IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION T WO

T HE S TATE OF A RIZONA , Appellee
,

v.

D ANIEL A LBERTO R EYES , Appellant

.

No. 2 CA

- CR 2014

- 0238 Filed December 24, 2015

Appeal from the Superior Court in Pima County

No. CR20121582001 The Honorable Richard S. Fields , Judge

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Terry M. Crist , III , Assistant Attorney General, Phoenix Counsel for Appellee

Steven R. Sonenberg, Pima County Public Defender By Katherine A. Estavillo , Assistant Public Defender, Tucson Counsel for AppellantSTATE v. REYES Opinion of the Court

2 OPIN ION

Judge Miller authored the opinion of the Court, in which Presiding Judge Vásquez and Chief Judge Eckerstrom concurred.

M I L L E R, Judge:

¶1 Daniel Reyes was convicted after a jury trial of multiple
counts of aggravated driving under the influence of an intoxicant (DUI)
, criminal damage
, and fleeing a law enforcement vehicle

. He
was sente nced to con current and consecutive terms totaling eighteen
years ’ imprisonment. On appeal, he argues the results of alcohol testing of blood drawn while he was receiving medical treatment should have been suppressed because there were no exigent circumstances justifying the warrantless blood draw , and the officer could not rely in good faith on binding precedent in seeking the blood draw

. For the following reasons, we affirm.

Fact s From Su ppression Hearing

¶2 In reviewing a motion to suppress, we consider only the evidence presented at the suppression hearing, viewing it in the light most favorable to sustaining the trial court’s ruling. State v. Gonzalez , 235 Ariz. 212, ¶ 2, 330 P.3d 969, 97 0 (App. 2014). In April 2012, Tucson Police officer Marquis responded to a call that a car had fled from an officer and crashed into a building

. The driver, Reyes, was taken to the hospital for treatment of non

- life

- threatening injuries. Marquis met Rey es at the hospital and observed that he had watery, bloodshot eyes, a flushed face, slurred speech, and the odor of alcohol on his breath. Marquis also attempted to perform a horizontal gaze nystagmus test on him , but Reyes stopped before it was completed . Reyes also declined the officer’s request to submit to a preliminary breath test.STATE v. REYES Opinion of the Court

3 ¶3 Marquis advised Reyes of his rights pursuant to Miranda 1
, informed him he was under arrest, and read the “Admin Per Se” 2 admonition. Reyes then asked to speak to his attorney , and he did so shortly thereafter . Marquis again asked Reyes to consent to the blood draw, but Reyes declined. The hospital nurses, however, subsequently drew blood for medical purposes. M arquis provided a nurse two vials to obtain a portion of the medical draw

. At the suppression hearing, Marquis testified he did not seek a telephonic search warrant because he knew he could obtain a sample from the medical draw, but acknowledged there was sufficient time to have request ed a warrant

. ¶4 The trial court denied the motion to suppress and at trial the court admitted the results of the blood analysis
, which showed a blood alcohol content of .195. We have jurisdiction pursuant to A.R.S. § 13

- 4033(A)

. Exigent Circumstances and Good Faith Relia nce on Cocio

¶5 The single issue raised on appeal is whether the trial court properly denied the motion to suppress when it concluded O fficer Marquis relied in good faith on binding Arizona precedent that held the dissipation of alcohol in blood alone satisfi ed the “exigent circumstances” element of Arizona’s statutory medical blood draw exception to the warrant requirement. We generally review the denial of a motion to suppress for an abuse of discretion, but review constitutional questions de novo. State v . Gay , 214 Ariz. 214, ¶ 4, 150 P.3d 787, 790 (App. 2007).

1 M iranda v. Arizona , 384 U.S. 436 (1966)

.

2 An “Admin Per Se” warning, or implied consent admonition, generally warns a driver that his or her license will be suspended if he or she refuses to submit to a test of the alcohol content of his or her blood, breath, or other bodily substance. See, e.g.
, State v. Butler
, 232 Ariz. 84, ¶ 4, 302 P.3d 609, 611 (2013); see also A.R.S. § 28

- 1321 (regarding implied consent)

.STATE v. REYES Opinion of the Court

4 ¶6 A blood draw is a search under the Fourth Amendment to the United States constitution, see Missouri v. McNeely , ___ U.S. ___, ___, 133 S. Ct. 1552, 1558 (2013) ; therefore
, to comply with the Fourth Amendment, law enforcement officers must first obtain a warrant or consent, or there must be an exception to the warrant requirement
, s ee State v. Nissley
, No. 1 CA

- CR 12

- 0780, ¶¶ 20

- 23, 2015 WL 6153913 ( Ariz. Ct. App. Oct. 20, 20 15). Blood obtained pursuant
to A.R.S. § 28

- 1388(E) is such an exception.

