existed apart from the ordinary 

dissipation of alcohol in the blood, and the DPS officer testified that 

telephonic warrants are possible but he was trained to not obtain a warrant 

when a DUI suspect is airlifted out of state.

¶27 The Court in McNeely emphasized that it did not announce a 

new constitutional rule but rather reaffirmed Schmerber’s emergency

requirement. “[I]n Schmerber, we considered all of the facts and 

circumstances of the particular case and carefully based our holding on 

those specific facts.” McNeely, 133 S. Ct. at 1560; see also id. at 1559 (“Our 

decision in Schmerber applied this totality of the circumstances approach”); 

id. at 1561 (courts should “decide each case on its facts, as we did in 

Schmerber”). A per se rule that warrants are never required is at 

considerable odds with the Schmerber rule that warrants are required absent 

special facts. Hence, the routine practice of directing blood draws in a 

particular context, where no exigent circumstances existed, was

impermissible at the time Havatone was arrested.

¶28 The State argues that the good-faith exception applies because 

§ 28-1321(C) had not been declared unconstitutional when Havatone’s 

blood was taken. Cf. Illinois v. Krull, 480 U.S. 340, 355 (1987) (“Nor can a 

law enforcement officer be said to have acted in good-faith reliance upon a 

statute if its provisions are such that a reasonable officer should have 

known that the statute was unconstitutional.”). Nor do we declare it 

unconstitutional here in all respects. See ¶ 18. But Schmerber’s special facts

rule was known, thereby rendering legally untenable the routine practice 
STATE V. HAVATONE

Opinion of the Court

11

of warrantless blood draws from unconscious DUI suspects transported to 

other states for medical purposes. And no binding precedents specifically 

authorized such a practice. Arizona case law regarding a per se exigency 

was, at most, unsettled.

¶29 When the law is unsettled, “exclusion of the evidence 

obtained” in a questionable search or seizure “may deter Fourth 

Amendment violations.” Davis, 564 U.S. at 250 (Sotomayor, J., concurring 

in the judgment); accord United States v. Lara, 815 F.3d 605, 613 (9th Cir. 2016) 

(“We decline to expand the rule of Davis to cases in which the appellate 

precedent, rather than being binding, is (at best) unclear.”). As the Court 

observed in United States v. Johnson, if the exclusionary rule is not applied 

in “close” cases, “law enforcement officials would have little incentive to 

err on the side of constitutional behavior. Official awareness of the dubious 

constitutionality of a practice would be counterbalanced by official 

certainty that, so long as the Fourth Amendment law in the area remained 

unsettled, evidence obtained through the questionable practice” would not 

be excluded. 457 U.S. 537, 561 (1982); accord Mitchell, 234 Ariz. at 419 ¶ 31, 

323 P.3d at 78. Similarly, Justice O’Connor warned in Krull that “the failure 

to apply the exclusionary rule in the very case in which a state statute is 

held to have violated the Fourth Amendment destroys all incentive on the 

part of individual criminal defendants to litigate the violation of their 

Fourth Amendment rights.” 480 U.S. at 369 (O’Connor, J., dissenting).

¶30 Arizona case law in effect at the time of Havatone’s blood test 

did not “specifically authorize[] a particular police practice,” see Davis, 564 

U.S. at 241 (emphasis omitted), of directing warrantless, nonconsensual 

blood draws from unconscious DUI suspects absent exigent circumstances. 

In State v. Cocio, 147 Ariz. 277, 709 P.2d 1336 (1985), we held that a formal 

arrest was not necessary for police to obtain a blood sample from a DUI 

suspect drawn by medical personnel for treatment purposes. We applied 

Schmerber as recognizing exigent circumstances based on dissipation of 

alcohol in the blood. Id. at 285–86, 709 P.2d at 1344–45. Construing former 

A.R.S. § 28-692(M) (renumbered 28-1388(E)), which allowed police to 

obtain medical blood samples, together with applicable United States

Supreme Court precedents, we held that no warrant is necessary when (1) 

probable cause exists to believe the suspect has violated DUI laws, (2) 

“exigent circumstances are present,” and (3) “the blood is drawn for 
STATE V. HAVATONE

Opinion of the Court

12

medical purposes by medical personnel.” Id. at 286, 709 P.2d at 1345. We 

recently rejected any suggestion that Cocio established that alcohol in the 

bloodstream constitutes a per se exigency. See State v. Nissley, 241 Ariz. 327, 

330 ¶ 11, 387 P.3d 1256, 1259 (2017) (holding the dissipation of alcohol in 

the blood does not create a per se exigency, but otherwise leaving the Cocio

decision intact).2 But even before this clarification, Cocio was 

distinguishable because it did not involve a government-directed blood 

draw, but was limited to the medical draw exception, where the state 

obtains a portion of blood already drawn for medical reasons. See Cocio, 

147 Ariz. at 286–87, 709 P.2d at 1345–46 (“[T]he intrusion by the police was 

minimal. The blood extraction was not performed at the request of the 

police, but pursuant to the orders of the attending physician for medical 

purposes. Thus, the intrusion by the police in this case was not the needle 

puncture and the insertion of the needle into the vein, but merely a 

sampling off of an additional portion of the defendant’s blood.”). Whatever 

police conduct Cocio “specifically authorized,” as the Court there made 

clear, was limited to the less-invasive state action at issue in that case.

