SUPREME COURT OF ARIZONA

En Banc

THE STATE OF ARIZONA, ) Arizona Supreme Court

) No. CV-12-0402-PR

Petitioner, )

) Court of Appeals

v. ) Division Two

) No. 2 CA-SA 12-0065

HON. JANE A. BUTLER, JUDGE PRO )

TEMPORE OF THE SUPERIOR COURT OF ) Pima County

THE STATE OF ARIZONA, in and for ) Superior Court

the County of Pima, ) No. JV19004301

)

Respondent Judge, )

)

TYLER B., ) O P I N I O N

)

Real Party in Interest. )

__________________________________)

Appeal from the Superior Court in Pima County

The Honorable Jane A. Butler, Commissioner Pro Tem

REMANDED

________________________________________________________________

Opinion of the Court of Appeals, Division Two

231 Ariz. 42, 290 P.3d 435 (2012)

REVERSED

________________________________________________________________

BARBARA LAWALL, PIMA COUNTY ATTORNEY Tucson

By Nicolette Kneup, Deputy County Attorney

Attorneys for State of Arizona

HERNANDEZ & ROBLES PC Tucson

By Joshua F. Hamilton

Attorneys for Tyler B.

ARIZONA ATTORNEYS FOR CRIMINAL JUSTICE Chandler

By David J. Euchner

Attorneys for Amicus Curiae Arizona Attorneys for Criminal

Justice
2

NESCI & ST LOUIS PLLC Tucson

By James Nesci

Attorneys for Amicus Curiae National College for DUI Defense,

Inc.

ACLU FOUNDATION OF ARIZONA Phoenix

By Daniel Pochoda

Kelly J. Flood

And

PERKINS COIE LLP Phoenix

By Jean-Jacques Cabou

Thomas D. Ryerson

Attorneys for Amicus Curiae ACLU Foundation of Arizona

JUVENILE LAW CENTER Philadelphia, PA

By Lourdes M. Rosado

And

NUCCIO & SHIRLY Tucson

By Jeanne Shirly

Attorneys for Amici Curiae Juvenile Law Center, Center on

Children and Families, Central Juvenile Defender Center,

Children and Family Justice Center, The Children’s Law Center

Inc., Children & Youth Law Clinic, Civitas ChildLaw Center,

Juvenile & Special Education Law Clinic/University of the

District of Columbia, Juvenile Justice Project of Louisiana,

Justice Policy Institute, National Association of Criminal

Defense Lawyers, National Center for Youth Law, National

Juvenile Defender Center, National Juvenile Justice Network,

Northeast Juvenile Defender Center, Pacific Juvenile Defender

Center, Public Defender Service for the District of Columbia,

Rutgers School of Law Camden Children's Justice Clinic, Rutgers

Urban Legal Clinic, San Francisco Office of the Public

Defenders, University of Michigan Juvenile Justice Clinic,

Neelum Arya, Tamara Birckhead, Susan L. Brooks, Michele Deitch,

Jeffrey Fagan, Barbara Fedders, Barry Feld, Frank Furstenberg,

Theresa Glennon, Martin Guggenheim, Kristin Henning, Randy

Hertz, Paul Holland, Julie E. McConnell, James R. Merikangas,

Wallace Mlyniec, Catherine J. Ross, Elizabeth Scott, Abbe Smith,

and Barbara Bennett Woodhouse

________________________________________________________________

B A L E S, Vice Chief Justice

¶1 Arizona’s implied consent statute, A.R.S. § 28-1321,
3

outlines how law enforcement officers can obtain consent to

blood and breath tests from persons arrested for driving under

the influence (“DUI”) and provides consequences for arrestees

who refuse to submit to a test. Against this backdrop, we

address whether the Fourth Amendment to the United States

Constitution requires that a juvenile arrestee’s consent be

voluntary to allow a warrantless blood draw. We hold that it

does and that the juvenile court properly ruled that evidence of

a blood draw was inadmissible because the juvenile did not

voluntarily consent.

I.

¶2 On February 17, 2012, Tyler B., a sixteen-year-old

high school student, and two friends arrived late to school. A

school monitor smelled marijuana on the boys and also saw drug

paraphernalia in Tyler’s car. School officials detained the

boys in separate rooms and contacted the sheriff’s office.