¶7 Section 28

- 1388(E) provides that when blood is collected for any reason, a portion must be provided upon request to a law enforcement officer who has probable cause to believe the p erson has violated the DUI statute

. Nissley , 2015 WL 6153913, ¶ 23. In State v. Cocio , 147 Ariz. 277, 28 3

- 8 4, 709 P.2d 1336, 13 44

- 45 (1985), our supreme court considered whether the predecessor statute to § 28

- 13 88 violated the constitution. To comply with existing constitutional case law, the court enumerated three requirements before a law enforcement officer may obtain a sample pursuant to this exception: (1) the officer must have probable cause to believe the person has violated the DUI s tatutes, (2) exigent circumstances must exist, and (3) the blood must be drawn “for medical purposes by medical personnel.” Id. at 284, 709 P.2d at 1345

. ¶8 Because Reyes refused to consent to a blood draw for law enforcement purposes
, and Marquis did not se ek a warrant , the only issue was whether the state demonstrated compliance with the three requirements authorizing the medical blood d raw exception

. A t the suppression hearing, Reyes conceded the blood was drawn for medical purposes and that the officer h ad probable cause to believe he was driving under the influence of alcohol ; therefore, the only remaining issue was whether exigent circumstances were present

. Id. Relying in part on McNeely
, ___ U.S. at ___, 133 S. Ct. at 1556, in which the Supreme Court held that the dissipation of alcohol was not a “ per se exigency” justifying an exception to the warrant requirement, Reyes contended that the officer’s acknowledgment that there was sufficient time to seek a warrant vitiated the state’s argument that the dissipation of alcohol constituted the exigency.STATE v. REYES Opinion of the Court

5 ¶9 The trial court agreed with the state that exigent circumstances existed because as time passed, the alcohol in Reyes’s blood stream dissipated. The court also noted, however, that it woul d have suppressed the evidence had the blood draw occurred after April 2013, when McNeely was issued

. Id. It finally noted that the officer relied on Arizona precedent “in good faith.”

¶10 On appeal, the state argues that the officer relied in good faith on Arizona precedent that held th e dissipation of alcohol in the blood was an exigent circumstance

. It does not argue that Arizona ’s statutory medical exception cases are still valid or that the blood draw would otherwise have been proper even had it occurr ed post

- McNeely

. But w e need not address these issues because, as explained below, we agree with the state that the officer relied in good faith on binding precedent at the time of the blood draw

. ¶11 A bsen t a warrant or consent, or if the necessary requirements to an exception are not met, a court generally appl ies the exclusionary rule to bar the admission of evidence obtained in violation of the constitution

. See Davis v. United States , ___ U.S. ___, ___, 131 S. Ct. 24 19, 2426 (2011). The exclusionary rule, however, is subject to exceptions. Id. at ___, 131 S. Ct. at 2429. At issue here is the good

- faith exception that allows admission of evidence “obtained during a search conducted in reasonable reliance on binding precedent.” Id.

¶12 To determine whether the good

- faith exception applies
, “courts generally agree that the authority must be binding in the jurisdiction where the police conduct occurred .” State v. Mitchell
, 234 Ariz. 410, ¶ 28, 323 P.3d 69, 77 (App. 2014)

. Tucson Police are bound by precedent set by the Arizona appellate courts and the United States Supreme Court. See id. ¶ 31. We therefore review the applicable precedent at the time of Reyes’s blood draw.

¶13 In 1966, the United States Supreme Court considered whether a warrantless blood draw performed by a physician at the direction of a police officer while a driver under arrest for DUI was in the hospital receiving treatment violated the constitution

. Schmerber v. California , 384 U.S. 757, 758

- 59 (1966). T he courtSTATE v. REYES Opinion of the Court

6 concluded the officer “might reasonably have believed that he was confronted with an emergency,” and could not wait for a warrant, due to the fact that blood alcohol diminishes after drinking stops. Id. at 77 0

. The court held that the driver’s Fourth Amendment rights

were not violated. Id. at 772.

¶14 Nearly t wenty years later, the Arizona Supreme Court relied on Schmerber to uphold the warrantless blood draw of a DUI suspect receiving medical treatment. Cocio , 147 Ariz. at 28 3

- 8 5 , 709 P. 2d at 134 4

- 4 6

. In Cocio
, after determining that exigent circumstances must be present in order to apply Arizona’s statutory medical blood draw exception, the court held that exigent circumstances existed because “[t]he highly evanescent nature of alcohol in the defendant’s blood stream guaranteed that the alcohol would dissipate over a relatively short period of time.” Id. at 284, 709 P.2d at 1345

. ¶15 Based on the holding in Cocio
, this court has repeatedly refused to revisit argument s that exigent circumstances other than the dissipation of alcohol in blood were necessary to meet the requirements of the medical blood draw exception. See State v. Aleman , 210 Ariz. 232, ¶ 14, 109 P.3d 571, 576 (App. 2005) ( noting “pertinent Arizona case s clearly refute” argument that there were no exigent circumstances justifying medical blood draw); Lind v. Superior Court , 191 Ariz. 233, ¶ 20, 954 P.2d 1058, 1062 (App. 1998) (declining invitation to address Cocio because court of appeals is “bound by ou r supreme court’s determinations ” ); State v. Howard
, 163 Ariz. 47, 50, 785 P.2d 1235, 1238 (App. 1989) ( finding exigent circumstances argument failed due to Cocio ).

