Petition for Writ of Certiorari — Arizona v. Flannigan

Supreme Court, u.s

ILED —

No, 99 399 AUG 2 5 1999

OFFICE OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

STATE OF ARIZONA,

PETITIONER,

-VS-

BILLY JOE FLANNIGAN,

RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

TO THE AKIZONA COURT OF APPEALS

PETITION FOR WRIT OF CERTIORARI

JANET NAPOLITANO

ATTORNEY GENERAL

PAUL J. McMURDIE

CHIEF COUNSEL

CRIMINAL APPEALS SECTION

GREGORY A. MCCARTHY

ASSISTANT ATTORNEY GENERAL

(COUNSEL OF RECORD)

1275 WEST WASHINGTON

PHOENIX, ARIZONA 85007-2997

TELEPHONE: (602) 542-4686

ATTORNEYS FOR PETITIONER

QUESTION PRESENTED FOR REVIEW

The Arizona Court of Appeals decided that, when there is probable

cause to believe that a person was driving while under the influence of an

intoxicating substance, the police must take the time to attempt to obtain a

telephonic warrant before drawing the person’s blood to preserve evidence

of intoxication. This holding, which decides an important question of

federal constitutional law, is in conflict with the decision of this Court in

Schmerber v. California, 384 U.S. 757 (1966), with decisions of courts of

last resort in other states, and with decisions of United States Courts of

Appeal. Accordingly, this petition for a writ of certiorari presents the

following question:

When there is probable cause to believe that a person has been driving

while under the influence of an intoxicating substance, does the evanescent

quality of the substance in the person’s blood provide sufficient exigent

circumstances by itself to permit the police to draw the person’s blood

without first attempting to obtain a telephonic search warrant?

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED FOR REVIEW .................. i

SA FCT oe cele anata ven ereerrs iii

a ey ore ee he arg l

Es re ee ee l

FOSV TI OND 666 6: TNE Re ER l

SUATROREINS US Bien GOD 6 hrc ce wore ee ese ea Pi eeeeee l

REASONS WHY THE WRIT SHOULD ISSUE

THE ARIZONA COURT OF APPEALS DECIDED AN

IMPORTANT FEDERAL QUESTION IN A WAY THAT

CONFLICTS WITH A DECISION OF THIS COURT, OF

COURTS OF LAST RESORT IN OTHER STATES, AND OF

UNITED STATES COURTS OF APPEALS. .............. 6

CR AAPIURIG 6 00 0 0 6545840 OEE eee 15

RIVERA cb be peciecd bee adet peewee A-|

gg mma rr ea atic YM Paleo ore ee oh gpa h as B-1

RPC 6 soe ens 6 i ele ee eae ee ee C-1

TABLE OF AUTHORITIES

CASES PAGE

Municipality of Anchorage v. Ray,

854 P.2d 740 (Alaska Ct. App. 1993) .................. 13

Nelson v. Irvine, 142 F.3d 1196 (9th Cir. 1998).............. 16

New York v. Belton,

i i 14

People v. Fiscalini, 279 Cal. Rptr. 682 (Cal. Ct. App. 1991) ..... 14

People v. MacCallum, 925 P.2d 758 (Colo. 1996) ............ 14

Preston v. United States,

SG, Se eee 8

Schmerber v. California,

Pe ae FOP CEUOD occ cc ccwcces .... 2-4, 6-14, 16, 17

Skinner v. Railway Labor Executives’ Ass’n,

Co a 14, 15

State v. Baker, 502 A.2d 489 (Me. 1985) ........... 6, 10, 12, 13

State v. Bohling, 494 N.W.2d 399 (Wis. 1993) ....... 6, 10-12, 13

State v. Cocio, 709 P.2d 1336 (1985) .................... a2

State v. Lerette, 858 S.W.2d 816 (Mo. Ct. Se 13

State v. Schauer, 501 N.W.2d 673 (Minn. Ct. _ are 13

Tipton v. Commonwealth, 444 §.E.2d 1 (Va. Ct. App. 1994) ..... 13

United States v. Berry, 866 F.2d 887 (6th Cir. 1989) .. 7, 10, 14, 15

United States v. Reid, 929 F.2d 990 (4th Cir. 1991) .... 6, 10, 14-16

CONSTITUTIONAL PROVISIONS

ee oe ce, oe ee ee l

STATUTES

I eed ek, ae be eb Soe ee vee en l

RULES

Rule 10.1, Rules of Supreme Court ....................... l

iii

OPINION BELOW

On November 3, 1998, the Arizona Court of Appeals, holding that the

Fourth Amendment requires that the police should have obtained a warrant

before drawing Respondent’s blood, reversed the trial court’s denial of the

motion to suppress and remanded the case. See State v. Flannigan, 978

P.2d 127 (Ariz. Ct. App. 1998). A copy of the opinion of the Arizona

Court of Appeals is at Appendix A. The Arizona Supreme Court denied

Respondent's petition for review. A copy of the order denying the petition

for review is at Appendix B. A copy of the mandate issued by the Arizona

Court of Appeals is at Appendix C.

STATEMENT OF JURISDICTION

Petitioner respectfully requests that a Writ of Certiorari issue to review

the decision of the Arizona Court of Appeals. On November 3, 1998, the

Arizona Court of Appeals issued its decision. (Appendix A.) On May 26,

1999, the Arizona Supreme Court denied the petition for review. (Appendix

B.) Petitioner timely filed the petition for writ of certiorari within 90 days

of that decision. This Court has jurisdiction pursuant to United States

Constitution Article III, Section 2; 28 U.S.C. § 1257(a); and Supreme

Court Rule 10.1.

PROVISIONS INVOLVED

The Fourth Amendment to the United States Constitution 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, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched, and the person

or things to be seized.

STATEMENT OF THE CASE

Procedural History of the Case

On January 12, 1995, the State of Arizona charged Respondent with

one count of manslaughter for recklessly causing the death of Kathleen

Brant, one count of aggravated assault for using a dangerous instrument to

recklessly cause physical injury to Jason Rippey, and one count of

endangerment for recklessly endangering Jeff Brant with a substantial risk

of imminent death.

Before trial, Respondent filed a motion to Suppress the results of

blood-testing. Respondent argued that, to comply with the Fourth

Amendment, the police should have obtained a telephonic warrant before

drawing his blood for testing. Respondent asserted that Schmerber vy.

California, 384 U.S. 757 (1966), was distinguishable because telephonic

search warrants had not been available in that case. Respondent also

asserted that State v. Cocio, 709 P.2d 1336 (1985), was distinguishable. In

Cocio, the Arizona Supreme Court, citing Schmerber, held that, when there

is probable cause to believe that a driver is under the influence of alcohol,

the drawing of the driver’s blood for medical purposes, and its subsequent

use by the police to detect the presence of alcohol, is permissible under the

Fourth Amendment.

After taking evidence on the issue, the trial court denied the motion to

suppress. The trial court stated:

[T]he issue still goes back[,] in my opinion[,] to whether or

not the fact that telephonic search warrants can be obtained

dictates a reevaluation, if you will. Maybe not a reversal, but a

reevaluation of Schmerber and State [v.] Cocio. And the Court

declines to so show.

