State v. Nissley ( 2015 )


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  •                                  IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    STATE OF ARIZONA, Appellee,
    v.
    PATRICK MCLEOD NISSLEY, Appellant.
    No. 1 CA-CR 12-0780
    FILED 10-20-2015
    Appeal from the Superior Court in Maricopa County
    No. CR2011-110536-001
    The Honorable Bruce R. Cohen, Judge
    AFFIRMED AS MODIFIED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Terry M. Crist
    Counsel for Appellee
    Ballecer & Segal, LLP, Phoenix
    By Natalee E. Segal
    Counsel for Appellant
    OPINION
    Judge Samuel A. Thumma delivered the opinion of the Court, in which
    Presiding Judge Lawrence F. Winthrop joined and Judge Kenton D. Jones
    dissented in part.
    STATE v. NISSLEY
    Opinion of the Court
    T H U M M A, Judge:
    ¶1             Patrick McLeod Nissley appeals from his convictions and
    resulting sentences for reckless manslaughter, possession or use of narcotic
    drugs and four counts of endangerment. Nissley argues the superior court
    erred in denying his motion to suppress blood test results for blood
    obtained for law enforcement purposes under Arizona Revised Statute
    (A.R.S.) section 28-1388(E) (2015).1 Because Nissley has shown no reversible
    error, his convictions and sentences are affirmed as modified to vacate the
    requirement that Nissley pay for the cost of his DNA testing.
    FACTS2 AND PROCEDURAL HISTORY
    ¶2             Shortly after 5:30 p.m. on November 2, 2010, while driving his
    car at a high rate of speed in a residential area, Nissley crashed head on into
    an oncoming car, injuring four people in the oncoming car and killing a
    pedestrian. Witnesses later detailed Nissley’s erratic and dangerous driving
    and behavior leading up to and after the fatal crash. A blood sample taken
    from Nissley by medical personnel at a hospital less than an hour later
    revealed significant concentrations of methamphetamine and an active
    metabolite of heroin in his system at the time of the crash. The State charged
    Nissley with one count of second degree murder, a Class 1 dangerous
    felony; one count of possession or use of narcotic drugs, a Class 4 felony;
    and four counts of endangerment, each a Class 6 dangerous felony.
    ¶3            Nissley moved to suppress the blood test results, asserting the
    blood sample was obtained without a warrant or probable cause and that
    he expressly refused medical treatment. Nissley argued that
    [a police] officer cannot obtain blood for law
    enforcement purposes pursuant to A.R.S. § 28-
    1388(E) when the person is subjected to medical
    treatment that the person has expressly rejected.
    1Absent material revisions after the relevant dates, statutes and rules cited
    refer to the current version unless otherwise indicated.
    2This court considers only the evidence received at the suppression hearing
    and does so in a light most favorable to upholding the superior court’s
    ruling on the motion to suppress. See, e.g., State v. Blackmore, 
    186 Ariz. 630
    ,
    631, 
    925 P.2d 1347
    , 1348 (1996); State v. Hyde, 
    186 Ariz. 252
    , 265, 
    921 P.2d 655
    , 668 (1996).
    2
    STATE v. NISSLEY
    Opinion of the Court
    In State v. Estrada, 
    209 Ariz. 287
    , 
    100 P.3d 452
     ([App.] 2004), this precise question was
    answered. There, similar circumstances
    resulted in law enforcement obtaining a sample
    of blood drawn from an individual who
    expressly refused medical treatment. The Court
    held the blood inadmissible on the same theory
    raised in this case.
    The State’s response argued that the facts were “distinguishable from the
    Estrada case relied upon by [Nissley] as the basis for his motion to preclude
    the blood test results.” In reply, relying on Estrada, Nissley claimed that if
    the “suspect actively rejects medical treatment, then the police may no
    longer exploit” A.R.S. § 28-1388(E).
    I.     The Evidentiary Hearing.
    ¶4            At the evidentiary hearing on Nissley’s motion to suppress,
    the superior court heard testimony from six witnesses, received numerous
    exhibits and heard argument. Nissley, as was his right, elected not to testify
    at the hearing. The evidence received addressed the issues raised in
    Nissley’s motion to suppress: (1) whether law enforcement had probable
    cause and (2) whether Nissley expressly refused medical treatment. Given
    the fact-intensive nature of the inquiry, the evidence is summarized here in
    some detail.
