IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

FRANCISCO L. ENCINAS VALENZUELA,

Appellant.

No. 2 CA-CR 2014-0169

Filed May 26, 2015

Appeal from the Superior Court in Cochise County

No. CR201300076

The Honorable Karl D. Elledge, Judge

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Section Chief Counsel, Phoenix

By Diane Leigh Hunt, Assistant Attorney General, Tucson

Counsel for Appellee

The Law Office of Mark F. Willimann, LLC

By Mark F. Willimann, Tucson

Counsel for Appellant

Law Offices of Jeffrey D. Bartolino

By Jeffrey D. Bartolino, Tucson

Counsel for Amicus Curiae Arizona Attorneys for Criminal Justice
STATE v. VALENZUELA

Opinion of the Court

2

OPINION

Presiding Judge Miller authored the opinion of the Court, in which 

Judge Espinosa concurred and Chief Judge Eckerstrom dissented.

M I L L E R, Presiding Judge:

¶1 Francisco Valenzuela was convicted after a bench trial

of two counts of aggravated driving under the influence of alcohol 

(DUI) and sentenced to concurrent prison terms totaling 1.5 years. 

On appeal, he contends he was coerced into consenting to blood, 

breath, or urine tests by the language the arresting officer used to 

implement Arizona’s implied consent admonition. He also contends 

his consent to testing was involuntary based on the totality of the 

circumstances. For the following reasons, we affirm.

Factual and Procedural Background

¶2 We consider only the evidence introduced at the

hearing on the motion to suppress and view the facts in the light 

most favorable to sustaining the trial court’s ruling. State v. Butler, 

232 Ariz. 84, ¶ 8, 302 P.3d 609, 612 (2013). In August 2012, a 

Department of Public Safety (DPS) officer responded to a call about

an unconscious man behind the wheel of a vehicle on a state 

highway. The officer found Valenzuela asleep in a truck with the 

gear in drive, an open container of alcohol in the center console, and 

the odor of alcohol coming from the vehicle. After waking 

Valenzuela, the officer conducted several field sobriety tests and 

then arrested him for DUI.1 At the police station, the officer read 

Valenzuela an administrative implied consent affidavit (admin per 

se) form. According to the officer, he did not threaten Valenzuela or 

make any promises to obtain his consent for testing, and Valenzuela 

 

1At the suppression hearing, Valenzuela stipulated that the 

results of the field sobriety tests provided the officer with reasonable 

suspicion of DUI.
STATE v. VALENZUELA

Opinion of the Court

3

understood the questions asked and agreed to provide breath and 

blood samples. Valenzuela’s results on the breath tests were .223 

and .241. 2 Valenzuela also provided a blood sample. He was 

subsequently charged with five counts of aggravated DUI.

¶3 The trial court denied Valenzuela’s motion to suppress 

the results of the chemical testing upon the conclusion of the 

hearing. In its oral ruling, the court rejected the argument that a 

warrantless search following consent was “per se unreasonable”; 

further, it found that Valenzuela’s consent was “unequivocal” as a 

matter of fact and “not . . . involuntary” under a Fourth Amendment 

totality-of-the-circumstances analysis. Soon after the suppression 

hearing, Valenzuela waived his right to a jury trial and proceeded 

based on stipulated facts. The court found him guilty on all five 

counts, but dismissed three counts at sentencing because they were 

lesser-included offenses. He was sentenced as described above, and 

this appeal followed. This court granted a motion for Arizona 

Attorneys for Criminal Justice to file an amicus brief in support of 

Valenzuela’s appeal.

Discussion

¶4 Valenzuela argues the trial court erred when it 

concluded he freely and voluntarily consented to the breath test and

blood draw. We review a court’s ruling on a motion to suppress for 

an abuse of discretion, but we review the court’s legal conclusions 

de novo. State v. Peterson, 228 Ariz. 405, ¶ 6, 267 P.3d 1197, 1199-

1200 (App. 2011).

¶5 Arizona’s implied consent statute provides in relevant 

part that the driver of a motor vehicle “gives consent . . . [for tests] of 

the person’s blood, breath, urine or other bodily substance for the 

purpose of determining alcohol concentration” if the person is 

 

2Valenzuela stipulated that these were the results of his tests 

and that the tests were conducted properly. The trial court’s 

sentencing minute entry contains a clerical error in reporting the 

results of one of the tests; we correct that error by this decision. See

Ariz. R. Crim. P. 31.17(b).
STATE v. VALENZUELA

Opinion of the Court

4

arrested by a law enforcement officer who has reasonable grounds 

to believe the person was in actual physical control of a motor 

vehicle while under the influence of liquor. A.R.S. § 28-1321(A).

3 If 

a driver refuses any test, he “shall be informed” that the license will 

be suspended, “unless [he] expressly agrees to submit to and 

successfully completes” the tests. § 28-1321(B). The statute does not 

specify any particular language or a form to implement the 

admonition. Despite the suggestion that consent is given at the time 

of licensure, if the driver refuses to submit, § 28-1321(D)(1) prohibits 

the officer from giving a test unless he obtains a search warrant or 

another exception applies.

¶6 Before the test results can be used in a criminal 

proceeding, a blood draw administered pursuant to Arizona’s 

implied consent statute must comply with the Fourth Amendment’s 

restrictions on warrantless searches. Butler, 232 Ariz. 84, ¶ 10, 302 

P.3d at 612; cf. Campbell v. Superior Court, 106 Ariz. 542, 550, 479 P.2d 

685, 693 (1971) (license suspension proceedings civil in nature). 

Generally, warrantless searches “‘are per se unreasonable under the 

Fourth Amendment—subject only to a few specifically established 

and well-delineated exceptions.’” Arizona v. Gant, 556 U.S. 332, 338 

(2009), quoting Katz v. United States, 389 U.S. 347, 357 (1967). One 

such exception is voluntary consent. Butler, 232 Ariz. 84, ¶ 13, 302 

P.3d at 612.

¶7 Valenzuela challenges his consent based on portions of 

what the arresting officer told him, as well as a general contention 

that any time an arresting officer provides a § 28-1321

admonishment, any subsequent consent is the result of coercion. We 

begin with the suppression hearing record, which is limited.

¶8 The arresting officer testified that he read Valenzuela 

“the admin per se” from a written form he had been using for more 

than ten years. Although the officer was cross-examined about the 

 

3We cite the current version of the statute, which has not 

changed in material part since Valenzuela committed his offenses. 

See 2013 Ariz. Sess. Laws, ch. 128, § 1.
STATE v. VALENZUELA

Opinion of the Court

5

form, it never was offered into evidence. 4 Amicus curiae asserts 

that “[t]he admonition which was read to Mr. Valenzuela is identical 

to the admonition read to DUI arrestees throughout the state.” It 

relies, however, on the officer’s testimony about how he uses the 

form. Amicus curiae also provides one page of a sample form which 

it contends is used generally by law enforcement. It provides no 

citation to statutory or administrative regulations about the source 

or authority of the attached document, nor sufficient background for 

any court to take judicial notice of it. Amicus curiae does not 

explain why the form is dated 2014, which is two years after 

Valenzuela’s arrest. Finally, the proffered form referred to “reasons 

stated on the front of this form,” but does not provide that page.