¶3 A deputy sheriff soon arrived and read Miranda

warnings to Tyler. In the presence of several school officials,

Tyler admitted that he had driven his car to school after

smoking marijuana and that he owned some of the drug

paraphernalia in the car. The deputy informed Tyler that he was

under arrest for DUI and other offenses. Tyler became agitated

and the deputy placed him in handcuffs. The deputy left Tyler

with the assistant principal for about ten minutes while
4

retrieving a phlebotomy kit to do a blood draw.

¶4 When the deputy returned to the room, he saw that

Tyler had calmed down, so he removed the handcuffs from the

youth. He read Tyler an “implied consent admonition” twice,

first verbatim and then in “plain English.” The admonition

provided in relevant part:

Arizona law requires you to submit to and successfully

complete tests of breath, blood or other bodily

substance as chosen by the law enforcement officer to

determine alcohol concentration or drug content. The

law enforcement officer may require you to submit to

two or more tests. You are required to successfully

complete each of the tests.

If the test results are not available . . . or

indicate any drug defined in ARS 13-3401 or its

metabolite, without a valid prescription, your Arizona

driving privilege will be suspended for not less than

90 consecutive days.

If you refuse to submit or do not successfully

complete the specified tests, your Arizona driving

privilege will be suspended for 12 months, or for two

years if there is a prior implied consent refusal,

within the last 84 months, on your record. You are,

therefore, required to submit to the specified tests.

Tyler agreed verbally and in writing to have his blood drawn,

and the deputy drew two vials of Tyler’s blood.

¶5 The State charged Tyler with DUI. Tyler moved to

suppress evidence of the blood draw, arguing that his consent

had not been voluntary and that, as a minor, he lacked the legal

capacity to consent. The juvenile court granted the motion,

finding that the blood draw violated Arizona’s Parents’ Bill of
5

Rights (“PBR”), A.R.S. § 1-602, and, notwithstanding the PBR,

that Tyler’s consent had been involuntary under the totality of

the circumstances. The court relied in part on In re Andre M.,

in which this Court recognized the “increased susceptibility and

vulnerability of juveniles” in assessing whether a juvenile’s

confession was voluntary under the Fifth Amendment to the United

States Constitution. 207 Ariz. 482, 485 ¶ 9, 88 P.3d 552, 555

(2004).

¶6 On the State’s petition for special action relief, the

court of appeals reversed the juvenile court’s ruling. State v.

Butler, 231 Ariz. 42, 45 ¶ 11, 290 P.3d 435, 438 (App. 2012).

The court first held that the PBR did not apply because the

deputy was acting within the scope of his official duties. Id.

at 44 ¶ 6, 290 P.3d at 437. It then held that the Fifth

Amendment did not apply because the blood was not testimonial

evidence. Id. at 45 ¶ 10, 290 P.3d at 438. Stating that “the

informed consent statute presents no Fourth Amendment issue,”

the court of appeals held that the juvenile court abused its

discretion in suppressing the blood draw evidence. Id. ¶ 10

n.6.

¶7 We granted review because this case raises questions

of first impression and statewide importance. We have

jurisdiction under Article 6, Section 5(3) of Arizona’s

Constitution and A.R.S. § 12-120.24.
6

II.

¶8 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 . . . .” U.S. Const. amend. IV. Evidence obtained

in violation of the Fourth Amendment is properly suppressed.

Mapp v. Ohio, 367 U.S. 643, 655 (1961). Trial court rulings on

motions to suppress are reviewed for abuse of discretion. See

State v. Hausner, 230 Ariz. 60, 70 ¶ 23, 280 P.3d 604, 614

(2012). “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.

¶9 Tyler argues that a blood draw is a search subject to

the Fourth Amendment and, to be valid, requires either a warrant

or an exception such as voluntary consent. The State responds

that every Arizona motorist gives “implied consent” under § 28-

1321 and that tests administered under the statute are not

subject to a Fourth Amendment voluntariness analysis. The State

further argues that “adult privileges carry adult

responsibilities,” and thus juveniles should not be treated

differently from adults in assessing the voluntariness of

consent to a blood draw.

