State v. Nissley

III. CONCLUSION is- thirteen additional 44 Guarino lists

suеs, acknowledges previously have which he Court, preserve rejected this been for future review. decline revisit them We those issues. affirm convictions and 45 We Guarino’s

sentences. Arizona, Appellee,

STATE NISSLEY, Appellant. McLeod Patrick No. 1 CA-CR 12-0780. Arizona, of Appeals Court 1. Division Oct. Jones, J., opinion dissenting part. filed Attorney

A’izona By General’s Office Ter- Crist, ry Phoenix, M. Appellee. Counsel for Segal, By Balleeer & LLP Natalee E. Se- Phoenix, gal, Appellant. Counsel for Judge SAMUEL A. THUMMA delivered Court, opinion Presiding in which Judge joined LAWRENCE F. WINTHROP Judge KENTON D. JONES dissented part.

OPINION

THUMMA, Judge: 1 Patrick McLeod appeals from resulting his convictions and sentences for manslaughter, possession reckless or use of drugs endanger- narcotic and four counts of Nissley argues ment. denying

erred in suppress his motion to blood test results for blood obtained for law purposes enforcement under Adzona Revised (AR.S.) 28-1388(E) (2015).1 Statute section Because has shown no er- reversible ror, his convictions and sentences are af- firmed as modified to vacate the Nissley pay for the cost of his DNA testing.

1. Absent material revisions after the relevant version unless otherwise indicated. dates, statutes and rulеs cited refer to the current Evidentiary Hearing. I. The AND HISTORY

FACTS2 PROCEDURAL evidentiary hearing on 4 At Novem Shortly p.m. after 5:30 suppress, court heard motion high driving while his car at ber witnesses, testimony from received nu- six area, Nissley speed in residential rate of argument. merous exhibits and heard Niss- car, injur oncoming on into an crashed head testify right, ley, was his elected not to as oncoming car and people four hearing. The evidence received ad- detailed killing pedestrian. later a Witnesses Nissley’s the issues raised in motion dressed driving Nissley’s dangerous and and erratic (1) suppress: whether law enforcement leading up the fatal to and after behavior (2) Nissley probable whether had cause and Nissley sample from A blood taken crash. expressly refused medical treatment. Given personnel hospital less than by medical at a inquiry, the fact-intensive nature of the concentra significant later revealed an hour in some evidence is summarized here detail. me methamphetamine and an active tions of system heroin in at the time of tabolite of his A. The Scene Of The Crash. Nissley charged with the crash. State Jay the first re- 5 Officer Jones was murder, a Class degree of second one count arriving between 5:35 sponder, at the scene felony; possession or dangerous one count of arrived, Nissley p.m. and 5:40 When he was felony; drugs, and of narcotic a Class use by citizen being tended to a concerned who endangerment, Class each a four counts Nissley ap- a nurse. testified was Jones felony. dangerous distress, peared flailing to be in “was ¶ Nissley suppress moved the blood that car was crushed around” and his “whole results, asserting sample the blood was test in around him.” probable without a warrant or cause obtained ¶ Officer Hemshrot arrived a Deborah expressly treat- and that he refused medical Nissley minutes after and heard few Jones Nissley argued that ment. screaming in his Hemshrot told car. When police] officer blood for cannot obtain [a it,” Nissley “stop complied. Hemshrot purposes pursuant law enforcement great there was deal of blood in testified 28-1388(E) person A.R.S. when car, photographs which confirm. Asked his that subjected to medical treatment assistance,” Nissley “refusing whether was expressly rejected. has of, I’m aware testified that “[n]ot Hemshrot In v. State Nissley added did not other- no.” She 2004), ques- ([App.] precise being uncooper- P.3d 452 this respond to wise her and was There, circum- tion was answered. similar Nissley screaming cursing, ative. was enforcement ob- stances resulted law first-responders, shoving punching non- taining sample of drawn from an blood questions apparently responsive to un- who refused medical individual happening. was to understand what able blood inad- Hemshrot, The Court held the emergency treatment. who med- had been theory (EMT) raised missible on same this approximately technician for ical officer, case. years becoming police before testi- fied, “[Nissley’s] speech I was slurred. could response argued that the The State’s facts anything coming not smell alcohol or “distinguishable from the Estrada ease were not make from his breath. But I could out for upon [Nissley] as the basis relied just had a—like he saying. what he was He results.” preclude motion to the blood test something. appearing was be was on He Estrada, Nissley relying on claimed reply, In just screaming.” delirious and rejects “suspect actively if the treatment, arrived at may longer no 7 Officer Nichole Hanson police then 28-1388(E). Hemshrot and con- about the same time as exploit” A.R.S. Blackmore, P.2d only 186 Ariz. court considers the evidence received 2. This light (1996); suppression hearing Hyde, in a and does so upholding (1996). court’s most favorable ruling See, e.g., suppress. the motion State photographs. hospital,” trolled traffic took Han- only McDonald answered “[h]is seeing syringes Nissley’s said, son testified to indication was that he I didn’t want uncapped car and an needle stuck between your help, and that he continued to swear at the car’s windshield and dashboard. aggressive.” us and act McDonald testified that, say, alone, for “to leave me McDonald, primary 8 Andrew treat- not indicate that he didn’t want our medical ing paramedic, Lowery and EMT Aaron ar- McDonald, According treatment.” Niss- rived after Hemshrot and Hanson. Mc- ley’s cooperate refusal to “indicated] that at cuts, Donald testified had numerous particular anything time he did not want bleeding scrapes and had to the face and removing Nissley us.” After from his head. quite car had a bit of dam- ear, McDonald treated him and con- age apparent from an rollover. McDonald cursing being tinued combative. Mc- general asked for his name and infor- Donald Nissley kept “pushing testified us mation to assess his condition. re- “ away” “attempting to hit us with a closed off, sponded stating ‘f leave me alone” they fist.” Once “had him strapped to a back provide any and refused to additional infor- board which strapped was then turn to a Nissley’s mation. McDonald testified that gurney,” Nissley pull was “able to his feet response questions profanity to similar was straps attempt out of the to kick at” the alone, and “leave me “just go I’m fine” and paramedics. away.” treating Nissley As McDonald was “explaining to him that I was there to ¶ 11 McDonald testified he did not believe him, did, times, help I him numerous tell he Nissley ever said he wanted McDonald’s as- give had to me information if he wanted me sistance transportation or treatment or to the go away,” yet Nissley did not answer the hospital. Nissley’s however, injuries, Given questions asked аnd responded giving “never McDonald testified he was unable to decline anyme information.” “At no [Niss- time was transporting Nissley hospital to the without ley] provide any able to indication on his getting clearance from a doctor. When level of consciousness.” McDonald added that, you asked “did it ever occur to because Nissley that aggressive, “was pushing he was telling you this was he didn’t want [paramedics] away,” and points “[a]t a few your help, you that going were to be trans- attempted ... to strike us with a closed fist.” will,” porting against him his McDonald re- Nissley physically during “was combative sponded explained “Yes.” McDonald why, event,” entire including before McDonald given injuries, Nissley transported was any questions. asked him hospital being without a doctor consulted: expressed 9 McDonald concern that And, mean, Q. you’re I isn’t that when Nissley may have suffered a closed head supposed call hospital the doctor at the injury and testified that individuals who have say, got somebody may we’ve that injuries closed similarly head act to how help? want our I think he needs it? Nissley acting. was McDonald testified that treatments, A Per they our offline if can- Nissley’s might behavior be “consistent” with respond ques- to our alert and oriented injury,” someone with a “closed head al- tions, get permis- we don’t have to call and though Nissley he conceded was “conscious” sion for that. “verbally responsive” and that “seemed to be like he knew going what was Q. you making Aren’t a distinction? You in, on. He knew the situation he was but he said, mean, respond. cannot I it’s not that him, anybody didn’t my want around was respond. he just couldn’t He didn’t re- opinion.” spond. Isn’t that the truth? whether, any point, 10 When asked A. He did not. “I said don’t need medical treat- Q. right. respond- Ml So he could have ment,” McDonald testified “I don’t recall him ed? if, saying that.” point When asked ambulance, being placed before in the Niss- A. I don’t know if he could not. He ley you go he didn’t want to respond questions “indicate[d] did not I asked. Nissley’s was that behavior Plotnik testified saying whatever the heck else

