State of Arizona v. Hon. butler/tyler B.

OPINION

BALES, Vice Chief Justice.
¶ 1 Arizona’s implied consent statute, AR.S. § 28-1321, outlines how law enforcement officers can obtain consent to blood and breath tests from persons arrested for driving under the influence (“DUI”) and provides consequences for arrestees who refuse to submit to a test. Against this backdrop, we address whether the Fourth Amendment to the United States Constitution requires that a juvenile arrestee’s consent be voluntary to allow a warrantless blood draw. We hold that it does and that the juvenile court properly ruled that evidence of a blood draw was inadmissible because the juvenile did not voluntarily consent.

I.

¶2 On February 17, 2012, Tyler B., a sixteen-year-old high school student, and two friends arrived late to school. A school monitor smelled marijuana on the boys and also saw drug paraphernalia in Tyler’s car. School officials detained the boys in separate rooms and contacted the sheriffs office.

¶ 3 A deputy sheriff soon arrived and read Miranda warnings to Tyler. In the presence of several school officials, Tyler admitted that he had driven his car to school after smoking marijuana and that he owned some of the drug paraphernalia in the car. The deputy informed Tyler that he was under arrest for DUI and other offenses. Tyler became agitated and the deputy placed him in handcuffs. The deputy left Tyler with the assistant principal for about ten minutes while retrieving a phlebotomy kit to do a blood draw.

¶ 4 When the deputy returned to the room, he saw that Tyler had calmed down, so he removed the handcuffs from the youth. He read Tyler an “implied consent admonition” twice, first verbatim and then in “plain English.” The admonition provided in relevant part:

Arizona law requires you to submit to and successfully complete tests of breath, blood or other bodily substance as chosen by the law enforcement officer to determine alcohol concentration or drug content. The law enforcement officer may require you to submit to two or more tests. You are required to successfully complete each of the tests.

If the test results are not available ... or indicate any drug defined in ARS 13-3401 or its metabolite, without a valid prescription, your Arizona driving privilege will be suspended for not less than 90 consecutive days.

If you refuse to submit or do not successfully complete the specified tests, your Arizona driving privilege will be suspended for 12 months, or for two years if there is a prior implied consent refusal, within the last 84 months, on your record. You are, therefore, required to submit to the specified tests.

Tyler agreed verbally and in writing to have his blood drawn, and the deputy drew two vials of Tyler’s blood.

¶ 5 The State charged Tyler with DUI. Tyler moved to suppress evidence of the blood draw, arguing that his consent had not been voluntary and that, as a minor, he lacked the legal capacity to consent. The juvenile court granted the motion, finding that the blood draw violated Arizona’s Parents’ Bih of Rights (“PBR”), AR.S. § 1-602, and, notwithstanding the PBR, that Tyler’s consent had been involuntary under the totality of the circumstances. The court relied in part on In re Andre M., in which this Court recognized the “increased susceptibility and vulnerability of juveniles” in assessing whether a juvenile’s confession was voluntary under the Fifth Amendment to the United States Constitution. 207 Ariz. 482, 485 ¶ 9, 88 P.3d 552, 555 (2004).

¶ 6 On the State’s petition for special action relief, the court of appeals reversed the juvenile court’s ruling. State v. Butler, 231 Ariz. 42, 45 ¶ 11, 290 P.3d 435, 438 (App. *872012). The court first held that the PBR did not apply because the deputy was acting within the scope of his official duties. Id. at 44 ¶ 6, 290 P.3d at 437. It then held that the Fifth Amendment did not apply because the blood was not testimonial evidence. Id. at 45 ¶ 10, 290 P.3d at 438. Stating that “the informed consent statute presents no Fourth Amendment issue,” the court of appeals held that the juvenile court abused its discretion in suppressing the blood draw evidence. Id. ¶ 10 n. 6.

¶ 7 We granted review because this case raises questions of first impression and statewide importance. We have jurisdiction under Article 6, Section 5(3) of Arizona’s Constitution and A.R.S. § 12-120.24.

II.

¶8 The Fourth Amendment provides, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated____” U.S. Const, amend. IV. Evidence obtained in violation of the Fourth Amendment is properly suppressed. Mapp v. Ohio, 367 U.S. 643, 655, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). Trial court rulings on motions to suppress are reviewed for abuse of discretion. See State v. Haus-ner, 230 Ariz. 60, 70 ¶ 23, 280 P.3d 604, 614 (2012). “We consider the evidence presented at the suppression hearing and view the facts in the light most favorable to sustaining the trial court’s ruling.” Id.

¶ 9 Tyler argues that a blood draw is a search subject to the Fourth Amendment and, to be valid, requires either a warrant or an exception such as voluntary consent. The State responds that every Arizona motorist gives “implied consent” under § 28-1321 and that tests administered under the statute are not subject to a Fourth Amendment volun-tariness analysis. The State further argues that “adult privileges carry adult responsibilities,” and thus juveniles should not be treated differently from adults in assessing the voluntariness of consent to a blood draw.

¶ 10 Contrary to the State’s argument, a compelled blood draw, even when administered pursuant to § 28-1321, is a search subject to the Fourth Amendment’s constraints. See Missouri v. McNeely, — U.S.-, 133 S.Ct. 1552, 1556, 185 L.Ed.2d 696 (2013) (holding that a compelled blood draw taken pursuant to Missouri’s implied consent law is subject to the Fourth Amendment’s restrictions on warrantless searches). “Such an invasion of bodily integrity implicates an individual’s ‘most personal and deep-rooted expectations of privacy.’ ” Id. at 1558 (quoting Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985)).

¶ 11 McNeely also forecloses the State’s arguments that requiring warrants for blood draws will unduly burden law enforcement officials or render Arizona’s implied consent law meaningless. “In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so.” Id. at 1561.

¶ 12 In general, under the Fourth Amendment, warrantless searches “are per se unreasonable ... subject only to a few specifically established and well-delineated exceptions.” Arizona v. Gant, 556 U.S. 332, 338, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). One such exception is exigent circumstances, but the State has not argued that this exception authorized the blood draw here.

¶ 13 Consent can also allow a warrantless search, provided the consent is voluntary. Schneckloth v. Bustamonte, 412 U.S. 218, 226-28, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Voluntariness is assessed from the totality of the circumstances. Id. at 227, 93 S.Ct. 2041. Relevant circumstances include the suspect’s age and intelligence as well as the length of detention. See id. at 226-27,229, 93 S.Ct. 2041.

¶ 14 We reject the State’s contention that age should be disregarded in assessing a juvenile’s consent to a blood draw. In various contexts, the law recognizes a juvenile’s age as a relevant consideration. See, e.g., J.D.B. v. North Carolina,-U.S.-, 131 S.Ct. 2394, 2399, 2406, 180 L.Ed.2d 310 (2011) (holding that child’s age is relevant, although not necessarily determinative, in as*88sessing whether a child is in custody); Roper v. Simmons, 543 U.S. 551, 571-73, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (recognizing the “diminished culpability” of juveniles under 18 and holding that “[t]he differences between juvenile and adult offenders are too marked and well understood to risk allowing a youthful person to receive the death penalty”). Juveniles tend to possess less maturity and are “more vulnerable or susceptible to negative influences and outside pressures.” Id. at 569-70, 125 S.Ct. 1183. Courts should not blind themselves to this reality when assessing the voluntariness of consent to a blood draw.