    A.     The Scene Of The Crash.
    ¶5             Officer Jay Jones was the first responder, arriving at the scene
    between 5:35 and 5:40 p.m. When he arrived, Nissley was being tended to
    by a concerned citizen who was a nurse. Jones testified Nissley appeared to
    be in distress, “was flailing around” and that his “whole car was crushed in
    around him.”
    ¶6             Officer Deborah Hemshrot arrived a few minutes after Jones
    and heard Nissley screaming in his car. When Hemshrot told Nissley to
    “stop it,” he complied. Hemshrot testified there was a great deal of blood
    in his car, which photographs confirm. Asked whether Nissley was
    “refusing assistance,” Hemshrot testified “[n]ot that I’m aware of, no.” She
    added that Nissley did not otherwise respond to her and was being
    uncooperative. Nissley was screaming and cursing, shoving and punching
    first-responders, nonresponsive to questions and apparently unable to
    understand what was happening. Hemshrot, who had been an emergency
    medical technician (EMT) for approximately 10 years before becoming a
    3
    STATE v. NISSLEY
    Opinion of the Court
    police officer, testified, “[Nissley’s] speech was slurred. I could not smell
    any alcohol or anything coming from his breath. But I could not make out
    what he was saying. He just had a – like he was on something. He was
    appearing to be delirious and just screaming.”
    ¶7           Officer Nichole Hanson arrived at about the same time as
    Hemshrot and controlled traffic and took photographs. Hanson testified to
    seeing syringes in Nissley’s car and an uncapped needle stuck between the
    car’s windshield and dashboard.
    ¶8             Andrew McDonald, the primary treating paramedic, and
    EMT Aaron Lowery arrived after Hemshrot and Hanson. McDonald
    testified Nissley had numerous cuts, was bleeding and had scrapes to the
    face and head. Nissley’s car had quite a bit of damage from an apparent
    rollover. McDonald asked Nissley for his name and general information to
    assess his condition. Nissley responded by stating “‘f’ off, leave me alone”
    and refused to provide any additional information. McDonald testified that
    Nissley’s response to similar questions was profanity and “leave me alone,
    I’m fine” and “just go away.” As McDonald was treating Nissley and
    “explaining to him that I was there to help him, I did, numerous times, tell
    him he had to give me information if he wanted me to go away,” yet Nissley
    did not answer the questions asked and “never responded giving me any
    information.” “At no time was [Nissley] able to provide any indication on
    his level of consciousness.” McDonald added that Nissley “was aggressive,
    he was pushing [paramedics] away,” and “[a]t a few points … attempted to
    strike us with a closed fist.” Nissley “was physically combative during the
    entire event,” including before McDonald asked him any questions.
    ¶9             McDonald expressed concern that Nissley may have suffered
    a closed head injury and testified that individuals who have closed head
    injuries act similarly to how Nissley was acting. McDonald testified that
    Nissley’s behavior might be “consistent” with someone with a “closed head
    injury,” although he conceded Nissley was “conscious” and “verbally
    responsive” and that Nissley “seemed to be like he knew what was going
    on. He knew the situation he was in, but he didn’t want anybody around
    him, was my opinion.”
    ¶10           When asked whether, at any point, Nissley said “I don’t need
    medical treatment,” McDonald testified “I don’t recall him saying that.”
    When asked if, at any point before being placed in the ambulance, Nissley
    “indicate[d] to you he didn’t want to go to the hospital,” McDonald
    answered “[h]is only indication was that he said, I didn’t want your help,
    and that he continued to swear at us and act aggressive.” McDonald
    4
    STATE v. NISSLEY
    Opinion of the Court
    testified that, for Nissley “to say, leave me alone, did not indicate that he
    didn’t want our medical treatment.” According to McDonald, Nissley’s
    refusal to cooperate “indicat[ed] that at that particular time he did not want
    anything from us.” After removing Nissley from his car, McDonald treated
    him and Nissley continued cursing and being combative. McDonald
    testified Nissley kept “pushing us away” and “attempting to hit us with a
    closed fist.” Once they “had him strapped to a back board which was then
    in turn strapped to a gurney,” Nissley was “able to pull his feet out of the
    straps and attempt to kick at” the paramedics.
    ¶11          McDonald testified he did not believe Nissley ever said he
    wanted McDonald’s assistance or treatment or transportation to the
    hospital. Given Nissley’s injuries, however, McDonald testified he was
    unable to decline transporting Nissley to the hospital without getting
    clearance from a doctor. When asked “did it ever occur to you that, because
    this person was telling you he didn’t want your help, that you were going
    to be transporting him against his will,” McDonald responded “Yes.”