¶31 In State v. Huffman, 137 Ariz. 300, 302, 670 P.2d 405, 407 (App. 

1983), the court of appeals held that no arrest is necessary for a blood draw 

under the unconscious exception. The court applied Schmerber, holding 

that a warrantless, nonconsensual blood draw from an unconscious DUI 

suspect requires probable cause “and that the officer might reasonably 

believe that he is confronted with an emergency so that the delay necessary 

to obtain a warrant, under the circumstances, threatens destruction of the 

evidence.” Id. at 302–03, 670 P.2d at 407–08. Far from specifically 

authorizing a per se rule, Huffman properly interpreted Schmerber to require 

an individualized, totality of the circumstances determination.

 

2 The dissent also cites Campbell v. Superior Ct., 106 Ariz. 542, 554, 479 P.2d 

685, 696 (1971), for the proposition that this Court found “no merit” to a 

constitutional challenge to the implied consent law. The Campbell Court’s 

analysis is two sentences, and appears to comprise a facial challenge to the 

whole statute, which we agree is not facially unconstitutional. Certainly it 

does not remotely amount to the specific appellate court authorization 

required to find good faith under Davis.
STATE V. HAVATONE

Opinion of the Court

13

¶32 In State v. Flannigan, 194 Ariz. 150, 152 ¶ 9, 978 P.2d 127, 129

(App. 1998), police officers directed a blood draw from a DUI suspect 

relying on “the department’s policy that exigent circumstances always exist 

in vehicular aggravated assault and manslaughter cases.” Although the 

case involved a different statute, the court of appeals analyzed Schmerber’s 

exigent circumstances rule as we do here:

In Schmerber, exigent circumstances existed because of the 

evanescent quality of alcohol and because the police 

reasonably believed that they did not have time to “seek out 

a magistrate and secure a warrant” before evidence of the 

defendant’s intoxication would be destroyed. Schmerber does 

not provide a blanket exception to the warrant requirement 

whenever a suspect is believed to be under the influence of 

alcohol or drugs. Rather, the evanescent quality of alcohol 

and drugs in a person’s body creates an exigency only if the 

evidence might disappear before the police can obtain a 

warrant.

Id. at 154 ¶ 20, 978 P.2d at 131. The court aptly concluded, “The officers’ 

rote application of the department’s untenable policy . . . violated 

Flannigan’s right to be free from unreasonable search and seizure.” Id. at 

155 ¶ 25, 978 P.2d at 132.

¶33 Here, the officer’s “rote application” of department policy to 

obtain warrantless, nonconsensual blood draws from DUI suspects who are 

transported to another state for medical treatment was inconsistent with 

federal and state appellate precedents, and certainly was not “specifically 

authorized.”

¶34 For those reasons, DPS’s practice of directing routine, 

warrantless, nonconsensual blood draws from DUI suspects sent outside 

the state for medical treatment was not objectively reasonable under 

Arizona law at the time of the draw. Therefore, the trial and appeals courts 

erred as a matter of Arizona law in concluding that the State satisfied its 

burden of proving that the impermissible blood draw was justified by the 

good-faith exception to the exclusionary rule.
STATE V. HAVATONE

Opinion of the Court

14

¶35 The dissent asserts that our decision “risks ‘set[ting] the 

criminal loose in the community without punishment.’” ¶ 63. As in any 

case in which law enforcement tactics are measured against constitutional 

protections, this may be the unavoidable result in some DUI cases. But 

other evidence of impaired driving likely exists in such cases that support 

continued prosecution for DUI. Here, evidence of probable cause, and 

hence evidence potentially supporting a guilty verdict, was abundant 

(defendant was the driver, witnesses saw the car driving erratically, the 

officer smelled alcohol, and there were beer cans and a liquor bottle at the 

accident scene). Moreover, A.R.S. § 28-1321(B) provides for suspension of 

a driver’s license where a person arrested for DUI fails to submit to alcohol 

testing. See Carrillo v. Houser, 224 Ariz. 463, 465–66 ¶ 13, 232 P.3d 1245, 

1247–48 (2010); see also McNeely, 133 S. Ct. at 1565–67 (plurality) (noting such 

sanctions and concluding that “the government’s interest in this area does 

not justify departing from the warrant requirement without showing 

exigent circumstances that make securing a warrant impractical in a 

particular case”).