The Court does rule that State /v.] Cocio would still support

a warrantless taking of blood in a situation where a stimulant is

Suspected. It is not possible to determine, according to the officer

doing the testing, which stimulant. That it could be a stimulant

such as cocaine, which with a half-life . . . that is less than

alcohol, and that delay . . . may cause a loss of the detectabil ity

of that drug or other illegal substance.

There is one other aspect of this. The fact that in some cases

a warrant can be obtained in 15 to 35 or 45 minutes doesn’t mean

that it doesn’t sometimes take longer. And the time lost in trying

to find a magistrate and not getting through is additional lost

time. So if the officer got on the phone and spent another 35 to

2

40 minutes looking for a magistrate, that is additional lost time

that causes the presence of the suspected drug to perhaps

dissipate and become undetectable.

The Court does find therefore that State /v.] Cocio is still

applicable to the withdrawing of blood without a warrant in a

Situation where there is probable cause to believe that the

defendant has been involved in a felony such as manslaughter or

aggravated assault.

The case proceeded to trial by jury. On July 3, 1997, the jury

convicted Respondent of negligent homicide, aggravated assault, and

endangerment. On August 12, 1997, the trial court sentenced Respondent

to concurrent terms of imprisonment of 4.5, 7.5, and 2 years.

Respondent then appealed the convictions to the Arizona Court of

Appeals. On November 3, 1998, the Arizona Court of Appeals reversed the

convictions, ruling that the trial court had erred by denying the motion to

Suppress the results of the blood-testing. The Arizona Court of Appeals

Stated:

In Schmerber, exigent circumstances existed because of the

evanescent quality of alcohol and because the police reasonably

believed that they did not have time to "seek out a magistrate and

secure a warrant" before evidence of the defendant’s intoxication

would be destroyed. Schmerber does not provide a blanket

exception to the warrant requirement whenever a suspect is

believed to be under the influence of alcohol or drugs. Rather,

the evanescent quality of alcohol and drugs in a person’s body

creates an exigency only if the evidence might disappear before

the police can obtain a warrant. . . .

The record does not suggest that the police reasonably

believed that evidence of Flannigan’s drug consumption would

disappear from his system before they could obtain a warrant.

Rather, as the officers readily admitted, they did not seek a

warrant because they had been instructed that exigent

circumstances always exist in vehicular manslaughter or

aggravated assault cases in which a person is suspected of driving

under the influence of drugs or aicohol. This is not the rule of

Schmerber.

The Arizona Court of Appeals then observed that the police could

likely have obtained a telephonic warrant in no more than 45 minutes.

Further, a criminalist had testified that, in view of Respondent's condition

at the police station, such a delay likely would not have prevented the

detection of the intoxicant in Respondent's blood. After acknowledging the

possibility that more delay might have occurred, the court ruled:

The mere possibility of delay does not give rise to an

exigency. By contrast, if the police had attempted to obtain a

warrant but had encountered difficulties in reaching the

magistrate, this change in circumstances might well have created

an exigency justifying the warrantless seizure of defendant’s

blood.

Finally, after alluding to evidence that methamphetamine and cocaine

metabolites can be detected in urine 12 to 24 hours after ingestion, the

Arizona Court of Appeals concluded that drawing Respondent’s blood had

not been necessary to convict him of the charged offenses.

Petitioner sought review in the Arizona Supreme Court, arguing that

the Arizona Court of Appeals had misconstrued Schmerber. Petitioner

asserted that, under Schmerber, when there is probable cause to believe that

a driver’s blood contains an intoxicating substance, the evanescent nature

of the substance in the driver’s blood by itself gives rise to exigent

circumstances supporting a warrantless drawing of blood. On May 26,

1999, the Arizona Supreme Court summarily denied the petition for review.

Facts of the Case

On August 18, 1994, at about 11:13 a.m., in Mesa, Arizona,

Respondent, driving a flatbed tow truck Carrying a disabled car, ran a red

light and collided with a car driven by Kathy Brant and carrying two

children, Jeff Brant and Jason Rippey. Kathy Brant was killed, and both

children were injured, Rippey seriously and Jeff Brant not so seriously.

Paramedics who treated Respondent at the scene noticed that both his pulse

rate and blood pressure were elevated. When they tested him again 25

minutes later, both measurements were still elevated. They also noticed that

4

Respondent appeared to be nervous. Officer Martinez, a drug recognition

expert, investigated the accident, and noticed that Respondent was jittery

and restless. A police officer transported Respondent to the police station.

At the police station, beginning at about 12:54 p.m., Officer Martinez

began a Drug Recognition Evaluation (DRE) of Respondent. Because the

policy of the Mesa Police Department required the participation of two drug

recognition experts, Sergeant Bradley also observed the evaluation. The

DRE consisted of several tests of Respondent's physical coordination, a

breath test, and a horizontal gaze nystagmus (HGN) test. Respondent had

difficulty performing the tests for physical coordination. The breath test

revealed no sign of alcohol. The results of the HGN test were normal. The

DRE also included repeated monitoring of Respondent’s pulse rate, blood

pressure, and temperature, all of which remained elevated throughout the

evaluation. The officers also observed that Respondent’s nostrils were red.

Respondent told the officers that he had taken four Vivarin tablets at

approximately 7:00 p.m. the previous evening and that he had consumed

three 52-ounce drinks of Mountain Dew or Coca-Cola the morning of the

accident.

Both Officer Martinez and Sergeant Bradley concluded that Respondent

was under the influence of a central-nervous-system stimulant. Officer

Martinez placed Respondent under arrest and requested that he give a blood

sample. A phlebotomist drew Respondent’s blood at the police station at

approximately 1:52 p.m.. A toxicology screen of the blood detected the

presence of amphetamine and methamphetamine.

At trial, Respondent testified that he could not be certain about the

source of the amphetamine and methamphetamine in his blood, but that, |

or 2 days before the accident, he had taken tablets that had been described

to him as “over-the-counter Mexican speed."

The Mesa Police Department had not sought a telephonic search

warrant before drawing Respondent's blood. The policy of the Mesa Police

Department was to obtain such warrants before drawing the blood of

impaired drivers only when the offense did not involve death or serious

physical injury. Such warrants may ordinarily be secured in 15 to 45

minutes; however, obtaining such a warrant may take longer because of

difficulties in reaching a judge or magistrate.

A criminalist, Thomas Simonick, testified that, when a person exhibits

Symptoms similar to those chat Respondent was exhibiting, a delay of 15 to

45 minutes before drawing blood would ordinarily not prevent the detection

of stimulants in the blood. However, Simonick later qualified this

testimony, stating that it is impossible to know how long a substance will

remain in the blood without knowing the nature of the substance. Simonick

further testified that it is desirable to draw blood as near in time as possible

to the impaired driving, because the body continuously metabolizes

stimulants in the blood, Causing them to disappear.

Petitioner presented expert testimony on the characteristics of various

intoxicants. Physical signs of impairment do not reliably distinguish among

various kinds of stimulants. The effects of cocaine may last from | to 2

hours. The effects of methamphetamine may last from 4 to 8 hours. The

average half-life of cocaine in a persons’s blood is | to 2 hours, and the

average half-life of methamphetamine in a person's blood is 6 to 15 hours.

Alcohol remains in the blood for a longer period than cocaine and for a

shorter period than methamphetamine. Cocaine metabolite may be detected

in the urine for as long as 12 to 24 hours. Methamphetamine metabolite may

be detected in the urine for as long as 24 to 48 hours. Simonick testified

that the presence of cocaine or methamphetamine metabolites in the body

does not imply that the person would show Signs of impairment or,

specifically, be impaired in the ability to react.