¶ 15 Consent can be voluntary for purposes of the Fourth Amendment in circumstances that would not establish voluntariness under the Fifth Amendment. See Bustamonte, 412 U.S. at 234, 240, 93 S.Ct. 2041 (holding that, although Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires an arrestee to be advised of right to remain silent in order for waiver to be valid, knowledge of right to withhold consent is just one factor in determining voluntariness of a consent to search). But, when the accused is a juvenile, factors such as age and the presence of parents are properly considered when assessing the voluntariness of consent to a search, just as they are relevant in assessing the voluntariness of a confession. Cf. In re Andre M., 207 Ariz. at 485 ¶ 11, 88 P.3d at 555 (noting in the Fifth Amendment context that parents can “help ensure that a juvenile will not be intimidated, coerced or deceived”).

¶ 16 This Court has previously held that, for an officer to administer a test of breath or bodily fluids on an arrestee without a search warrant under § 28-1321, consent must be express. Carrillo v. Houser, 224 Ariz. 463, 463 ¶ 1, 232 P.3d 1245, 1245 (2010). Carrillo turned, however, on statutory grounds and did not address any constitutional issues. Id. at 467 ¶ 21, 232 P.3d at 1249.

¶ 17 The State unconvincingly argues that the “consent” in § 28-1321(A) either constitutes an exception to the warrant requirement or satisfies the Fourth Amendment’s requirement that consent be voluntary. We explained previously that “[t]he ‘consent’ by motorists referenced in subsection (A) does not always authorize warrantless testing of arrestees.” Carrillo, 224 Ariz. at 465 ¶ 10, 232 P.3d at 1247. Rather, the officer is directed to ask the arrestee to submit to the test, and the arrestee may then refuse by declining to expressly agree to take the test. AR.S. § 28-1321(B); Carrillo, 224 Ariz. at 465 ¶ 11, 232 P.3d at 1247. If the arrestee refuses, the statute specifies that a warrant is required to administer the test and the arrestee shall have his license suspended. A.R.S. § 28-1321(D); Carrillo, 224 Ariz. at 465 ¶ 11, 232 P.3d at 1247.

¶ 18 We hold now that, independent of § 28-1321, the Fourth Amendment requires an arrestee’s consent to be voluntary to justify a warrantless blood draw. If the arrestee is a juvenile, the youth’s age and a parent’s presence are relevant, though not necessarily determinative, factors that courts should consider in assessing whether consent was voluntary under the totality of the circumstances.

¶ 19 Voluntariness is a question of fact, Bustamonte, 412 U.S. at 248-49, 93 S.Ct. 2041, and “[w]e review the trial court’s voluntariness finding for abuse of discretion,” State v. Cota, 229 Ariz. 136, 144 ¶ 22, 272 P.3d 1027, 1035 (2012) (reviewing voluntariness of confession). The State has the burden of proving that consent to a search is “freely and voluntarily given.” Bumper v. North Carolina, 391 U.S. 543, 548-50, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).

¶20 Although Tyler did not testify at the suppression hearing, sufficient evidence supports the juvenile court’s finding that he did not voluntarily consent to the blood draw. At the time, Tyler was nearly seventeen and in eleventh grade. He had been arrested once previously, but not adjudicated delinquent. Tyler was detained for about two hours in a school room in the presence of school officials and a deputy. Neither of his parents was present. Tyler initially was shaking and visibly nervous. When he became loud and upset after being told he was being arrested, the deputy placed him in handcuffs until he calmed down. A *89second deputy sheriff arrived before the blood draw was taken. After removing the handcuffs, the first deputy read the implied consent admonition to Tyler, once verbatim and once in what the deputy termed “plain English,” concluding with the statement, “You are, therefore, required to submit to the specified tests.” Tyler then assented to the blood draw.

¶ 21 Viewing the facts in the light most favorable to sustaining the ruling below, we hold that the juvenile court did not abuse its discretion by ruling that Tyler’s consent was involuntary and granting the motion to suppress. We decline to address Tyler’s arguments that he lacked the legal capacity to consent and that the Arizona Constitution provides greater protection than the Fourth Amendment in this context.

III.

¶ 22 We also decline to address Tyler’s argument that the blood draw must be suppressed because it violated the PBR. The statute provides that parents have a “right to consent in writing before any record of the minor child’s blood or deoxyribonucleic acid is created, stored or shared.” AR.S. § 1-602(A)(8). The PBR, however, concerns the rights of parents and does not purport to affect a juvenile’s right to consent to a search. See id. § 1-602(A) (referencing “parental rights”). Nor does the statute provide that evidence will be suppressed if the statute is violated. See id. § 1-602. Even if the blood draw was taken in violation of the rights of Tyler’s parents (an issue we do not decide), Tyler would not have standing to argue that this violation required suppression of the blood draw evidence. Cf. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978) (holding that person lacks standing to suppress evidence seized in violation of another’s Fourth Amendment rights).

IV.

¶ 23 For the foregoing reasons, we reverse the decision of the court of appeals and remand the ease to the superior court for proceedings consistent with this opinion.

CONCURRING: REBECCA WHITE BERCH, Chief Justice, ROBERT M. BRUTINEL and ANN A. SCOTT TIMMER, Justices.
PE LANDER, Justice,

concurring.

¶ 24 As a matter of statutory interpretation, we previously held that, absent a search warrant, Arizona’s “implied consent” statute, A.R.S. § 28-1321, requires an arrestee’s express consent to a chemical test. Carrillo v. Houser, 224 Ariz. 463, 463 ¶ 1, 232 P.3d 1245, 1245 (2010). The Court now holds that the Fourth Amendment also applies to a blood draw administered under the statute and thus an arrestee’s consent must be voluntary. Supra ¶ 18. I have no quarrel with that holding, but reluctantly concur only because the parties acknowledge, and our case law indicates, that voluntariness determinations are reviewed for abuse of discretion. Under that standard of appellate review, I cannot say that the juvenile court erred in finding Tyler’s consent involuntary when some evidence arguably supports an inference to that effect. Cf. State v. Chapple, 135 Ariz. 281, 297 n. 18, 660 P.2d 1208, 1224 n. 18 (1983) (A court abuses its discretion when “the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice.”).

¶25 As the majority notes, voluntariness issues often are fact-intensive and are assessed from the totality of the circumstances. Supra ¶ 13 (citing Schneckloth v. Busta-monte, 412 U.S. 218, 227, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). The majority correctly observes that we generally review rulings on motions to suppress evidence for an abuse of discretion, supra ¶¶ 8, 19, and finds no such abuse in the trial court’s ruling, supra ¶ 21. I write separately to express concern with indiscriminately applying those principles and to suggest, for future purposes only, that abuse-of-discretion review might not be appropriate in cases such as this.