Q. He was being under the influence of with consistent say, wasn’t he? he wanted Nissley’s added that drugs or alcohol. She things. I can’t tell quite a few A.He said who inconsistent with someone behavior was He didn’t you if he could have or not. аnd more simply been in an accident had my questions. answer the influence with someone under consistent Lowery signifi- EMT testified about recounted infor- drugs or alcohol. Plotnik Nissley’s appeared car that damage to cant time that “a lot provided to her at the mation rollover, Nissley had a by a to be caused ground” and in syringes were seen on “all quite had a bit of blood head wound and ear, Nissley’s photographs confirm. which in the ear and there was blood over” his head Lowery testified Niss- his head wound. Hospi- Trip To The B. The Ambulance alone, leave me don’t touch ley “did state to tal. me,” ques- our he “would not answer but Lowery rode with 14 McDonald and “throwing Lowery said was tions.” hospital. Nissley in the ambulance to the saying “I calling us names” and punches, McDonald testified that continued help.” Lowery acknowl- your don’t want in the ambulance. curse and be combative saying transporta- edged Nissley was “no” to Nissley saying he McDonald did not recall hospital, but added tion to go want while did not right transporta- have the to refuse did not ambulance, although Nissley in the con- hospital in his condition. “He tion to the “extremely to curse and was combat- tinued decisions.” to make his own wasn’t able during pushing and was him ive” the ride Lowery behavior was testified swinging kicking at him and him the away, hypo- with a diabetic who was not consistent acknowledged Lowery entire time. been, Lowery Even if it had testi- glycemic. uncooperative Nissley to be continued Nissley not have left fied that he would throughout his combative and was consistent Lowery helped put Nissley on the car. the Lowery. with contact put gurney him in the used to backboard hospital him to the and held his head take Hospital. C. At The Nissley responders suspected down because ¶ Nissley’s contact with nurses and injury. Lowery never first had a head or back draw, doctors, go which resulted in the blood did Nissley say that he wanted to heard hospi- give until after he arrived at the hospital “[pjlease me medical assis- not occur Nissley hospital was at the when tal. Plotnik tance.” being unloaded from the ambulance and was Sara Plotnik arrived at the 13 Officer continually Nissley yelling “was testified that responders. the other first She scene after ow, Nissley Lowery, who wheeled ow ow.” Nissley, “probably while travel- testified that Nissley’s hospital, testified that into the be ing high speed, at a rate of which would according hospital proto- blood was taken the foot traffic” unusual for that area due to col, Lowery Lowery’s direction. testi- not at limit, speed low caused a head-on and the way Nissley fied that behaved the same killing pedestrian. Damage to accident hospital he did at the crash site and as car, by photographs of Nissley’s as evidenced way treated the nurses and doctors the same scene, Nissley had been confirmed Lowery he treated at the crash site. driving fast. Plotnik never heard that, testified “moving “[a]s him 16 Plotnik reject treatment but she see ow, ow,” [Nissley], would tried to work on he continually “yelling while staff around” continually move about.” Plotnik testified strapped gurney para- and the he was that, hospital, Nissley at the continued trying to work on or move him. medics were jump away, making it “difficult” for screaming move or Plotnik testified professionals to work on him. Plot- punching first-respond- medical cursing, shoving and Nissley had to be sedated before еrs, appar- nik testified nonresponsive questions When happen- they could “assess his situation.” ently to understand what was unable questions, Nissley personnel asked training experience, medical ing. on her Based just “said that he didn’t know or sample refused secured the blood in accordance 28-1388(E) to answer.” When asked whether she “ever with ARS Section and that the Mr. tell [Nissley] hear[d] [at the doctors actions did not constitute an treatment,” hospital], I don’t want medical express refusal to submit to medical treat- responded Plotnik “I never did.” ment sufficient to mandate that a warrant such, be secure. As Sup- the Motion to portable 17 Plotnik had a recorder at the press is denied. hospital that she used to record some state- personnel ments Nissley, trial, 18-day 19 After an jury found both as was unloaded from the ambu- Nissley guilty of the lesser-included offense lance and in the trauma room. At least manslaughter reckless on the second de- portions of that recording played were gree count, murder guilty remain- suppression hearing. That recording, how- charged. offenses as The ever, exhibit, was not rеceived as an is not sentenced aggravated to an prison part appeal of the record on and no tran- years term of 15 for the manslaughter con- script from recording part of the rec- viction and prison concurrent terms of 3 appeal. ord on year’s on each of the other convictions. From timely appeal, challenging Superior Ruling II. The Court’s On Niss- court’s denial of his motion to ley’s Suppress. Motion To suppress, jurisdiction this court pursuant has Constitution, to the Arizona 18 After Article considering the Section evidence in the 12-120.21(A)(1), §§ and A.R.S. parties’ context arguments, 13-4031 superi- and -4033. or court entry issued a detailed minute stat-