¶9 At oral argument, Valenzuela and amicus curiae also 

sought to rely on the stipulated facts filed in advance of trial. 

Although the stipulation provides what appears to be additional 

language from the admonition, the motion to suppress was argued 

and decided before the stipulated facts were submitted to the trial 

court. Moreover, counsel for the state conceded that it was not 

known whether the officer was consulted about the stipulated facts.5 

Finally, the parties disagreed whether Valenzuela checked the box 

indicating he would submit to the test. Because the stipulated facts

were not before the court at the motion to suppress and the parties 

assert different factual assumptions attendant to those facts, we do 

not consider them on review.6 See Butler, 232 Ariz. 84, ¶ 8, 302 P.3d

 

4At oral argument, Valenzuela asserted the full admonition 

was in the record, but eventually conceded it had not been admitted 

as an exhibit.

5The officer did not testify at the bench trial because the 

parties apparently agreed to proceed using only their stipulated 

facts.

6Almost two weeks after oral argument, Valenzuela moved to 

expand the record with the admin per se form he obtained from the 

Motor Vehicle Division. There was no suggestion that the trial court 

was provided this form or relied upon it to assess the totality of the 

circumstances. We declined the invitation to introduce the exhibit in 

this court and then speculate about the impact it could have had on 
STATE v. VALENZUELA

Opinion of the Court

6

at 612; see also State v. Herrera, 232 Ariz. 536, ¶ 24, 307 P.3d 103, 113 

(App. 2013) (noting limitation on review of pre-trial motion to 

suppress is consistent with general rule that appellate court’s review 

is limited to record before trial court).

¶10 In summary, the record on the motion to suppress is 

devoid of evidence and legal authority to evaluate Valenzuela’s 

arguments about “the admin per se form” in his case or generally, as 

well as how police officers provide § 28-1321 admonitions. 

Accordingly, consideration of the parties’ arguments must be based 

on and limited to the officer’s testimony at the suppression hearing. 

Most important, to the extent that Valenzuela’s principal argument 

begins and ends with the first sentence of what he contends are the 

admonition’s fatally irrevocable words, the form itself is 

unnecessary to our consideration of his arguments.

¶11 Valenzuela focuses on the officer’s statement to him 

that “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.” Valenzuela relies on Bumper v. North Carolina, 391 

U.S. 543, 548-49 (1968), for the proposition that the six-word phrase 

“Arizona law requires you to submit” renders any consent 

involuntary because it was secured under the claim of lawful 

authority.

¶12 In Bumper, the state argued a home search was 

consensual, but the person who gave consent stated at the hearing 

 

the trial court. C.f. Ariz. R. Evid. 201. Parties bear the responsibility 

of making and preserving the appellate record. See State v. Dixon, 

226 Ariz. 545, ¶ 44, 250 P.3d 1174, 1183 (2011) (party did not 

preserve objection where document not marked for identification 

despite discussion with witness about contents). Record expansion 

in the appellate court is rare absent unusual need or extraordinary 

circumstances, which do not exist in this case. See, e.g., State v. Mott,

162 Ariz. 452, 456-57, 458 & n.2, 784 P.2d 278, 282-83, 284 & n.2 (App. 

1989) (court considered psychiatric records from different case that 

trial court relied on for its ruling).
STATE v. VALENZUELA

Opinion of the Court

7

that one of the officers “walked up and said, ‘I have a search warrant 

to search your house,’” before she let them in. Id. at 546. There was 

no evidence in the record that the officer had a search warrant.7 Id.

at 549-50. The Supreme Court concluded that a prosecutor cannot 

prove consent was voluntary by “showing no more than 

acquiescence to a claim of lawful authority.” Id. at 548-49. The 

Court held that an officer who says he has a warrant “announces in 

effect that the occupant has no right to resist the search.” Id. at 550.

¶13 Drivers in Arizona, however, may refuse a warrantless

search. Section 28-1321(B) explicitly acknowledges and supports a 

driver’s right to refuse tests, albeit with civil penalties of increasing 

severity. The officer testified he notifies a driver that he has a choice 

whether to submit to the test. Additionally, if the driver refuses the 

test the officer informs the person that the officer will apply for a 

warrant to compel testing. Unlike in Bumper, Valenzuela was 

informed by the statute and the officer’s admonition that he had a 

choice, not that the officer intended to search him regardless of his 

answer or whether the officer had a warrant.

8 See People v. Harris, 

 

7Although the court noted the state’s assertion at argument 

“that the searching officers did, in fact, have a warrant,” it never was 

returned and, therefore, could not be evaluated or considered. Id. at 

550 n.15.

8Several cases cited by amicus curiae are distinguishable for 

the same reason—they involve law enforcement officers who 

implied or stated that a person had no choice but to consent to a 

search or that no warrant was necessary. See Amos v. United States, 

255 U.S. 313, 315 (1921); Orhorhaghe v. I.N.S., 38 F.3d 488, 500 (9th 

Cir. 1994); United States v. Johnson, 994 F.2d 740, 742, 743 (10th Cir. 

1993); State v. Casal, 410 So. 2d 152, 155-56 (Fla. 1982); Commonwealth 

v. Krisco Corp., 653 N.E.2d 579, 582, 584-85 (Mass. 1995). Valenzuela 

also relies on State v. Kananen, 97 Ariz. 233, 238, 399 P.2d 426, 429 

(1965), for his argument. In Kananen, our supreme court implied 

that the defendant’s having been handcuffed and under arrest when 

he accompanied an officer to search a motel room resulted in 

coercion or duress, but ultimately determined the defendant never 

provided an unequivocal consent to the search. Id. at 237, 399 P.2d 
STATE v. VALENZUELA

Opinion of the Court

8

184 Cal. Rptr. 3d 198, 210-12 (Ct. App. 2015) (distinguishing Bumper 

from state implied consent admonition); State v. Brooks, 838 N.W.2d 

563, 571 (Minn. 2013) (same); McCoy v. N.D. Dept. of Transp., 848 

N.W.2d 659, ¶¶ 17, 20-24 (N.D. 2014) (same).

¶14 Further, in another context, the United States Supreme 

Court has considered whether a state’s attachment of consequences 

to refusing to submit to alcohol testing is coercive. In South Dakota v. 

Neville, 459 U.S. 553, 564 (1983), the Court held that a driver is not 

coerced into testifying against himself in violation of his Fifth 

Amendment rights when the state uses his refusal against him at 

trial. The Court concluded that the driver was given the choice 

between submitting and refusing, and although it was “not . . . an 

easy or pleasant [choice] for a suspect to make,” it was “not an act 

coerced by the officer.” Id. Similarly here, the choice between two 

civil penalties does not result in coerced consent. See Harris, 184 Cal. 

Rptr. 3d at 211-13; Brooks, 838 N.W.2d at 570; McCoy, 848 N.W.2d 

659, ¶ 21.

9

 

at 428-29. There is no argument here that Valenzuela’s consent was 

equivocal.