¶ 26 Only the deputy sheriff and Tyler’s father testified at the suppression hearing in this ease. Significantly, the pertinent facts are undisputed and the juvenile court’s ruling is not based on witness credibility, weighing of conflicting evidence, or discretionary de*90terminations. Accordingly, the court’s ultimate ruling on voluntariness could, and arguably should, be deemed a mixed question of fact and law subject to our de novo review. That approach, although admittedly conflicting with extant Arizona case law, would be consistent with our approach in other criminal-case contexts involving constitutional issues. See State v. Moore, 222 Ariz. 1, 7 ¶ 17, 213 P.3d 150, 156 (2009) (noting that, although we review trial court rulings on pretrial identifications for abuse of discretion and defer to factual findings supported by the record, the ultimate question of constitutionality is “a mixed question of law and fact” subject to our de novo review); State v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996) (applying same principles to question of whether sufficient legal basis existed for vehicular stop); State v. Blackmore, 186 Ariz. 630, 632, 925 P.2d 1347, 1349 (1996) (same regarding question of whether an arrest was illegal); State v. Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996) (same regarding question of whether there was reasonable suspicion for an investigatory stop of a pedestrian).

¶ 27 Recently, the Vermont Supreme Court thoroughly expounded on the appropriate standard of appellate review for voluntariness-of-eonsent issues. State v. Weisler, 190 Vt. 344, 35 A.3d 970 (2011). An appellate court, of course, appropriately defers “to the trial court’s underlying findings of historical fact” as a “fundamental principle of appellate review.” Id. at 976, 985; see also Chapple, 135 Ariz. at 297 n. 18, 660 P.2d at 1224 n. 18. But as the Vermont court observed, Schneckloth did not address the subject of appellate review, and “[sjimply labeling consent to search as a question of fact to be determined from the totality of the circumstances” at the trial court level “does little to advance the standard-of-review analysis.” Weisler, 35 A3d at 977. Noting that “appellate courts have traditionally reviewed and resolved independently the question of voluntariness in order to ‘guide police, unify precedent, and stabilize the law,’ ” id. at 985 (quoting Thompson v. Keohane, 516 U.S. 99, 115, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995)), the Weisler court held that “a trial court’s decision on the question of the voluntariness of a consent to search, and thus the ultimate constitutional validity of the search, must be reviewed independently ... on appeal,” id. at 983.

¶ 28 Vermont is not alone. Other courts also follow this approach. See, e.g., United States v. Lewis, 921 F.2d 1294, 1301 (D.C.Cir. 1990) (conducting de novo review of a trial court’s finding of involuntary consent when facts were uncontested and government presented uneontroverted evidence on that issue); United States v. Garcia, 890 F.2d 355, 359-60 (11th Cir.1989) (same); State v. $217,590.00 in U.S. Currency, 18 S.W.3d 631, 633 (Tex.2000) (assessing whether the trial court’s factual findings demonstrate voluntariness under the totality of the circumstances is a question of law); State v. Hansen, 63 P.3d 650, 663 (Utah 2002) (“While consent is a factual finding, voluntariness is a legal conclusion, which is reviewed for correctness.”); State v. Phillips, 218 Wis.2d 180, 577 N.W.2d 794, 800 (1998) (rejecting proposition that the standard of appellate review “turn[s] on whether the underlying determination of the [trial] court was fact-specific”); see also Weisler, 35 A.3d at 976, 980 (collecting eases).

¶ 29 The analyses of those courts would support de novo review of rulings on whether an arrestee’s consent to search was voluntary or involuntary, at least when, as here, the underlying facts are undisputed and the trial court’s ruling is not based on conflicting evidence or credibility determinations. This Court has not yet engaged in the type of nuaneed explication found in eases such as Weisler on the appropriate standard of appellate review for Fourth Amendment volun-tariness rulings. This, however, is not the ease in which we should do so. The parties have not raised or argued any issues relating to the standard of review, but rather concede that abuse-of-discretion review applies. Accordingly, the Court appropriately applies that standard in deciding this particular case.

¶ 30 Stating that voluntariness determinations are fact-intensive inquiries, based on the totality of circumstances, and subject to abuse-of-discretion review, however, does not directly answer the ultimate question: What is the test or standard for establishing valid, *91voluntary consent to a warrantless search under the Fourth Amendment? Generally, to be voluntary, “[c]onsent must ‘not be coerced, by explicit or implicit means, by implied threat or covert force.’” State v. Guillen, 223 Ariz. 314, 317 ¶ 11, 223 P.3d 658, 661 (2010) (quoting Schneckloth, 412 U.S. at 228, 93 S.Ct. 2041). “Consent to search is voluntary if it is ‘the product of an essentially free and unconstrained choice by its maker,’ and not the result of circumstances which overbear the consenting party’s will and critically impair his or her capacity for self-determination.” People v. Magallanes-Ara-gon, 948 P.2d 528, 530 (Colo. 1997) (quoting Schneckloth, 412 U.S. at 225, 93 S.Ct. 2041). Stated differently, “before a court may conclude that consent was voluntarily given, it must find no objective evidence of coercion, duress, deception, promises, threats, intrusive conduct or other undue influence by the police, which critically impaired the defendant’s judgment.” Id. at 531; see also id. at 533 (“The essential consideration in determining voluntariness of a consent to search is the impact of overbearing, coercive, or deceptive police conduct on a person with the knowledge and particular characteristics of the defendant.”).

¶ 31 Applying those standards, only with some difficulty do I agree with the majority that the juvenile court did not abuse its discretion in finding Tyler’s consent was involuntary. Cf. Chapple, 135 Ariz. at 297 n. 18, 660 P.2d at 1224 n. 18 (When trial court determinations hinge not on “conflicting procedural, factual or equitable considerations,” but rather are made on undisputed facts, “resolution of the question is one of law or logic,” obligating us “to ‘look over the shoulder’ of the trial judge and, if appropriate, substitute our judgment for his or hers.”). But based on the uncontroverted facts in this ease, were de novo review applicable here, I would readily conclude that the State met its burden of proving by a preponderance of the evidence that Tyler’s consent to the warrant-less blood draw was voluntary and, therefore, complied with the Fourth Amendment. See Ariz. R.Crim. P. 16.2(b) (prescribing burden and standard of proof on whether evidence was lawfully obtained).

¶ 32 The majority appropriately recites certain facts to support the conclusion that the juvenile court did not abuse its discretion in finding Tyler’s consent involuntary. Supra ¶¶ 2-4, 20. The totality of the circumstances, however, includes other undisputed facts indicating that Tyler’s verbal and written consent to the blood draw was indeed voluntary and not obtained by any “overbearing, coercive, or deceptive police conduct.” Magallanes-Aragon, 948 P.2d at 533. Without belaboring all those facts, suffice it to say that had the juvenile court found Tyler’s consent voluntary, I would have had no difficulty affirming that ruling, and I doubt my colleagues would have either. But, as noted above, I cannot conclude under an abuse-of-discretion standard of review that the juvenile court erred and, therefore, join in the Court’s opinion.