REASONS WHY THE WRIT SHOULD ISSUE

THE ARIZONA COURT OF APPEALS DECIDED AN

IMPORTANT FEDERAL QUESTION IN A WAY THAT

CONFLICTS WITH A DECISION OF THIS COURT, OF

COURTS OF LAST RESORT IN OTHER STATES, AND OF

UNITED STATES COURTS OF APPEALS.

This Court should grant this petition for a writ of certiorari because the

Arizona Court of Appeals, in its decision in this case, decided an important

federal question in a way that conflicts with the decision of this Court in

Schmerber v. California, 384 U.S. 757 (1966). Further, this decision of the

Arizona Court of Appeals conflicts with decisions reached by courts of last

resort in other states. See State v. Baker, 502 A.2d 489 (Me. 1985); State

1. Bohling, 494 N.W.2d 399 (Wis. 1993). It also conflicts with decisions

reached by United States Courts of Appeals. See United States v. Reid, 929

6

F.2d 990 (4th Cir. 1991); United States v. Berry, 866 F.2d 887 (6th Cir.

1989).

More specifically, this Court held in Schmerber that, provided there

is probable cause to believe that a person was driving while impaired by an

intoxicant, the evanescent quality of the intoxicant in the driver’s blood by

itself provides exigent circumstances supporting a warrantless taking of

blood. The decision of the Arizona Court of Appeals in this case, by

requiring the presence of exigent circumstances beyond the evanescent

quality of the intoxicant in the blood, directly conflicts with Schmerber’s

holding.

A. SCHMERBER V. CALIFORNIA.

In Schmerber, this Court addresses the issue whether the warrantless

taking of a driver's blood violates the Fourth Amendment when there exists

probable cause to believe that the driver was under the influence of alcohol.

As in Respondent’s case, Schmerber involves a person who had an accident

when driving while under the influence of an intoxicating substance. A

police officer at the scene observed signs that Schmerber was impaired by

alcohol, including the smell of an alcoholic beverage on his breath and

watery, bloodshot eyes. Because Schmerber suffered injuries in the

accident, he was taken to a hospital. At the hospital, at the direction of the

police officer, a physician withdrew a sample of Schmerber’s blood, and,

upon analysis, this blood was found to contain a level of alcohol ind cative

of intoxication. These test results were introduced in evidence at

Schmerber’s trial for driving while under the influence of intoxicating

liquor. Schmerber finds that probable cause existed to arrest the driver for

driving while under the influence of intoxicating liquor. 384 U.S. at 768.

Schmerber then takes up the question whether the officer should first

have obtained a search warrant. "Search warrants are ordinarily required for

searches of dwellings, and absent an emergency, no less could be required

where intrusions into the human body are concerned." 384 U.S. at 769.

Schmerber concludes that a qualifying emergency was present in that case:

The officer in the present case . . . might reasonably have

believed that he was confronted with an emergency, in which the

delay necessary to obtain a warrant, under the circumstances,

threatened “the destruction of evidence," Preston v. United

Reisen

States, 376 U.S. 364, 367, 84 S. Ct. 881, 883 11 L.Ed.2d 777

[1964]. We are told that the percentage of alcohol in the blood

begins to diminish shortly after drinking stops, as the body

functions to eliminate it from the system. Particularly in a case

such as this, where time had to be taken to bring the accused to

a hospital and to investigate the scene of the accident, there was

no time to seek out a magistrate and secure a warrant. Given

these special facts, we conclude that the attempt to secure

evidence of blood-alcohol content in this case was an appropriate

incident to petitioner's arrest.

Id. at 770-71. Schmerber further holds that the taking of blood was a

reasonable procedure under the circumstances and that it was performed in

a reasonable manner. /d. at 771.

Schmerber describes its holding as follows:

We thus conclude that the present record shows no violation

of petitioner's right under the Fourth and Fourteenth

Amendments to be free of unreasonable searches and seizures. It

bears repeating, however, that we reach this judgment only on

the facts of the present record. The integrity of an individual's

person is a cherished value of our society. That we today told

that the Constitution does not forbid the States minor intrusions

into an individual's body under stringently limited conditions in

no way indicates that it permits more substantial intrusions, or

intrusions under other conditions.

Id. at 772.

B. THE ARIZONA COURT OF APPEALS ERRED IN

CONCLUDING THAT RESPONDENT’S CASE _ IS

DISTINGUISHABLE FROM SCHMERBER.

Contrary to the holding of the Arizona Court of Appeals in this case,

this case is not factually distinguishable from Schmerber. There was

probable cause to believe that Respondent had been driving while under the

influence of an intoxicating substance, and an emergency presented itself

requiring the immediate drawing of Respondent’s blood. The justifying

emergency in Respondent’s case was the same as the one in Schmerber. In

8

both cases, the driver’s blood was drawn because the intoxicating substance

was being eliminated from the blood and any significant delay in drawing

the blood could mean that significant evidence of intoxication would be

irretrievably lost. Further completing the parallel, the drawing of

Respondent’s blood was a reasonable procedure that was performed in a

reasonable manner.

Despite the factual similarity between Respondent's case and

Schmerber, the Arizona Court of Appeals declined to follow Schmerber, and

instead narrowed Schmerber’s holding beyond this Court’s intent. The state

appellate court attempted to distinguish Schmerber on a couple of bases.

The court observed that the police in Respondent’s case could have tried to

obtain a telephonic search warrant, and further that they likely could have

obtained one in less than 45 minutes. Acknowledging that a longer delay

could have occurred, the court conceded that such a delay might then have

provided an exigency justifying a warrantless search. In seeking to

distinguish Schmerber, the court also observed that there was not much need

to draw Respondent’s blood because cocaine and methamphetamine

metabolites are detectable in urine many hours after ingestion.

This attempt to distinguish Schmerber is predicated on a

misunderstanding of Schmerber. Schmerber authorizes a warrantless

drawing of blood when there is probable cause to believe that the driver is

under the influence of an intoxicating substance. In searching for exigent

circumstances sufficient to dispense with the warrant requirement,

Schmerber’s gaze wanders no further than the presence of an intoxicating

substance in the blood of a driver. Under Schmerber’s holding, it is

irrelevant in determining the presence of exigent circumstances whether a

procedure is available for obtaining telephonic warrants, or how long it

might take to obtain a telephonic warrant, or whether a process for

obtaining biological evidence of intoxication without drawing blood was

available. Rather, Schmerber only requires that the driver’s blood contain

an intoxicating substance that is vanishing. |

Respondent’s case illustrates the wisdom of Schmerber’s holding,

because any effort to obtain a telephonic warrant would have presented a

significant risk of loss of significant evidence of intoxication. The evidence

reflected that telephonic search warrants may usually be obtained in 15 to

45 minutes, but sometimes more time is needed. Any delay within this

range would have entailed a significant risk of loss of significant evidence.

9

BMA EOE D104 ore

The police did not know what intoxicants Respondent had in his blood.