IV.

¶36 The parties disagree whether Nevada or Arizona law applies 

to this case.3 The trial and appeals courts did not resolve the issue because 

they concluded the good-faith exception would apply in either state. The 

parties did not extensively address the issue in this Court. Hence, we 

remand the case to the trial court to determine, in the first instance, whether 

Arizona or Nevada law applies. If the court concludes that Nevada law 

applies, it should determine whether the good-faith exception applies. If 

the good-faith exception does not apply, the trial court must vacate the 

 

3 Nevada’s implied consent law includes an unconscious clause directing a 

mandatory blood draw, providing that where a DUI suspect “is dead or 

unconscious, the officer shall direct that samples of blood from the person 

[] be tested.” Nev. Rev. Stat. § 484C.160(3). The Nevada Supreme Court 

recently held unconstitutional a different section of the implied consent law 

because it did not allow a DUI suspect to withdraw consent. Byars v. State,

336 P.3d 939, 946 (Nev. 2014).
STATE V. HAVATONE

Opinion of the Court

15

convictions and sentences, suppress the blood-draw evidence, and order a 

new trial.

¶37 Accordingly, we vacate the court of appeals’ decision, reverse 

the trial court’s decision on the motion to suppress, and remand to that

court for further proceedings consistent with this opinion.
STATE V. HAVATONE

VICE CHIEF JUSTICE PELANDER, joined by JUSTICE BRUTINEL, 

Dissented in part and Concurred in part

16

PELANDER, V.C.J., joined by BRUTINEL, J., concurring in part and 

dissenting in part.

¶38 For almost fifty years, Arizona’s “implied consent” law has 

specifically and expressly allowed law enforcement to obtain for testing a 

blood sample of a DUI suspect who is unconscious. A.R.S. § 28-1321(C); see

former A.R.S. § 28-691(C) (1969 Ariz. Sess. Laws ch. 41, § 1). Pursuant to 

that statutory authority, when the events in this case occurred in September 

2012, police officers (and for that matter a conscientious police department 

or its legal counsel) would have reasonably believed that they could obtain, 

without a warrant, a blood sample from an unconscious DUI suspect. That 

is particularly so when, as here, the DUI suspect’s serious injuries required 

him to be airlifted to a hospital across state lines for emergency medical 

treatment.

¶39 As of 2012, the warrantless blood draw from the unconscious 

DUI suspect here was permissible because it was authorized under 

Arizona’s implied consent law and was reasonable under the totality of the 

circumstances that the trial court found based on the investigating officer’s 

testimony. Contrary to the majority’s assertion, supra ¶ 20, under the law 

in effect at that time, admissibility of the blood test results did not require 

the state to show that the officer made “a case-specific determination 

whether a warrant could be timely secured.” But even if the majority is 

correct in concluding otherwise, and assuming that Arizona law applies, 

the good-faith exception to the exclusionary rule should apply because the 

blood draw was objectively reasonable and no legitimate purpose is served 

by suppressing the blood evidence in this case.

¶40 Based on legal developments that occurred after September 

2012, I agree (and the State concedes) that current law renders § 28-1321(C) 

unconstitutional as applied to this case and that the blood draw from 

Havatone would not comply with Fourth Amendment standards now. I 

also agree that post-2012 cases support the rule of law the majority 

announces regarding future application of the unconscious clause. Supra

¶¶ 17-18. But the majority asserts that “the State concedes that exigent 

circumstances did not exist,” supra ¶ 17, when in fact the State expressly 

qualified its “concession” as follows: “Under recent Fourth Amendment 

decisions, [Havatone’s] warrantless blood draw was not justified by either 
STATE V. HAVATONE

VICE CHIEF JUSTICE PELANDER, joined by JUSTICE BRUTINEL, 

Dissented in part and Concurred in part

17

the consent or exigency exceptions. But this was not so on the day officers 

drew blood from an unconscious [Havatone].”4 Thus, the State merely 

agreed that “[the] blood draw was not reasonable under the exigent 

circumstances exception, as understood today.”

¶41 The majority faults the investigating DPS officer for having 

“followed DPS policy and training” in requesting the blood draw. Supra ¶ 

22. But the majority’s emphasis on “department practice,” id., a matter 

barely touched on in the suppression hearing, disregards much of the 

officer’s testimony and the trial court’s findings. And we of course must 

view the facts in the light most favorable to sustaining the trial court’s 

ruling. State v. Maciel, 240 Ariz. 46, 49 ¶ 9, 375 P.3d 938, 941 (2016).

¶42 It is quite clear that Officer M.P. accurately determined that 

Havatone was driving under the influence of alcohol and caused the headon collision that seriously injured himself and others. See supra ¶¶ 4-5, 35. 

