IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

DANIEL ALBERTO REYES,

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 Appellant
STATE v. REYES

Opinion of the Court

2

OPINION

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 sentenced to concurrent 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.

Facts From Suppression 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, 970 (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 Reyes 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

Miranda1, 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. Marquis 

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 requested 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 Reliance on Cocio

¶5 The single issue raised on appeal is whether the trial 

court properly denied the motion to suppress when it concluded 

Officer Marquis relied in good faith on binding Arizona precedent 

that held the dissipation of alcohol in blood alone satisfied 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).

 

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

2An “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, see State v. Nissley, No. 1 CA-CR 12-0780, ¶¶ 20-23, 2015 

WL 6153913 (Ariz. Ct. App. Oct. 20, 2015). 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 person 

has violated the DUI statute. Nissley, 2015 WL 6153913, ¶ 23. In 

State v. Cocio, 147 Ariz. 277, 283-84, 709 P.2d 1336, 1344-45 (1985), our 

supreme court considered whether the predecessor statute to

§ 28-1388 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 statutes, (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 seek a warrant, the 

only issue was whether the state demonstrated compliance with the 

three requirements authorizing the medical blood draw exception. 

At the suppression hearing, Reyes conceded the blood was drawn 

for medical purposes and that the officer had 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 

would 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 the 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 occurred 

post-McNeely. But we 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 Absent a warrant or consent, or if the necessary 

requirements to an exception are not met, a court generally applies

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. 2419, 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). The court 
STATE 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 770. The court held that the driver’s Fourth Amendment rights 

were not violated. Id. at 772.

¶14 Nearly twenty 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 283-85, 709 

P.2d at 1344-46. 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 arguments 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 cases 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 our 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 precedent upon which Officer 

Marquis could find exigent circumstances. He relies on Mitchell, a 

case in which this 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 was
STATE 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 were not 

sufficiently apposite because they did not address GPS technology. 

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, causing 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 transported to the police station

where a drug recognition expert performed various tests. Id. ¶ 5. 

Because of a police department policy that regarded a manslaughter 

investigation 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 because the 

officer believed Flannigan was under the influence of drugs, and 

those drugs were dissipating in his blood. See id. ¶¶ 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 of 
STATE 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 officer 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.

Disposition

¶20 For the foregoing reasons, Reyes’s convictions and 

sentences are affirmed.

 

3A.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 Ariz. Sess. Laws, ch. 161, § 8.