¶10 Contrary to the State’s argument, a compelled blood

draw, even when administered pursuant to § 28-1321, is a search
7

subject to the Fourth Amendment’s constraints. See Missouri v.

McNeely, 133 S. Ct. 1552, 1556 (2013) (holding that a compelled

blood draw taken pursuant to Missouri’s implied consent law is

subject to the Fourth Amendment’s restrictions on warrantless

searches). “Such an invasion of bodily integrity implicates an

individual’s ‘most personal and deep-rooted expectations of

privacy.’” Id. at 1558 (quoting Winston v. Lee, 470 U.S. 753,

760 (1985)).

¶11 McNeely also forecloses the State’s arguments that

requiring warrants for blood draws will unduly burden law

enforcement officials or render Arizona’s implied consent law

meaningless. “In 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.” Id. at 1561.

¶12 In general, under the Fourth Amendment, warrantless

searches “are per se unreasonable . . . subject only to a few

specifically established and well-delineated exceptions.”

Arizona v. Gant, 556 U.S. 332, 338 (2009). One such exception

is exigent circumstances, but the State has not argued that this

exception authorized the blood draw here.

¶13 Consent can also allow a warrantless search, provided

the consent is voluntary. Schneckloth v. Bustamonte, 412 U.S.
8

218, 226-28 (1973). Voluntariness is assessed from the totality

of the circumstances. Id. at 227. Relevant circumstances

include the suspect’s age and intelligence as well as the length

of detention. See id. at 226-27, 229.

¶14 We reject the State’s contention that age should be

disregarded in assessing a juvenile’s consent to a blood draw.

In various contexts, the law recognizes a juvenile’s age as a

relevant consideration. See, e.g., J.D.B. v. North

Carolina, 131 S. Ct. 2394, 2399, 2406 (2011) (holding that

child’s age is relevant, although not necessarily determinative,

in assessing whether a child is in custody); Roper v. Simmons,

543 U.S. 551, 571-73 (2005) (recognizing the “diminished

culpability” of juveniles under 18 and holding that “[t]he

differences between juvenile and adult offenders are too marked

and well understood to risk allowing a youthful person to

receive the death penalty”). Juveniles tend to possess less

maturity and are “more vulnerable or susceptible to negative

influences and outside pressures.” Id. at 569-70. Courts

should not blind themselves to this reality when assessing the

voluntariness of consent to a blood draw.

¶15 Consent can be voluntary for purposes of the Fourth

Amendment in circumstances that would not establish

voluntariness under the Fifth Amendment. See Bustamonte, 412

U.S. at 234, 240 (holding that, although Miranda v. Arizona, 384
9

U.S. 436 (1966), requires an arrestee to be advised of right to

remain silent in order for waiver to be valid, knowledge of

right to withhold consent is just one factor in determining

voluntariness of a consent to search). But, when the accused is

a juvenile, factors such as age and the presence of parents are

properly considered when assessing the voluntariness of consent

to a search, just as they are relevant in assessing the

voluntariness of a confession. Cf. In re Andre M., 207 Ariz. at

485 ¶ 11, 88 P.3d at 555 (noting in the Fifth Amendment context

that parents can “help ensure that a juvenile will not be

intimidated, coerced or deceived”).

¶16 This Court has previously held that, for an officer to

administer a test of breath or bodily fluids on an arrestee

without a search warrant under § 28-1321, consent must be

express. Carrillo v. Houser, 224 Ariz. 463, 463 ¶ 1, 232 P.3d

1245, 1245 (2010). Carrillo turned, however, on statutory

grounds and did not address any constitutional issues. Id. at

467 ¶ 21, 232 P.3d at 1249.

¶17 The State unconvincingly argues 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. We explained previously that “[t]he

‘consent’ by motorists referenced in subsection (A) does not

always authorize warrantless testing of arrestees.” Carrillo,
10

224 Ariz. at 465 ¶ 10, 232 P.3d at 1247. Rather, 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. A.R.S. § 28-1321(B); Carrillo, 224 Ariz. at 465 ¶ 11,

232 P.3d at 1247. If the arrestee refuses, the statute

specifies that a warrant is required to administer the test and

the arrestee shall have his license suspended. A.R.S. § 28-

1321(D); Carrillo, 224 Ariz. at 465 ¶ 11, 232 P.3d at 1247.