Contrary to the majority’s suggestion that the officer “fail[ed] to take 

individual circumstances into account,” supra ¶ 22, at the suppression 

hearing Officer M.P. testified that “exigent circumstances” supported his 

request for the blood draw based on the following factors that he identified: 

a very “chaotic” accident scene that he was responsible for investigating; 

the alcohol-related “serious collision” that resulted in severe injuries to 

Havatone and others; and Havatone (the driver/DUI suspect) being 

transported for emergency medical treatment out of state, where an 

Arizona warrant would have no force or effect. That testimony hardly 

suggests a disregard of circumstances warranting the officer’s blood-draw 

request. Indeed, viewed in the light most favorable to sustaining the trial 

court’s ruling, Officer M.P.’s testimony supported the court’s implicit 

determination that “Schmerber’s emergency requirement” was satisfied. 

Supra ¶ 27.

¶43 Based on the evidence presented at the suppression hearing 

 

4 At oral argument in this Court, the State likewise consistently qualified 

its concession in this same way and merely disclaimed any argument that 

“under McNeely, this case would present exigent circumstances.”
STATE V. HAVATONE

VICE CHIEF JUSTICE PELANDER, joined by JUSTICE BRUTINEL, 

Dissented in part and Concurred in part

18

and specifically citing the factors to which Officer M.P. testified, the trial 

court expressly found that “the totality of the circumstances” supported the 

officer’s request for a warrantless blood draw. We should defer to the trial 

court’s finding, which was supported by the record and applicable law in 

effect at the time of the blood draw. See Ornelas v. United States, 517 U.S. 

690, 699 (1996) (holding that “as a general matter determinations of 

reasonable suspicion and probable cause should be reviewed de novo on 

appeal,” but that appellate courts should “review findings of historical fact 

only for clear error and . . . give due weight to inferences drawn from those 

facts by resident judges and local law enforcement officers”); cf. Valley 

Medical Specialists v. Farber, 194 Ariz. 363, 366-67 ¶ 11, 982 P.2d 1277, 1280-

81 (1999) (because “reasonableness is a fact-intensive inquiry that depends 

on weighing the totality of the circumstances[,] . . . we will give substantial 

deference both to the trial court’s findings of fact and its application of law 

to fact”).

¶44 Assuming that Arizona law applies in this matter, I also 

disagree with the majority’s conclusion that the good faith exception to the 

exclusionary rule does not apply. Rather, I agree with the trial court and 

the unanimous court of appeals that the seizure of Havatone’s blood sample 

was objectively reasonable and that no legitimate purpose is served by 

suppressing the blood evidence in this case. Therefore, the good faith 

exception applies. Accordingly, I respectfully dissent from section III of the 

majority’s opinion and its holding that under Arizona law evidence relating 

to Havatone’s blood sample must be suppressed.

¶45 The exclusionary rule bars the prosecution from presenting 

evidence obtained in violation of the Fourth Amendment in certain 

circumstances. Davis v. United States, 564 U.S. 229, 231-32 (2011). The rule 

is not required under the Fourth Amendment; instead, the Supreme Court 

created the rule to “compel respect for the constitutional guaranty” of that 

amendment. Id. at 236 (citation omitted). The rule itself is “not a personal 

constitutional right” meant to protect the party whose Fourth Amendment 

right was infringed, but rather its sole purpose is to deter future Fourth 

Amendment violations. Id. at 236-37. “Whether the exclusionary sanction 

is appropriately imposed in a particular case . . . is an issue separate from 

the question whether the Fourth Amendment rights of the party seeking to 

invoke the rule were violated by police conduct.” United States v. Leon, 468 
STATE V. HAVATONE

VICE CHIEF JUSTICE PELANDER, joined by JUSTICE BRUTINEL, 

Dissented in part and Concurred in part

19

U.S. 897, 906 (1984).

¶46 The good faith exception to the exclusionary rule permits law 

enforcement to reasonably rely on legislative enactments, Illinois v. Krull, 

480 U.S. 340, 349-50, 358-60 (1987), and binding appellate precedent, Davis, 

564 U.S. at 240-41. When performing a search pursuant to a legislative 

enactment, “[u]nless [the] statute is clearly unconstitutional, an officer 

cannot be expected to question the judgment of the legislature that passed 

the law.” Krull, 480 U.S. at 349-50. Even when the previously accepted 

application of a “statute is subsequently declared unconstitutional,” 

exclusion of evidence obtained under the statute “will not deter future 

Fourth Amendment violations.” Id. at 350. “Therefore, when 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.” State v. Valenzuela, 239 Ariz. 299, 309 ¶ 31, 371 P.3d 

627, 637 (2016) (internal quotation marks and citation omitted); see also

A.R.S. § 13-3925 (codifying good-faith exception to the exclusionary rule). 

