Court Rules Illegal Coerced Breath Tests are Okay

Posted by Jon Ibanez on October 12th, 2018

What good is the Constitution if we don’t use it?

I find myself asking this more often than I’d like to admit. But unfortunately, courts throughout the country continue to issue decisions that erode the protections guaranteed to all of us by the Constitution. Such was the case earlier this month when the Arizona Court of Appeals ruled that, even though officers illegally coerced a DUI suspect into giving consent to be breathalyzed, the results would stand.

In August of 2015, Arizona officers stopped Angel Soza on suspicion of driving under the influence. The officers told Soza that Arizona law “required” him to submit to and successfully complete tests of breath, blood or other bodily substance to determine alcohol concentration or drug content.

Like California, under Arizona law, drivers are impliedly deemed to have given their consent to a chemical test. However, if a driver refuses to provide breath or blood, officers may obtain a warrant to determine the driver’s blood alcohol content. Without a warrant, the driver must voluntarily agree to the testing. In fact, Arizona Revised Statutes section 28-1321, which is Arizona’s implied consent law, states that “[i]f a person under arrest refuses to submit to the test…[t]he test shall not be given.” The judges in Soza’s case admitted as much.

“The mere fact that the defendant does not resist the test is insufficient under the statute; consent must be express, said Judge Sean Earl Brearcliffe, who wrote for the majority.

Based on the officer’s admonition that he was “required” to submit to a test, Soza consented.

This was admittedly a violation of Arizona’s implied consent statute. In fact, Judge Brearcliffe said, “Here, the officer who arrested Soza read him a coercive admonition telling him he was ‘require[d]’ to submit to testing” and “[B]ecause there was no consent and no warrant, the breath test violated [the implied consent law].”

But, apparently, coercion doesn’t matter.

Notwithstanding its own determination that Soza’s consent was coercively obtained by police, the court went on to justify why the results could still be used against Soza.

“As a general rule, because the legislature is charged with providing remedies for the violations of the laws it enacts, unless a law states that exclusion of evidence is a remedy for its violation, the exclusionary rule is not imposed by the courts,” Judge Brearcliffe wrote. “Because the legislature nowhere in Section 28-1321 prescribed suppression of evidence as the remedy for its violation, were we to do so of our own accord, we would be engrafting on the law a remedy neither provided for by the legislature nor required by the Constitution.”

The exclusionary rule is a canon or American criminal justice where evidence obtained in violation of the Constitution cannot be used against a criminal defendant. In other words, for example, when a confession is illegally coerced by police, the confession cannot be used at trial against the defendant.

Therefore, the court ruled that even though the officers illegally coerced Soza’s consent, the results can stand because the implied consent law specifically does not refer to the exclusionary eule as a remedy.

Chief Judge Peter J. Eckerstrom, who dissented, believed that Soza’s breath results should have been thrown out, and I agree.

“In short, the Arizona Supreme Court has twice sanctioned violations of the implied-consent law by applying the exclusionary rule,” Judge Eckerstrom said. “As a subordinate court, I believe we are compelled to follow those cases and apply the rule to the similar violation here.”

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