¶ 33 In addition, In re Andre M., on which the juvenile court relied, is materially distinguishable. Unlike this case, In re Andre M. involved issues of voluntariness under the Fifth Amendment’s self-incrimination clause and was heavily influenced by “the absence of a parent who attempted to attend the [minor’s] interrogation but was prevented from doing so by the police officers.” 207 Ariz. 482, 485 ¶ 12, 88 P.3d 552, 555 (2004). Here, Tyler and his father (who had been contacted by the school, came there, and waited in the lobby) never asked to see or speak with each other, and the deputy was not informed until after the blood draw that a parent was present at the school. Once he learned of that, the deputy spoke with the parents, who understood the reasons for Tyler’s arrest and had no questions.

¶ 34 It is also clear from its ruling that the juvenile court deemed very significant the alleged violation of the Parents’ Bill of Rights, AR.S. § 1-602. The majority, however, correctly rejects that as an appropriate basis for ordering suppression. Supra ¶ 22.

¶ 35 Finally, I understand that Fourth Amendment issues usually, and necessarily, entail “case-by-case,” “fact-intensive, totality of the circumstances analyses.” Missouri v. McNeely, — U.S.-, 133 S.Ct. 1552, 1564, 185 L.Ed.2d 696 (2013). But a core objective of our criminal-case jurisprudence should be *92“to ‘guide future decisions’ as well as to ‘guide police, unify precedent, and stabilize the law.’ ” Weisler, 35 A3d at 979 (quoting Thompson, 516 U.S. at 114-15, 116 S.Ct. 457). In that regard, I have concerns similar to those recently expressed by Chief Justice Roberts in McNeely: “A police officer reading this Court’s opinion would have no idea— no idea — what the Fourth Amendment requires of him, once he decides to obtain a blood sample from,” in this ease, a juvenile DUI arrestee to ensure that the juvenile’s consent to a blood draw is voluntary. 133 S.Ct. at 1569 (Roberts, C.J., concurring in part and dissenting in part). The majority here says that “[i]f the arrestee is a juvenile, the youth’s age and a parent’s presence are relevant, though not necessarily determinative, factors that courts should consider in assessing whether consent was voluntary under the totality of the circumstances.” Supra ¶ 18. The Court also refers generally to juveniles’ relative immaturity, and specifically to Tyler’s interactions with the deputy and his fluctuating emotional states during the arrest. Supra ¶¶ 14,20.

¶36 But faced with the not uncommon scenario presented in this ease, a reasonable officer, before drawing blood pursuant to the juvenile’s ostensibly valid consent, surely will now wonder whether he or she must first take steps to have a parent notified and present, and inquire about the juvenile’s maturity, general comprehension levels, and emotional status, lest the juvenile’s consent later be deemed involuntary. Those individualized, unpredictable variables afford little guidance and certainty to law enforcement officers, school administrators, parents, minor drivers, or juvenile courts. Nor does such unpredictability advance the overarching purpose of the implied consent law — “to remove from the highways of this state drivers[, including juvenile motorists,] who are a menace to themselves and to others because they operate a motor vehicle while under the influence of intoxicating liquor” or drugs. Campbell v. Superior Court, 106 Ariz. 542, 546, 479 P.2d 685, 689 (1971); see also Carrillo, 224 Ariz. at 465 ¶ 13, 232 P.3d at 1247; cf. State v. Randy J., 150 N.M. 683, 265 P.3d 734, 742 (N.M.Ct.App.2011) (holding that state’s implied consent law applies to any person, including juveniles, who drives a vehicle in the state).

¶37 Possibly compounding the problem, our opinion today might well engender dubious involuntariness claims and related suppression hearings aimed at excluding evidence derived from chemical testing of impaired drivers whose express consent was ostensibly voluntary and valid under Arizona’s implied consent law. Such challenges can be made by defendants who, because they submitted to testing, retain their driving privileges in the interim. Audio or video recording of a suspect’s consent might be a solution. But in view of the various contingencies and uncertainties surrounding determinations by officers in the field (and subsequently by courts) on whether express consent of DUI arrestees (particularly juveniles) is voluntary, the safest course of action for law enforcement might simply be to obtain search warrants, when reasonably feasible, for obtaining blood samples in DUI investigations. See A.R.S. §§ 13-3914, - 3915, 28-1321(D)(l). That default approach, although arguably diluting the effectiveness of the implied consent law, and not constitutionally required under McNeely (which neither involved nor discounted consent as a valid exception to the Fourth Amendment’s warrant requirement), would certainly comport with the Fourth Amendment and alleviate many potential, foreseeable problems in this area.

SUPREME COURT OF ARIZONA
En Banc

THE STATE OF ARIZONA, ) Arizona Supreme Court
) No. CV-12-0402-PR
Petitioner, )
) Court of Appeals
v. ) Division Two
) No. 2 CA-SA 12-0065
HON. JANE A. BUTLER, JUDGE PRO )
TEMPORE OF THE SUPERIOR COURT OF ) Pima County
THE STATE OF ARIZONA, in and for ) Superior Court
the County of Pima, ) No. JV19004301
)
Respondent Judge, )
)
TYLER B., ) O P I N I O N
)
Real Party in Interest. )
__________________________________)

Appeal from the Superior Court in Pima County
The Honorable Jane A. Butler, Commissioner Pro Tem

REMANDED
________________________________________________________________

Opinion of the Court of Appeals, Division Two
231 Ariz. 42, 290 P.3d 435 (2012)

REVERSED
________________________________________________________________

BARBARA LAWALL, PIMA COUNTY ATTORNEY Tucson
By Nicolette Kneup, Deputy County Attorney
Attorneys for State of Arizona

HERNANDEZ & ROBLES PC Tucson
By Joshua F. Hamilton
Attorneys for Tyler B.

ARIZONA ATTORNEYS FOR CRIMINAL JUSTICE Chandler
By David J. Euchner
Attorneys for Amicus Curiae Arizona Attorneys for Criminal
Justice
NESCI & ST LOUIS PLLC Tucson
By James Nesci
Attorneys for Amicus Curiae National College for DUI Defense,
Inc.