    McDonald explained why, given his injuries, Nissley was transported to the
    hospital without a doctor being consulted:
    Q      And, I mean, isn’t that when you’re
    supposed to call the doctor at the hospital and
    say, we’ve got somebody that may not want our
    help? I think he needs it?
    A      Per our offline treatments, if they cannot
    respond to our alert and oriented questions, we
    don’t have to call and get permission for that.
    Q      Aren’t you making a distinction? You
    said, cannot respond. I mean, it’s not that he
    couldn’t respond. He just didn’t respond. Isn’t
    that the truth?
    A      He did not.
    Q      All right. So he could have responded?
    A      I don’t know if he could or not. He did
    not respond to the questions I asked.
    Q    He was saying whatever the heck else he
    wanted to say, wasn’t he?
    5
    STATE v. NISSLEY
    Opinion of the Court
    A.     He said quite a few things. I can’t tell you
    if he could have or not. He didn’t answer my
    questions.
    ¶12           EMT Lowery testified about significant damage to Nissley’s
    car that appeared to be caused by a rollover, that Nissley had a head wound
    and had quite a bit of blood “all over” his head and there was blood in the
    car from his head wound. Lowery testified Nissley “did state to leave me
    alone, don’t touch me,” but he “would not answer our questions.” Lowery
    said Nissley was “throwing punches, calling us names” and saying “I don’t
    want your help.” Lowery acknowledged Nissley was saying “no” to
    transportation to the hospital, but added that Nissley did not have the right
    to refuse transportation to the hospital in his condition. “He wasn’t able to
    make his own decisions.” Lowery testified that Nissley’s behavior was not
    consistent with a diabetic who was hypoglycemic. Even if it had been,
    Lowery testified that he would not have left Nissley in the car. Lowery
    helped put Nissley on the backboard used to put him in the gurney to take
    him to the hospital and held his head down because responders suspected
    Nissley had a head or back injury. Lowery never heard Nissley say that he
    wanted to go to the hospital or “[p]lease give me medical assistance.”
    ¶13            Officer Sara Plotnik arrived at the scene after the other first
    responders. She testified that Nissley, while “probably traveling at a high
    rate of speed, which would be unusual for that area due to the foot traffic”
    and the low speed limit, caused a head-on accident killing a pedestrian.
    Damage to Nissley’s car, as evidenced by photographs of the scene,
    confirmed that Nissley had been driving fast. Plotnik never heard Nissley
    reject treatment but she did see him “moving around” continually “yelling
    ow, ow,” while he was strapped to the gurney and the paramedics were
    trying to work on or move him. Plotnik testified Nissley was screaming and
    cursing, shoving and punching first-responders, nonresponsive to
    questions and apparently unable to understand what was happening.
    Based on her training and experience, Plotnik testified that Nissley’s
    behavior was consistent with being under the influence of drugs or alcohol.
    She added that Nissley’s behavior was inconsistent with someone who had
    simply been in an accident and more consistent with someone under the
    influence of drugs or alcohol. Plotnik recounted information provided to
    her at the time that “a lot of syringes were seen on the ground” and in
    Nissley’s car, which photographs confirm.
    6
    STATE v. NISSLEY
    Opinion of the Court
    B.     The Ambulance Trip To The Hospital.
    ¶14           McDonald and Lowery rode with Nissley in the ambulance to
    the hospital. McDonald testified that Nissley continued to curse and be
    combative in the ambulance. McDonald did not recall Nissley saying he did
    not want to go to the hospital while he was in the ambulance, although
    Nissley continued to curse and was “extremely combative” during the ride
    and was pushing him away, swinging at him and kicking him the entire
    time. Lowery acknowledged that Nissley continued to be uncooperative
    and combative and was consistent throughout his contact with Lowery.
    C.     At The Hospital.
    ¶15           Nissley’s first contact with nurses and doctors, which resulted
    in the blood draw, did not occur until after he arrived at the hospital.
    Plotnik was at the hospital when Nissley was being unloaded from the
    ambulance and testified that Nissley “was continually yelling ow, ow ow.”
    Lowery, who wheeled Nissley into the hospital, testified that Nissley’s
    blood was taken according to hospital protocol, not at Lowery’s direction.