They believed that these intoxicants were stimulants, but they did not know

which ones, and different stimulants are eliminated from the blood at

varying rates. Further, the police did not know how long ago Respondent

had ingested the stimulants or in what quantities. Accordingly, the police

did not know how close Respondent was to point where the stimulants

would no longer be detectable in his blood. While it may have been likely,

as Simonick testified, that these stimulants would have been detectable for

another 45 minutes in light of the Signs of intoxication exhibited by

Respondent, such an assumption would have been no more than risky

conjecture without knowing more particulars about the substance and its

use, as Simonick suggested. Further, because metabolites remain in the

body for such long periods, evidence of metabolites in a driver’s urine is

not as strongly probative of impaired driving as is evidence that the driver's

blood contained an intoxicating substance. As Simonick testified, a person

with methamphetamine or cocaine metabolite in the body might not show

any signs of its presence and might not have an impaired ability to react.

In sum, Respondent’s case is not distinguishable from Schmerber, and

the Arizona Court of Appeals, under the guidance of Schmerber, should

have affirmed the trial court’s denial of the motion to suppress the results

of the blood-testing. By failing to follow Schmerber, the Arizona Court of

Appeals decided an important federal question about the application of the

Fourth Amendment in a way that conflicts with an opinion of this Court.

C. THE HOLDING OF THE ARIZONA COURT OF APPEALS

CONFLICTS WITH DECISIONS IN OTHER JURISDICTIONS.

The decision of the Arizona Court of Appeals in this case conflicts

with decisions reached by courts of last resort in other States. See State v.

Baker, 502 A.2d 489 (Me. 1985); State v. Bohling, 494 N.W.2d 399 (Wis.

1993). It also conflicts with decisions reached by United States Courts of

Appeals. See United States v. Reid, 929 F.2d 990 (4th Cir. 1991); United

States v. Berry, 866 F.2d 887 (6th Cir. 1989).

1. Conflicts with Courts of Last Resort in Other States.

The decision in Respondent’s case conflicts with the holding of the

Wisconsin Supreme Court in Bohling. In that case, blood was drawn

without benefit of a warrant from a driver who had properly been arrested

10

for driving while under the influence of alcohol. Bohling directly confronts

the same question that this petition for a writ of certiorari presents to this

Court:

The issue in this case is whether the fact that the percentage of

alcohol in a person’s blood stream rapidly diminishes after

drinking stops alone constitutes a sufficient exigency under the

Fourth Amendment to the United States Constitution and Article

I Section 11 of the Wisconsin Constitution, to justify a

warrantless blood draw under the following circumstances: (1)

the blood draw is taken at the direction of a law enforcement

officer from a person lawfully arrested for a drunk-driving

related violation or crime, and (2) there is clear indication that

the blood draw will produce evidence of intoxication.

494 N.W. 2d at 399-400. Bohling answers the issue thus:

Applying this standard, we hold that under the foregoing

circumstances the dissipation of alcohol from a person’s blood

stream constitutes a sufficient exigency to justify a warrantless

blood draw.

Id. at 400.

Bohling begins its discussion by stating, "Schmerber is the starting

point of our analysis." Id. at 402. Bohling then recognizes that Schmerber

is susceptible of two possible interpretations:

Schmerber can be read in two ways: (a) that the rapid

dissipation of alcohol in the bloodstream alone constitutes a

sufficient exigency for a warrantless blood draw to obtain

evidence of intoxication following a lawful arrest for a drunk

driving related violation or crime—as opposed to taking a blood

sample for other reasons, such as to determine blood type; or (b)

that the rapid dissipation of alcohol in the bloodstream, coupled

with an accident, hospitalization, and the lapse of two hours until

arrest, constitute exigent circumstances for such a blood draw.

Id. Bohling decides that the first alternative is correct:

1]

NaS ,

We believe that the more reasonable interpretation of

Schmerber is the first one set forth—exigency based solely on the

fact that alcohol rapidly dissipates in the bloodstream.

Id. Bohling further explains the policy considerations motivating its

interpretation of Schmerber:

We also note that our interpretation of Schmerber makes

sense from a policy standpoint. It strikes a favorable balance

between an individual’s right to be free from unreasonable

searches and Wisconsin’s interest in enforcing its drunk driving

laws. Wisconsin’s interest is vital whereas the resulting intrusion

On individual privacy is minimal.

Id. at 405.

Bohling is not distinguishable from Respondent’s case on the basis that

Bohling involved alcohol intoxication while this case concerns intoxication

by amphetamine and methamphetamine. The nub of Bohling is not that the

intoxicating substance was alcohol, but rather that the intoxicating

substance, which just happened to be alcohol, was rapidly being eliminated

from the driver’s blood. In Respondent’s case, the officers believed that

Respondent was under the influence of a stimulant. The stimulant could

have been cocaine, which dissipates in blood more quickly than alcohol. Or

it could have been amphetamine or methamphetamine, which dissipate in

blood more slowly than alcohol. Accordingly, in Respondent’s case as in

Bohling, the driver’s blood contained an intoxicating substance that was

being eliminated and approaching the point where it could not be detected,

and the officers could not know when that point would arrive.

The decision in Respondent’s case also conflicts with the decision of

Maine Supreme Court in Baker. Baker was convicted of manslaughter after

killing his passenger when driving while under the influence of alcohol.

Over Baker’s objection, an officer drew a sample of his blood for alcohol

testing. Citing Schmerber, Baker concludes that the officer properly drew

the driver’s blood. Baker states that, under Schmerber, the "constitutional

prerequisites to admission of the results of the blood test administered over

defendant’s objection . . . are probable cause to search and exigent

circumstances justifying the execution of that search without a warrant."

502 A.2d at 493. Baker holds:

12

The Superior Court did not address the existence of

adequate justification for such a warrantless search, finding only

the existence of probable cause to believe that defendant was

under the influence of intoxicating liquor at the time of the

accident. However, having held this finding by the Superior

Court to be amply supported by the record, . . . we are satisfied

that from this single finding may be inferred probable cause for

a search of defendant’s blood and exigent circumstances requiring

that the search be conducted promptly.

502 A.2d at 493. Baker further explains its holding that probable cause to

believe that a driver is intoxicated implies an exigency justifying the

warrantless drawing of blood:

The bodily process that eliminates alcohol also provides

exigent circumstances obviating the need to obtain a warrant

prior to administering a blood test.

Id. Similarly, in Respondent’s case, probable cause to believe that

Respondent had been driving while under the influence of stimulants

engendered exigent circumstances justi*’ing the warrantless drawing of his

blood.

Moreover, the decision of the Arizona Court of Appeals in

Respondent’s case is contrary to decisions reached by state courts in cases

other than Bohling and Baker. See, e.g., Municipality of Anchorage v. Ray,

854 P.2d 740, 750 (Alaska Ct. App. 1993) (upholding drawing blood from

non-consenting impaired driver; finding that a blood test is not "materially

more intrusive" than a breath test; ruling that need for a test of blood

alcohol is greater when someone has been injured or killed); State v.

Schauer, 501 N.W.2d 673, 675 (Minn. Ct. App. 1993) (finding exigent

circumstances to draw blood because "evidence of intoxication dissipates

rapidly"); State v. Lerette, 858 S.W.2d 816, 819 (Mo. Ct. App. 1993)

(ruling that there were exigent circumstances to draw blood because the

"percentage of alcohol in the bloodstream diminishes with time and . . . the

delay caused by having to obtain a warrant might result in the destruction

of evidence"); Tipton v. Commonwealth, 444 S.E.2d 1, 3 (Va. Ct. App.