ACLU FOUNDATION OF ARIZONA Phoenix
By Daniel Pochoda
Kelly J. Flood
And

PERKINS COIE LLP Phoenix
By Jean-Jacques Cabou
Thomas D. Ryerson
Attorneys for Amicus Curiae ACLU Foundation of Arizona

JUVENILE LAW CENTER Philadelphia, PA
By Lourdes M. Rosado

And

NUCCIO & SHIRLY Tucson
By Jeanne Shirly
Attorneys for Amici Curiae Juvenile Law Center, Center on
Children and Families, Central Juvenile Defender Center,
Children and Family Justice Center, The Children’s Law Center
Inc., Children & Youth Law Clinic, Civitas ChildLaw Center,
Juvenile & Special Education Law Clinic/University of the
District of Columbia, Juvenile Justice Project of Louisiana,
Justice Policy Institute, National Association of Criminal
Defense Lawyers, National Center for Youth Law, National
Juvenile Defender Center, National Juvenile Justice Network,
Northeast Juvenile Defender Center, Pacific Juvenile Defender
Center, Public Defender Service for the District of Columbia,
Rutgers School of Law Camden Children's Justice Clinic, Rutgers
Urban Legal Clinic, San Francisco Office of the Public
Defenders, University of Michigan Juvenile Justice Clinic,
Neelum Arya, Tamara Birckhead, Susan L. Brooks, Michele Deitch,
Jeffrey Fagan, Barbara Fedders, Barry Feld, Frank Furstenberg,
Theresa Glennon, Martin Guggenheim, Kristin Henning, Randy
Hertz, Paul Holland, Julie E. McConnell, James R. Merikangas,
Wallace Mlyniec, Catherine J. Ross, Elizabeth Scott, Abbe Smith,
and Barbara Bennett Woodhouse
________________________________________________________________

B A L E S, Vice Chief Justice

¶1 Arizona’s implied consent statute, A.R.S. § 28-1321,

2
outlines how law enforcement officers can obtain consent to

blood and breath tests from persons arrested for driving under

the influence (“DUI”) and provides consequences for arrestees

who refuse to submit to a test. Against this backdrop, we

address whether the Fourth Amendment to the United States

Constitution requires that a juvenile arrestee’s consent be

voluntary to allow a warrantless blood draw. We hold that it

does and that the juvenile court properly ruled that evidence of

a blood draw was inadmissible because the juvenile did not

voluntarily consent.

I.

¶2 On February 17, 2012, Tyler B., a sixteen-year-old

high school student, and two friends arrived late to school. A

school monitor smelled marijuana on the boys and also saw drug

paraphernalia in Tyler’s car. School officials detained the

boys in separate rooms and contacted the sheriff’s office.

¶3 A deputy sheriff soon arrived and read Miranda

warnings to Tyler. In the presence of several school officials,

Tyler admitted that he had driven his car to school after

smoking marijuana and that he owned some of the drug

paraphernalia in the car. The deputy informed Tyler that he was

under arrest for DUI and other offenses. Tyler became agitated

and the deputy placed him in handcuffs. The deputy left Tyler

with the assistant principal for about ten minutes while

3
retrieving a phlebotomy kit to do a blood draw.

¶4 When the deputy returned to the room, he saw that

Tyler had calmed down, so he removed the handcuffs from the

youth. He read Tyler an “implied consent admonition” twice,

first verbatim and then in “plain English.” The admonition

provided in relevant part:

Arizona law requires you to submit to and successfully
complete tests of breath, blood or other bodily
substance as chosen by the law enforcement officer to
determine alcohol concentration or drug content. The
law enforcement officer may require you to submit to
two or more tests. You are required to successfully
complete each of the tests.

If the test results are not available . . . or
indicate any drug defined in ARS 13-3401 or its
metabolite, without a valid prescription, your Arizona
driving privilege will be suspended for not less than
90 consecutive days.

If you refuse to submit or do not successfully
complete the specified tests, your Arizona driving
privilege will be suspended for 12 months, or for two
years if there is a prior implied consent refusal,
within the last 84 months, on your record. You are,
therefore, required to submit to the specified tests.

Tyler agreed verbally and in writing to have his blood drawn,

and the deputy drew two vials of Tyler’s blood.

¶5 The State charged Tyler with DUI. Tyler moved to

suppress evidence of the blood draw, arguing that his consent

had not been voluntary and that, as a minor, he lacked the legal

capacity to consent. The juvenile court granted the motion,

finding that the blood draw violated Arizona’s Parents’ Bill of

4
Rights (“PBR”), A.R.S. § 1-602, and, notwithstanding the PBR,

that Tyler’s consent had been involuntary under the totality of

the circumstances. The court relied in part on In re Andre M.,

in which this Court recognized the “increased susceptibility and

vulnerability of juveniles” in assessing whether a juvenile’s

confession was voluntary under the Fifth Amendment to the United

States Constitution. 207 Ariz. 482, 485 ¶ 9, 88 P.3d 552, 555

(2004).

¶6 On the State’s petition for special action relief, the

court of appeals reversed the juvenile court’s ruling. State v.

Butler, 231 Ariz. 42, 45 ¶ 11, 290 P.3d 435, 438 (App. 2012).

The court first held that the PBR did not apply because the

deputy was acting within the scope of his official duties. Id.

at 44 ¶ 6, 290 P.3d at 437. It then held that the Fifth

Amendment did not apply because the blood was not testimonial

evidence. Id. at 45 ¶ 10, 290 P.3d at 438. Stating that “the

informed consent statute presents no Fourth Amendment issue,”

the court of appeals held that the juvenile court abused its

discretion in suppressing the blood draw evidence. Id. ¶ 10

n.6.

¶7 We granted review because this case raises questions

of first impression and statewide importance. We have

jurisdiction under Article 6, Section 5(3) of Arizona’s

Constitution and A.R.S. § 12-120.24.

5
II.

¶8 The Fourth Amendment provides, “The right of the

people to be secure in their persons, houses, papers, and

effects, against unreasonable searches and seizures, shall not

be violated . . . .” U.S. Const. amend. IV. Evidence obtained

in violation of the Fourth Amendment is properly suppressed.

Mapp v. Ohio, 367 U.S. 643, 655 (1961). Trial court rulings on

motions to suppress are reviewed for abuse of discretion. See

State v. Hausner, 230 Ariz. 60, 70 ¶ 23, 280 P.3d 604, 614

(2012). “We consider the evidence presented at the suppression

hearing and view the facts in the light most favorable to

sustaining the trial court’s ruling.” Id.

¶9 Tyler argues that a blood draw is a search subject to

the Fourth Amendment and, to be valid, requires either a warrant

or an exception such as voluntary consent. The State responds

that every Arizona motorist gives “implied consent” under § 28-

1321 and that tests administered under the statute are not

subject to a Fourth Amendment voluntariness analysis. The State

further argues that “adult privileges carry adult

responsibilities,” and thus juveniles should not be treated

differently from adults in assessing the voluntariness of

consent to a blood draw.

¶10 Contrary to the State’s argument, a compelled blood

draw, even when administered pursuant to § 28-1321, is a search

6
subject to the Fourth Amendment’s constraints. See Missouri v.

McNeely, 133 S. Ct. 1552, 1556 (2013) (holding that a compelled

blood draw taken pursuant to Missouri’s implied consent law is

subject to the Fourth Amendment’s restrictions on warrantless

searches). “Such an invasion of bodily integrity implicates an

individual’s ‘most personal and deep-rooted expectations of

privacy.’” Id. at 1558 (quoting Winston v. Lee, 470 U.S. 753,

760 (1985)).