The majority gives scant attention to Krull, a case that directly supports 

application of the good faith exception here (as the court of appeals 

recognized).

¶47 “Indiscriminate application of the exclusionary rule . . . may 

well generate disrespect for the law and administration of justice.” Leon, 

468 U.S. at 907. Only when the benefits of deterrence outweigh the social 

costs, which will include the high cost of excluding reliable, trustworthy 

evidence, should the rule operate. Davis, 564 U.S. at 237.

¶48 As noted above, law enforcement may reasonably rely on 

statutory authority later declared unconstitutional, Krull, 480 U.S. at 349-50, 

or on binding appellate precedent later overturned, Davis, 564 U.S. at 240-

41. Although either of these disjunctive factors is sufficient to support the 

good faith exception, both exist here. DPS Officer M.P.’s request for 

Nevada authorities to obtain a sample of Havatone’s blood was made 

pursuant to, and in accordance with, Havatone’s implied consent under 

A.R.S § 28-1321(C) and our interpretation of exigent circumstances in State 

v. Cocio, 147 Ariz. 277, 286, 709 P.2d 1336, 1345 (1985). As of September 

2012, § 28-1321(C) was presumed to be constitutional, State v. Thompson, 204 

Ariz. 471, 474-75 ¶ 10, 65 P.3d 420, 423-24 (2003), and Cocio had not been 
STATE V. HAVATONE

VICE CHIEF JUSTICE PELANDER, joined by JUSTICE BRUTINEL, 

Dissented in part and Concurred in part

20

overruled or questioned. Applying the exclusionary rule, therefore, 

provides no deterrent effect justifying suppression of the BAC evidence in 

this case.

¶49 The majority holds that “the unconscious clause [in § 28-

1321(C)] can be constitutionally applied only when case-specific exigent 

circumstances prevent law enforcement officers from obtaining a warrant.” 

Supra ¶ 17; see also id. ¶ 18 (“[A] nonconsensual blood draw from an 

unconscious person is constitutionally permissible if, under the totality of 

the circumstances, law enforcement officials reasonably determine that 

they cannot obtain a warrant without significant delay that would 

undermine the effectiveness of the testing.”). But as the majority implies, 

supra ¶¶ 15-18, only cases decided by the United States Supreme Court and 

this Court after the events in question here compel or support that 

conclusion. See Missouri v. McNeely, 133 S. Ct. 1552, 1561 (2013) (concluding 

that “[i]n those drunk-driving investigations where police officers can 

reasonably obtain a warrant before a blood sample can be drawn without 

significantly undermining the efficacy of the search, the Fourth 

Amendment mandates that they do so”); State v. Butler, 232 Ariz. 84, 88 ¶ 18, 

302 P.3d 609, 613 (2013) (holding that, “independent of § 28-1321, the Fourth 

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

warrantless blood draw”).

¶50 Those recent cases cannot retroactively support a finding that 

Officer M.P. exhibited “deliberate, reckless, or grossly negligent disregard 

for Fourth Amendment rights” in ordering a blood sample pursuant to 

then-valid § 28-1321(C). Davis, 564 U.S. at 238 (quoting Herring v. United 

States, 555 U.S. 135, 144 (2009)). As the Court in Davis observed, the reasons 

for and benefits of exclusion vary based on the culpability of law 

enforcement, and absent deliberate, reckless, or grossly negligent violation 

of Fourth Amendment rights, grounds for exclusion are weak “when the 

police act with an objectively ‘reasonable good-faith belief’ that their 

conduct is lawful.” Id. (quoting Leon, 468 U.S. at 909); see also Valenzuela, 

239 Ariz. at 310 ¶ 35, 371 P.3d at 638 (applying Davis’s standard in finding 

good faith reliance on statutory and case authority). Although the majority 

rests its decision on alleged “recurring or systemic negligence,” supra ¶ 21, 

the good faith exception clearly applies when, as here, law enforcement 

reasonably relies on a facially and presumptively valid statute to govern its 
STATE V. HAVATONE

VICE CHIEF JUSTICE PELANDER, joined by JUSTICE BRUTINEL, 

Dissented in part and Concurred in part

21

actions, Krull, 480 U.S. at 349-50, a principle the majority essentially ignores.

¶51 When the events in question occurred in September 2012, no 

court had suggested, let alone concluded, that § 28-1321(C) was invalid or 

otherwise did not authorize the officer’s conduct. In Campbell v. Superior 

Court, we found “no merit” to the argument that Arizona’s implied consent 

law (which at that time included the predecessor unconscious clause now 

found in § 28-1321(C)) violates the Fourth Amendment. 106 Ariz. 542, 554, 

479 P.2d 685, 697 (1971). More recently, we held solely “as a matter of 

statutory interpretation,” not based on constitutional grounds, that 

Arizona’s implied consent law “generally does not authorize law 

enforcement officers to administer [a blood test] without a warrant unless 

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

463 ¶ 1, 467 ¶ 21, 232 P.3d 1245, 1245, 1249 (2010). But we expressly 

remarked that the unconscious clause in § 28-1321(C) was “not at issue,” 

and thus we did not address “circumstances in which subsection (C) . . . 

may allow warrantless testing of persons incapable of refusing a test.” Id.

at 464 ¶ 2 n.2, 467 ¶ 21, 232 P.3d at 1246, 1249.