9 Amicus curiae cites several cases in which consent was 

deemed involuntary because it was given after a claim of lawful 

authority. In each of those cases, however, it was the officer’s 

misstatement of the law, rather than the correct use of the state’s 

implied consent statute, that resulted in coercion. See Cooper v. State, 

587 S.E.2d 605, 612 (Ga. 2003) (consent invalid where driver not 

suspected of violating DUI law, rendering implied consent law 

inapplicable; choice of consenting to chemical test or losing license 

not legally authorized); Hannoy v. State, 789 N.E.2d 977, 988 (Ind. Ct. 

App. 2003) (deputy never discussed implied consent law, stating 

instead, “‘[I]t is my duty to check your blood for blood alcohol’”), 

aff’d on reh’g, 793 N.E.2d 1109 (Ind. Ct. App. 2003); State v. Edgar, 294 

P.3d 251, 255, 262 (Kan. 2013) (officer’s misstatement that driver 

“d[id] not have a right to refuse” breath test resulted in involuntary 

consent).
STATE v. VALENZUELA

Opinion of the Court

9

¶15 The choice is analogous to a party’s decision whether to 

invoke the Fifth Amendment in a civil case if the answers could 

expose the person to criminal liability. The person may invoke the 

privilege against self-incrimination, State v. Ott, 167 Ariz. 420, 425, 

808 P.2d 305, 310 (App. 1990), or may choose to testify to increase 

the likelihood of a favorable civil judgment. But even if a witness is 

not instructed on his Fifth Amendment rights during the civil 

litigation, his testimony is admissible in a later criminal trial, absent 

additional findings of coercion or duress. State v. Tudgay, 128 Ariz. 

1, 4-5, 623 P.2d 360, 363-64 (1981).

¶16 Valenzuela also contends he should have been asked 

whether he consented to testing before being warned about civil 

penalties. We find persuasive the reasoning of the Oregon Supreme 

Court in State v. Moore, 318 P.3d 1133, 1138 (Or. 2013), when it 

confronted a similar argument:

[I]t is difficult to see why the disclosure of 

accurate information about a particular 

penalty that may be imposed—if it is 

permissible for the state to impose that 

penalty—could be unconstitutionally 

coercive. Rather, advising a defendant of 

the lawful consequences that may flow 

from his or her decision to engage in a 

certain behavior ensures that that 

defendant makes an informed choice 

whether to engage in that behavior or not. 

Indeed, the failure to disclose accurate 

information regarding the potential legal 

consequences of certain behavior would 

seem to be a more logical basis for a 

defendant to assert that his or her decision 

to engage in that behavior was coerced and 

involuntary.

Id. Courts in North Dakota and California also have adopted this 

reasoning. Harris, 184 Cal. Rptr. 3d at 212; McCoy, 848 N.W.2d 659, 

¶¶ 18, 21. We agree it is more beneficial to provide full information 

before requesting consent. Moreover, persons contesting 
STATE v. VALENZUELA

Opinion of the Court

10

administrative suspension of their driver’s licenses would argue

they would not have declined the test had they been told beforehand 

that their decisions could result in the loss of their driving 

privileges.

¶17 Valenzuela also argues that two recent cases, Missouri v. 

McNeely, ___ U.S. ___, ___, 133 S. Ct. 1552, 1556 (2013), and Butler, 

232 Ariz. 84, ¶ 10, 302 P.3d at 612, equate “implied consent” with a 

“compelled blood draw,” thereby negating the voluntary nature of 

any consent to a test that followed the admonishment. But these

decisions cannot be stretched so far. McNeely was limited to the 

question of whether the potential dissipation of alcohol in a 

defendant’s blood over time constitutes a per se exception to the 

Fourth Amendment warrant requirement. ___ U.S. at ___, 133 S. Ct. 

at 1556. In concluding that it does not, the Court reaffirmed its 

holding in Schmerber v. California, 384 U.S. 757, 770 (1966), that a 

warrant generally is required to draw a DUI suspect’s blood. 

McNeely, ___ U.S. at ___, 133 S. Ct. at 1558. There was no argument 

that actual consent given at the time of the blood draw would be 

invalid or involuntary based on an implied consent warning. 

Further, a plurality of the Court noted that all fifty states have 

implied consent laws that impose penalties on drivers who refuse to 

submit to a blood alcohol test, characterizing these laws as “legal 

tools” designed to help states enforce drunk-driving laws without 

resorting to warrantless nonconsensual blood draws. Id. at ___, 133 

S. Ct. at 1566.

¶18 Regarding Butler, Valenzuela is correct that the court 

concluded, “[A] compelled blood draw, even when administered 

pursuant to [the implied consent statute], is a search subject to the 

Fourth Amendment’s constraints.” 232 Ariz. 84, ¶ 10, 302 P.3d at

612. But Valenzuela is mistaken that the court concluded all blood 

draws pursuant to the implied consent statute were “compelled.” 

Rather, in Butler, the state had argued actual consent was not 

required at the time of the blood draw because the driver already

had given consent by driving and subjecting himself to the terms of 

the statute. Id. ¶ 9. The court concluded the Fourth Amendment 

applied to a blood draw despite the statute, requiring voluntary 

consent before blood is drawn. Id. ¶ 10. Indeed, the court then 
STATE v. VALENZUELA

Opinion of the Court

11

proceeded to analyze whether the driver’s consent was voluntary

under the totality of the circumstances. Id. ¶¶ 18-21. The court did 

not hold, as Valenzuela argues, that one could never voluntarily 

consent to a blood draw after being informed of the statute’s 

provisions. See id.

¶19 Valenzuela also appears to argue his actual consent was

involuntary due to all of the surrounding circumstances. He

specifically contends the trial court failed to consider all

voluntariness factors listed in United States v. Jones, 286 F.3d 1146, 

1152 (9th Cir. 2002).

¶20 Our dissenting colleague enlarges Valenzuela’s 

contention with the assertion of a “categorical rule” that “reasonable 

persons do not—and should not—believe themselves free to decline 

an officer’s demand that they follow the requirements of law.” He 

reasons this rule forecloses the totality of the circumstances analysis, 

relying on Bumper, 391 U.S. at 550. We disagree, both under Arizona 

law and the recent, well-reasoned decisions from other states 

employing virtually identical admonition language.

¶21 To the extent we addressed Valenzuela’s conceptually 

similar argument that the first six words spoken by the officer 

rendered any subsequent consent involuntary and coerced, we will 

not repeat the entire analysis here. Simply stated, Arizona statutory 

law gives notice to drivers that officers cannot perform the test if an 

arrested driver refuses to submit, except pursuant to a search 

warrant. § 28-1321(D)(1). Moreover, the officer asked Valenzuela if 

he consented, and the officer was prepared to explain that he would 

apply for a search warrant if Valenzuela refused to submit. 

Therefore, those six words do not assume an importance that dwarfs 

other laws and the full context of the admonition, as well as the 

actual facts. In this respect, Arizona is markedly similar to several 

other states that reviewed their admonition statutes post-McNeely.

¶22 Minnesota and North Dakota require law enforcement 

officers to advise drivers arrested for DUI that state law requires 

them to take a blood or alcohol test. Minn. Stat. § 169A.51 

(“Minnesota law requires the person to take a test“); N.D. Cent. 