¶18 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. If the arrestee is a

juvenile, the youth’s age and a parent’s presence are relevant,

though not necessarily determinative, factors that courts should

consider in assessing whether consent was voluntary under the

totality of the circumstances.

¶19 Voluntariness is a question of fact, Bustamonte, 412

U.S. at 248-49, and “[w]e review the trial court's voluntariness

finding for abuse of discretion,” State v. Cota, 229 Ariz. 136,

144 ¶ 22, 272 P.3d 1027, 1035 (2012) (reviewing voluntariness of

confession). The State has the burden of proving that consent

to a search is “freely and voluntarily given.” Bumper v. North

Carolina, 391 U.S. 543, 548-50 (1968).

¶20 Although Tyler did not testify at the suppression

hearing, sufficient evidence supports the juvenile court’s
11

finding that he did not voluntarily consent to the blood draw.

At the time, Tyler was nearly seventeen and in eleventh grade.

He had been arrested once previously, but not adjudicated

delinquent. Tyler was detained for about two hours in a school

room in the presence of school officials and a deputy. Neither

of his parents was present. Tyler initially was shaking and

visibly nervous. When he became loud and upset after being told

he was being arrested, the deputy placed him in handcuffs until

he calmed down. A second deputy sheriff arrived before the

blood draw was taken. After removing the handcuffs, the first

deputy read the implied consent admonition to Tyler, once

verbatim and once in what the deputy termed “plain English,”

concluding with the statement, “You are, therefore, required to

submit to the specified tests.” Tyler then assented to the

blood draw.

¶21 Viewing the facts in the light most favorable to

sustaining the ruling below, we hold that the juvenile court did

not abuse its discretion by ruling that Tyler’s consent was

involuntary and granting the motion to suppress. We decline to

address Tyler’s arguments that he lacked the legal capacity to

consent and that the Arizona Constitution provides greater

protection than the Fourth Amendment in this context.

III.

¶22 We also decline to address Tyler’s argument that the
12

blood draw must be suppressed because it violated the PBR. The

statute provides that parents have a “right to consent in

writing before any record of the minor child’s blood or

deoxyribonucleic acid is created, stored or shared.” A.R.S.

§ 1-602(A)(8). The PBR, however, concerns the rights of parents

and does not purport to affect a juvenile’s right to consent to

a search. See id. § 1-602(A) (referencing “parental rights”).

Nor does the statute provide that evidence will be suppressed if

the statute is violated. See id. § 1-602. Even if the blood

draw was taken in violation of the rights of Tyler’s parents (an

issue we do not decide), Tyler would not have standing to argue

that this violation required suppression of the blood draw

evidence. Cf. Rakas v. Illinois, 439 U.S. 128, 133-34 (1978)

(holding that person lacks standing to suppress evidence seized

in violation of another’s Fourth Amendment rights).

IV.

¶23 For the foregoing reasons, we reverse the decision of

the court of appeals and remand the case to the superior court

for proceedings consistent with this opinion.

__________________________________

Scott Bales, Vice Chief Justice

CONCURRING:

__________________________________

Rebecca White Berch, Chief Justice
13

__________________________________

Robert M. Brutinel, Justice

__________________________________

Ann A. Scott Timmer, Justice

P E L A N D E R, Justice, concurring

¶24 As a matter of statutory interpretation, we previously

held that, absent a search warrant, Arizona’s “implied consent”