1994) (finding that “exigent circumstances existed due to the dissipating

nature of alcohol in blood").

13

std te

On the other hand, the decision of the Arizona Court of Appeals finds

support in decisions reached by other state courts. See, e.g., People v.

Fiscalini, 279 Cal. Rptr. 682, 685 (Cal. Ct. App. 1991) (ruling that

Schmerber did not support drawing blood from impaired driver who had

already given a urine sample); People v. MacCallum, 925 P.2d 758, 764

(Colo. 1996) (finding exigent circumstances in passage of time when injured

driver was taken to the hospital while officers remained at the scene to

complete investigation).

2. Conflict with United States Courts of Appeal.

The decision in Respondent’s case is also contrary to the result reached

by United States Courts of Appeals in Reid and Berry.

While Reid involves the administration of a breathalyzer test rather

than the drawing of blood, Reid has special pertinence to Respondent’s case

because it responds to the claim that alcohol testing should not be performed

without a warrant when a process exists for obtaining a telephonic warrant.

In Reid, the Fourth Circuit Court of Appeals, deciding two consolidated

cases, concludes that the officers were not required to try to obtain a

telephonic warrant before administering a breathalyzer test to an apparently

impaired driver. Reid bases its conclusion on Schmerber:

One exception to the warrant requirement for a reasonable search

under the Fourth Amendment occurs when there are exigencies

in a situation which make exemption from the warrant

requirement "imperative." New York v. Belton, 453 U.S. 454,

457, 101 S. Ct. 2860, 2862, 69 L.Ed.2d 768 (1981). Exigent

circumstances were present in Schmerber v. California, 384 U.S.

757. 86S. Ct. 1826, 16 L.Ed.2d 768 (1981).

929 F.2d at 993. Reid further explains:

In Skinner [Skinner v. Ry. Labor Exec. Ass'n, 489 U.S. 602, 109

S. Ct. 1402 (1989)], the Supreme Court reiterated the notion that

time is of the essence when there is a need to test alcohol in the

body when it stated that "the delay necessary to procure a

warrant nevertheless may result in the destruction of evidence."

489 U.S. at 623, 109 S. Ct. at 1416.

14

Id. In rejecting the claim that the officers should have tried to obtain

telephonic warrants in accord with the rules governing the issuance of such

warrants, Reid states:

Obviously, compliance with these rules takes time. Time is what

is lacking in these circumstances.

[A]icohol and other drugs are eliminated from the

bloodstream at a constant rate, and blood and breath

samples taken to measure whether these substances

were in the bloodstream when a triggering event

occurred must be obtained as soon as possible.

Skinner, 489 U.S. at 623, 109 S. Ct. at 1416.

Id. Reid further explains that "[d]runk driving is a grave problem in society

today." Jd. Reid ends its discussion by observing that breathalyzer testing

is “less intrusive” than drawing blood, and that this Court in Skinner upheld

blood testing.

Society has a recognized interest in protecting its citizens from

drunk drivers. Breathalyzer tests cause a lesser intrusion than

blood tests. Time is of the essence when testing for alcohol in

the bloodstream. The combination of these factors sets out

exigent circumstances which are sufficient to require that the

police be allowed to test drunk drivers without first having to

obtain a warrant.

Id. at 994.

In Berry, the Sixth Circuit Court of Appeals, citing Schmerber,

concludes that the police had properly drawn blood from an impaired

driver. Reid explains its result as follows:

We believe . . . that Schmerber can be read as an application

of the exigent circumstances exception to the warrant

requirement. There the facts creating probable cause to arrest also

established that the results of the blood test would prove positive.

The Court concluded that because the accuracy of the test

diminishes with time, and because it would take some time for

15

the officer to investigate and find facts establishing probable

Cause, there would be no time reasonably to expect the officer to

obtain a warrant.

866 F.2d at 891.

However, the decision reached by the Arizona Court of Appeals finds

support in the decision of the Ninth Circuit Court of Appeals in Nelson v.

Irvine, 142 F.3d 1196, 1204-05 (9th Cir. 1998), which rules that the

exigency for drawing blood from an impaired driver ends when other means

of obtaining biological evidence become available.

CONCLUSION

Because the Arizona Court of Appeals decided an important federal

question in a way that conflicts with Schmerber, with decisions of courts of

last resort in other states, and with decisions of United States Courts of

Appeal, Petitioner respectfully requests this Court to grant the petition for

writ of certiorari and resolve this conflict regarding an important issue of

federal constitutional law.

Respectfully submitted,

JANET NAPOLITANO

Attorney General

PAUL J. McCMURDIE

Chief Counsel

Criminal Appeals Section

GREGORY A. MCCARTHY

Assistant Attorney General

(Counsel of Record)

Attorneys for PETITIONER

CRM97-1452

100373

16

APPENDICES

APPENDIX A

IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

Division One

Court of Appeals

State of Arizona

Filed: Nov -3, 1998

GLEN D. CLARK, CLERK

By: J. Eisenhart

STATE OF ARIZONA ) 1 CA-CR 97-0763

Appellee, )

v. ) DEPARTMENT A

)

BILLY JOE FLANNIGAN, )

Appellant. ) OPINION

Appeal from the Superior Court of Maricopa County

Cause No. CR 95-90117

The Honorable Mark F. Aceto, Judge

REVERSED AND REMANDED

Grant Woods, Attorney General by Paul J. McMurdie, Chief Counsel.

Criminal Division and Gregory A. McCarthy, Assistant Attorney General,

Attorneys for Appellee. Phoenix

Dean W. Trebesch, Maricopa County Public Defender by Christopher V.

Johns, Deputy Public Defender, Attorneys for Appellant. Phoenix

GERBER, Judge.

A-]

q 1 Billy Joe Flannigan ("Flannigan") appeals his convictions and

sentences for negligent homicide, aggravated assault and endangerment.

Because we conclude that the trial court erred in denying his motion to

suppress the results of a warrantless blood test, we reverse Flannigan's

convictions and remand to the trial court for further proceedings.

FACTS (FN1)

4 2 The charges against Flannigan arise from an automobile accident

in Mesa, Arizona on August 18, 1994. The undisputed evidence at trial

established that he drove a flatbed tow truck through a red light and struck

another automobile in the intersection, killing the driver of the other vehicle

and injuring her two teenage passengers, one of them seriously.

{ 3 The paramedics who treated Flannigan after the accident observed

that both his blood pressure and pulse rate were high. When they tested

him again approximately twenty-five minutes later, both rates remained

high. They also observed that he was very nervous throughout the time that

they attended him.

q 4 After conferring with the paramedics, Mesa Police Officer Ron

Martinez spoke to Flannigan. Martinez, a certified drug recognition expert,

noticed that he was "jittery" and manifested finger tremors. With

Flannigan's consent, Martinez had another officer drive him to the police

station so that he could perform a series of field sobriety tests.