¶52 In short, as of September 2012, no Arizona court had 

suggested that the continued validity of the unconscious clause was 

dubious. Yet the majority unpersuasively suggests that, under the state of 

the law at that time, the provisions of § 28-1321(C) “[were] such that a 

reasonable officer should have known that the statute was 

unconstitutional.” Supra ¶ 28 (quoting Krull, 480 U.S. at 355).

¶53 Contrary to the majority’s reasoning, supra ¶¶ 24-27, 

Schmerber v. California, 384 U.S. 757 (1966), neither casts doubt on the preMcNeely validity of § 28-1321(C) nor negates application of the good faith 

exception here. In its discussion of Schmerber, supra ¶¶ 24-25, the majority 

omits a significant portion of the Court’s reasoning in finding that a 

warrantless blood draw from a DUI suspect in that case did not violate the 

Fourth Amendment:
STATE V. HAVATONE

VICE CHIEF JUSTICE PELANDER, joined by JUSTICE BRUTINEL, 

Dissented in part and Concurred in part

22

The officer in the present case . . . might reasonably have 

believed that he was confronted with an emergency, in which 

the delay necessary to obtain a warrant, under the 

circumstances, threatened ‘the destruction of evidence[.]’ We 

are told that the percentage of alcohol in the blood begins to 

diminish shortly after drinking stops, as the body functions to 

eliminate it from the system. Particularly in a case such as 

this, where time had to be taken to bring the accused to a 

hospital and to investigate the scene of the accident, there was 

no time to seek out a magistrate and secure a warrant. Given 

these special facts, we conclude that the attempt to secure 

evidence of blood-alcohol content in this case was an 

appropriate incident to petitioner's arrest.

Schmerber, 384 U.S. at 770-71 (citation omitted). Given the similar 

circumstances of this case (with the additional fact here that the injured DUI 

suspect was transported out of state), the DPS officer likewise “might 

reasonably have believed that he was confronted with an emergency” that 

authorized the warrantless blood draw. Id.

¶54 Tellingly, the pertinent Arizona cases interpreting and 

applying Schmerber do not support the majority’s analysis and conclusion, 

but instead support application of the good faith exception. In Campbell, 

this Court rejected a Fourth Amendment challenge to Arizona’s implied 

consent law (including the unconscious clause) “in light of the holding in 

Schmerber.” 106 Ariz. at 545, 554, 479 P.2d at 688, 697. Later, in Cocio, we 

expounded in greater depth on our understanding of Schmerber:

The United States Supreme Court in Schmerber held that a 

blood sample may be taken without a search warrant if it is 

taken in a medically approved manner and based on probable 

cause to believe the person is intoxicated. In such a situation 

exigent circumstances permit a warrantless seizure because, 

“. . . the percentage of alcohol in the blood begins to diminish 

shortly after drinking stops, as the body functions to eliminate 

it from the system.”
STATE V. HAVATONE

VICE CHIEF JUSTICE PELANDER, joined by JUSTICE BRUTINEL, 

Dissented in part and Concurred in part

23

147 Ariz. at 285-86, 709 P.2d at 1344-45 (quoting Schmerber, 384 U.S. at 770).

¶55 To authorize a warrantless blood draw under the medical 

blood draw exception, A.R.S. § 28-1388(E) (former § 28-692(M)), Cocio

required the presence of “exigent circumstances.” 147 Ariz. at 286, 709 P.2d 

at 1345. But we concluded that “exigent circumstances existed” merely 

“because of the destructibility of the evidence.” Id. (citing Schmerber for the 

proposition that “[t]he highly evanescent nature of alcohol in the 

defendant’s blood stream guaranteed that the alcohol would dissipate over 

a relatively short period of time”). Based on that physiological 

phenomenon alone, this Court thus recognized a per se exigency. Stated 

differently, to establish exigency, the State was not required to show that 

there was no time or opportunity to obtain a warrant. Again, that 

additional requirement, first imposed by McNeely and now incorrectly 

applied retroactively by the majority here, did not apply to this case. See 

State v. Reyes, 238 Ariz. 575, 578-79 ¶ 19, 364 P.3d 1134, 1137-38 (App. 2015) 

(noting that as of 2012, “Arizona courts had uniformly held that dissipation 

of alcohol in blood was in itself a sufficient exigent circumstance for 

purposes of the medical exception”) (citing Cocio and other cases).