    Lowery testified that Nissley behaved the same way at the hospital as he
    did at the crash site and treated the nurses and doctors the same way he
    treated Lowery at the crash site.
    ¶16           Plotnik testified that, “[a]s hospital staff tried to work on
    [Nissley], he would continually move about.” Plotnik testified that, at the
    hospital, Nissley continued to move or jump away, making it “difficult” for
    medical professionals to work on him. Plotnik testified Nissley had to be
    sedated before they could “assess his situation.” When medical personnel
    asked questions, Nissley “said that he didn’t know or he just refused to
    answer.” When asked whether she “ever hear[d] Mr. Nissley tell the
    doctors [at the hospital], I don’t want medical treatment,” Plotnik
    responded “I never did.”
    ¶17           Plotnik had a portable recorder at the hospital that she used
    to record some statements by medical personnel and Nissley, both as
    Nissley was unloaded from the ambulance and in the trauma room. At least
    portions of that recording were played at the suppression hearing. That
    recording, however, was not received as an exhibit, is not part of the record
    on appeal and no transcript from the recording is part of the record on
    appeal.
    7
    STATE v. NISSLEY
    Opinion of the Court
    II.   The Superior Court’s Ruling On Nissley’s Motion To Suppress.
    ¶18         After considering the evidence in the context of the parties’
    arguments, the superior court issued a detailed minute entry stating, in
    part:
    This Court has painstakingly reviewed
    the record to assess whether [Nissley’s] actions
    rose to the level of “express rejection” of
    medical care contemplated by Estrada. In so
    doing, the Court has not only weighed the
    presentation of the various witnesses, but also
    the tape recording secured by Officer Plotnik at
    the hospital. Throughout the recording, there
    were numerous comments and sounds from
    [Nissley] that included “it hurts,” “ow f…, ow
    f…, ow f…, no” as well as repeated moans
    expected from someone in great pain. None of
    the contents of the recording from the hospital
    would rise even near to the level of express
    rejection of medical care.
    The noted actions of [Nissley] at the
    scene of the accident are subject to
    interpretation that could include resistance to
    touch due to pain or a delirious state of mind.
    While it is also possible to interpret [Nissley’s]
    actions and words to be a rejection of medical
    care, they do not rise to a clear and
    unambiguous rejection and are certainly not of
    the level of rejection voiced by Estrada.
    Based upon the foregoing, it is the
    finding of this Court that law enforcement
    secured the blood sample in accordance with
    ARS Section 28-1388(E) and that the actions of
    [Nissley] did not constitute an express refusal to
    submit to medical treatment sufficient to
    mandate that a warrant be secure. As such, the
    Motion to Suppress is denied.
    8
    STATE v. NISSLEY
    Opinion of the Court
    ¶19           After an 18-day trial, the jury found Nissley guilty of the
    lesser-included offense of reckless manslaughter on the second degree
    murder count, and guilty of the remaining offenses as charged. The
    superior court sentenced Nissley to an aggravated prison term of 15 years
    for the manslaughter conviction and concurrent prison terms of 3 years on
    each of the other convictions. From Nissley’s timely appeal, challenging the
    superior court’s denial of his motion to suppress, this court has jurisdiction
    pursuant to the Arizona Constitution, Article 6, Section 9, and A.R.S. §§ 12-
    120.21(A)(1), 13-4031 and -4033.
    DISCUSSION
    I.     The Legal Standards Governing The Taking Of Blood Samples.
    ¶20            A blood draw is a search under the Fourth Amendment to the
    United States Constitution, applicable here through the due process clause
    of the Fourteenth Amendment. State v. Spencer, 
    235 Ariz. 496
    , 498 ¶ 9, 
    333 P.3d 823
    , 825 (App. 2014) (citing State v. Estrada, 
    209 Ariz. 287
    , 290 ¶ 11, 
    100 P.3d 452
    , 455 (App. 2004)). As noted in Spencer and Estrada, there are three
    ways police could obtain a blood sample from Nissley consistent with the
    directives of the Fourth Amendment.