Code § 39-20-01 (“North Dakota law requires the individual to take 
STATE v. VALENZUELA

Opinion of the Court

12

the test“). Both statutes were challenged on a variety of grounds 

after McNeely, including the allegedly coercive effect of the 

statement that the “law requires” the driver to take the test. In 

Brooks, 838 N.W.2d at 571, the Minnesota Supreme Court rejected the 

driver’s blanket validity argument, principally on the basis that the 

driver was informed he had a choice whether to submit and “the 

police are required to honor that refusal and not perform the test.” 

Although it is true the drivers also are informed that they can confer

with counsel, the fact of such consultation only pertains to whether 

there was coercion. Id. Moreover, advice of counsel may be 

particularly prudent in Minnesota because the refusal to submit to 

the test can result in criminal liability. Id. at 569.

¶23 North Dakota’s statute also guarantees a driver’s right 

to refuse testing. N.D. Cent. Code § 39-20-04. The North Dakota 

Supreme Court found that the choice embodied within that statute 

defeated the driver’s argument that he was coerced. State v. Smith, 

849 N.W.2d 599, 606 (2014). The special concurrence simplified the 

reasoning to a single sentence: “While the voluntariness of consent 

is decided from the totality of the circumstances, submitting to a 

blood alcohol test is not rendered involuntary merely by an officer 

fairly giving the implied consent advisory including the criminal 

penalty for refusing to take the test.” Id. at 606-07.

¶24 Even when statutes do not require a law enforcement 

officer to inform a driver about what the law ‘requires,’ it is not a per 

se violation of the Fourth Amendment if the officer phrases the 

admonition as a requirement. In Harris, 184 Cal. Rptr. 3d at 204, 210-

12, the arresting deputy told the driver that refusal to submit to 

testing would result in license suspension, it could be used against 

him in court, and he was required to submit to the test. The court 

declined Harris’s invitation to view the deputy’s “requirement”

statement as the only factor to consider in the totality analysis. Id. at 

215. Instead, it recognized the trial court is vested with the power to 

judge credibility of the witnesses, resolve conflicts in facts, and to 

draw the inferences as to whether consent was voluntary. Id. at 214.

¶25 Construing a legally-accurate six-word phrase as a 

constitutional barrier that nullifies the totality of the circumstances 

analysis finds no support in McNeely. For instance, Chief Justice 
STATE v. VALENZUELA

Opinion of the Court

13

Roberts proposed giving guidance to officers on whether to apply 

for a search warrant: if there is time to secure a warrant before the 

alcohol dissipates, then it must be done. ___ U.S. at ___, 133 S. Ct. at

1574. The Court characterized his suggestion as a “categorical,” 

“modified per se rule.” Id. ___, 133 S. Ct. at 1563. In stating its 

preference for a traditional totality of the circumstances analysis,

10

the Court observed that a bright line may distort police practices 

and, implicitly, does not take into account the wide variety of 

circumstances in this regular police-driver interaction. Id. at ___, 133 

S. Ct. at 1563-64. There is little reason to believe the Supreme Court 

would apply the conclusion in Bumper to abandon the totality-ofthe-circumstances analysis it recently re-affirmed in McNeely.

¶26 We also examine McNeely and Butler to determine 

whether the respective courts intended their decisions to change law 

enforcement procedures that had been in place for many decades. If

the logical extension of a holding would be to preclude the great 

majority of DUI blood tests for a significant period of time, it is 

reasonable to expect those courts to signal anticipation of such a 

change. Compare, e.g., Escobedo v. Illinois, 378 U.S. 478, 488 (1964)

(frequency of pre-indictment confessions “points up its critical 

nature” as stage when legal advice “surely needed”), with Miranda v. 

Arizona, 384 U.S. 436, 504 (1966) (Harlan, J., dissenting) (decision 

establishes new constitutional rules for confessions).

¶27 In McNeely, the court granted certiorari to resolve a split 

in authority among the states. ___ U.S. at ___, 133 S. Ct. at 1558. It 

rejected the per se exigency rule adopted by several states in favor of 

the case-by-case analysis it established in Schmerber forty-seven 

years earlier. Id. at ___, 133 S. Ct. at 1561. A plurality of the court

noted in its review of state laws that the holding essentially had 

been adopted by many of the states.11 Id. at ___, 133 S. Ct. at 1566. 

 

10We recognize that the totality-of-the-circumstances analysis 

in McNeely pertains to exigent circumstances rather than the absence 

of coercion, but the principle remains the same for either question.

11The Court included Arizona in the category of states that do 

not permit nonconsensual blood tests, instead requiring officers to 

obtain a search warrant. Id. at ___, 133 S. Ct. at 1566 nn.9 & 10. It is 
STATE v. VALENZUELA

Opinion of the Court

14

McNeely is more accurately read as an affirmance of state laws and 

police procedures that advanced with the times. Similarly, our 

supreme court in Butler accepted jurisdiction to reject the state’s 

argument that all drivers give “implied consent” and to affirm the 

totality of the circumstances analysis. 232 Ariz. 84, ¶¶ 10, 14, 18, 302 

P.3d at 612-13. There was no criticism of the admonition, which was 

given in two different versions, but presumably contained the same 

“requirement” language.12 Id. ¶ 4. The majority did not suggest the 

admonition was problematic. In fact, concurring Justice Pelander

stated he would have concluded consent was voluntary had review 

been de novo rather than abuse of discretion. Id. ¶ 31. Certainly, if 

an admonition in use for many decades constituted a per se 

violation of the constitution such that the remainder of the

interaction between officer and driver would not even be subject to a 

totality of the circumstances analysis, the issue would have been 

foreshadowed by one or both of the courts. The absence of any such 

indication also persuades us McNeely and Butler do not require the 

dissent’s categorical, per se rule. Therefore, we turn next to whether 

Valenzuela voluntarily consented to the test.

¶28 Voluntariness of consent is a question of fact 

determined by reviewing the totality of the circumstances. See 

Butler, 232 Ariz. 84, ¶ 13, 302 P.3d at 613, citing Schneckloth v. 

Bustamonte, 412 U.S. 218, 227 (1973). In Jones, the Ninth Circuit listed 

five factors to consider in determining voluntariness: “(1) whether 

the defendant was in custody; (2) whether the arresting officers had 

their guns drawn; (3) whether Miranda warnings were given; 

(4) whether the defendant was notified that [he] had a right not to 

consent; and (5) whether the defendant had been told a search 

warrant could be obtained.” 286 F.3d at 1152. The factors are 

“guideposts, not a mechanized formula to resolve the voluntariness 

 

significant, though not dispositive, that the Court did not criticize or 

question Arizona law, or any other state law, for an admonition that 

begins with the phrase that is the subject of this case.

12The officer read the admonition and then re-stated it “in 

‘plain English.’” Id. ¶ 4. The officer’s paraphrasing was not 

provided.
STATE v. VALENZUELA

Opinion of the Court

15

inquiry.” United States v. Patayan Soriano, 361 F.3d 494, 502 (9th Cir. 

2003).