¶11 McNeely also forecloses the State’s arguments that

requiring warrants for blood draws will unduly burden law

enforcement officials or render Arizona’s implied consent law

meaningless. “In those drunk-driving investigations where

police officers can reasonably obtain a warrant before a blood

sample can be drawn without significantly undermining the

efficacy of the search, the Fourth Amendment mandates that they

do so.” Id. at 1561.

¶12 In general, under the Fourth Amendment, warrantless

searches “are per se unreasonable . . . subject only to a few

specifically established and well-delineated exceptions.”

Arizona v. Gant, 556 U.S. 332, 338 (2009). One such exception

is exigent circumstances, but the State has not argued that this

exception authorized the blood draw here.

¶13 Consent can also allow a warrantless search, provided

the consent is voluntary. Schneckloth v. Bustamonte, 412 U.S.

7
218, 226-28 (1973). Voluntariness is assessed from the totality

of the circumstances. Id. at 227. Relevant circumstances

include the suspect’s age and intelligence as well as the length

of detention. See id. at 226-27, 229.

¶14 We reject the State’s contention that age should be

disregarded in assessing a juvenile’s consent to a blood draw.

In various contexts, the law recognizes a juvenile’s age as a

relevant consideration. See, e.g., J.D.B. v. North

Carolina, 131 S. Ct. 2394, 2399, 2406 (2011) (holding that

child’s age is relevant, although not necessarily determinative,

in assessing whether a child is in custody); Roper v. Simmons,

543 U.S. 551, 571-73 (2005) (recognizing the “diminished

culpability” of juveniles under 18 and holding that “[t]he

differences between juvenile and adult offenders are too marked

and well understood to risk allowing a youthful person to

receive the death penalty”). Juveniles tend to possess less

maturity and are “more vulnerable or susceptible to negative

influences and outside pressures.” Id. at 569-70. Courts

should not blind themselves to this reality when assessing the

voluntariness of consent to a blood draw.

¶15 Consent can be voluntary for purposes of the Fourth

Amendment in circumstances that would not establish

voluntariness under the Fifth Amendment. See Bustamonte, 412

U.S. at 234, 240 (holding that, although Miranda v. Arizona, 384

8
U.S. 436 (1966), requires an arrestee to be advised of right to

remain silent in order for waiver to be valid, knowledge of

right to withhold consent is just one factor in determining

voluntariness of a consent to search). But, when the accused is

a juvenile, factors such as age and the presence of parents are

properly considered when assessing the voluntariness of consent

to a search, just as they are relevant in assessing the

voluntariness of a confession. Cf. In re Andre M., 207 Ariz. at

485 ¶ 11, 88 P.3d at 555 (noting in the Fifth Amendment context

that parents can “help ensure that a juvenile will not be

intimidated, coerced or deceived”).

¶16 This Court has previously held that, for an officer to

administer a test of breath or bodily fluids on an arrestee

without a search warrant under § 28-1321, consent must be

express. Carrillo v. Houser, 224 Ariz. 463, 463 ¶ 1, 232 P.3d

1245, 1245 (2010). Carrillo turned, however, on statutory

grounds and did not address any constitutional issues. Id. at

467 ¶ 21, 232 P.3d at 1249.

¶17 The State unconvincingly argues that the “consent” in

§ 28-1321(A) either constitutes an exception to the warrant

requirement or satisfies the Fourth Amendment’s requirement that

consent be voluntary. We explained previously that “[t]he

‘consent’ by motorists referenced in subsection (A) does not

always authorize warrantless testing of arrestees.” Carrillo,

9
224 Ariz. at 465 ¶ 10, 232 P.3d at 1247. Rather, the officer is

directed to ask the arrestee to submit to the test, and the

arrestee may then refuse by declining to expressly agree to take

the test. A.R.S. § 28-1321(B); Carrillo, 224 Ariz. at 465 ¶ 11,

232 P.3d at 1247. If the arrestee refuses, the statute

specifies that a warrant is required to administer the test and

the arrestee shall have his license suspended. A.R.S. § 28-

1321(D); Carrillo, 224 Ariz. at 465 ¶ 11, 232 P.3d at 1247.

¶18 We hold now that, independent of § 28-1321, the Fourth

Amendment requires an arrestee’s consent to be voluntary to

justify a warrantless blood draw. If the arrestee is a

juvenile, the youth’s age and a parent’s presence are relevant,

though not necessarily determinative, factors that courts should

consider in assessing whether consent was voluntary under the

totality of the circumstances.

¶19 Voluntariness is a question of fact, Bustamonte, 412

U.S. at 248-49, and “[w]e review the trial court's voluntariness

finding for abuse of discretion,” State v. Cota, 229 Ariz. 136,

144 ¶ 22, 272 P.3d 1027, 1035 (2012) (reviewing voluntariness of

confession). The State has the burden of proving that consent

to a search is “freely and voluntarily given.” Bumper v. North

Carolina, 391 U.S. 543, 548-50 (1968).

¶20 Although Tyler did not testify at the suppression

hearing, sufficient evidence supports the juvenile court’s

10
finding that he did not voluntarily consent to the blood draw.

At the time, Tyler was nearly seventeen and in eleventh grade.

He had been arrested once previously, but not adjudicated

delinquent. Tyler was detained for about two hours in a school

room in the presence of school officials and a deputy. Neither

of his parents was present. Tyler initially was shaking and

visibly nervous. When he became loud and upset after being told

he was being arrested, the deputy placed him in handcuffs until

he calmed down. A second deputy sheriff arrived before the

blood draw was taken. After removing the handcuffs, the first

deputy read the implied consent admonition to Tyler, once

verbatim and once in what the deputy termed “plain English,”

concluding with the statement, “You are, therefore, required to

submit to the specified tests.” Tyler then assented to the

blood draw.

¶21 Viewing the facts in the light most favorable to

sustaining the ruling below, we hold that the juvenile court did

not abuse its discretion by ruling that Tyler’s consent was

involuntary and granting the motion to suppress. We decline to

address Tyler’s arguments that he lacked the legal capacity to

consent and that the Arizona Constitution provides greater

protection than the Fourth Amendment in this context.

III.

¶22 We also decline to address Tyler’s argument that the

11
blood draw must be suppressed because it violated the PBR. The

statute provides that parents have a “right to consent in

writing before any record of the minor child’s blood or

deoxyribonucleic acid is created, stored or shared.” A.R.S.

§ 1-602(A)(8). The PBR, however, concerns the rights of parents

and does not purport to affect a juvenile’s right to consent to

a search. See id. § 1-602(A) (referencing “parental rights”).

Nor does the statute provide that evidence will be suppressed if

the statute is violated. See id. § 1-602. Even if the blood

draw was taken in violation of the rights of Tyler’s parents (an

issue we do not decide), Tyler would not have standing to argue

that this violation required suppression of the blood draw

evidence. Cf. Rakas v. Illinois, 439 U.S. 128, 133-34 (1978)

(holding that person lacks standing to suppress evidence seized

in violation of another’s Fourth Amendment rights).

IV.