4 5 Martinez met Flannigan at the station and read him his Miranda

warnings. (FN2) Beginning at 12:54 p.m., approximately one and one-half

hours after the accident, Officer Martinez began a Drug Recognition

Evaluation ("DRE") of Flannigan. Pursuant to a policy of the Mesa Police

Department which required that two drug recognition experts participate in

all DREs, Sergeant Patricia Bradley also observed the evaluation. The DRE

consisted of several tests of his physical coordination, a breath test, and a

horizontal gaze nystagmus ("HGN") test. It also included repeated

monitoring of his pulse rate, blood pressure and temperature, all of which

remained elevated throughout the evaluation. Additionally, the officers

observed that Flannigan's nostrils were red, a possible indication that he

had ingested a drug. He told the officers that he had taken four Vivarin

tablets at approximately 7:00 p.m. the previous evening and that he had

A-2

Pin Sees ei ee

consumed three 52-ounce drinks of Mountain Dew or Coca-Cola the

morning of the accident.

{ 6 Believing that Flannigan was under the influence of a central

nervous system stimulant, Officer Martinez arrested him and requested that

he give a blood sample. The record does not indicate that he consented, nor

did Officer Martinez or Sergeant Bradley obtain a warrant for the blood

draw. Nevertheless, a phlebotomist drew his blood at the Mesa police

Station at 1:52 p.m. A toxicology screen detected the presence of

amphetamine and methamphetamine in his blood.

{ 7 The Maricopa County Grand Jury subsequently indicted Flannigan

©u one count each of reckless manslaughter, aggravated assault pursuant to

Arizona Revised Statutes Annotated ("A.R.S.") section 13-1204(a)(2) upon

a victim under fifteen years of age, and endangerment. A jury convicted

him of aggravated assault, endangerment and negligent homicide as a

lesser-included offense of manslaughter. The jury also found each felony

to be a dangerous offense involving the use of a motor vehicle as a

dangerous instrument in violation of A.R.S. section 13-604(P) (1994),

{ 8 The trial court sentenced him to mitigated, concurrent terms of 4.5

years for negligent homicide, 7.5 years for aggravated assault and 2 years

for endangerment. (FN3) He timely appealed his convictions and sentences

to this court. We have jurisdiction over his appeal pursuant to article VI,

section 9 of the Arizona Constitution and A.R.S. sections 12-120.21

(1992), 13-4031 (1989), and 13-4033(A)(Supp. 1997).

DISCUSSION

I. MOTION TO SUPPRESS BLOOD TEST RESULTS

{ 9 Prior to trial, Flannigan moved to suppress the results of his blood

test, arguing that the warrantless seizure of his blood violated the Fourth

Amendment because it was non-consensual and not otherwise justified by

the presence of exigent circumstances. Officer Martinez and Sergeant

Bradley testified at the suppression hearing that Flannigan's DRE indicated

that he was under the influence of a central nervous system stimulant.

Pursuant to Mesa Police Department procedure in all traffic accident cases

involving serious injury or death, the officers did not attempt to obtain a

warrant before conducting the blood draw. Instead, they relied on the

A-3

department's policy that exigent circumstances always exist in vehicular

aggravated assault and manslaughter cases. They conceded that it was

possible to obtain a telephonic search warrant in fifteen to forty-five

minutes, although the process can take longer.

§4 10 Thomas Simonick, the Mesa Police Department criminalist who

tested Flannigan's blood sample, testified that drugs, like alcohol, are

evanescent in a person's blood system. Cocaine remains in the blood

system for less time than alcohol, while methamphetamine remains in the

blood for a longer period than alcohol. Specifically, methamphetamine has

a half-life in blood of six to fifteen hours, while cocaine's half-life in blood

is one to two hours. Methamphetamine metabolites, however, may be

detected in urine for approximately twenty-four to forty-eight hours and

cocaine metabolites may be detected in urine for approximately twelve to

twenty-four hours. According to Simonick, it is impossible to tell by

observing whether a person is under the influence of cocaine or

methamphetamine. He also testified that, if a person is exhibiting physical

symptoms caused by a stimulant (as Flannigan did throughout the DRE), a

delay of fifteen to forty-five minutes in obtaining a blood sample probably

would not preclude a criminalist from detecting evidence of the stimulant

in the blood.

4 11 The trial court denied Flannigan's motion to suppress, concluding

that the blood draw was constitutionally reasonable under the exigent

circumstances exception to the warrant requirement, as that exception is

explained in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16

L.Ed.2d 908 (1966). He maintains that the trial court erred in this

conclusion.

q 12 In reviewing the denial of Flannigan's motion to suppress, we

must defer to the trial court's factual findings absent an abuse of discretion.

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

review de novo the ultimate issue whether the warrantless blood draw

complied with the dictates of the Fourth Amendment. See id., see also

State v. Blackmore, 186 Ariz. 630, 632, 925 P.2d 1347, 1349 (1996); see

Schmerber, 384 U.S. at 767, 86 S.Ct. 1826 (taking of blood sample is a

search subject to the warrant requirement of fourth amendment).

¢ 13 At the outset, we note that this case does not involve an

application of the Arizona implied consent statute in effect at the time of the

A-4

ee

arrest. See A.R.S. § 28-691 (1994). The implied consent statute in effect

in 1994 would have applied only if the police had arrested Flannigan for a

violation of the Uniform Act Regulating Highway Traffic, see A.R.S. Title

28, Chapter 6. See A.R.S. § 28-691(A) (1994). He was arrested for

violating provisions of Title 13 of the Arizona Revised Statutes, not Title

28.

{ 14 Similarly, because he did not sustain any injuries in the accident

that required medical personnel to draw his blood, this case does not

involve the medical purposes exception of A.R.S. section 28-692(J), which

would have entitled the police to receive a sample of his blood regardless

of his consent. See A.R.S. § 28-692(J) (1994); see also Lind v. Superior

Court, 191 Ariz. 233, 236, 954 P.2d 1058, 1061 (App. 1998).

q 15 The state argues for the first time on appeal that the warrantless

seizure of Flannigan's blood was constitutionally permissible because he

consented to it. See Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93

S.Ct. 2041, 36 L.Ed.2d 854 (1973)(consent to search constitutes exception

to warrant requirement); State v. Groshong, 175 Ariz. 67, 70-71, 852 P.2d

1251, 1254-55 (App.1993). The state waived this argument for purposes

of appeal because it never attempted to prove consent at the suppression

hearing.

4 16 Moreover, even absent waiver, we would reject the state's

argument because the record lacks evidence of Flannigan's actual consent

to the blood draw. “When a prosecutor seeks to rely upon consent to justify

the lawfulness of a search, he has the burden of proving that the consent

was, in fact, freely and voluntarily given. This burden cannot be

discharged by showing no more than acquiescence to a claim of lawful

authority." Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct.

1788, 20 L.Ed.2d 797 (1968) (citations omitted); see also Ariz. R.Crim.

P. 16.2(b)("The prosecutor shall have the burden of proving, by a

preponderance of the evidence, the lawfulness in all respects of the

acquisition of all evidence which the prosecutor will use at trial."). At

most, the record demonstrates only that Flannigan never expressly refused

to submit to the blood draw. This evidence is insufficient to demonstrate

actual consent.

€ 17 Absent express consent to the blood draw, the police would have

been entitled to conduct the warrantless seizure of his blood only if (1) they

A-5

had probable cause to believe that he had been operating his vehicle while

under the influence of drugs, and (2) exigent circumstances justified

dispensing with the warrant requirement. Because we conclude that the

State failed to prove exigent circumstances, we hold that the police violated

Flannigan's Fourth Amendment rights when they conducted the warrantless

blood draw.

