329 P.3d 233
Ariz. Ct. App.2014Background
- In January 2011, Tucson Police Officer K. Wilson stopped Nevarez’s vehicle around 1:00 a.m. after initially not seeing a license plate; a temporary registration was actually affixed to the rear window and became visible only after Wilson approached the vehicle.
- While approaching, Wilson observed beer containers in the vehicle and, at the driver’s window, noticed signs of intoxication (red, watery eyes; incoherent speech); records check showed Nevarez’s license was suspended and revoked.
- Nevarez was arrested for DUI, taken to the station, and a telephonic warrant was obtained for a blood draw; he initially requested an independent blood test and later said he would “take care of it later.” Blood testing showed BAC > .08.
- Nevarez moved to suppress evidence as the product of an unlawful stop, moved to dismiss/suppress for alleged interference with right to counsel (he asked his attorney to “read me the warrant”), and alleged interference with his right to obtain an independent blood draw; all motions were denied and he was convicted after a stipulated-facts bench trial.
- On appeal, the court affirmed the convictions, holding the stop and subsequent DUI investigation were reasonable, the counsel request was ambiguous (not an unambiguous invocation), and Nevarez waived the independent-draw request; but the court vacated a criminal restitution order (CRO) portion of the sentencing as unauthorized.
Issues
| Issue | Nevarez's Argument | State's Argument | Held |
|---|---|---|---|
| Validity of traffic stop and continuation of detention after officer saw temporary registration | Stop was invalid because the temporary registration was visible and the reason for the stop had dissipated; all evidence should be suppressed | Officer made a good-faith mistake in not seeing the temporary tag until approaching the car; stop continued lawfully until driver was told he was free to go and new reasonable suspicion arose | Stop was lawful; officer reasonably suspected a plate violation when he initiated the stop and, even after seeing the temporary tag, further observations (alcohol containers, signs of intoxication) created new reasonable suspicion to continue DUI investigation |
| Whether the stop lasted longer than necessary (scope/duration) | Continued investigation was unjustified once the temporary registration was seen | The encounter did not end until occupants were told they were free to leave; officer developed new reasonable suspicion during that encounter | No Fourth Amendment violation; scope/duration were reasonable under totality of circumstances |
| Invocation of right to counsel at station (request to have attorney "read me the warrant") | The statement was an unambiguous request for counsel that should have halted police action and warranted suppression or dismissal | The statement was ambiguous/limited (request confined to reading the warrant) and did not invoke right to counsel for all purposes; officers offered copy and later counsel could read it | Trial court did not abuse discretion; request was ambiguous/limited and did not require cessation of investigation or suppression |
| Interference with independent blood draw / exculpatory evidence | Police interfered with Nevarez’s right to obtain an independent blood draw; notation shows he requested it and later evidence of waiver is unreliable without recording | Nevarez initially asked but later waived the independent draw (“I’ll take care of it later”); any failure to inform about booking timing is not state-created interference | No unreasonable interference shown; waiver was uncontroverted in testimony and police did not create barrier to independent testing |
Key Cases Cited
- State v. Ellison, 213 Ariz. 116 (2006) (right-to-counsel invocation must be unambiguous)
- State v. Uraine, 157 Ariz. 21 (App. 1988) (limited invocation of counsel does not extend to all purposes)
- United States v. Jenkins, 452 F.3d 207 (2d Cir. 2006) (officers who stop on a reasonable but erroneous basis may approach occupants and investigate further)
- Arizona v. Johnson, 555 U.S. 323 (2009) (traffic stop normally ends when occupants are told they are free to go)
- State v. Jones, 203 Ariz. 1 (2002) (recorded interrogations are best evidence of voluntary waiver, but unrecorded waivers may be admissible)
- Van Herreweghe v. Burke, 201 Ariz. 387 (App. 2001) (state must create barrier to independent testing to show unreasonable interference)
- State v. Lopez, 231 Ariz. 561 (App. 2013) (imposition of a criminal restitution order before sentence expiration is unauthorized and reversible error)
- State v. Rumsey, 225 Ariz. 374 (App. 2010) (violation of right to counsel does not automatically trigger suppression in DUI cases)