¶56 The majority alternatively posits that the law on this point 

“was, at most, unsettled” in September 2012. Supra ¶ 28. Again, I disagree. 

Although Cocio did not address the unconscious clause, its finding of 

exigent circumstances based solely on the “highly evanescent nature of 

alcohol” in the blood and its rapid dissipation rate was not limited to the 

medical blood draw context. 147 Ariz. at 286, 709 P.2d at 1345. In that 

regard, consistent with Cocio, other courts also viewed Schmerber as broadly 

establishing a per se exigency based on the dissipation factor alone. See 

State v. Shriner, 751 N.W.2d 538, 547 & n.11 (Minn. 2008) (citing Cocio among 

other cases that interpreted Schmerber “as concluding that the naturally 

rapid dissipation of alcohol in the bloodstream creates an emergency that 

justifies a warrantless blood draw”); State v. Blank, 90 P.3d 156, 164 n.1 

(Alaska 2004) (Matthew, J., dissenting) (same); People v. Harrison, 58 N.E.3d 

623, 628 (Ill. Ct. App. 2016) (same); see also People v. Harris, 184 Cal.Rptr.3d 

198, 205 (Cal. App. 2015) (noting that before McNeely, “California courts 

uniformly interpreted Schmerber as permitting forced blood draws based 

solely on probable cause of DUI because the natural dissipation of alcohol 

or drugs in the blood was itself an exigent circumstance”).
STATE V. HAVATONE

VICE CHIEF JUSTICE PELANDER, joined by JUSTICE BRUTINEL, 

Dissented in part and Concurred in part

24

¶57 The same exigency we recognized in Cocio, the natural 

dissipation of alcohol, would also be an exigency when, as here, a suspect 

is unconscious. And as we acknowledged in our recent opinion regarding 

the medical blood draw exception (A.R.S. § 28-1388(E)), the 2013 McNeely 

case requires us to disavow Cocio’s statement that “the natural dissipation 

of alcohol in the bloodstream itself establishes a per se exigency that 

authorizes a warrantless blood test,” and to instead announce that “in future 

cases, consistent with McNeely, the state must establish exigency by showing 

that under circumstances specific to those cases, it was impractical to obtain 

a warrant.” State v. Nissley, 241 Ariz. 327, 330-31 ¶¶ 11-12, 387 P.3d 1256, 

1259-60 (2017) (emphasis added). Although I agree that, post-McNeely, “the 

unconscious clause can be constitutionally applied only when case-specific 

exigent circumstances prevent law enforcement officers from obtaining a 

warrant,” supra ¶ 17, no such showing was required as of 2012.

¶58 The majority’s reliance on two court of appeals cases is even 

more curious. Supra ¶¶ 31-32. The majority correctly observes that the 

court in State v. Huffman “applied Schmerber,” supra ¶ 31, but disregards the 

Huffman court’s statement that under Schmerber the natural dissipation of 

alcohol in blood justified officers in taking a blood sample from the 

unconscious DUI suspect pursuant to the implied consent statute’s 

unconscious clause. 137 Ariz. 300, 303, 670 P.2d 405, 408 (App. 1983). The 

court thus affirmed the denial of Huffman’s motion to suppress even absent 

any other evidence of exigency or any showing that the officer could not 

have obtained a warrant.

¶59 State v. Flannigan, on which the majority also relies, supra ¶ 32, 

is inapposite. 194 Ariz. 150, 978 P.2d 127 (App. 1998). That case involved a 

driver’s methamphetamine (not alcohol) use and negligent-homicide 

conviction under Title 13, not DUI charges under Title 28; and Flannigan did 

not even “involve an application of the Arizona implied consent statute.” 

Id. at 152-53 ¶ 13, 978 P.2d at 129-30. Nor did the case involve either the 

unconscious clause at issue here or the medical blood draw exception, 

which the court recognized “would have entitled the police to receive a 

sample of [the suspect’s] blood regardless of his consent.” Id. at 153 ¶ 14, 

978 P.2d at 130. As our court of appeals recently and correctly observed, 

“Flannigan did not signal a shift away from Cocio” and “did not vitiate Cocio, 
STATE V. HAVATONE

VICE CHIEF JUSTICE PELANDER, joined by JUSTICE BRUTINEL, 

Dissented in part and Concurred in part

25

nor could it.” Reyes, 238 Ariz. at 578 ¶ 18, 364 P.3d at 1137. To the extent 

Flannigan’s reading of Schmerber deviated from Cocio, which the Flannigan

court did not even cite, Cocio controls. Lind v. Superior Court, 191 Ariz. 233, 

237 ¶ 20, 954 P.2d 1058, 1062 (App. 1998) (recognizing that court of appeals 

is “bound by our supreme court’s determinations”).