¶29 In its oral ruling on Valenzuela’s motion, the trial court 

only expressly mentioned the fourth factor—whether he had been 

affirmatively notified he had a right to refuse the tests. Despite 

acknowledging the factor, the court did not make an explicit finding, 

ultimately determining consent was voluntary based on the totality 

of the circumstances. Valenzuela now contends the arresting 

officer’s failure to tell him he had a right to refuse is the most 

important factor and “alone should have been sufficient for the trial 

Court to suppress the evidence.” The Supreme Court in Schneckloth, 

however, rejected an argument that a Miranda-style warning 

informing the defendant of his right to refuse consent was necessary. 

412 U.S. at 246-48. The Court concluded knowledge of a right to 

refuse is not “an indispensable element of a valid consent” to a 

search. Id. at 246. Valenzuela provides no further support for his 

argument that the trial court improperly weighed the Jones factors, 

and we find no abuse of discretion in the trial court’s determination.

¶30 Valenzuela does, however, argue the trial court erred in 

its analysis of voluntariness by considering his demeanor when he 

consented. He relies on United States v. McWeeney, 454 F.3d 1030, 

1034 (9th Cir. 2006), to argue “subjective” factors such as age, 

intelligence, and length of detention should not be considered in 

determining voluntariness. But McWeeney concerned the physical 

scope of a consensual search, and is not applicable here. Id. at 1034-

35. Rather, the voluntariness of consent is based on a totality-of-thecircumstances test. Schneckloth, 412 U.S. at 226. Relevant factors 

may include age, education, intelligence, advice regarding 

constitutional rights, length of detention, and deprivation of food or 

sleep. Id. at 226, 248. Thus, in Butler, the court considered age, 

criminal history, the length of detention, the absence of parents, 

physical demeanor, and emotional state. 232 Ariz. 84, ¶ 20, 302 P.3d 

at 613. Despite Valenzuela’s contention, such factors are valid 

considerations in determining voluntariness.

¶31 Here, the trial court concluded the officer provided the 

implied consent admonition to Valenzuela, and he unequivocally 

agreed to the testing. Although the court did not identify all 
STATE v. VALENZUELA

Opinion of the Court

16

circumstances that might be relevant, no evidence was presented 

that Valenzuela was upset, lacked intelligence, felt threatened, or 

had been detained for a long time. The court did not err in 

determining Valenzuela’s consent was voluntary based on the 

totality of the circumstances.

¶32 Valenzuela also argues his consent was limited to 

administrative use—that is, he maintains he had agreed the blood 

test results could be used against him only for license suspension, 

but not in a criminal case. He cites McWeeney for this argument but

that case is inapplicable. In McWeeney, the defendant agreed to let 

an officer “‘look’” in the car, but argued his consent did not extend 

to the officer searching the trunk and lifting the carpet liner. 454 

F.3d at 1034. The Ninth Circuit Court of Appeals concluded the 

defendant’s general consent included the trunk and under the 

carpet, but ultimately held that the officers might have coerced the 

defendant into believing he had no right to withdraw or modify 

consent when the officers told him he was not allowed to observe

the search. Id. at 1033-37.

¶33 Additionally, Valenzuela’s argument has limited factual 

support. He asserts he consented only to a search for administrative 

purposes because the admonition did not refer to the Fourth 

Amendment. But this ignores the fact that the admonition was 

given only after he was arrested for DUI. See § 28-1321(B). Further, 

nothing in the officer’s testimony about his statements to Valenzuela 

suggested the test results would only be used in administrative 

proceedings. Finally, Valenzuela fails to further develop any 

argument that the fruits of an administrative search could not be 

used against him in a criminal trial.13 The trial court did not err in 

 

13 Valenzuela cites Skinner v. Railway Labor Executives’

Association, 489 U.S. 602 (1989), to argue that the results of chemical 

testing under the implied consent statute could not be used in a 

criminal trial. But the Court did not conclude that results of 

administrative searches never could be so used. Id. at 618-19. 

Rather, it merely cited the fact that the railroad employees’ drug and 

alcohol test results were not intended to be used by prosecutors as 
STATE v. VALENZUELA

Opinion of the Court

17

concluding Valenzuela’s consent was not limited to administrative 

proceedings.

¶34 Finally, Valenzuela appears to make a facial challenge 

to the Arizona implied consent statute by noting that he “questions 

whether Arizona’s ‘implied consent’ statute is Fourth Amendment 

compliant.”14 However, he engages in no statutory analysis and 

principally relies on purported language from the form throughout 

the rest of his brief, not the language of the statute. Any facial 

challenge to the language of the actual statute is therefore waived. 

See Ariz. R. Crim. P. 31.13(c)(1)(vi) (argument in brief shall include 

“citations to the authorities, statutes and parts of the record relied 

on”); see also State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 

(1995).

Disposition

¶35 For the foregoing reasons, Valenzuela’s convictions and 

sentences are affirmed.

E C K E R S T R O M, Chief Judge, dissenting:

¶36 When a law enforcement officer instructs a person who 

has been arrested for DUI that “Arizona law requires” him to 

“submit to” warrantless chemical tests to determine his blood 

alcohol concentration (BAC), as occurred here, the officer is asserting 

a claim of legal authority to conduct a search. As the Supreme Court 

held in Bumper v. North Carolina, 391 U.S. 543, 548-49 (1968), a 

person’s “acquiescence to a claim of lawful authority” makes the 

evidence obtained from it inadmissible under a theory of voluntary 

consent.

 

one factor of many in its determination that the warrantless tests 

were “reasonable” under the Fourth Amendment. Id. at 620, 623-24.

14Valenzuela also argued below that the question before the 

court was whether “Arizona’s implied consent law [is] compliant 

with the Fourth Amendment.” In context, and as the trial court 

clarified, the issue was whether his consent was voluntary in light of 

the admonition read to him.
STATE v. VALENZUELA

Opinion of the Court

18

¶37 The admonition here does not merely explain the 

“adverse consequences resulting from a refusal” to take a test, State 

v. Moore, 318 P.3d 1133, 1137 (Or. 2013), and it does not simply 

present a suspect with an unpleasant but permissible choice such as 

that addressed in South Dakota v. Neville, 459 U.S. 553, 564 (1983). 

Nor does it suggest or imply that the suspect has a legally 

recognized right to refuse the search. To the contrary, the 

admonition emphasizes expressly and repeatedly—no less than four 

times—that submission to the search is “required.”

¶38 As the United States Supreme Court has made clear, a 

person’s consent to a search can be voluntary only so long “as the 

police do not convey a message that compliance with their requests 

is required.” Florida v. Bostick, 501 U.S. 429, 435 (1991). But when, as 

here, police assert that compliance is required, they effectively 

announce that the person “has no right to resist the search.” Bumper, 

391 U.S. at 550. Such “colorably lawful coercion” by an officer 

precludes a finding of voluntariness, because “[w]here there is 

coercion there cannot be consent.” Id. Thus, a straightforward 

reading and application of controlling jurisprudence requires 

suppression of the BAC test results.