ing, part: painstakingly

This Court has reviewed DISCUSSION [Nissley’s] record to assess whether Legal Governing I. The Standards “express rejec- actions rose to the level of Taking Samples. Of Blood tion” of medical contemplated by care Es- ¶ 20 A blood draw is a search under doing, trada. In so only the Court has not the Fourth Amendment to the United States weighed presentation of the various Constitution, applicable through here the due witnesses, but tape recording also the se- process clause of the Fourteenth Amend cured Officer Plotnik at hospital. 496, Spencer, ment. State v. 235 Ariz. 498 Throughout recording, there were nu- ¶ 9, 823, (App.2014)(citing 825 State merous comments sounds from [Niss- ¶ Estrada, 209 Ariz. 290 ley] hurts,” ..., that included “it f “ow ow (App.2004)). 455 Spencer ‍‌‌​​​​‌​‌​​‌‌​​​​‌​‌‌​‌‌​‌‌​‌​​​‌‌​‌‌​​​‌​‌​​​‌​‍As noted in ..., ..., f ow f no” repeated as well as Estrada, ways police there are three expected moans from great someone in sample could obtain a blood pain. None of the contents of the record- consistent with the directives of the Fourth from the would rise even near Amendment. express rejection to the level of of medical

care. ¶ First, 21 upon showing probable a [Nissley] The noted actions of cause, a warrant could be obtained for a subject scene of the accident are to inter- ¶ 9, sample. Spencer, blood 235 Ariz. at 498 pretation that could include resistance to Estrada, (citing 333 P.3d at 825 209 Ariz. at pain touch due to or a delirious ¶ state of 11,100 455); 290 P.3d at see also Illinois v. possible interpret mind. While it is also Gates, 462 U.S. 103 S.Ct. 76 [Nissley’s] rejec- actions and words to be a (1983) L.Ed.2d (noting “the Fourth care, they tion of medical do not rise strong preference Amendment’s for searches unambiguous rejection clear and and are warrant”). pursuant conducted to a Had the certainly not of the level of voiced here, police done so the sole issue raised by Estrada. appeal would have been avoided. ¶ upon Indeed, foregoing, Based it acknowledges is the find- the Dissent at ing of this Court that law enforcement properly that a search warrant would have treatment,” sample properly right to refuse medical and that the blood tional

issued “clearly independent “unambiguously,” and ex- have been obtained on this does so could ¶ However, undisputed Estrada, it that is no Ariz. at 290 n. 2 pressly.” basis. sample was obtained for the blood warrant n. 456.3 The 100 P.3d at 455 whether, Nissley. taken from presented here are on the issues it, superior record before court erred Second, Nissley have consented could (1) finding the State showed that it had expressly provide sample, a blood either probable cause believe that violat- ¶ 9, impliedly. Spencer, 235 Ariz. at 498 (2) Nissley § A.R.S. did not ed 28-1381 Estrada, (citing 333 P.3d at 825 unambiguously, clearly and refuse ¶ 11, 455); 100 P.3d at see also A.R.S. medical treatment. 28-1321(A) consent). § (implied The record Nissley expressly con- does not reflect State, party as the “The seek sented, parties’ arguments and the indicated ing to admit evidence seized without a war implied revoked consent. When rant, establishing had burden of med implied provided, is when express no consent applicability exception’s ical blood draw revoked no warrant consent is and when ¶ 12, Spencer, facts.” 235 Ariz. at these obtained, op- police are limited to the third omitted).4 (citation 333 P.3d at 826 This 28-1321(D)(l) (noting § A.R.S. if tion. See sup reviews the of a motion court denial consent, person implied revokes blood test press for an of discretion. Id. at 498 abuse given, provided except not be as “shall cases); Estrada, (citing P.3d at 825 28-1388, pursuant subsection E or section ¶ 2, 209 Ariz. at 288 100 P.3d at 453. The warrant”). a search court, court, weighs this not credibility. witness assesses Third, pursuant to the medical at 453. This require draw the warrant blood findings factual defers court’s ment, supported by that are the record and not probable has if a law enforcement officer clearly Legal erroneous. Id. conclusions and person to believe that has violated cause questions fact are mixed of law and reviewed blood, sample § 28-1381 and a [A.R.S.] de novo. 235 Ariz. at 498 bodily urine or other substance is taken cases). (citing P.3d at 825 reason, person portion for from that sample analysis sufficient for shall Superior Properly II. The Court Pound provided to a law officer if be enforcement The Police Probable To Had Cause purposes. law requested for enforcement Believe Violated A.R.S. 28- 28-1388(E). construed, A.R.S. As this 1381 Before Draw. The Blood statutory exception to Amend- the Fourth ¶25 apply ment’s warrant does Because law enforcement is required operator her eonstitu- “to when a “exercises his or show that ever, Supreme support 3. The Arizona Court has restricted the does not such a conclusion. Dur- language argument “for reason” "to mean that the suppression hearing, at the the personnel by be drawn blood must for superior recognized expressly court the State Cocio, any medical reason.” 147 Ariz. State nothing proof, burden had the of and in its (1985) (cоnstruing 1345 entry denying sup- detailed minute the motion to statutory predecessor). superior The court found recognition. press was inconsistent with that necessary [Nissley] of that "the medical care Nissley's opening appeal reply and briefs on do hospital prerequisite,” finding meets this the argue superior the the not court shifted burden challenged appeal. Nissley apparently on proof appeal, the of State. On this court hospitalized days after remained for several the supplemental briefing applicabili- the allowed crash. Spencer, ty after of which was decided sentencing appeal, proof. of and and the burden ¶¶ 41 46 concludes The Dissent the supplemental parties’ acknowledged The briefs superior improperly court the burden of shifted and, proof the State burden of had the relieving thereby proof, of its burden the State treatment, prior positions, Nissley consistent with voluntary his prove consent to medical superior argue the the court shifted burden imposing upon Nissley proving the burden of record, rejection. proof adequacy his The how- from the the of State.