statute, A.R.S. § 28-1321, requires an arrestee’s express

consent to a chemical test. Carrillo v. Houser, 224 Ariz. 463,

463 ¶ 1, 232 P.3d 1245, 1245 (2010). The Court now holds that

the Fourth Amendment also applies to a blood draw administered

under the statute and thus an arrestee’s consent must be

voluntary. Supra ¶ 18. I have no quarrel with that holding,

but reluctantly concur only because the parties acknowledge, and

our case law indicates, that voluntariness determinations are

reviewed for abuse of discretion. Under that standard of

appellate review, I cannot say that the juvenile court erred in

finding Tyler’s consent involuntary when some evidence arguably

supports an inference to that effect. Cf. State v. Chapple, 135

Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n.18 (1983) (A court

abuses its discretion when “the reasons given by the court for

its action are clearly untenable, legally incorrect, or amount

to a denial of justice.”).
14

¶25 As the majority notes, voluntariness issues often are

fact-intensive and are assessed from the totality of the

circumstances. Supra ¶ 13 (citing Schneckloth v. Bustamonte,

412 U.S. 218, 227 (1973)). The majority correctly observes that

we generally review rulings on motions to suppress evidence for

an abuse of discretion, supra ¶¶ 8, 19, and finds no such abuse

in the trial court’s ruling, supra ¶ 21. I write separately to

express concern with indiscriminately applying those principles

and to suggest, for future purposes only, that abuse-ofdiscretion review might not be appropriate in cases such as

this.

¶26 Only the deputy sheriff and Tyler’s father testified

at the suppression hearing in this case. Significantly, the

pertinent facts are undisputed and the juvenile court’s ruling

is not based on witness credibility, weighing of conflicting

evidence, or discretionary determinations. Accordingly, the

court’s ultimate ruling on voluntariness could, and arguably

should, be deemed a mixed question of fact and law subject to

our de novo review. That approach, although admittedly

conflicting with extant Arizona case law, would be consistent

with our approach in other criminal-case contexts involving

constitutional issues. See State v. Moore, 222 Ariz. 1, 7 ¶ 17,

213 P.3d 150, 156 (2009) (noting that, although we review trial

court rulings on pretrial identifications for abuse of
15

discretion and defer to factual findings supported by the

record, the ultimate question of constitutionality is “a mixed

question of law and fact” subject to our de novo review); State

v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778

(1996) (applying same principles to question of whether

sufficient legal basis existed for vehicular stop); State v.

Blackmore, 186 Ariz. 630, 632, 925 P.2d 1347, 1349 (1996) (same

regarding question of whether an arrest was illegal); State v.

Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996) (same

regarding question of whether there was reasonable suspicion for

an investigatory stop of a pedestrian).

¶27 Recently, the Vermont Supreme Court thoroughly

expounded on the appropriate standard of appellate review for

voluntariness-of-consent issues. State v. Weisler, 35 A.3d 970

(Vt. 2011). An appellate court, of course, appropriately defers

“to the trial court’s underlying findings of historical fact” as

a “fundamental principle of appellate review.” Id. at 976, 985;

see also Chapple, 135 Ariz. at 297 n.18, 660 P.2d at 1224 n.18.

But as the Vermont court observed, Schneckloth did not address

the subject of appellate review, and “[s]imply labeling consent

to search as a question of fact to be determined from the

totality of the circumstances” at the trial court level “does

little to advance the standard-of-review analysis.” Weisler, 35

A.3d at 977. Noting that “appellate courts have traditionally
16

reviewed and resolved independently the question of

voluntariness in order to ‘guide police, unify precedent, and

stabilize the law,’” id. at 985 (quoting Thompson v. Keohane,

516 U.S. 99, 115 (1995)), the Weisler court held that “a trial

court’s decision on the question of the voluntariness of a

consent to search, and thus the ultimate constitutional validity

of the search, must be reviewed independently . . . on appeal,”

id. at 983.

¶28 Vermont is not alone. Other courts also follow this

approach. See, e.g., United States v. Lewis, 921 F.2d 1294,

1301 (D.C. Cir. 1990) (conducting de novo review of a trial

court’s finding of involuntary consent when facts were

uncontested and government presented uncontroverted evidence on

that issue); United States v. Garcia, 890 F.2d 355, 359–60 (11th

Cir. 1989) (same); State v. $217,590.00 in U.S. Currency, 18

S.W.3d 631, 633 (Tex. 2000) (assessing whether the trial court’s

factual findings demonstrate voluntariness under the totality of

the circumstances is a question of law); State v. Hansen, 63

P.3d 650, 663 (Utah 2002) (“While consent is a factual finding,

voluntariness is a legal conclusion, which is reviewed for

correctness.”); State v. Phillips, 577 N.W.2d 794, 800 (Wis.

1998) (rejecting proposition that the standard of appellate

review “turn[s] on whether the underlying determination of the

[trial] court was fact-specific”); see also Weisler, 35 A.3d at
17

976, 980 (collecting cases).