{ 18 The United States Supreme Court first recognized the "exigent

circumstances" exception to the warrant requirement in upholding the

warrantless seizure of a DUI suspect's blood in Schmerber vy, California.

384 U.S. at 770-72, 86 S.Ct. 1826. The defendant in Schmerber was

charged with driving while under the influence of alcohol. Jd. at 758, 86

S.Ct. 1826. The police arrested him while he was receiving treatment at a

hospital for injuries he sustained in an automobile accident. Id. Without

first obtaining a warrant or consent from the defendant, the police directed

the treating physician to draw a sample of the defendant's blood for

purposes of measuring his blood alcohol content.

{ 19 In upholding the validity of the warrantless search, the Supreme

Court concluded that the police had probable cause to believe that the

defendant had been driving while under the influence of alcohol. The

critical question was whether the police acted reasonably in obtaining the

blood sample without a warrant. The Court's reasoning for permitting a

warrantless search in that case is helpful here:

The officer in the present case ... might reasonably have believed that

he was confronted with an emergency, in which the delay necessary to

obtain a warrant, under the circumstances, threatened "the destruction of

evidence," Preston v. United States, 376 U.S. [364], 367, 84 S.Ct. 881,

883, 11 L.Ed.2d 777. We are told that the percentage of alcohol in the

blood begins to diminish shortly after drinking stops, as the body functions

to eliminate it from the system. Particularly in a case such as this, where

time had to be taken to bring the accused to a hospital and to investigate the

scene of the accident, there was no time to seek out a Magistrate and secure

a warrant. Given these special facts, we conclude that the attempt to secure

evidence of blood-alcohol content in this case was an appropriate incident

to petitioner's arrest.

384 U.S. at 770-71, 86 S.Ct. 1826 (emphasis added).

A-6

alas wena Orie ss Mae.

{ 20 In Schmerber, exigent circumstances existed because of the

evanescent quality of alcohol and because the police reasonably believed that

they did not have time to "seek out a magistrate and secure a warrant"

before evidence of the defendant's intoxication would be destroyed.

Schmerber does not provide a blanket exception to the warrant requirement

whenever a suspect is believed to be under the influence of alcohol or

drugs. Rather, the evanescent quality of alcohol and drugs in a person's

body creates an exigency only if the evidence might disappear before the

police can obtain a warrant. The Court emphasized this point in

Schmerber:

It bears repeating, however, that we reach this judgment only on the facts

of the present record. The integrity of an individual's person is a cherished

value of our society. That we today hold that the Constitution does not

forbid minor intrusions into an individual's body under stringently limited

circumstances in no way indicates that it permits more substantial

intrusions, or intrusions under other conditions.

384 U.S. at 772, 86 S.Ct. 1826 (emphasis added).

{ 21 The record does not suggest that the police reasonably believed

that evidence of Flannigan's drug consumption would disappear from his

system before they could obtain a warrant. Rather, as the officers readily

admitted, they did not seek a warrant because they had been instructed that

exigent circumstances always exist in vehicular manslaughter or aggravated

assault cases in which a person is suspected of driving under the influence

of drugs or alcohol. This is not the rule of Schmerber.

{ 22 The record establishes that the Mesa Police Department is able to

obtain a warrant within as little as fifteen minutes and that delays of only

fifteen to forty-five minutes are commonplace. Nevertheless, believing that

4 warrant was not required, neither Officer Martinez nor Sergeant Bradley

made any attempt to obtain a telephonic warrant. Flannigan still manifested

physical symptoms of methamphetamine or cocaine consumption when the

officers completed the DRE. The Mesa Police Department's criminalist

testified that a delay of fifteen to forty-five minutes in obtaining a blood

sample probably would not have precluded a criminalist from detecting

evidence of the stimulant in his blood.

A-7

{ 23 We recognize the possibility that the police might have

encountered longer delays had they attempted to obtain a warrant and that

the evidence does not prove conclusively that a warrant would have issued

in fifteen to forty-five minutes. We do not know how long the delay would

have been because the police made no effort whatsoever to obtain a warrant.

The mere possibility of delay does not give rise to an exigency. By

contrast, if the police had attempted to obtain a warrant but had encountered

difficulties in reaching a magistrate, this change in circumstances might well

have created an exigency justifying the warrantless seizure of defendant's

blood.

{ 24 Of course, a blood test was not the only viable method by which

the police could have obtained evidence of Flannigan's drug use. The

suppression hearing testimony revealed that methamphetamine and cocaine

use can be detected in a suspect's urine for as long as twelve to forty-eight

hours after ingestion. Although the record does not indicate whether

urinalysis would have enabled a criminalist to determine the precise amount

of drugs in his system when the accident occurred, such evidence would not

have been necessary to convict him of the charged crimes.

{ 25 In any event, having conducted the fact-intensive analysis

Schmerber requires, we conclude that the state did not meet its burden of

proving the presence of exigent circumstances. The officers' rote

application of the department's untenable policy that exigent circumstances

always exist in vehicular manslaughter and aggravated assault cases violated

Flannigan's right to be free from unreasonable search and seizure. The trial

court therefore erred in refusing to suppress the results of the blood test.

(FN4)

Il. CLASS 2 FELONY AGGRAVATED ASSAULT

{ 26 Flannigan also argues that the trial court erred in its interpretation

of A.R.S. section 13-1204(B) when it sentenced him for aggravated assault

as a class 2, rather than a class 3, felony. Although we reverse his

convictions, we address this additional issue because it may arise again in

the new trial.

{ 27 The state indicted him for aggravated assault as a class 2 felony,

and the trial court sentenced him accordingly. Although he failed to raise

the issue before the trial court, he argues on appeal that, whenever a

A-8

+

;

é

i

defendant is convicted of aggravated assault involving reckless, as opposed

to intentiona! or knowing, conduct, section 13-1204(B) imposes an arbitrary

enhancement of the defendant's punishment. Specifically, section

13-1204(B) provides that an aggravated assault involving serious physical

injury or the use of a deadly weapon or dangerous instrument is a class 3

felony, unless the victim of the assault is under the age of fifteen, in which

case the assault is a class 2 felony.

{ 28 Relying on the Arizona Supreme Court's decision in State v.

Williams, 175 Ariz. 98, 854 P.2d 131 (1993), Flannigan argues that it was

simply fortuitous that passengers in the vehicle he struck were under the age

of 15, and that it is therefore irrational to increase the felony classification

for the aggravated assault solely because of this fact. In Williams, the court

examined the application of the Dangerous Crimes Against Children statute,

A.R.S. § 13-604.01, to offenses involving reckless conduct. The defendant

in Williams was convicted of aggravated assault for recklessly causing

physical injury using a dangerous instrument. /d. at 99, 854 P.2d at 132.

Williams, like this case, involved a DUI accident resulting in injury to a

child under the age of fifteen. Jd. Reversing the trial court's application of

the section 13-604.01 sentencing enhancement, the supreme court concluded

that the defendant's reckless aggravated assault was not a "dangerous crime

against children." Id. at 104, 854 P.2d at 137.

{ 29 The court reasoned that the legislative history of the statute

indicated "quite clearly that the enactment of § 13-604.01 was calculated to

reach criminals who prey specifically upon children." Jd. at 102, 854 P.2d

at 135. Thus, to qualify as a dangerous crime against children, "the

defendant's conduct must be focused on, directed against, aimed at, or

target a victim under the age of fifteen." Jd. at 103, 854 P.2d at 136. In

Williams, because the defendant's recklessness in driving drunk was not

“directed at or focused upon" the young victim, the court concluded that the

offense was not a dangerous crime against children. Jd. at 104, 854 P.2d

at 137.