¶60 Because the seizure of a blood sample from Havatone while 

he was unconscious and receiving emergency medical treatment in another 

state was specifically authorized by a longstanding statute that no court had 

even questioned, much less ruled invalid, it matters not that Officer M.P.’s 

actions were taken pursuant to his DPS training or department policy. That 

training and policy were permissible under Arizona law, which Officer 

M.P. had no reason to question. Just as the officer had no reason to question 

the constitutionality of the statute based on then-existing law, he likewise 

had no reason to question the validity of the department’s policy. Whether 

Officer M.P. “might reasonably have believed that he was confronted with 

an emergency” that authorized the warrantless blood draw under the 

statute, or under the department’s policy, should not matter. Schmerber, 384 

U.S. at 770; see State v. Dennis, 300 P.3d 81, 83 (Kan. 2013) (holding that “it 

was unnecessary for the officer to specifically articulate [a state statute] as 

authority for the [warrantless] search because application of a good-faith 

exception to the exclusionary rule is not governed by a subjective inquiry. 

The question is whether an objectively reasonable officer could rely on [the 

statute].”). The majority does not persuasively establish otherwise.

¶61 “[T]he ultimate touchstone of the Fourth Amendment is 

‘reasonableness.’” Brigham City v. Stuart, 547 U.S. 398, 403 (2006). “An 

action is ‘reasonable’ under the Fourth Amendment, regardless of the 

individual officer’s state of mind, ‘as long as the circumstances, viewed 

objectively, justify [the] action.’” Id. at 404 (quoting Scott v. United States, 

436 U.S. 128, 138 (1978)) (emphasis and alteration in Stuart); cf. Heien v. 

North Carolina, 135 S. Ct. 530, 534, 539 (holding that an officer’s mistake of 

law can give rise to the reasonable suspicion necessary to uphold a seizure 

under the Fourth Amendment and noting that in determining whether a 

mistake of fact or law was objectively reasonable, “[w]e do not examine the 

subjective understanding of the particular officer involved”).

¶62 Applying that standard here, contrary to the majority’s 
STATE V. HAVATONE

VICE CHIEF JUSTICE PELANDER, joined by JUSTICE BRUTINEL, 

Dissented in part and Concurred in part

26

conclusion, Officer M.P’s request for Nevada authorities to obtain a sample 

of Havatone’s blood indeed was “objectively reasonable under Arizona law 

at the time of the draw.” Supra ¶ 34. The officer certainly did not 

“deliberately, recklessly, or with gross negligence” violate Havatone’s 

Fourth Amendment rights in requesting the blood draw. Davis, 346 U.S. at 

240. Therefore, given the “nonculpable, innocent police conduct” here, id., 

the good faith exception to the exclusionary rule applies. See Valenzuela, 239 

Ariz. at 310 ¶ 35, 371 P.3d at 638 (finding good faith exception applied when 

officer “did not ‘deliberately, recklessly, or with gross negligence’ conduct 

the search in violation of the Fourth Amendment, but instead acted with 

‘an objectively reasonable good-faith belief’ that the admonition was 

lawful”) (quoting Davis, 131 S. Ct. at 2427-28); Reyes, 238 Ariz. at 579 ¶ 19, 

364 P.3d at 1138 (finding good faith exception applied, pre-McNeely, when 

officer reasonably relied “on the evanescent nature of alcohol in [the DUI 

suspect’s] blood in requesting [in 2012] the blood sample with no warrant”); 

see also State v. Edwards, 853 N.W.2d 246, 254 ¶ 19 (S.D. 2014) (finding good 

faith exception applied to officer’s warrantless, pre-McNeely blood draw in 

2013 when state’s case law had held “that the dissipation of alcohol in blood 

was a per se exigent circumstance sufficient by itself to justify conducting a 

blood test without a warrant”); State v. Meitler, 347 P.3d 670, 676 (Kan. App. 

2015) (applying good faith exception when officer obtained warrantless 

blood draw from a hospitalized, unconscious DUI suspect in 2012 based on 

state’s implied consent law later declared unconstitutional).

¶63 Through its revisionist reinterpretation of prior Arizona 

cases, the majority imposes an unrealistic and unreasonable expectation on 

police officers to divine, based on subsequent case law, that a 

presumptively valid state statute does not actually allow or mean what it 

says. But law enforcement officers are not legal technicians and should not 

be expected to anticipate or predict a future change in our case law. 

Exclusion of the BAC evidence here “does not result in appreciable 

deterrence” and thus “is unwarranted.” Arizona v. Evans, 514 U.S. 1, 11 

(1995) (internal quotation marks omitted). Under these circumstances, 

depriving the prosecution of that evidence necessarily “suppress[es] the 

truth” and risks “set[ting] the criminal loose in the community without 

punishment.” Davis, 564 U.S. at 237 (citation omitted).