AZ: Forced DUI test under implied consent law violated Fourth Amendment

A juvenile’s forced DUI testing under an implied consent law violated the Fourth Amendment. State v. Butler, 661 Ariz. Adv. Rep. 33, 302 P.3d 609 (2013):

¶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. 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.