¶23 For the foregoing reasons, we reverse the decision of

the court of appeals and remand the case to the superior court

for proceedings consistent with this opinion.

__________________________________
Scott Bales, Vice Chief Justice

CONCURRING:

__________________________________
Rebecca White Berch, Chief Justice

12
__________________________________
Robert M. Brutinel, Justice

__________________________________
Ann A. Scott Timmer, Justice

P E L A N D E R, Justice, concurring

¶24 As a matter of statutory interpretation, we previously

held that, absent a search warrant, Arizona’s “implied consent”

statute, A.R.S. § 28-1321, requires an arrestee’s express

consent to a chemical test. Carrillo v. Houser, 224 Ariz. 463,

463 ¶ 1, 232 P.3d 1245, 1245 (2010). The Court now holds that

the Fourth Amendment also applies to a blood draw administered

under the statute and thus an arrestee’s consent must be

voluntary. Supra ¶ 18. I have no quarrel with that holding,

but reluctantly concur only because the parties acknowledge, and

our case law indicates, that voluntariness determinations are

reviewed for abuse of discretion. Under that standard of

appellate review, I cannot say that the juvenile court erred in

finding Tyler’s consent involuntary when some evidence arguably

supports an inference to that effect. Cf. State v. Chapple, 135

Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n.18 (1983) (A court

abuses its discretion when “the reasons given by the court for

its action are clearly untenable, legally incorrect, or amount

to a denial of justice.”).

13
¶25 As the majority notes, voluntariness issues often are

fact-intensive and are assessed from the totality of the

circumstances. Supra ¶ 13 (citing Schneckloth v. Bustamonte,

412 U.S. 218, 227 (1973)). The majority correctly observes that

we generally review rulings on motions to suppress evidence for

an abuse of discretion, supra ¶¶ 8, 19, and finds no such abuse

in the trial court’s ruling, supra ¶ 21. I write separately to

express concern with indiscriminately applying those principles

and to suggest, for future purposes only, that abuse-of-

discretion review might not be appropriate in cases such as

this.

¶26 Only the deputy sheriff and Tyler’s father testified

at the suppression hearing in this case. Significantly, the

pertinent facts are undisputed and the juvenile court’s ruling

is not based on witness credibility, weighing of conflicting

evidence, or discretionary determinations. Accordingly, the

court’s ultimate ruling on voluntariness could, and arguably

should, be deemed a mixed question of fact and law subject to

our de novo review. That approach, although admittedly

conflicting with extant Arizona case law, would be consistent

with our approach in other criminal-case contexts involving

constitutional issues. See State v. Moore, 222 Ariz. 1, 7 ¶ 17,

213 P.3d 150, 156 (2009) (noting that, although we review trial

court rulings on pretrial identifications for abuse of

14
discretion and defer to factual findings supported by the

record, the ultimate question of constitutionality is “a mixed

question of law and fact” subject to our de novo review); State

v. Gonzalez-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778

(1996) (applying same principles to question of whether

sufficient legal basis existed for vehicular stop); State v.

Blackmore, 186 Ariz. 630, 632, 925 P.2d 1347, 1349 (1996) (same

regarding question of whether an arrest was illegal); State v.

Rogers, 186 Ariz. 508, 510, 924 P.2d 1027, 1029 (1996) (same

regarding question of whether there was reasonable suspicion for

an investigatory stop of a pedestrian).

¶27 Recently, the Vermont Supreme Court thoroughly

expounded on the appropriate standard of appellate review for

voluntariness-of-consent issues. State v. Weisler, 35 A.3d 970

(Vt. 2011). An appellate court, of course, appropriately defers

“to the trial court’s underlying findings of historical fact” as

a “fundamental principle of appellate review.” Id. at 976, 985;

see also Chapple, 135 Ariz. at 297 n.18, 660 P.2d at 1224 n.18.

But as the Vermont court observed, Schneckloth did not address

the subject of appellate review, and “[s]imply labeling consent

to search as a question of fact to be determined from the

totality of the circumstances” at the trial court level “does

little to advance the standard-of-review analysis.” Weisler, 35

A.3d at 977. Noting that “appellate courts have traditionally

15
reviewed and resolved independently the question of

voluntariness in order to ‘guide police, unify precedent, and

stabilize the law,’” id. at 985 (quoting Thompson v. Keohane,

516 U.S. 99, 115 (1995)), the Weisler court held that “a trial

court’s decision on the question of the voluntariness of a

consent to search, and thus the ultimate constitutional validity

of the search, must be reviewed independently . . . on appeal,”

id. at 983.

¶28 Vermont is not alone. Other courts also follow this

approach. See, e.g., United States v. Lewis, 921 F.2d 1294,

1301 (D.C. Cir. 1990) (conducting de novo review of a trial

court’s finding of involuntary consent when facts were

uncontested and government presented uncontroverted evidence on

that issue); United States v. Garcia, 890 F.2d 355, 359–60 (11th

Cir. 1989) (same); State v. $217,590.00 in U.S. Currency, 18

S.W.3d 631, 633 (Tex. 2000) (assessing whether the trial court’s

factual findings demonstrate voluntariness under the totality of

the circumstances is a question of law); State v. Hansen, 63

P.3d 650, 663 (Utah 2002) (“While consent is a factual finding,

voluntariness is a legal conclusion, which is reviewed for

correctness.”); State v. Phillips, 577 N.W.2d 794, 800 (Wis.

1998) (rejecting proposition that the standard of appellate

review “turn[s] on whether the underlying determination of the

[trial] court was fact-specific”); see also Weisler, 35 A.3d at

16
976, 980 (collecting cases).

¶29 The analyses of those courts would support de novo

review of rulings on whether an arrestee’s consent to search was

voluntary or involuntary, at least when, as here, the underlying

facts are undisputed and the trial court’s ruling is not based

on conflicting evidence or credibility determinations. This

Court has not yet engaged in the type of nuanced explication

found in cases such as Weisler on the appropriate standard of

appellate review for Fourth Amendment voluntariness rulings.

This, however, is not the case in which we should do so. The

parties have not raised or argued any issues relating to the

standard of review, but rather concede that abuse-of-discretion

review applies. Accordingly, the Court appropriately applies

that standard in deciding this particular case.

¶30 Stating that voluntariness determinations are fact-

intensive inquiries, based on the totality of circumstances, and

subject to abuse-of-discretion review, however, does not

directly answer the ultimate question: What is the test or

standard for establishing valid, voluntary consent to a

warrantless search under the Fourth Amendment? Generally, to be

voluntary, “[c]onsent must ‘not be coerced, by explicit or

implicit means, by implied threat or covert force.’” State v.

Guillen, 223 Ariz. 314, 317 ¶ 11, 223 P.3d 658, 661 (2010)

(quoting Schneckloth, 412 U.S. at 228). “Consent to search is

17
voluntary if it is ‘the product of an essentially free and

unconstrained choice by its maker,’ and not the result of

circumstances which overbear the consenting party’s will and

critically impair his or her capacity for self-determination.”

