IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO

THE STATE OF ARIZONA, ) ) Appellee, ) 2 CA

- CR 2009

- 0041

) DEPARTMENT B v. ) ) O P I N I O N GLENDA LORRAINE RUMSEY, ) ) Appellant. )

)

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR20080258
Honorable Richard S. Fields, Judge
AFFIRMED IN PART; VACATED IN PART
Terry Goddard, Arizona Attorney General By Kent E. Cattani and Amy M. Thorson Tucson Attorneys for Appellee Robert J. Hirsh, Pima County Public Defender By Michael J. Miller Tucson Attorneys for Appellant V Á S Q U E Z, Presiding Judge. 

### FILED BY CLERK

COURT OF APPEALS DIVISION TWO 

### AUG 31 20102

¶1 In this opinion we address whether the trial court erred by not suppressing
evidence of blood

- test results after concluding the defendant‟s right to counsel had been
violated at the time the blood draw occurred. For the reasons that follow, we conclude
the court did not so err and affirm its ruling on that issue

. 1
Facts and Procedure ¶2 We view the facts in the light most favorable to sustaining the jury‟s
verdicts. State v. Miles , 211 Ariz. 475, ¶ 2, 123 P.3d 669, 670 (App. 2005)

. On the evening of January 12, 2008, J. and O. were riding their bicycles in the eastbound bicycle
lane on Broadway Boulevard in Tucson . After crossing Vozack Lane , O. felt something
hit him and then saw J. “flying in front of [him].” O. got up from the ground and ran to J., who was unresponsive. O. looked around and saw a “small SUV or a car, a few yards

ma ybe, in front of [them

. ] .

. . [I]t was red, [and] driving off.” J. died as the result of head injuries, and O. su ffered a dislocated tailbone, bruises, and scratches. ¶3 Glenda Rumsey, the driver of the vehicle that had struck J., stopped her
vehicle and w alked back to the accident scene , where she remained until police officers
arrived

. The officers noticed Rumsey had an odor of alcohol and was unable to walk straight. One officer administered the horizontal gaze nystagmus (HGN) test, and Rumsey displaye d six out of six possible cues of impairment. She was arrested and charged with manslaughter, aggravated assault of a minor under fifteen years of age,

1 Appellant has raised additional issues that we have addressed in a separately filed memorandum decision in which we have vacated her conviction for driving with an alcohol concentration greater than .08

. See Ariz. R. Crim. P. 31.26; Ariz. R. Sup. Ct. 111(b), (h); see also State v. Payne , 223 Ariz. 555, ¶ 2, 225 P.3d 1131, 1134 (App. 2009).3

driving under the influence of an intoxicant (DUI) while impaired to the slightest degree, driving with an alcohol concentration of .08 or more, driving while under the extreme influence of intoxicating liquor with an alcohol concentration of .15 or more , and leaving
the scene after causing an accident resulting in death or serious physical injury

. The jury acquitted her of leaving the scene of an accident , found her guilty of the remaining charges , and found the manslaughter and aggravated assault charges were dangerous

nature offenses

. A fter an aggravation and mitigation hearing, the trial court sentenced Rumsey to concurrent, enhanced, partially aggravated terms of fourteen and thirteen years for manslaughter and aggravated assault respectively and to 180 days in jail for the
DUI offenses. This timely appeal followed.
Discussion ¶4 Rumsey argues t he trial court erred in not suppressing the results of he r blood tests despite finding Detective Barrett had violated her right to counsel before officers completed the first blood draw

. Specifically, she contends this violation required suppression of th e blood test results under Arizona law. Whether evidence should have
been excluded as the result of a deprivation of counsel is “a mixed question of fact and law implicating constitutional questions. As such [the court‟s determination] is reviewed
de nov o .” State v. Hackman , 189 Ariz. 505, 508, 943 P.2d 865, 868 (App. 1997) . And

we will affirm the trial court if it is correct for any reason. State v. Ca ñez , 202 Ariz. 133 , ¶ 51, 42 P.3d 564, 582 (2002)

. ¶5 While at the accident scene, Rumsey spoke with her attorney by telephone for approximately six minutes and then informed an officer that the attorney would arrive4

in about fifteen minutes

. W hen he had not arrived within twenty m inutes , Rumsey was taken to the police substation at 8:35 p.m

. The attorney arrived at the accident scene approximately fifteen minutes later and agreed to follow Detective Barrett to the substation. En route, Barrett noticed the attorney had turned the opposite direction when
Barrett had made a left t urn. Barrett continued on to the substation and was notified at 9:27 p.m. that the attorney had arrived. ¶6 Meanwhile, around 9:10, Rumsey had consented to a blood draw