¶16 Reyes argues that despite those cases, the law was “unsettled” and there was no binding pre cedent upon which Officer Marquis could find exigent circumstances

. He relies on Mitchell , a case in which th is court declined to apply the Davis exception because the case law was unsettled. 234 Ariz. 410, ¶ 31, 323 P.3d at 78. Mitchell , however, is distinguishable. The state supreme court precedent regarding medical blood draws had been well

- developed over two decades. In contrast, Mitchell involved the placement of a GPS tracking device on the defendant’s vehicle , for which there wasSTATE v. REYES Opinion of the Court

7 no Arizona or controlling federal authority. Id. ¶ 31. The state relied instead on a distinguishable case from the Ninth Circuit Court of Appeals and Arizona cases the court determined w ere not sufficiently apposite because they did not address GPS tech nology

. Id. ¶¶ 28

- 32. The lack of settled case law in Mitchell is not present here.

¶17 Reyes also argues there has been a “shift[] away from” Cocio , relying on State v. Flannigan , 194 Ariz. 150, 978 P.2d 127 (App. 1998). There
, the defendant drove his truck through a red light and struck a car , caus ing the death of the driver and injuring the
passengers. Id. ¶ 2. Flannigan was suspected of being under the influence of a central nervous system stimulant because his physiological measures were elevated and he displayed nervous tendencies. Id. ¶¶ 3

- 6. He was transport ed to the police stat ion where a drug recognition expert performed various tests. Id. ¶ 5. Because of a police department policy that regarded a manslaughter inves tigation as sufficient to constitute an exigency, a phlebotomist at the police station drew the defendant’s blood without a search
warrant or express consent

. Id. ¶ ¶ 6
, 9, 16 . The state relied on Schmerber to argue exigent circumstances were present beca use the officer believed Flannigan was under the influence of drugs, and those drugs were dissipating in his blood. See i d. ¶¶ 9

- 11. In holding the state did not meet its burden of showing exigent circumstances, the court concluded that Schmerber required both the dissipation of alcohol in the defendant’s system and a lack of time to seek out a warrant before the circumstances would be deemed exigent

. Id. ¶¶ 20, 25.

¶18 Flannigan did not signal a shift away from Cocio

. Indeed, the court specifically noted, citing Lind , that “because [Flannigan] did not sustain any injuries in the accident that required medical personnel to draw his blood, this case does not involve the medical purposes exception of A.R.S. section 28

- 692(J) , which would have entitled the police to receive a sample of his blood regardless ofSTATE v. REYES Opinion of the Court

8 his consent. ” 3 Flannigan , 194 Ariz. 150, ¶ 14 , 978 P.2d at 130

. The court specifically distinguished its holding from cases involving the medical blood draw exception
, indicating that dissipation of alcohol in blood still served as an exigent circumstance in such cases

. Id. Moreover, the court’s principal holding was based on the “officers’ rote application of the department’s untenable policy that exigent circumstances always exist in vehicular manslaughter and aggravated assault cases.” Id. ¶ 25. Flannigan did not vitiate Cocio

, nor could it

. See Lind , 191 Ariz. 233, ¶ 20, 954 P.2d at 1062 (declining to “revisit” Cocio “[b]ecause we are bound by our supreme court’s determinations”).

¶19 As of 2012, when Reyes’s blood was drawn, Arizona
courts had uniformly held that dissipation of alcohol in blood was in itself a sufficient exigent circumstance for purposes of the medical exception. Cocio , 147 Ariz. at 284, 709 P.2d at 1345; Aleman , 210 Ariz. 232, ¶ 14, 109 P.3d at 576; Lind , 191 Ariz. 233, ¶ 20, 954 P.2d at 1062; Howard , 163 Ariz. at 50, 785 P.2d at 1238. Therefore, it was reasonable for o fficer Marquis to rely on the evanescent nature of alcohol in Reyes’s blood in requesting the blood sample with no
warrant. See Davis , ___ U.S. at ___, 131 S. Ct. at 2429. The trial court did not err in denying Reyes’s motion to suppress.

Disposit ion

¶20 For the foregoing reasons, Reyes’s convictions and sentences are affirmed.

3 A.R.S. § 28

- 692(J) was the predecessor statute to today’s medical blood draw exception, § 28

- 1388(E). Compare § 28

- 1388(E), with 1996 A riz. Sess. Laws, ch. 161, § 8.