453 influence!,] DUI) (dicta). only proba- give probable in fact the the under rise to cause for bility prima showing facie of intoxi- Accordingly, superior and not the court did not err in probable cation is the standard for cause.” finding police probable had cause to be- Aleman, 210 Ariz. lieve violated A.R.S. 28-1381 be- (citation omitted). (App.2005) P.3d fore the blood draw. police knowledge” The must have “collective “reasonably trustworthy information of Superior Properly III. The Court Found

facts and circumstances which are sufficient Did State Showed Not person to lead a themselves reasonable Unambiguously, Clearly And Ex- believe an offense has been committed and pressly Refuse Medical Treatment. person that the to be arrested did commit it.” (citation omitted). applied, Id. As the testi- Nissley argued superior to the mony first-responder police officers dem- “precise that Estrada “answered” the ques- probable onstrates there was cause to believe Estrada, presented tion” here. Under violated A.R.S. 28-1381 before the medical blоod draw to the warrant blood draw. apply does not when a right “exercises his or her constitutional ¶26 appeal, Nissley On focuses on treatment,” refuse medical and does so “un- other evidence considered ambiguously,” “clearly expressly.” Es- court, suggesting may the crash have been trada, Ariz. at n. 2 emergency, caused a medical the initial 2, 456; P.3d at n. see also investigation determining did not include “if ¶ 13, Ariz. at 499 (citing 333 P.3d at 826 otherwise) drugs (legal present” were Estrada). Nissley argues unambiguously, Plotnik “had not even made an assessment as clearly refused medical treat- [Nissley] to whether she believed was under undisputed ment. also claims “it is drugs.” the influence of alcohol or It is true that” he did transported not want to be testimony hearing was not hospital and did not want medical assis- definitive, always causing consistent or trip tance emergency on the to the room. ‍‌‌​​​​‌​‌​​‌‌​​​​‌​‌‌​‌‌​‌‌​‌​​​‌‌​‌‌​​​‌​‌​​​‌​‍superior court to conclude that each of the argues Nissley The State was not “alert and first-responders suppres who testified at the by paramedics oriented” when contacted hearing sion “had a per somewhat different pаramedics that his statements to spective but were not there were inherent similarities express the clear and Resolving to their versions of refusal of medical events.” such required by issues treatment credibility, involves the assessment of Estrada.

which is for the court alone. Estra da, 209 Ariz. at 288 100 P.3d at 453. Expressed A. The Concerns In Estrada Moreover, probable the standard for cause Spencer And Are Not Present In subjective not a objective “is standard but an This Case. Turner, one.” State v. 142 Ariz. accident, In28 after a fatal (App.1984). The issue is initially agreed go defendant hospi- supports finding whether the evidence then, tal but while en route to the knowledge” police the “collective ambulance, “apparently changed Aleman, probable showed cause. ¶ 4, ¶ 15, mind.” 209 Ariz. at 289 100 P.3d at 454. at 237 109 P.3d at 576. The record from police A officer “then handcuffed and shack- suppression hearing supports superi- gurney.” led [defendant] 209 Ariz. at finding police proba or court's that the had being 100 P.3d at 454. After “se- driving ble cause to believe that gurney, expressed cured to the and, he still a impaired slightest degree while to the therefore, get desire to out of the ambulance.” Id. had violated A.R.S. 28- 1381(A)(1). Aleman, Following evidentiary hearing, superi- See 210 Ariz. at 237 ¶ 15, 576; granted sup- 109 P.3d or court defendant’s motion to at see also State v. ¶ Quinn, press test results of blood drawn at 69-70 ¶7, (App.2008) (depending hospital. 1193-94 on cir 209 Ariz. at 289 100 P.3d at cumstances, unexplained driving may appeal, deferring superior erratic 454. On to the any had jail if he did not or “unambig- threatened finding that the defendant

court’s blood in the decision to draw his med- involvement “clearly expressly” refused uously,” result, treatment, there was no hospital. As found no abuse at the ical Estrada leading police to granting defendant’s motion “ultimatum” or directive in discretion ¶ 23, Nissley. Ac- 100 P.3d at 457. to draw blood suppress. Id. at 292 decision so, cordingly, Nissley did not face the Hobson’s the medical draw doing Estrada stated In by the person presented to the defendant apply “when the choice exception did not per- Spencer. that the in subjected police to medical treatment finding that a rejected,” expressly has son unscrupu- “an contrary holding would allow Spencer, Estrada And B. Under ... have the police [to]