¶29 The analyses of those courts would support de novo

review of rulings on whether an arrestee’s consent to search was

voluntary or involuntary, at least when, as here, the underlying

facts are undisputed and the trial court’s ruling is not based

on conflicting evidence or credibility determinations. This

Court has not yet engaged in the type of nuanced explication

found in cases such as Weisler on the appropriate standard of

appellate review for Fourth Amendment voluntariness rulings.

This, however, is not the case in which we should do so. The

parties have not raised or argued any issues relating to the

standard of review, but rather concede that abuse-of-discretion

review applies. Accordingly, the Court appropriately applies

that standard in deciding this particular case.

¶30 Stating that voluntariness determinations are factintensive inquiries, based on the totality of circumstances, and

subject to abuse-of-discretion review, however, does not

directly answer the ultimate question: What is the test or

standard for establishing valid, voluntary consent to a

warrantless search under the Fourth Amendment? Generally, to be

voluntary, “[c]onsent must ‘not be coerced, by explicit or

implicit means, by implied threat or covert force.’” State v.

Guillen, 223 Ariz. 314, 317 ¶ 11, 223 P.3d 658, 661 (2010)

(quoting Schneckloth, 412 U.S. at 228). “Consent to search is
18

voluntary if it is ‘the product of an essentially free and

unconstrained choice by its maker,’ and not the result of

circumstances which overbear the consenting party’s will and

critically impair his or her capacity for self-determination.”

People v. Magallanes-Aragon, 948 P.2d 528, 530 (Colo. 1997)

(quoting Schneckloth, 412 U.S. at 225). Stated differently,

“before a court may conclude that consent was voluntarily given,

it must find no objective evidence of coercion, duress,

deception, promises, threats, intrusive conduct or other undue

influence by the police, which critically impaired the

defendant’s judgment.” Id. at 531; see also id. at 533 (“The

essential consideration in determining voluntariness of a

consent to search is the impact of overbearing, coercive, or

deceptive police conduct on a person with the knowledge and

particular characteristics of the defendant.”).

¶31 Applying those standards, only with some difficulty do

I agree with the majority that the juvenile court did not abuse

its discretion in finding Tyler’s consent was involuntary. Cf.

Chapple, 135 Ariz. at 297 n.18, 660 P.2d at 1224 n.18 (When

trial court determinations hinge not on “conflicting procedural,

factual or equitable considerations,” but rather are made on

undisputed facts, “resolution of the question is one of law or

logic,” obligating us “to ‘look over the shoulder’ of the trial

judge and, if appropriate, substitute our judgment for his or
19

hers.”). But based on the uncontroverted facts in this case,

were de novo review applicable here, I would readily conclude

that the State met its burden of proving by a preponderance of

the evidence that Tyler’s consent to the warrantless blood draw

was voluntary and, therefore, complied with the Fourth

Amendment. See Ariz. R. Crim. P. 16.2(b) (prescribing burden

and standard of proof on whether evidence was lawfully

obtained).

¶32 The majority appropriately recites certain facts to

support the conclusion that the juvenile court did not abuse its

discretion in finding Tyler’s consent involuntary. Supra ¶¶ 2–

4, 20. The totality of the circumstances, however, includes

other undisputed facts indicating that Tyler’s verbal and

written consent to the blood draw was indeed voluntary and not

obtained by any “overbearing, coercive, or deceptive police

conduct.” Magallanes-Aragon, 948 P.2d at 533. Without

belaboring all those facts, suffice it to say that had the

juvenile court found Tyler’s consent voluntary, I would have had

no difficulty affirming that ruling, and I doubt my colleagues

would have either. But, as noted above, I cannot conclude under

an abuse-of-discretion standard of review that the juvenile

court erred and, therefore, join in the Court’s opinion.

¶33 In addition, In re Andre M., on which the juvenile

court relied, is materially distinguishable. Unlike this case,
20

In re Andre M. involved issues of voluntariness under the Fifth

Amendment’s self-incrimination clause and was heavily influenced

by “the absence of a parent who attempted to attend the

[minor’s] interrogation but was prevented from doing so by the

police officers.” 207 Ariz. 482, 485 ¶ 12, 88 P.3d 552, 555

(2004). Here, Tyler and his father (who had been contacted by

the school, came there, and waited in the lobby) never asked to

see or speak with each other, and the deputy was not informed

until after the blood draw that a parent was present at the

school. Once he learned of that, the deputy spoke with the

parents, who understood the reasons for Tyler’s arrest and had

no questions.