¶39 In most instances, the voluntariness of consent is a 

question of fact to be determined from the totality of the 

circumstances. State v. Butler, 232 Ariz. 84, ¶ 13, 302 P.3d 609, 612

(2013). But Bumper establishes that when the facts show the police 

have asserted a claim of lawful authority to conduct a search, then a 

court’s analysis has reached its end; voluntary consent cannot be 

found as a matter of law. In Bumper, one of several law enforcement 

officers had asserted, “I have a search warrant to search your 

house,” and the resident subsequently opened her door to permit 

entry. 391 U.S. at 546. The dissent maintained that the search 

should be upheld because the totality of the circumstances 

suggested nonetheless that she had invited the officers to search of 

her own free will and had no objection to it. Id. at 555-56 (Black, J., 

dissenting). The majority, however, declined to consider such 

factors in its analysis. See id. at 547-48 & 547 n.8. In so doing, the 

Court construed a person’s acquiescence to a claim of authority as 

showing an intent to abide by the law; it is not interpreted as a 
STATE v. VALENZUELA

Opinion of the Court

19

waiver of rights, but rather as a submission to lawful authority. See 

id. at 549 n.14.

¶40 The majority suggests that Missouri v. McNeely, 133 S. 

Ct. 1552 (2013), rather than Bumper, should control here. But 

McNeely did not address any question of consent, much less consent 

in the context of an officer’s claim of lawful authority. Rather, 

McNeely addressed the circumstances under which police may 

conduct a warrantless blood draw in the absence of consent. 133 S. 

Ct. at 1556. Contrary to the majority’s assertion, therefore, 

adherence to the Court’s holding in Bumper does not conflict with 

the analytically distinct question presented in McNeely.

15 Bumper has 

neither been overruled nor narrowed by subsequent opinions of the 

Court, and it squarely addresses the claim before us. I submit we 

are duty bound to apply it.

¶41 Indeed, the categorical rule from Bumper conforms to 

the traditional test for determining voluntary consent to a search. 

That test is whether a “‘reasonable person’” in the same 

circumstances would have understood that he or she was free to 

decline the officer’s request. United States v. Drayton, 536 U.S. 194, 

202 (2002), quoting Bostick, 501 U.S. at 436. Categorically, reasonable 

persons do not—and should not—believe themselves free to decline 

an officer’s demand that they follow the requirements of the law. Cf. 

 

15 Despite the majority’s suggestion, our supreme court’s 

decision in Butler, 232 Ariz. 84, ¶ 21, 302 P.3d at 613—which upheld 

a finding of involuntary consent—did not address the argument 

presented here, nor did its quotation of the admin per se affidavit 

imply that the court approved of that document’s language. Id. ¶ 4; 

see Calnimptewa v. Flagstaff Police Dep’t, 200 Ariz. 567, ¶ 24, 30 P.3d 

634, 639 (App. 2001) (“[I]t is always inappropriate to read an 

appellate opinion as authority for matters neither specifically 

presented and discussed, nor even accorded footnote mention.”). 

Notably, the language of “require[ment]” found in the admin per se 

affidavit has no basis in Arizona’s implied consent statute, § 28-1321. 

Therefore, while the principles set forth in Bumper require some 

revision of the admin per se affidavit, no changes are required to 

§ 28-1321 to comply with that precedent.
STATE v. VALENZUELA

Opinion of the Court

20

State v. Rodriguez, 186 Ariz. 240, 246, 921 P.2d 643, 649 (1996) (“A 

reasonable person would assume that police understood the 

boundaries of the law.”).

¶42 This is the only rule that can be harmonized with safe 

and orderly interactions between law enforcement officers and 

suspects. Were our laws to permit persons to second-guess or refuse 

commands made under color of law, we would undermine the 

“‘[o]rderly submission to law-enforcement officers,’” Bumper, 391 

U.S. at 549 n.14, quoting United States v. Elliott, 210 F. Supp. 357, 360 

(D. Mass. 1962), thereby increasing risks to both officer and public 

safety. As our own supreme court has observed, “if resistance to an 

arrest or a search made under the color of law is allowed, violence is 

not only invited but can be expected.” State v. Hatton, 116 Ariz. 142, 

147-48, 568 P.2d 1040, 1045-46 (1977).

16

¶43 The admonition given to Valenzuela here would cause 

any reasonable person to believe a chemical test is demanded under 

color of law, and required rather than voluntary.17 The admonition 

 

16 Although the majority cites Schneckloth v. Bustamonte to 

support a totality-of-the-circumstances approach to voluntariness 

deviating from Bumper, it overlooks that Schneckloth emphasized the 

“narrow” scope of its decision and stated that its holding applied 

“only . . . when the subject of a search is not in custody.” 412 U.S. 

218, 248 (1973). Here, by contrast, we are faced with an in-custody 

defendant who was advised by an officer of the putative 

requirements of Arizona law to submit to a search, meaning Bumper 

should control. Despite the majority’s suggestion, the custodial 

status of a DUI arrestee, with its attendant coercive pressures,

clearly distinguishes the present situation from an ordinary civil 

subpoena to testify, and we derive no benefit from the comparison.

See Maryland v. Shatzer, 559 U.S. 98, 106-07 (2010) (acknowledging 

coercive influences arrestees face in unfamiliar, police-dominated 

atmosphere when police persist in seeking cooperation with active 

criminal investigation).

17The DPS officer testified at the suppression hearing that he 

had read the admonition from “the admin per se affidavit” from the 

Arizona Department of Transportation, which is a standard 
STATE v. VALENZUELA

Opinion of the Court

21

begins with the statement that “Arizona law requires you to submit 

to and successfully complete [the] tests,” proceeds thereafter to 

assert that “[t]he law enforcement officer may require you to submit 

to two or more tests,” that “[y]ou are required to successfully 

complete each of the tests,” and, at its conclusion, that “[y]ou are, 

therefore, required to submit to the specified tests.”18 In short, the 

admonition begins and ends with the officer’s assertion that the tests 

are required—and, if that were not enough, it reminds the suspect of 

that claim twice in between.

¶44 That a DUI arrestee is asked, “Will you submit to the 

specified tests?” at the conclusion of the admonition does not alter 

the voluntariness analysis. As noted above, immediately before that 

question suspects are informed, “You are, therefore, required to 

submit to the specified tests.” Moreover, a law enforcement officer 

who asks a DUI arrestee whether he will “submit” to a legally 

“required” test neither semantically nor logically presents the

suspect with a voluntary, uncoerced choice. See Bostick, 501 U.S. at 

435 (police request for consent must not “convey a message that 

compliance with their requests is required”). Indeed, the word 

 

document substantially set forth in Butler, 232 Ariz. 84, ¶ 4, 302 P.3d 

at 611, and used as an exhibit at the hearing, though not formally 

admitted into evidence. See State v. Gaffney, 198 Ariz. 188, ¶¶ 3, 11, 8 

P.3d 376, 377, 379 (App. 2000) (describing document as standard 

administrative form); see also Tornabene v. Bonine, 203 Ariz. 326, ¶ 5, 

54 P.3d 355, 359 (App. 2002). The state does not dispute the content 

of the admonition here, and the officer’s testimony about the form—

which included a partial but verbatim quotation—establishes and 

confirms its essential features. Nonetheless, the precise author and 

authority of the form are irrelevant to the present voluntariness 

analysis. Furthermore, if this court were inclined to work with a 

more complete appellate record rather than emphasize its 

limitations, we could order the record supplemented to include this 

exhibit under the terms of Rule 31.8(a)(2)(iii), Ariz. R. Crim. P.