lous officer Superior The Court Has Not Shown pre- hоspital under the forcibly taken to the Denying In Abused Its Discretion in needing medical treatment order text of Suppress. Motion to obtain- procure sample without first a blood implicat Even if the facts here ¶¶ 13, 209 Ai’iz. at 290-91 a warrant.” expressed in Estrada and ed the concerns 14,100 at 455-56. unscrupulous police offi Spencer “an about contrast, Here, by nothing in the rec- cer,” whether the the issue would be or suggests police that officers directed ord its discretion on this record court abused anything with the to take had to do decision proved Nissley did not finding that the State hospital or to draw his blood unambiguously, clearly refuse hospital. Officer Jones testified at the Estrada, Ariz. at 290 medical treatment. paramedics tell the he wanted he did not 2, 456; at 455 n. n. Nissley transported hospital to the ¶ 13, Spencer, Ai’iz. at 499 see also Similarly, EMT doing so. Low- not assist Estrada). (citing applied, As P.3d at 826 him ery police that no officer told testified (1) locations: at inquiry this focuses on three hospi- they wanted taken to the (2) crash; in the ambulance the scene of the Lowery blood was tal. added that Nissle/s (3) at the way hosрital to the on the hospital protocol, according to taken ¶¶ 4- hospital. 209 Ariz. at 289 See Accordingly, the concerns his direction. (where consent P.3d at 454 defendant unscrupulous in Estrada about “an identified and then revoked ed to medical treatment directing medical treatment to police officer” and, by recognizing the implication, consent sample present are not here. obtain blood occur). opposite could Spencer, In decided after was reflects, ruling 32 As the court’s sentenced, the defendant convicted and by Nissley the record includes no statement “steadfastly refused medical treatment. She refusing specifically medical assistance being [by police capitulated only after told repeatedly stated he of the crash. He scene if did not she would be arrested she officer] (in- responders help did not want from first hospital.” Ai’iz. at 499-500 go to the them to “leave him cluding paramedics), for ¶ 15, Given this “ultima- 333 P.3d at 826-27. efforts at aid physically alone” and resisted tum,” Spencer defendant’s decision found the responders with closed and struck at first (rather jail) go than legs He kicked his free when fists. also or duress” product “the of coercion attempted to kick at gurney was on a and, involuntary. accordingly, police officer they placing him personnel as were medical ¶¶ 14, 16, Ariz. at 499-500 superior court into an ambulance. As the Thus, police that the Spencer held 826-27. noted, at the scene of the crash the actions go go jail officer’s directive to either subject interpretation that could are hospital removed from the defendant pain or a to touch due to ability voluntarily medical care. Id. include resistance refuse it is also delirious state of mind. While 333 P.3d at 827. Unlike at 500 however, interpret [Nisslej^s] actions and possible to suggestion there is no care, words to be a any involvement police officer had unambigu- they do not rise to a clear and hospital, transport decision to rejection certainly píete ous and are not of the presented record is appellate to an rejection by court, level of voiced Estrada. missing portions the of that record are prеsumed to be support the action of the record, given On this and the deference owed court”) cases). (citing trial superior to the findings comb’s factual conclusion, provide the ¶ foundation for this Referring to the medical treatment Nissley has not shown that the comb erred in ¶ provided hospital, at the the Dissent at 48 concluding that the Nissley State had shown capitulation states “an eventual persis- to the did not unambiguously, clearly expressly and personnel” tent demands of medical cannot reject medical care at the scene of the crash. “qualify ‘voluntary’ as ‘free’ and submission ¶ Estrada, ¶ 9, 15, 209 Ariz. at 290 n. 2 record, however, to treatment.” ‍‌‌​​​​‌​‌​​‌‌​​​​‌​‌‌​‌‌​‌‌​‌​​​‌‌​‌‌​​​‌​‌​​​‌​‍The does 2, 456; 100 P.3d at 455 n. Spencer, see also not reflect “demands of person- ¶ 13, 235 Ariz. at 499 (citing 333 P.3d at 826 hospital nel” at the and missing the record- Estrada). presumed support is contrary find- Moreover, ing. superior properly the comb ¶ 33 Nor does the evidence from the ambu- ject biguously, clearly has not shown that lance ride ride to in concluding the cal care at the also at 826 of McDonald and Nissley in ¶ 9, unambiguously, Plotnik medical care Spencer, (citing hospitаl. Finally, took a different ¶ alter the the hospital. 15, suggests Nissley Estrada). 235 Ariz. at 499 100 P.3d at 455 n. ambulance, hospital, Estrada, during State showed Lowery, clearly analysis. testimony On this expressly reject superior where he first was position 209 Ariz. at 290 n. does who rode with record, ambulance did not unam- from not court erred 2, 456; during the testimony suggest Lowery medi- trip see did re- pressly reject medical treatment at the hos- also showed pital. Nissley has mands at 826 not show a could find the records received in evidence do counter to the or court erred in cal clearly Nissley 9, hospital. personnel the State showed H; (citing by Nissley. ¶ expressly reject ^[*] Estrada See 235 Ariz. at 499 hospital, any superior or a 100 P.3d at 455 n. Estrada, not shown that the concluding v These records do not run capitulation of medical treatment ).5 court’s factual ^[*] 209 Ariz. at 290 n. demands of medi- medical care at unambiguously, that the State to such de- ^[*] did not ex- 2, 456; superi- finding ^[*] see treated nurses and doctors and where his 36 The Dissent advocates for a standard and, blood was drawn. Plotnik testified that concluding different than Estrada Nissley never told superior applied the nurses or doctors he comb legal the incorrect standard, did not want medical treatment. application And the takes recording hospital, from the the substance of of Estrada to this ease. The Dissent does not, however, which is not of appeal, presumed record on argue analysis that the in Es- support superior ruling, court’s includ- trada was incorrect or that Estrada was “[njone ing the wrongly conclusion that repeating con- decided. And it bears tents of recording from the suppress motion to relied ex- express clusively would rise even near argued level of Estrada an- rejection of “precise question” medical care.” See Cullison v. presented swered here Peoria, City 168 n. 584 and stated Estrada’s test was whether the (1978) (“where 1159 n. 2 an incom- blood was “drawn individual who Tucker, Although the Dissent at 49 states the ruling "arguably (2007) ("We court’s results structural er- recognized have er- structural ror, ... which cannot be harmless and need not instances,” only ror a few such as "when trial court, have been raised” with the Niss- biased; counsel, judge defendant denied access ley has never claimed structural error and his trial; counsel, self-representation, public preserved supрress motion to the issue discussed defective; ju- reasonable doubt instructions Moreover, ap- above. the Dissent cites no case rors excluded because of race or views on death plying appeal structural error to an from the penalty”) (citing authority). suppress. denial of a motion to See State v.

456 court in superior the erred Hav- shown that

expressly medical treatment.” refused assessing testimony the Nissley legal weighing and apply to the ing been asked Estrada, suppression the superior received at forth in the other evidence standard set concluding hearing that the State applying faulted for then court cannot be presented. Nissley unambiguously, did not the facts It is showed test to Estrada’s clearly reject care at superior expressly the court medical to find fault with also hard Estrada, hospital. 209 n. that has not the See Ariz. at 290 a standard applying not ¶ ¶ 2, 456; n. appear 2 100 P.3d at 455 see that does not in Estra- 291 advocated and ¶ 13, Ariz. at 499 also 235 da.6 ).7 Accordingly, Niss- (citing at 826 Estrada ¶ Nissley change course Nor did 37 in ley has that the court erred not shown citing Although supporting cases appeal. on denying suppress. to his motion may proposition typically the that a treatment and that a blood refuse medical CONCLUSION draw under the Amend is a seizure Fourth ment, sentencing, superior the court or- 39 At Nissley’s opening appeal brief ar “pay applicable the fee for dered gues draw ran afoul of Estra that the blood testing. cost DNA In State v. Nissley challenge the of’ his point da. does the At no 307 Reyes, 232 Ariz. analysis. “The rule that issues Estrada § clearly opening (App.2013), court held that AR.S. 13- in the brief are waived this raised impose a 610 does not authorize the court to surprising parties serves to avoid testing DNA fee on a convicted defendant. they an issue did not deciding their case on Reyes, Accordingly, pursuant which was present prevent the court from decid and to sentenced, Nissley was sen- issued after with no research assistance or ana cases requirement tence is modified to vacate the lytical parties.” both input from testing. the cost of Lopez, pay Ariz. that for DNA (citations omitted). respects, Al In all other convictions (App.2009) though Nissley argues the and sentences are affirmed. superior court Estrada, time misapplied for J., JONES, dissenting part:

argue analysis different than Estrada passed. apply long has since should view, court my applied 40 In the trial denying mo- Finally, legal it is true that incorrect standard the evidence Although suppress. majority tion to cor- by the court was not considered rectly ac- there has never been dis- entirely consistent. person receiving against is medical treatment poses probable if cause exists to believe the 291, 15, his or her Ariz. will.” 209 person has violated Arizona’s DUI laws. See Apparently guided by spe- P.3d at 456. the Cocio, 277, 284, 147 Ariz. 709 P.2d State v. Estrada, cific facts of where the defendant 1336,1345 (1985); Aleman, 210 Ariz. “changed going hospi- his mind about the [to 232, 236, 11, (App.2005). 109 P.3d voluntarily agitated tal] became and at- apply We have held that the statute does not ambulance,” tempted get out of the person receiving we “when a is medical treat- against attempted by to further define the issue ment his or her will.” State v. Estra- add- da, 287, 291, 15, words, ing: 209 Ariz. “In if other exercises (App.2004). right his or her constitutional to refuse medi- place, cal treatment in the first and does so Here, the trial court admitted the clearly expressly ... he or she cannot be challenged finding blood evidence after the forced to accommodate law enforcement’s de- Nissley’s proven State had actions not “d[id] sample.” sire for a blood Id. express constitute an refusal to submit to ¶ ¶ 4, 15, 100 P.3d at It is the medical treatment” in the manner “contem- majority “other words” the upon focuses in plated by majority accepts Estrada.” The affirming the trial court’s denial of this as the standard and defers to the trial suppress, motion to see and which However, findings. lim- court’s a discussion infra upon arguing responsi- the State relies in its rejection ited to whether the of medical bility was “to show the defendant did not unequivocal, treatment is and therefore suffi- However, expressly reject treatment.” the preserve cient to the defendant’s constitu- statements, tionally protected right bodily leading two integrity, is while to the same Estrada, misleading contrary my result in are established not the same. In view, jurisprudence. Fourth Amendment Predi- it the is initial statement which was cating suppression of the blood evidence fix determining intendеd to the standard for upon sufficiency rejection 28-1388(E). the of a of medical applicability the of A.R.S. upends requirement care the historical of will,” phrase “against 43 The his as artic- consent the absence of a warrant. At a admittedly problematic. ulated in is minimum, this relieves the State of its full Indeed, require it is unworkable to the State proving admissibility burden of the of the prove “against medical treatment was evidence, application may blood and in result defendant; will” of the the State has no shifting proof in a of the burden of defacto proof interest or incentive to offer illustrat- prove “adequacy” the defendant to of his applicability the in of the statute it is rejection, upon greater being no evidence relying upon admissibility to establish the presented suggestion by than the the State equally inappropri- its evidence. It would be rejection ambiguous. that the was unclear or place ate and unconstitutional to the burden reasons, proper For these I would hold the upon prove statutory the defendant to inquiry is not whether the defendant was excеption to the warrant does prove adequately rejected able to i.e., apply, given not that the treatment was care, rather, freely but whether he and vol- Ault, “against his will.” See State v. untarily consented to medical treatment. (1986) (“The 496, 499, 12, See State v. burden is on the state when it seeks an (App.2014). viewing Even (ci- requirement.”) the warrant light the facts in the most favorable to af- omitted). And, order, parties tation because the firming the trial court’s the State did dispute present not evidence of There- Estrada not the defendant consent. fore, transported hospital “against respectfully majori- I dissent from was his will,” what, ty’s opinion not conclusion that failed to demon- does address precisely, prove strate reversible error. the State must order to effectively admissibility grant bars warrantless blood evidence consent” establish the search); States, 28-1388(E). F.2d Karwicki v. United pursuant to A.R.S. obtained (4th Cir.1932) (“The 225, 226 fact that [the ¶44 majority The settles the semantical against protest defendant] did not search phrase problem “against presented significance. without living quarters of his solely allowing proceed State to will” required protest. He was officers upon attempt- evidence that defendant’s right had no to search same without a war- medical care insufficient. ed rant, they consent unless had his interpretation is consistent with This search.”); Lemer, States v. United meaning phrase commonly understood (N.D.Cal.1951) F.Supp. (declining to will,” typically “against the which is used to “apparent find consent where it was that the Large consent. a lack of See indicate protest attitude of was one of the defendant 229, Court, 234, Superior Ariz. 714 148 P.2d consent”). recog- This Court rather than (1986) 399, drugs (noting administered to 404 nized as in State v. which much petitioner “against his were will” where burden, recently the State’s “as articulated treatment); to consent to State v. refused party seeking evidence the to admit seized 542, 538, 125, Miguel, Ariz. 611 P.2d 129 125 a ] without warrant the medi- [and] establish^ (holding that a (App.1980) consent is defense [purpose] applicability,” in- exception’s cal to requires the prove to State to a crime “demonstrating ... [to clude consent victim); “against the will” taking was of the ‘freely medical and treatment] was voluntari- Hall, 1110, F.Supр.2d v. 568 1131 ” Fonseca ¶ 499, 12, ly given.’ 333 at 235 Ariz. P.3d (“[A] (C.D.Cal.2008) finding that the victims 88, Butler, 1119, (citing Ariz. at 826 232 302 necessarily against their will were confined 613, Peterson, P.3d at v. Ariz. and State 228 consented.”) implied victims had that the 405, 408, 1197,1200 9, (App.2011)). (internal omitted); quotation and citation requiring And is consistent with stat- consent Will, Against Dictionary Black’s Law exceptions utory judicially recognized to (10th ed.2014) (noting “against will” is § requirement. the warrant See A.R.S. 28- lack of used in indictments indicate a 1321(A) consent); Butler, 232 Ariz. (implied consent). suggests itself some less- Estrada (2013) 87, 13, (recogniz- P.3d at 612 302 sufficient, er would level of resistance be ing allow a “[e]onsent can also warrantless holding noting apply its would to an during in drawn search” the context of blood medical “attemptn to decline treatment investigation). a DUI refusing go hospital” something to the — ¶ Yet, require 46 court did not the trial express an of care. 209 less than prove Nissley consented to medical State 3, 100 n. 3. Ariz. at 291 n. P.3d at 456 treatment, objec- evidence and the State’s importantly, majority’s ap- More 45 tively to establish consent. Whether fails proach long-standing with federal conflicts question given consent is is a determined authority intended to and state сonstitutional circumstances, totality of the State v. bodily in- protect persons from unreasonable Paredes, 609, 612, 607, P.2d Ariz. 810 610 authority applies independent This trusion. (App.1991) (citing v. Schneckloth Busta- direction in legislative from the contained 248-49, 2041, monte, 218, 93 S.Ct. U.S. 28-1388(E). Butler, State § v. (1973), A.R.S. King, and State v. 36 L.Ed.2d 854 (2013). 84, 88, 18, 609, P.3d 602, 174, Ariz. 604, (App.1984)), Indeed, years two hundred of Fourth over an the warrant “ I jurisprudence, am unaware of Amendment proven ‘by positive clear and must be evi- court, any jurisdiction, having ever in unequivocal dence words or conduct ex- ” Canez, upheld validity consent,’ of a intrusion warrantless pressing State v. 202 Ariz. (2002) 133, 151, premised upon inadequacy purely (quot- P.3d instead, search; Kananen, objection 97 Ariz. defendant’s (1965)); inerrantly required the State to also courts have see United States (9th See, Shaibu, affirmatively e.g., 1427-28 Cir. establish consent. 920 F.2d 1990) (“The search] must be Murphy, [to F.3d consent United States v. Cir.2008) (9th freely (noting unequivocal specific and and intel- “refusal to 1124-25 (internal ligently given.”) quotations free, working omit- cursing screaming his feet ted). “Failing actively vocally resist or emergency as he tried to kick the object to a test does not itself constitute personnel prevent them putting from him Instead, express agreement. ... the arres- into the transportation ambulance for unequivocally tee must manifest assent to the hospital, wiggling body furiously testing by [warrantless chemical] words or attempt keep paramedics Houser, conduct.”8 Carrillo v. touching him providing or otherwise aid. 466-67, 19, (2010) 1248-49 The record indicates that from the moment (holding required prior actual consent is emergency personnel arrived at the scene of testing chemical initiated under A.R.S. 28- approximately p.m., accident at 5:40 until noting 1321 and legislature’s clarification subsequent his forced sedation and blood that a agree “failure to constitutes later, nearly draw an hour was “ex- a refusal” to take the test under A.R.S. 28- combative,” tremely screaming “leave me 1321(B)); California, see also Stoner v. 376 alone,” me,” your “don’t touch “I don’t want U.S. 84 S.Ct. 11 L.Ed.2d 856 fine,” help,” “just “I’m go away,” inter- (1964) (noting defendant could waive Fourth profanity laced with near-constant and name- deed”). rights only “by Amendment word or calling. legal interpretation ‍‌‌​​​​‌​‌​​‌‌​​​​‌​‌‌​‌‌​‌‌​‌​​​‌‌​‌‌​​​‌​‌​​​‌​‍There is no ca- Upon principles, these the trial court was pable being given this conduct or these determining tasked with whether the State phrases, especially para- when uttered to a showing Nissley freely met its burden of and actively attempting medic to render medical voluntarily exhibited a manifestation of con- care, apart ordinary that stands from their sent to medical Although treatment. everyday meaning, give which would rise to a acknowledged trial court that the State had Yet, finding voluntary of free and consent.9 proof, the burden of it only considered concluded, the trial court majority and the sufficiency Nissley’s objection of to medical affirms, that these facts are insufficient to that, ultimately determining treatment — rejection establish medical of care. Nissley may rejected, while have he did not reject enough. ¶48 Similarly, accepting even the trial suggestion court’s Nissley may 47 have The trial court’s conclusion that Niss- ley’s reacting pain been rejection to at the time he arrived places was insufficient in stark hospital, expression pain at the contrast an of does requiring difference between equate voluntary proof from to free and consent the State that the defendant con- treatment, medical sented to medical treatment. See v. requiring and Rasmussen Flem- 216-17, 207, 674, proof ing, 154 “unambiguously, clearly that he Ariz. 741 P.2d 683- and (1987); Pittman, expressly rejected” 84 treatment. The record see also Hales v. 118 is replete 305, 309, 493, (1978) (not- in its Nissley’s characterization of Ariz. 576 P.2d 497 consent, having lack of strapped right every been a “the fundamental of adult of placement ambulance, backboard for in the sound mind to determine what should be eloquent ognized An 8. and detailed statement objec- of refusal is that active resistance and vocal required not and cannot be to overcome the necessary negate tions are not consent. Car- showing voluntary State's burden of free rillo, 466-67, 1119, and 224 Ariz. at 232 P.3d at 1248- necessity uttering specific consent. The of a is, necessarily activity 49. It follows that such phrase precisely correct moment would minimum, affirmative evidence of a lack of predicate finding create an artificial a refusal consent. with, by, that is neither mandated nor consistent protections against bodily the broad invasiоn majority implicitly recognizes 9. The the lack of contained within the U.S. and Arizona Constitu- evidence to establish consent to medical Ramirez, 298, tions. See United States v. 79 F.3d by limiting treatment its use of the word "con- (2d Cir.1996) ("A suspect rely 304 need not inapplicable sent” to a of discussion alternatives phrases any special talismanic or combination of 28-1388(E), 22, 6, ¶¶ supra to A.R.S. 38 n. right words to invoke his Fifth Amendment revocation, parenthetical explanation supra a ¶ silent.”) (cited of approval by remain Cota, with 31, 136, 145, ¶26, 1027, focusing entirely upon instead its attention 229 Ariz. (2012)). circumstances, "Nissley unambigu- the conclusion that did not 1036 Under some ver- care,” may ously, clearly expressly reject necessary bal possible, announcement not be or even 22, 31-35, supreme already supra and our court has rec- n 460 something constitutionally body”); upon Cruzan ex rel. less than to his see also