. B efore conducting the draw, Barrett decided to obtain a warrant for three separate blood draws, spaced one hour apart. The search warrant was issued at 9:26 p.m. , served on Rumsey at 9:28, and the first blood draw occurred at 9:31 , four minutes after Barrett had been informed that Rumsey‟s lawyer had arrived at the substation

. Rumsey then consulted with counsel before the two subsequent blood draws.
A. Violation of right to counsel ¶7 Before trial, Rumsey moved to suppress statements she had made during
the initial blood draw and the results of all three blood tests , arguing they had been “obtained in violation of her right to counsel.” The trial court found :

The real interference with the right to counsel arises when Barrett tells Rumsey, at about 9:10 p.m., you can “talk to [counsel] after the fir st blood draw[.]” . . . That statement is made twenty minutes before the first blood draw and before Barrett had even attempted the search warrant call to the Judge. . . . And, Barrett testified that he knew [the attorney] was there at 9:27 p.m. Notwith standing Barrett‟s wish to conclude the search warrant call and blood draw, there is no reason [the attorney] could not have been given a minute or two with Rumsey prior to the blood draw. The urgency of the5 timing of the blood draw is lessened when one c onsiders that Rumsey consented to give blood at 9:10 p.m.

. . . .

. . . It is the State‟s duty to prove that the exercise [of the right to counsel] would unduly interfere with the investigation. The State did not. ¶8 Rule 6.1, Ariz. R. Crim. P ., provides that a suspect is entitled to the advice of counsel “as soon as feasible after [he or she] is taken into custody.” “[I]t is only when the exercise of that right will hinder an ongoing investigation that the right to an attorney must give way i n time and place to the investigation by the police.” Kunzler v. Superior
Court , 154 Ariz. 568, 569, 744 P.2d 669, 670 (1987) . It is the state‟s burden to demonstrate that allowing the suspect to consult with counsel when requested would have disrupted t he police investigation. State v. Juarez , 161 Ariz. 76, 81, 775 P.2d 1140, 1145 (1989)

. ¶9 In DUI

- related investigations g enerally , “[i]nforming the driver that he may not call his attorney before taking [a blood or breath] test misstates the law and violate s the driver‟s right to counsel.” Id

. However, that is not what happened in this case.
U nder the circumstances here, w e dis agree with the trial court that Barrett‟s statement to Rumsey at 9:10 p.m. deprived her of the right to counsel. As noted above, b efore the statement was made, officers already had honored Rumsey‟s request to speak with
counsel at the accident scene

. She was provided a cellular telephone and spoke with
counsel for six minutes. After the attorney arrived at the accident scene , Barrett in vited
him to follow Barrett to the police substation. T he attorney stated he would do so but6

then did not. Consequently, neither Barrett nor any of the officers at the substation knew where he had gone and when , or even whether, he would arrive

. 2 Additionally, Rumsey consented to the blood draw after having already spoken with counsel at the accident

scene
. A nd , when Barrett first learned at 9:27 p.m. that the attorney had arrived at the substation, he had by then obtained a warrant for the blood draw

. ¶10 Although we disagree with the trial court‟s ruling that Barrett‟s statement at 9:10 amounted to a violation of Rumsey‟s right to counsel, we agree that she was denied that right after the attorney made his presence at the substation known. The state contends no violation occurred because it establish ed that allowing Rumsey to consult
with counsel after his arriv al at the substation would have hindered the investigation. 3 In support of this argument, it cites testimony by the investigating dete ctives that “ her blood

2 Rumsey contends the record does not support the trial court‟s factual determination that the police had not willfully ignored the attorney‟s presence at the substation while he attempted to gain entrance. However, the attorney testified that , after arriv ing at the substation , he was unable to get the attention of anyone inside the building yet did not dial a telephone number posted on the building to reach a police dispatcher until thirty to forty

- five minutes after he had arrived. And, Barrett testified that t he attorney had failed to follow him to the sub station and that he was unaware the attorney had finally arrived until receiving a call from a dispatch er at 9:27 . This evidence was more than sufficient to support the trial court‟s findings. See State v. H errera , 183 Ariz. 642, 648, 905 P.2d 1377, 1383 (App. 1995) (court‟s factual determinations reviewed for clear error).

