Blood samples taken from motorists without their specific on-the-spot consent can't be used to convict them of drunken driving, the Arizona Supreme Court ruled Monday.
The justices acknowledged that Arizona has an "implied consent" law. It says motorists agree to provide a sample of blood, breath or urine for testing if they are charged with driving under the influence of alcohol or drugs.
But Justice Scott Bales said police still need a warrant from a judge to draw blood without the driver's explicit approval.
Bales, writing for the unanimous court, said the "implied consent" law simply makes giving consent a condition of having an Arizona license. He said that allows motorists to refuse - but with the understanding the license will be taken away, something that remains unchanged by this ruling.
The case involves the 2007 arrest of Jose Carillo by Phoenix police on charges of driving under the influence. He was taken to a nearby DUI van where testing was delayed because Carillo, sitting on the van's steps, was sick for about 30 minutes.
While Carillo was sitting there, one officer placed a large toolbox on Carillo's lap while another took a blood sample.
Carillo attempted to keep the results of the sample from being used at his trial. He testified he spoke only Spanish; the officers acknowledged they were not certified translators, communicated through gestures and Carillo gave no resistance.
As a result, the city magistrate concluded that nothing in Carillo's conduct indicated that he refused to consent to the test.
On appeal, city prosecutors argued that the wording of the implied consent law shows that approval is considered automatic absent a specific rejection.
As proof, they noted the law spells out that someone who is dead or unconscious is presumed not to have withdrawn consent. Based on that, they said if blood can legally be taken from an unconscious person, it also can be taken from someone who is merely silent.
Bales, however, said that's not the way the law works - at least not with those who are, in fact, conscious.
He pointed out the law requires police to request a motorist submit to a test and inform anyone who refuses that doing so will result in loss of license. More to the point, Bales said the law says if a person refuses to submit, the test "shall not be given ... unless pursuant to a search warrant."
The court also rejected arguments that requiring specific consent each time a test is sought undermines the state's drunk driving laws.
"The key purpose of the implied consent law is to remove from Arizona highways those drivers who may be a menace to themselves and others because of intoxication," Bales wrote.
"One way the legislature chose to achieve this goal was by providing for the prompt suspension of the licenses of arrestees who refuse testing," the judge continued. "Rather than statutorily authorizing the warrantless administration of tests on such persons, the legislature instead deemed a failure to expressly agree to be a refusal."
And that refusal, Bales said, becomes the basis for summarily suspending the person's license.
Finally, Bales said the statute does require someone who is arrested to "expressly agree'" to being tested without a warrant. That, the judge said, means "in direct or unmistakable terms and not merely implied or left to inference."
Monday's ruling does not end this case. Instead, it sends it back to the city magistrate to decide, based on the evidence, whether Carillo expressly agreed to have his blood drawn.