done Health, consent,10 voluntary 497 Dep’t required Dir. Mo. U.S. free and Cruzan v. of 2841, 261, 305-06, error, 111 L.Ed.2d 224 110 S.Ct. see arguably results State structural (Brennan, J., (1990) dissenting) (noting “each Glassel, 33, 53, ¶74, 116 211 P.3d v. Ariz. of his own (2005) considered be master man is 1193, (finding 1213 structural error mind, may, body, and he if he be sound improperly reduces the where circumstance treatment” expressly prohibit ... medical proof) (citing Sullivan v. state’s burden bodily integrity right and therefore 280-82, Louisiana, 275, 113 508 S.Ct. U.S. right lifesaving even protects the decline 2078, (1993), State 124 L.Ed.2d 182 v. omitted). treatment) (quotation citations Portillo, 592, 594, 972 per- capitulation to the Nor can an eventual Henderson, (1995)); also v. 210 see State qualify personnel sistent demands medical ¶ 12, (2005) 561, 565, P.3d Ariz. “voluntary” “free” and submission to as (defining structural as “those which errors Ariz. at 499- See treatment. ‘deprive protections with- defendants of basic 826-27; 500, 15, P.3d also see State reliably which a criminal trial cannot out ¶ 16, 150, 153, Flannigan, 194 Ariz. v. guilt its function as a vehicle for serve “ (App.1998) ‘ac- (finding mere P.2d innocence.’”) Ring, (quoting State v. ” authority’ quiescence to a claim of lawful (2003)), Ariz. establishing meet insufficient to burden of cannot be harmless and need have which search) (quoting consented to a below, Valverde, been raised see State v. Carolina, Bumper v. North 391 U.S. (2009) 582, 585, 10, (1968)). 548-49, 88 S.Ct. 20 L.Ed.2d 797 (“If error, appellate an court finds structural concluded, Yet, again, the trial regardless of reversal is mandated whether affirms, majority not an the conduct was prejudiсe objection is made below or care. unambiguous of medical found.”); Atkinson, see also United States materially concept 49 The of consent is L.Ed. 297 U.S. 56 S.Ct. rejection. from that of I would different find (“In circumstances, (1936) exceptional espe- applied wrong trial court standard in courts, eases, cially appellate in criminal in § determining applicability of A.R.S. 28- interest, motion, public may, of their own 1388(E) and, so, its discre- doing abused exception errors to has been notice which no Mohajerin, 226 tion. obvious, taken, if they if the or errors are (“When ¶ 107, 18, (App.2010) 112 fairness, seriously integ- otherwise affect an incor- predicates trial court its decision on proceed- rity, public reputation judicial of or standard, legal ... commits an error rect it ings.”). discretion.”) thereby law and abuses its of 165, Mangum, 167, v. (citing State CONCLUSION ¶ 252, 6, The (App.2007)). test ¶ In the absence consent to medical of adopted by puts the trial the cart be- treatment, freely voluntarily given, horse, Gray, v. fore the see United States (8th Cir.2004) (consider- purpose apply. does not medical 1026-27 F.3d us, the record the State Given before ing whether defendant withdrew consent prove by preponderance of the evidence recognizing origi- only after that consent was Nissley freely voluntarily permits consented nally granted), the State to introduce Therefore, care.11 I would find obtained without a warrant based to medical evidence section, proceed Requiring prove chooses to under this it the State to a defendant con- State to medical in order to admit separately sented treatment prove need not consent pursuant § 28- evidence obtained to A.R.S. treatment. 1388(E) admissibility of would not affect the bod- driv- ily obtained an unconscious evidence argues must show 11. The State a defendant it § supra Under A.R.S. 28- er. See n. 6. forcing had some hand in unwanted medical 1321(A), already giv- driver has unconscious upon can him before the blood evidence be care testing under certain en consent chemical suppressed. To read an additional operates when a motor circumstances vehicle contrary legisla- run revoking into the statute would incapable in this state and is of 28-1321(C). language, only § chosen which articulates under A.R.S. Where the ture's consent (1968)); Smith, Nissley’s People L.Ed.2d the warrantless seizure blood v. (Colo.1981) (“Whether improper, vacate convictions P.2d consent ex- sentences, and remand for a new trial objective isted at the relevant time is an fact.”) that does not include evidence derived from Edmonds, (citing People v. 195 Colo. the blood draw. (1978)). objective only standard advanced herein will assist law appreciate 51 I concerns ma- orderly enforcement in the fair and collection jority regarding challenges faced law preservation of evidence. assessing enforcement available alterna- gather may tives to what be time-sensitive agree I52 with the trial court’s conclu- supra However, evidence. See 36 n. 5. “a probable sion that cause existed to believe grudging negative by reviewing attitude had violated A.R.S. 28-1381. courts toward warrants ... is inconsistent cause, upon probable Based such and where with the strong prefer- Fourth Amendment’s any question there was applicability as to the pursuant ence for searches conducted to a 28-1388(E), of A.R.S. the officers could Gates, warrant.” Illinois v. 462 U.S. and should have secured a warrant to obtain (1983). 103 S.Ct. 76 L.Ed.2d 527 sample Nissley’s blood. protections subject Constitutional are not reasons, respectfully 53 For these I dis- exception simply for the convenience of a United, sent. see, investigation, e.g., criminal States (9th Cir.1991) Taylor, v. 934 F.2d