3 The state also argues Rumsey‟s right to counsel was not violated because she had been permitted at the scene to speak with counsel “by telephone for approximately six minutes, enough time for him to give her legal advice.” However, we are aware of no authority, and the state has cited none, providing that an initial consultation with counsel is sufficient to cur e a subsequent denial of further consultation. The only limitation our courts have put on the exercise of the right to counsel is that it may not interfere with the police investigation. Kunzler , 154 Ariz. at 569, 744 P.2d at 670

.7

alcohol concentration [wa]s diminishing the longer [they] st[oo]d there, ” “time was of the essence,” and blood samples should be obta ined “as quickly as possible.” ¶11 However, the s e considerations apply in every DUI investigation in which
blood alcohol evidence is sought

. N othing in the officers‟ testimony or the state‟s argument to the trial court suggested there w ere any exigent circumstances here
necessitat ing taking Rumsey‟s blood immediately. Indeed, as the court noted, the argument that Rumsey‟s blood needed to be drawn “as quickly as possible” was
undermined to some extent by Barrett‟s decision to delay the blood draw in order to obtain a warrant, despite the fact that Rumsey already had consented to the test

. Barrett

tes tified at the suppression hearing that “[o]btaining the search warrant was [his] first priority. Obtaining her blood, within a reasonable amount of time, was [his] second priority.” Thus , we cannot say the court abused its discretion in concluding the st ate failed to meet its burden of establishing that its investigation would have been hindered by allowing Rumsey to consult with counsel before the blood draw.
B. Remedy for violation of counsel ¶12 W e next must address the appropriate remedy for the violation of Rumsey‟s right to counsel

. She argues that , under Arizona law, the automatic remedy for a violation of the right to counsel in DUI cases is dismissal of DUI charges and suppression
of the blood test results and any additional evidenc e obtained after the violation pertaining to all other charges. Thus, she asserts, the trial court erred in suppressing only
statements she had made “at and about the time of the first blood draw.” The state

counters that suppression of the blood evidenc e was not required because the blood draw8

was conducted pursuant to a search warrant and there was no violation of Rumsey‟s due process right to collect exculpatory evidence. It asserts that Rumsey “asked for and
receive d an independent [blood] test.” ¶13 Gen erally, “[t]he exclusionary rule requires the suppression at trial of evidence gained directly or indirectly as a result of a government violation” of the
def endant‟s constitutional rights. Hackman , 189 Ariz. at 508, 943 P.2d at 868

. However,
evidence ne ed not be suppressed when “the connection between the lawless conduct of the police and the discovery of the challenged evidence has „become so attenuated as to dissipate the taint.‟” Wong Sun v. United States , 371 U.S. 471, 487 (1963) , quoting Nardone v. United States , 308 U.S. 338, 341 (1939) ; State v. Rosengren , 199 Ariz. 112, ¶ 22, 14 P.3d 303, 310 (App. 2000) (suppression required only when “causal connection exists between a constitutional violation and the government ‟s obtaining of [the] evidence”); see also State v. Moody , 208 Ariz. 424, n.6, 94 P.3d 1119, 1141 n. 6 (2004) (applying federal exclusionary

- rule principles to violation of Rule 6.1 right to counsel)

. ¶14 A lthough Arizona courts have found “the exclusionary rule . . . as a matter
of state law [to be] no broader than the federal rule, ” State v. Bolt , 142 Ariz. 260, 269, 689 P.2d 519, 528 (1984) , in the context of DUI cases, we have endeavored to “assiduously protect[] th e right to counsel ” by liberally applying “stringent remedies, ranging from suppression of any evidence obtained after [ a ] violation [of the right to counsel] to outright dismissal of the action,” Rosengren , 199 Ariz. 112, ¶ 27, 14 P.3d at
312

. Without citation o f authority, Rumsey asserts “the Arizona Supreme Court has
stated th at because it is impossible to say what advice may have been given ” to a9

defendant had the right to counsel been respected, “ the [DUI] counts should . . . have
be en dismissed.” And, she maintains, because the “Arizona Supreme [C]ourt requires
that the DUI counts be dismissed when the right to counsel is violated, the logical conclusion is that the evidence is not admissible for any purpose” and should have been suppressed as to the manslaughter and aggravated assault charges as well