18A similar but conditional provision not implicated in this 

case advises anyone who delays testing, “You are not entitled to 

further delay taking the tests for any reason.”
STATE v. VALENZUELA

Opinion of the Court

22

“submit” suggests that the arrestee is being asked to “accept or give 

in to the authority” of the officer. The American Heritage Dictionary

1737 (5th ed. 2011).

¶45 By its plain terms, therefore, the admonition asserts a 

claim of lawful authority that precludes a finding of voluntariness. 

In the context of the officer’s unambiguous statement to 

Valenzuela—that “Arizona law require[d]” him to submit to 

testing—I cannot agree with my colleagues that Valenzuela’s 

subsequent submission can reasonably be viewed as anything other 

than acquiescence to a claim of lawful authority.

¶46 Nor does the admonition given here, by describing the 

civil penalties for refusal, “explicitly acknowledge[]” any “right to 

refuse tests.”19 Supra ¶ 13. Before McNeely and Butler recently 

clarified DUI suspects’ federal constitutional rights with respect to 

chemical testing, we repeatedly had distinguished a right to refuse 

testing from the mere power to do so, recognizing only the latter. 

E.g., Campbell v. Superior Court, 106 Ariz. 542, 549, 479 P.2d 685, 692

(1971) (“[Statutory] language does not give a person a ‘right’ to 

refuse to submit to the test only the physical power. . . . [A] person 

does not have a right to refuse to submit to the test . . . .”); Tornabene 

v. Bonine, 203 Ariz. 326, ¶ 19, 54 P.3d 355, 363 (App. 2002) (“‘[T]he 

law does not give motorists charged with DUI the right to refuse the 

 

19The majority’s focus on the language of the implied consent 

statute is misplaced, because it is the admonition given to a suspect 

that is relevant to the consent analysis—the claim of authority, as 

opposed to the authority itself. Cf. Bumper, 391 U.S. at 549-50 & 550 

n.15 (assessing admissibility of evidence based solely on consent, not 

putative search warrant). Despite a suspect’s legal rights or 

awareness thereof, an admonition given by an officer may be 

coercive if it makes an unqualified demand under color of law and 

does not indicate that the officer will respect the suspect’s invocation 

of his right to refuse to cooperate. Cf. Miranda v. Arizona, 384 U.S.

436, 468 (1966) (noting Miranda advisory designed to overcome 

inherent pressures of interrogation and “show the individual that 

his interrogators are prepared to recognize his privilege should he 

choose to exercise it”).
STATE v. VALENZUELA

Opinion of the Court

23

test; it only gives them the power to refuse and provides for certain 

consequences of such a refusal.’”), quoting State v. Krantz, 174 Ariz. 

211, 215, 848 P.2d 296, 300 (App. 1992); see also State ex rel. Verburg v. 

Jones, 211 Ariz. 413, ¶ 8, 121 P.3d 1283, 1285 (App. 2005) (“A person 

always has the power to refuse to submit to lawful authority.”).

¶47 Notably, the pertinent language in the admonition used 

here has remained the same since this pre-McNeely and Butler period 

of jurisprudence and therefore was crafted with that understanding 

in mind. See, e.g., Tornabene, 203 Ariz. 326, ¶ 5, 54 P.3d at 359

(“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 . . . .”). Thus, both the description of penalties 

for refusal and the ultimate query—asking if the suspect will submit 

to the test—implicitly acknowledge only that a suspect has the 

power to decline to follow the “require[ments]” of the law. 

Understood in the context of contemporary case law, such language 

was not designed to suggest that a suspect enjoys any right to refuse 

to take the test.

¶48 In fact, our law acknowledges numerous circumstances 

in which defendants possess the power, rather than the right, to 

refuse to comply with the requirements of the law. State law 

requires that arrestees submit to fingerprinting, A.R.S. § 13-3890(A), 

even though it too can be “refused” by an arrested person and 

compelled by a later court order. § 13-3890(B); see Mario W. v. Kaipio, 

230 Ariz. 122, ¶¶ 9, 21, 281 P.3d 476, 479, 481 (2012). Persons who 

appropriately pull over when a patrol vehicle activates its 

emergency lights also theoretically have the power to instead engage 

in a high-speed chase. Nonetheless, we do not characterize their 

compliance with that command as a waiver of any later assertion 

that the officer lacked adequate cause to perform the stop. This is 

because pulling over is required by law regardless of whether a 

person chooses to do so. See A.R.S. §§ 28-622.01, 28-624(C); see also 

A.R.S. § 28-622(A) (“A person shall not willfully fail or refuse to 

comply with any lawful order or direction of a police officer 

invested by law with authority to direct, control or regulate 

traffic.”). Similarly, when officers ask DUI arrestees whether they 

will submit to tests that “Arizona law requires,” the officers no more 
STATE v. VALENZUELA

Opinion of the Court

24

suggest that the arrestees may lawfully refuse than when they ask 

suspects whether they will submit to an arrest and thereby avoid 

additional consequences for resistance, pursuant to A.R.S. § 13-2508. 

Neither query implies that submission is optional rather than 

mandatory.20

¶49 Although the majority would impute knowledge of 

§ 28-1321(D)(1) to arrestees by operation of law—a provision which 

might be construed to imply a right to refuse testing—such an 

imputation finds no clear precedent in the law of search and seizure.

“It is often stated that every person is ‘presumed’ to know the law. 

This ‘conclusive presumption’ is merely a restatement of the 

substantive rule that ignorance of the law is not a defense.” Edwards 

v. United States, 334 F.2d 360, 366 (5th Cir. 1964). We generally 

impute knowledge of the law—or what it forbids—for purposes of 

imposing criminal liability. See Cheek v. United States, 498 U.S. 192, 

199 (1991). But we do not do so when assessing whether police have 

asserted a claim of lawful authority or whether a person’s consent to 

a search was voluntarily given. This is evident from the relevant 

legal tests controlling those inquiries.

¶50 In evaluating whether a person has provided voluntary 

consent to a search, we are instructed to pragmatically assess 

whether “a reasonable person would feel free to decline the officers’ 

requests.” Bostick, 501 U.S. at 436. To support its contention that 

Valenzuela knew he could decline the testing here, the majority

imputes to him (1) a sophisticated knowledge of the interplay 

between Arizona’s implied consent statute and the Fourth 

Amendment, a contentious issue resolved only recently by the 

United States Supreme Court, see Butler, 232 Ariz. 84, ¶¶ 9-10, 302 

P.3d at 612; and (2) an interpretation of Arizona law (that a statutory 

right of refusal exists) at odds with longstanding Arizona 

 

20The evident purpose of the question here is to clarify the 

moment at which administrative sanctions can be imposed and an 

officer can take the next step in the law enforcement process. Rather 

than suggesting a right to refuse, the affidavit’s interrogatory merely 

provides a formal mechanism for establishing an unambiguous 

refusal.
STATE v. VALENZUELA

Opinion of the Court

25

jurisprudence holding that a suspect possessed only the power, not 

the right, to refuse testing. Campbell, 106 Ariz. at 549, 479 P.2d at 

692. In so doing, I fear the majority has held Valenzuela to the 

standard of an especially gifted criminal lawyer rather than to the 

standard of a reasonable, ordinary person. Moreover, a legal 

presumption imputing to suspects such a comprehensive knowledge 

of the law cannot be harmonized with the fact-intensive inquiry into 

voluntariness and would render superfluous the consideration of 

any “advice to the accused of his constitutional rights,” a factor 

indisputably relevant to evaluating consent to a search. Schneckloth, 

412 U.S. at 226.

¶51 One further implication of imputing such knowledge to 

suspects is especially troubling. Under the majority’s logic, an 

officer may incorrectly advise suspects that they are required by law 

to submit to the officer’s commands, yet they will be held to know 

otherwise. By so removing official negligence or malfeasance from a 

voluntariness analysis, a court incentivizes police misinformation 

and actual coercion under color of law.