People v. Magallanes-Aragon, 948 P.2d 528, 530 (Colo. 1997)

(quoting Schneckloth, 412 U.S. at 225). Stated differently,

“before a court may conclude that consent was voluntarily given,

it must find no objective evidence of coercion, duress,

deception, promises, threats, intrusive conduct or other undue

influence by the police, which critically impaired the

defendant’s judgment.” Id. at 531; see also id. at 533 (“The

essential consideration in determining voluntariness of a

consent to search is the impact of overbearing, coercive, or

deceptive police conduct on a person with the knowledge and

particular characteristics of the defendant.”).

¶31 Applying those standards, only with some difficulty do

I agree with the majority that the juvenile court did not abuse

its discretion in finding Tyler’s consent was involuntary. Cf.

Chapple, 135 Ariz. at 297 n.18, 660 P.2d at 1224 n.18 (When

trial court determinations hinge not on “conflicting procedural,

factual or equitable considerations,” but rather are made on

undisputed facts, “resolution of the question is one of law or

logic,” obligating us “to ‘look over the shoulder’ of the trial

judge and, if appropriate, substitute our judgment for his or

18
hers.”). But based on the uncontroverted facts in this case,

were de novo review applicable here, I would readily conclude

that the State met its burden of proving by a preponderance of

the evidence that Tyler’s consent to the warrantless blood draw

was voluntary and, therefore, complied with the Fourth

Amendment. See Ariz. R. Crim. P. 16.2(b) (prescribing burden

and standard of proof on whether evidence was lawfully

obtained).

¶32 The majority appropriately recites certain facts to

support the conclusion that the juvenile court did not abuse its

discretion in finding Tyler’s consent involuntary. Supra ¶¶ 2–

4, 20. The totality of the circumstances, however, includes

other undisputed facts indicating that Tyler’s verbal and

written consent to the blood draw was indeed voluntary and not

obtained by any “overbearing, coercive, or deceptive police

conduct.” Magallanes-Aragon, 948 P.2d at 533. Without

belaboring all those facts, suffice it to say that had the

juvenile court found Tyler’s consent voluntary, I would have had

no difficulty affirming that ruling, and I doubt my colleagues

would have either. But, as noted above, I cannot conclude under

an abuse-of-discretion standard of review that the juvenile

court erred and, therefore, join in the Court’s opinion.

¶33 In addition, In re Andre M., on which the juvenile

court relied, is materially distinguishable. Unlike this case,

19
In re Andre M. involved issues of voluntariness under the Fifth

Amendment’s self-incrimination clause and was heavily influenced

by “the absence of a parent who attempted to attend the

[minor’s] interrogation but was prevented from doing so by the

police officers.” 207 Ariz. 482, 485 ¶ 12, 88 P.3d 552, 555

(2004). Here, Tyler and his father (who had been contacted by

the school, came there, and waited in the lobby) never asked to

see or speak with each other, and the deputy was not informed

until after the blood draw that a parent was present at the

school. Once he learned of that, the deputy spoke with the

parents, who understood the reasons for Tyler’s arrest and had

no questions.

¶34 It is also clear from its ruling that the juvenile

court deemed very significant the alleged violation of the

Parents’ Bill of Rights, A.R.S. § 1-602. The majority, however,

correctly rejects that as an appropriate basis for ordering

suppression. Supra ¶ 22.

¶35 Finally, I understand that Fourth Amendment issues

usually, and necessarily, entail “case-by-case,” “fact-

intensive, totality of the circumstances analyses.” Missouri v.

McNeely, 133 S. Ct. 1552, 1564 (2013). But a core objective of

our criminal-case jurisprudence should be “to ‘guide future

decisions’ as well as to ‘guide police, unify precedent, and

stabilize the law.’” Weisler, 35 A.3d at 979 (quoting Thompson,

20
516 U.S. at 114–15). In that regard, I have concerns similar to

those recently expressed by Chief Justice Roberts in McNeely:

“A police officer reading this Court’s opinion would have no

idea — no idea — what the Fourth Amendment requires of him, once

he decides to obtain a blood sample from,” in this case, a

juvenile DUI arrestee to ensure that the juvenile’s consent to a

blood draw is voluntary. 133 S. Ct. at 1569 (Roberts, C.J.,

concurring in part and dissenting in part). The majority here

says that “[i]f the arrestee is a juvenile, the youth’s age and

a parent’s presence are relevant, though not necessarily

determinative, factors that courts should consider in assessing

whether consent was voluntary under the totality of the

circumstances.” Supra ¶ 18. The Court also refers generally to

juveniles’ relative immaturity, and specifically to Tyler’s

interactions with the deputy and his fluctuating emotional

states during the arrest. Supra ¶¶ 14, 20.

¶36 But faced with the not uncommon scenario presented in

this case, a reasonable officer, before drawing blood pursuant

to the juvenile’s ostensibly valid consent, surely will now

wonder whether he or she must first take steps to have a parent

notified and present, and inquire about the juvenile’s maturity,

general comprehension levels, and emotional status, lest the

juvenile’s consent later be deemed involuntary. Those

individualized, unpredictable variables afford little guidance

21
and certainty to law enforcement officers, school

administrators, parents, minor drivers, or juvenile courts. Nor

does such unpredictability advance the overarching purpose of

the implied consent law — “to remove from the highways of this

state drivers[, including juvenile motorists,] who are a menace

to themselves and to others because they operate a motor vehicle

while under the influence of intoxicating liquor” or drugs.

Campbell v. Superior Court, 106 Ariz. 542, 546, 479 P.2d 685,

689 (1971); see also Carrillo, 224 Ariz. at 465 ¶ 13, 232 P.3d

at 1247; cf. State v. Randy J., 265 P.3d 734, 742 (N.M. Ct. App.

2011) (holding that state’s implied consent law applies to any

person, including juveniles, who drives a vehicle in the state).

¶37 Possibly compounding the problem, our opinion today

might well engender dubious involuntariness claims and related

suppression hearings aimed at excluding evidence derived from

chemical testing of impaired drivers whose express consent was

ostensibly voluntary and valid under Arizona’s implied consent

law. Such challenges can be made by defendants who, because

they submitted to testing, retain their driving privileges in

the interim. Audio or video recording of a suspect’s consent

might be a solution. But in view of the various contingencies

and uncertainties surrounding determinations by officers in the

field (and subsequently by courts) on whether express consent of

DUI arrestees (particularly juveniles) is voluntary, the safest

22
course of action for law enforcement might simply be to obtain

search warrants, when reasonably feasible, for obtaining blood

samples in DUI investigations. See A.R.S. §§ 13-3914, -3915,

28-1321(D)(1). That default approach, although arguably

diluting the effectiveness of the implied consent law, and not

constitutionally required under McNeely (which neither involved

nor discounted consent as a valid exception to the Fourth

Amendment’s warrant requirement), would certainly comport with

the Fourth Amendment and alleviate many potential, foreseeable

problems in this area.

__________________________________
John Pelander, Justice

23