{ 30 The state alleged that Flannigan's aggravated assault against the

fourteen-year-old victim was a class 2 felony pursuant to A.R.S. section

13-1204(B), not that the offense was a dangerous crime against children

pursuant to section 13-604.01. He argues that, because the age of his

victim was a factor beyond his control, the reasoning of Williams should

A-9

similarly apply to preclude the trial court from sentencing him for a class

2, rather than a class 3, felony. We disagree.

4 31 As the court observed in Williams, "punishment can vary

according to the severity of the consequences flowing from an individual's

conduct as well as from the culpability of the conduct, and the legislature

could consider harming a child, even fortuitously, more serious than

harming an adult." 175 Ariz. at 103, 854 P.2d at 136 (emphasis added).

The court noted that the legislature approved this reasoning by converting

aggravated assault from a class 3 felony to a class 2 felony whenever the

victim is under fifteen. Jd.

{ 32 Flannigan argues in response that "[t]here is no deterrent effect

if his conduct is punished more severely based on chance." He may well

be correct. Criminal punishment, however, is not imposed solely for its

deterrent effect. To a limited extent, it also serves a retributive function.

The legislature's decision to increase the felony classification for aggravated

assaults upon victims under fifteen is consistent with a retributive theory of

criminal punishment. See Wayne R. LaFave and Austin W. Scott, Jr.,

Substantive Criminal Law, § 1.5(6), at 35-36 (1986). As the court observed

in Williams, the legislature thus had a legitimate basis for classifying

aggravated assaults upon victims under the age of fifteen as class 2, rather

than class 3, felonies. We therefore reject his argument that the trial court

erred in sentencing him for a class 2 aggravated assault. (FN5)

CONCLUSION

{ 33 Because we conclude that the trial court erred in denying

Flannigan's motion to suppress the blood test results, we reverse his

convictions and remand this case to the trial court for further proceedings

consistent with this decision.

FIDEL and GRANT, JJ., concur.

FN1. We view the facts underlying Flannigan's convictions in the light

most favorable to sustaining the jury's verdicts. State v. Atwood, 171 Ariz.

576, 596, 832 P.2d 593, 613 (1992), cert. denied, 506 U.S. 1084, 113

S.Ct. 1058, 122 L.Ed.2d 364 (1993).

A-10

FN2. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d

694 (1966).

FN3. The record indicates that, despite the jury's findings of dangerousness

as to all offenses, the trial court failed to impose the enhanced sentencing

provisions of A.R.S. § 13-604(F) and (1). The state, however, did not

cross-appeal from the sentence imposed, and we therefore do not address

the propriety of those sentences in this decision. See State v. Dawson, 164

Ariz. 278, 286, 792 P.2d 741, 749 (1990).

FN4. We base our conclusion, as we must, solely on the record in this case.

For cases applying similar fact-intensive applications of Schmerber in the

context of cocaine/methamphetamine use and likewise finding no exigent

circumstances, see State v. Jones, 111 Nev. 774, 895 P.2d 643, 644

(Nev.1995); United States v. Pond, 36 M.J. 1050,.1058-59 (U.S. Air Force

Ct. of Military Rev.1993); State v. Moylett, 313 Or. 540, 836 P.2d 1329,

1335-36 (Oregon 1992).

FNS. Flannigan also argues that the trial court erred in permitting the state

to cross-examine him concerning his prior use of both methamphetamine

and a drug known as "Ecstasy." Because this issue is not likely to arise in

a new trial we do not address it.

A-11

SUPREME COURT

NOEL K. DESSAINT STATE OF ARIZONA KATHLEEN E. KEMPLY

CLERK OF COURT 402 ARIZONA STATE COURTS BUILDING CHIEF DEPUTY CLERK

1501 West Wasiaington Street

Phoenix, Arizona 85007-3329

May 26, 1999 Telephone (602-542-9396)

RE: STATE OF ARIZONA VS. BILLY JOE FLANNIGAN

Supreme Court No. CR-98-0551-PR

Court of Appeals No. 1 CA-CR 97-0763

Maricopa County No. CR 95-90117

GREETINGS:

The following action was taken by the Supreme Court of the State of

Arizona on May 25, 1999, in regard to the above-referenced cause:

ORDERED: The State of Arizona’s Petition for Review = DENIED.

Record returned to the Court of Appeals, Division One, Phoenix, this 26th

day of May, 1999.

NOEL K. DESSAINT, Clerk

TO:

Hon. Janet Napolitano, Attorney General

ATTN: Paul J. McMurdie, Esq. and Gregory A. McCarthy, Esq.

Dean W. Trebesch, Maricopa County Public Defender

ATTN: Christopher Johns, Esq.

Billy J. Flannigan, #130892, Arizona State Prison-Winslow

Glen D. Clark, Clerk, Court of Appeals, Division One, Phoenix

Lexis Nexis

West Publishing Company

dk

B-]

IN THE

COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

Division One

Court of Appeals

State of Arizona

Filed: June 18, 1999

GLEN D. CLARK, CLERK

By: M. Soto

' STATE OF ARIZONA,

1 CA-CR 97-0763

Appellee,

DEPARTMENT A

v.

MARICOPA County

Superior Court

No. CR 95-90117

BILLY JOE FLANNIGAN,

Appellant.

ee ee a a

ORDER AND MANDATE

Janet A. Napolitano, The Attorney General

By: Paul J. McMurdie, Chief Counsel, Criminal Appeals Section

and Gregory A. McCarthy, Assistant Attorney General

Attorneys for Appellee Phoenix

Dean W. Trebesch, Maricopa County Public Defender

By: Christopher V. Johns, Deputy Public Defender

Attorneys for Appellant Phoenix

The opinion of this court in the above matter was filed on

November 3, 1998.

The motion for reconsideration was denied and notice thereof was

given on December 4, 1998. A petition for review was filed. The record

was forwarded to the Arizona Supreme Court. By order, dated May 26,

1999, the Arizona Supreme Court denied the petition for review, Supreme

Court No. CR-98-0551-PR.

IT IS ORDERED in conformity with the opinion attached hereto.

IT IS FURTHER ORDERED that a certified copy of the foregoing

ORDER and MANDATE and a copy of the opinion of the Court were

mailed to the Clerk of the Superior Court for MARICOPA County,

Arizona, on June 18, 1999. A copy of the ORDER and MANDATE and

a copy of the opinion were mailed to the Honorable Mark F. Aceto, Judge,

and a copy of the ORDER and MANDATE was mailed on said day to each

party appearing or the attorneys of record; as well as the MARICOPA

County Attorney.

IT IS FURTHER ORDERED pursuant to this Court’s order of the

11th day of March, 1965, that the Clerk of this Court return to the Clerk of

Superior Court, all records, exhibits, and other matters received from said

Clerk by this Court in aid of the consideration of this matter.

DATED June 18, 1999.

VICE CHIEF JUDGE

All of the foregoing directives were

complied with June 18, 1999.

GLEN D. CLARK, Clerk

By

Marcos A. Soto

Deputy Clerk

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