(“We recognize that individual interests out- government rank convenience the fourth balancing.”) amendment (citing United States Martinez-Fuerte, 543, 557-58, v. 428 U.S. (1976)), S.Ct. 49 L.Ed.2d 1116 and our supreme rejected court has the notion that 362 P.3d 508 requiring law enforcement officers to obtain unduly warrants for blood draws is burden- Arizona, Appellee, The STATE of some, Butler, 232 Ariz. at (“In drunk-driving investigations those police reasonably where officers can obtain a Anthony SALCIDO, Appellant. Michael sample warrant before a blood can be drawn 2No. CA-CR 2015-0008. significantly without undermining the effica- search, cy of the the Fourth Amendment Arizona, Appeals Court of ”) they (quoting mandates that do so.’ Mis- Division 2. — -, McNeely, souri v. U.S. 133 S.Ct. (2013)). 185 L.Ed.2d 696 More- Nov. 2015. over, degree while consideration of the subjective, concept of consent continuum; subject is not to a consent is given

either or it is not. See Illinois v. Rodriguez, 497 U.S. 110 S.Ct. (1990) (holding 111 L.Ed.2d 148 factual dе- judged termination of consent must be standard) against objective (citing Terry Ohio, 1, 21-22, 392 U.S. 88 S.Ct. probable guage, unsurprising argument the need for cause and a blood draw it is no or evi- resulting voluntarily from medical treatment re- presented suppression hearing, dence was 28-1388(E); Spencer, ceived. See A.R.S. findings, regarding and the trial court made no Ariz. at 333 P.3d at And the law is willingness law enforcement's to allow elements, express: in the absence of these im- scene, despite be removed from the accident consent, warrant, plied or a "the [blood] test protests, ‍‌‌​​​​‌​‌​​‌‌​​​​‌​‌‌​‌‌​‌‌​‌​​​‌‌​‌‌​​​‌​‌​​​‌​‍transported to re- 28-1321(A), (D)(1) given.” shall not be A.R.S. ceive medical treatment. added). (emphasis statutory Given the clear lan- notes noting Nissley’s pute ac- the State bears burden of knowledges as much in all “subject interpre- establishing respects “the lawfulness of tions the scene were however, court, acquisition all evidence will [it] of which tation.” This defers trial,” 16.2(b), findings sup- use at Ariz. R.Crim. P. superior court’s factual that are question ported by clearly and not errone- remains as to what State must the record Estrada, prove pur- evidence ous. 209 Ariz. at 288 admit blood obtained record, Nissley purpose” exception suant to the “medical On this has conclusion, 7. Given this court not ad- 6. An reason for the that a this need additional unambiguously, clearly argument defendant dress the State’s lacked as set refuse medical treatment forth in Estrada capacity deny the care, consent to receive medical timely is to law enforcement assess allow may justify a warrantless blood draw which Here, Nissley unambiguously, had alternatives. Estrada, applicable. at 290 where See treatment, clearly expressly refused medical 9,¶ (noting person n. 2 P.3d at 455 n. who likely law would enforcement have obtained incapable or otherwise rendered unconscious ” sample. a blood Missouri warrant to secure Cf. refusing treatment 'is deemed not to McNeely,-U.S.-, ” S.Ct. consent) implied (quoting have withdrawn' (2013) (noting that blood alco- L.Ed.2d 28-1321(0). A.R.S. gradually relatively pre- hol "is lost content dictably,” dissipation that the "natural such finding support does not alcohol in the blood” exigency "categorically”). requirement, warrant enumerated within DISCUSSION 28-1388(E). provision A.R.S. This allows 42 In State v. we held the medi- sample law enforcement to obtain and test a pui’pose apply cal does not “when pur- person’s of a blood taken for medical

Case Details

Case Name: State v. Nissley

Court Name: Court of Appeals of Arizona

Date Published: Oct 20, 2015

Citation: 362 P.3d 493

Docket Number: 1 CA-CR 12-0780

Court Abbreviation: Ariz. Ct. App.