¶52 For these reasons, our analysis must be controlled by 

the admonition actually provided to Valenzuela rather than by the 

majority’s novel, post-Butler reading of Arizona’s implied consent 

statute. Under that admonition, no reasonable persons would 

logically construe the itemization of negative consequences for 

refusing the test as a signal that they have a legal entitlement to do 

so. To the contrary, substantial penalties, whether civil or criminal, 

are commonly reserved for violations of law, and sanctions usually 

may not be imposed for the assertion of a constitutional right. Thus, 

the articulation of civil penalties set forth in the admonition fails to 

meaningfully qualify or mitigate the accompanying assertions that 

the officer has the lawful authority to conduct the test.21

 

21The majority emphasizes the officer’s testimony that if a 

person refused the test, the officer then would apply for a search 

warrant to compel testing. Supra ¶¶ 13, 21. But the officer’s possible 

actions after a defendant’s acquiescence are irrelevant to an analysis 

of the voluntariness of a suspect’s consent and what was said to 

secure it. Furthermore, it is unclear from the testimony whether the 
STATE v. VALENZUELA

Opinion of the Court

26

¶53 In sum, the typical DUI stop and arrest presents a driver 

with a number of legal obligations and choices. Yet the admonition 

here utterly fails to distinguish one’s submission to a chemical test as 

a voluntary act among the many mandates. Simply presenting an 

arrested motorist with a yes-or-no choice to comply with a duty—

whether that duty be real, colorable, or entirely false—does not 

transform the interaction into a consensual one. When an arresting 

officer repeatedly says that something is required of an arrestee, no 

reasonable person would take that admonition to mean that 

submission to the officer’s authority is not actually required, but 

rather voluntary. And the contrary conclusion reached by the 

majority suggests a significant flaw in its reasoning.

¶54 Whereas other possible admonitions might allow a 

finding of voluntary consent, as other states’ decisions may indicate, 

the present admonition does not. The majority’s reliance on State v. 

Brooks, 838 N.W.2d 563 (Minn. 2013), is misplaced. Minnesota’s

implied consent statute and admonition are distinguishable because 

they inform drivers of their “right to talk to a lawyer before deciding 

whether to take a test,” id. at 565, which was a significant factor in 

Brooks’s voluntariness analysis. Id. at 571-72.22

 

officer addressed the topic of search warrants with Valenzuela prior 

to obtaining consent for the tests. The standard implied consent 

admonition read here makes no reference to warrants, and the 

officer appeared to describe a distinct two-step process in the 

remainder of his testimony:

[I]f they say, well, no, I’m not going to give 

you my blood or my breath, then [we]’re 

also telling them you have another choice, 

and the choice is that we will get a warrant. 

. . . We ask for consent first. If they refuse 

consent, they’re informed at that time that 

we’re gonna obtain a warrant and to get the 

blood sample.

22Both Brooks, 838 N.W.2d at 569, and State v. Smith, 849 

N.W.2d 599, ¶ 9 (N.D. 2014), are also distinguishable because 
STATE v. VALENZUELA

Opinion of the Court

27

¶55 The case of People v. Harris, 184 Cal. Rptr. 3d 198 (Ct. 

App. 2015), is more analogous to the present situation, although its 

reasoning is unpersuasive. There, the appellate court noted that the 

defendant repeatedly was told the chemical tests were “required,” 

id. at 204, but it nevertheless reasoned that “a motorist [being] told 

he will face serious consequences if he refuses to submit to a blood 

test does not, in itself, mean that his submission was coerced.” Id. at 

211. That reasoning fails to address how a suspect’s acquiescence to 

a “required” test can ever logically demonstrate voluntary consent. 

And, assuming arguendo that an advisory such as that here—which 

both asserts that the test is compulsory and emphasizes only the 

negative consequences of refusal—is not coercive, the mere absence 

of coercion falls far short of demonstrating any equivalence between 

submission and consent.

¶56 The admonition here flatly and incorrectly provides that 

“Arizona law requires” a person arrested for DUI to submit to 

chemical tests, without identifying any countervailing legal right. It 

does not advise an arrestee of the additional terms of our implied 

consent law explaining that “[t]he test shall not be given, except . . . 

pursuant to a warrant” or under certain limited circumstances, if the 

person refuses to consent to the tests. § 28-1321(D)(1). Nor does it 

inform a person of the constitutional right to refuse warrantless 

testing under the Fourth Amendment to the United States 

Constitution and article II, § 8 of the Arizona Constitution. By both 

omitting any reference to the constitutional right or the statutory 

option to refuse testing, and by implying that the requirement to 

 

statutes in those states criminalize the refusal to submit to testing, 

whereas Arizona imposes only administrative penalties of which 

Valenzuela was advised here. See State v. Brito, 183 Ariz. 535, 538, 

905 P.2d 544, 547 (App. 1995). Insofar as Brooks and Smith

nonetheless found DUI suspects’ consent to be voluntary in their 

respective statutory environments, the obvious question remains 

without a satisfying answer: If criminalizing the exercise of a 

constitutional right to refuse warrantless testing is not coercive, then 

what exactly is?
STATE v. VALENZUELA

Opinion of the Court

28

submit to testing is broad and unqualified, the current advisory is 

misleading and coercive.

¶57 In short, the language found in the admonition and read 

to Valenzuela is subject to only one reasonable understanding of its 

purpose: to induce acquiescence to a warrantless test. The 

document was manifestly not designed to advise suspects of their 

constitutional right or implicit statutory choice to refuse. It contains 

no language that even suggests the suspect possesses any option but 

to submit. I fear the majority opinion therefore errs in construing 

mere acquiescence to that advisory as anything other than what is: 

submission to a claim of lawful authority.

¶58 Given that persons driving in Arizona possess a 

constitutional right to refuse to submit to testing of their blood or 

breath in the absence of a search warrant, I would hold that it is not 

appropriate for our state’s officers to repeatedly suggest otherwise. 

A revised admonition that eliminates the mandatory language 

would likely be permissible; however, the warning in its current 

form is not. Accordingly, I respectfully dissent from the majority’s 

opinion upholding the suppression ruling. I would reverse that 

ruling, order the BAC results suppressed, and remand the case to be 

retried solely on the aggravated DUI charges concerning 

impairment to the slightest degree under A.R.S. § 28-1381(A)(1).