. ¶15 O ur case law provides that

only when police conduct interferes with both the defendant‟s right to counsel and his ability to obtain exculpatory evidence is “ [d]ismissal of the case with prejudice . . . the appropriate remedy because the state‟s action foreclosed a fair trial by preventing [the defendant] from collecting exculpatory evidence no longer available. ” Correspondingly, when the interference with the defendant‟s right to counsel does not impinge upon his ability to collect exculpatory evidence, the appropriate remedy i s suppression. State v. Keyonnie , 181 Ariz. 485, 487, 892 P.2d 205, 207 (App. 1995 ), quoting McNutt v. Superior Court , 133 Ariz. 7, 10, 648 P.2d 122, 125 (1982) ; see State v. Holland , 147 Ariz. 453, 456, 711 P.2d 592 , 595 (1985) (dismissal); Juarez , 161 Ariz. at 81, 775 P.2d at 1145 (suppression); Kunzler , 154 Ariz

. at 570, 744 P.2d at 671 (suppression) . Thus, because Rumsey has not asserted the violation of her right to counsel here deprived her of any exculpatory evidence such that a fair trial was impossible, the trial court correctly
concluded that dismissal of the DUI charges was not an appropriate remedy. 4 McNutt , 133 Ariz. at 10, 648 P.2d at 125 ; Rosengren , 1 9 9 Ariz. 112, ¶ 19, 14 P.3d at 309

.

4 In her reply brief, Rumsey notes there was a five

- hour delay between the time of the accident and the time she received her independent blood test, and “[t]here was therefore no evidence that the independent blood draw was obtained before the evidence had vanished.” To the extent Rumsey is arguing the delay in obtaining an independent10

¶16 On the other hand, i n every DUI case in which our courts have considered the remedy for a violation of the righ t to counsel , even whe n t here has been no denial of the defendant‟s due process right to a fair trial, the results of any breath

- or blood

- alcohol testing have been suppressed as a consequence for the violation. Juarez , 161 Ariz. at 81,
775 P.2d at 1145 ; Kunzler , 154 Ariz. at 5 70 , 744 P.2d at 671 ; Rosengren , 1 9 9 Ariz. 112, ¶ 19, 14 P.3d at 309 ; Keyonnie , 181 Ariz. at 487, 892 P.2d at 207

. Rums e y maintains that
the trial court should have done so here. But none of those prior cases compel the conclusion that every violation of the right to counsel in the DUI context automatically necessitates suppression of the test results; the general exclusionary rule survives

— suppression is not required unless a nexus exists between the violat ion and the e vidence
obtained. See Herring v. U nited S tates , ___ U.S. ___,
___, 129 S. Ct. 695, 700 (2009) (“We have repeatedly rejected the argument that exclusion is a necessary consequence of

a
. . . violation [of a constitutional right] . Instead we have focused on the efficacy of the rule in deterring . . . violations in the future.”) (citations omitted). ¶17 In each of the cases cited above , the defendant h ad requested and was denied the opportunity to speak with counsel before deciding whether to give a breath or
b lood sample voluntarily pursuant to Arizona‟s implied consent law, A.R.S. § 28

- 1321

. Under § 28

- 1321(A) , any

blood draw deprived her of the right to collect exculpatory evidence, she has raised this contention for the first time in the reply brief and has failed to provide any relev ant argument or citation to authority. The argument therefore is waived. See Ariz. R. Crim. P. 31.13(c)(1)(vi) ; State v. Guytan , 192 Ariz. 514, ¶ 15, 968 P.2d 587, 593 (App. 1998) (arguments first raised in reply brief waived); State v. Felkins , 156 Ariz. 37, 38 n.1, 749 P.2d 946, 947 n.1 (App. 1988) (claim waived when supported by inadequate argument).11 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 . . . 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 unde r the influence of intoxicating liquor. And, upon arrest , the “violat o r shall be requested to submit to and successfully complete any test or tests prescribed by subsection A.” § 28

- 1321(B) . Failure to expressly consent to or successfully complete a req uested test is deemed a refusal and automatically results in suspension of the person‟s driver‟s license for a minimum of twelve months. Id

. And

e vidence of the defendant‟s refusal to take a test is admissible at trial “to show that the
defendant was con scious of his guilt.” State v. Vannoy , 177 Ariz. 206, 211, 866 P.2d 874, 879 (App. 1993)

. ¶18 Because a suspect must be arrested before the implied consent provisions are triggered, there is no dispute that he or she is enti tled to counsel upon request

. See
Ariz. R. Crim. P. 6.1 ; Kunzler , 154 Ariz. at 570, 744 P.2d at 671

. And, when a defendant is deprived of counsel at this point in the investigation, the defendant lacks counsel‟s
advice about whether to submit to a breath or blood sample. See Mack v. Cruikshank , 196 Ariz. 541, ¶ 11, 2 P.3d 100, 104 (App. 1999) (“Although a DUI suspect does not have a „right‟ to refuse to submit to a test, he or she does have the „physical power‟ to refuse.”). A sample th us obtained, whether pursuant to consent or a wa rrant, necessarily is tainted by the defendant‟ s inability to have consult ed counsel before making that
decision