¶34 It is also clear from its ruling that the juvenile

court deemed very significant the alleged violation of the

Parents’ Bill of Rights, A.R.S. § 1-602. The majority, however,

correctly rejects that as an appropriate basis for ordering

suppression. Supra ¶ 22.

¶35 Finally, I understand that Fourth Amendment issues

usually, and necessarily, entail “case-by-case,” “factintensive, totality of the circumstances analyses.” Missouri v.

McNeely, 133 S. Ct. 1552, 1564 (2013). But a core objective of

our criminal-case jurisprudence should be “to ‘guide future

decisions’ as well as to ‘guide police, unify precedent, and

stabilize the law.’” Weisler, 35 A.3d at 979 (quoting Thompson,
21

516 U.S. at 114–15). In that regard, I have concerns similar to

those recently expressed by Chief Justice Roberts in McNeely:

“A police officer reading this Court’s opinion would have no

idea — no idea — what the Fourth Amendment requires of him, once

he decides to obtain a blood sample from,” in this case, a

juvenile DUI arrestee to ensure that the juvenile’s consent to a

blood draw is voluntary. 133 S. Ct. at 1569 (Roberts, C.J.,

concurring in part and dissenting in part). The majority here

says that “[i]f the arrestee is a juvenile, the youth’s age and

a parent’s presence are relevant, though not necessarily

determinative, factors that courts should consider in assessing

whether consent was voluntary under the totality of the

circumstances.” Supra ¶ 18. The Court also refers generally to

juveniles’ relative immaturity, and specifically to Tyler’s

interactions with the deputy and his fluctuating emotional

states during the arrest. Supra ¶¶ 14, 20.

¶36 But faced with the not uncommon scenario presented in

this case, a reasonable officer, before drawing blood pursuant

to the juvenile’s ostensibly valid consent, surely will now

wonder whether he or she must first take steps to have a parent

notified and present, and inquire about the juvenile’s maturity,

general comprehension levels, and emotional status, lest the

juvenile’s consent later be deemed involuntary. Those

individualized, unpredictable variables afford little guidance
22

and certainty to law enforcement officers, school

administrators, parents, minor drivers, or juvenile courts. Nor

does such unpredictability advance the overarching purpose of

the implied consent law — “to remove from the highways of this

state drivers[, including juvenile motorists,] who are a menace

to themselves and to others because they operate a motor vehicle

while under the influence of intoxicating liquor” or drugs.

Campbell v. Superior Court, 106 Ariz. 542, 546, 479 P.2d 685,

689 (1971); see also Carrillo, 224 Ariz. at 465 ¶ 13, 232 P.3d

at 1247; cf. State v. Randy J., 265 P.3d 734, 742 (N.M. Ct. App.

2011) (holding that state’s implied consent law applies to any

person, including juveniles, who drives a vehicle in the state).

¶37 Possibly compounding the problem, our opinion today

might well engender dubious involuntariness claims and related

suppression hearings aimed at excluding evidence derived from

chemical testing of impaired drivers whose express consent was

ostensibly voluntary and valid under Arizona’s implied consent

law. Such challenges can be made by defendants who, because

they submitted to testing, retain their driving privileges in

the interim. Audio or video recording of a suspect’s consent

might be a solution. But in view of the various contingencies

and uncertainties surrounding determinations by officers in the

field (and subsequently by courts) on whether express consent of

DUI arrestees (particularly juveniles) is voluntary, the safest
23

course of action for law enforcement might simply be to obtain

search warrants, when reasonably feasible, for obtaining blood

samples in DUI investigations. See A.R.S. §§ 13-3914, -3915,

28-1321(D)(1). That default approach, although arguably

diluting the effectiveness of the implied consent law, and not

constitutionally required under McNeely (which neither involved

nor discounted consent as a valid exception to the Fourth

Amendment’s warrant requirement), would certainly comport with

the Fourth Amendment and alleviate many potential, foreseeable

problems in this area.

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John Pelander, Justice