. U nder those circumstances, a nexus exists between the violation and the12

evidence collected. Because under the most common scenarios such a n exus exists , our

c ourt s have concluded that suppressin g the test results is generally required. See Juarez , 161 Ariz. at 81, 775 P.2d at 1145 ; Rosengren , 1 9 9 Ariz. 112, ¶ 19, 14 P.3d at 309 ; Keyonnie , 181 Ariz. at 487, 892 P.2d at 207

. B ut see Rosengren , 199 Ariz. 112, ¶ 24, 14
P.3d at 311 (when defendant refused to consent to blood test after denial of right to counsel, sample obtained pursuant to warrant not subject to suppression under federal exclusionary rule). ¶19 This court‟s reasoning in Rosengren provides a helpful comparison assessing the application of the exclusionary rule in this case. There, after being arrested for DUI, the defendant asked several times to speak with counsel ; when officers denied
his requests , the defendant refused to consen t to a blood draw. 1 9 9 Ariz. 112, ¶¶ 4

- 5, 14
P.3d at 306

. O fficers then obtained and executed a telephonic search warrant for his
blood. Id . ¶ 6. Rosengren later moved for dismissal of all charges based on the violation of his right to counsel. Id

. ¶ 7. The trial court denied the motion to dismiss but suppressed the blood

- test results and additional evidence obtained after his request for
counsel had been denied , and this court affirmed on appeal. Id. ¶20 In affirming the lower court‟s ruling, we conclud ed that the search warrant
could not remedy the deprivation of counsel. Id . ¶ 30 (rejecting out

- of

- state case hol ding alcohol test results admissible despite violation of right to counsel on theory of inevitable discovery). We noted that “had Rosengren succumbed to the police pressure by voluntarily giving a blood sample after the officers violated his right to counsel, evidence of the blood test would have been suppressed

. ” W e therefore found it “incongruous to13

allow the state to i ntroduce the . . . test result when Rosengren resisted the officers ‟ tactics, refused to waive his rights, and ultimately had blood extracted pursuant to the
warrant.” Id. Thus, i n Rosengren , we declined to f ind the warrant valid when the officers had “s ought [it] to prevent the defendant from exercising his right to

. . . counsel,” and, in doing so, had “subverted” his constitutional right to speak with an attorney. Moody , 208 Ariz. 424, n.8, 94 P.3d at 1142 n.8

. ¶21 Here, i n contrast, before Rumsey‟s right to counsel had been violated , officers already had permitted her to speak with an attorney . T he y had accommodated her request at the accident scene by providing her a cellphone and wait ing for twenty minutes for the attorney to arriv e before tak ing Rumsey to the substation

. A nd, notwithstanding Rumsey‟s eventual consent to the blood draw after her initial
consul ta t ion with counsel , Barrett nevertheless obtained the search warrant for the draw

. U nlike Rosengren , in which the basis for the warrant was Rosengren‟s refusal to consent
without the advice of counsel, the basis for obtaining the warrant here was not related in any way to the subsequent violation of Rumsey‟s right to counsel

. N or can we say the

warrant w as obtained in an attempt to thwart Rumsey‟ s invocation of that right , as she already had been permitted to exercise it

. As the Supreme Court stated in Herring ,

___U.S. at

___, 129 S. Ct. at 70 2 :

To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent c onduct, or in some circumstances recurring14 or systemic negligence. The error in this case does not rise to that level. ¶22 In short , there was no nexus between the deprivation of Rumsey‟s right to
counsel and the lawfully obtained blood evidence Rumsey soug ht to suppress. The trial court did not err in denying her motion to suppress the blood evidence and in precluding only that evidence tainted by the violation

— the statements Rumsey had made during the
blood draw without the benefit of counsel

. Disposition ¶23 Although we conclude Rumsey‟s right to counsel was violated at the time her blood was drawn, for the reasons set forth above, the trial court did not err in denying Rumsey‟s motion to suppress the results of the blood tests.

/s/ 

# Garye L. Vásquez GARYE L. VÁSQUEZ, Presiding Judge
CONCURRING:

/s/ 

# Peter J. Eckerstrom PETER J. ECKERSTROM, Judge

/s/ 

# Philip G. Espinosa PHILIP G. ESPINOSA, Judge