    ¶21            First, upon a showing of probable cause, a warrant could be
    obtained for a blood sample. Spencer, 235 Ariz. at 498 ¶ 9, 333 P.3d at 825
    (citing Estrada, 
    209 Ariz. at
    290 ¶ 11, 
    100 P.3d at 455
    ); see also Illinois v. Gates,
    
    462 U.S. 213
    , 236 (1983) (noting “the Fourth Amendment’s strong
    preference for searches conducted pursuant to a warrant”). Had the police
    done so here, the sole issue raised by Nissley on appeal would have been
    avoided. Indeed, the Dissent at ¶ 52 acknowledges that a search warrant
    properly would have issued and that the blood sample properly could have
    been obtained on this independent basis. However, it is undisputed that no
    warrant was obtained for the blood sample taken from Nissley.
    ¶22            Second, Nissley could have consented to provide a blood
    sample, either expressly or impliedly. Spencer, 235 Ariz. at 498 ¶ 9, 333 P.3d
    at 825 (citing Estrada, 
    209 Ariz. at
    290 ¶ 11, 
    100 P.3d at 455
    ); see also A.R.S. §
    28-1321(A) (implied consent). The record does not reflect that Nissley
    expressly consented, and the parties’ arguments indicated that Nissley
    revoked implied consent. When no express consent is provided, when
    implied consent is revoked and when no warrant is obtained, police are
    limited to the third option. See A.R.S. § 28-1321(D)(1) (noting if person
    revokes implied consent, blood test “shall not be given, except as provided
    in section 28-1388, subsection E or pursuant to a search warrant”).
    9
    STATE v. NISSLEY
    Opinion of the Court
    ¶23          Third, pursuant to the medical blood draw exception to the
    warrant requirement,
    if a law enforcement officer has probable cause
    to believe that a person has violated [A.R.S.] §
    28–1381 and a sample of blood, urine or other
    bodily substance is taken from that person for
    any reason, a portion of that sample sufficient
    for analysis shall be provided to a law
    enforcement officer if requested for law
    enforcement purposes.
    A.R.S. § 28-1388(E). As construed, this statutory exception to the Fourth
    Amendment’s warrant requirement does not apply when a person
    “exercises his or her constitutional right to refuse medical treatment,” and
    does so “unambiguously,” “clearly and expressly.” Estrada, 
    209 Ariz. at
    290
    n.2 ¶ 9, 291 ¶15, 
    100 P.3d at
    455 n.2, 456.3 The issues presented here are
    whether, on the record before it, the superior court erred in finding the State
    showed that (1) it had probable cause to believe that Nissley violated A.R.S.
    § 28-1381 and (2) Nissley did not unambiguously, clearly and expressly
    refuse medical treatment.
    ¶24            “The State, as the party seeking to admit evidence seized
    without a warrant, had the burden of establishing the medical blood draw
    exception’s applicability to these facts.” Spencer, 235 Ariz. at 499 ¶ 12, 333
    P.3d at 826 (citation omitted).4 This court reviews the denial of a motion to
    3 The Arizona Supreme Court has restricted the “for any reason” language
    “to mean that the blood must be drawn by medical personnel for any
    medical reason.” State v. Cocio, 
    147 Ariz. 277
    , 284, 
    709 P.2d 1336
    , 1345 (1985)
    (construing statutory predecessor). The superior court found that “the
    necessary medical care of [Nissley] at the hospital meets this prerequisite,”
    a finding not challenged on appeal. Nissley apparently remained
    hospitalized for several days after the crash.
    4 The Dissent at ¶¶ 41 and 46 concludes the superior court improperly
    shifted the burden of proof, thereby relieving the State of its burden to
    prove voluntary consent to medical treatment, and imposing upon Nissley
    the burden of proving the adequacy of his rejection. The record, however,
    does not support such a conclusion. During argument at the suppression
    hearing, the superior court expressly recognized the State had the burden
    of proof, and nothing in its detailed minute entry denying the motion to
    10
    STATE v. NISSLEY
    Opinion of the Court
    suppress for an abuse of discretion. 
    Id.
     at 498 ¶ 8, 333 P.3d at 825 (citing
    cases); Estrada, 
    209 Ariz. at
    288 ¶ 2, 
    100 P.3d at 453
    . The superior court, not
    this court, weighs and assesses witness credibility. Estrada, 
    209 Ariz. at 288, ¶ 2
    , 
    100 P.3d at 453
    . This court defers to the superior court’s factual findings
    that are supported by the record and not clearly erroneous. 
    Id.
     Legal
    conclusions and mixed questions of law and fact are reviewed de novo.
    Spencer, 235 Ariz. at 498 ¶ 8, 333 P.3d at 825 (citing cases).
    II.    The Superior Court Properly Found The Police Had Probable
    Cause To Believe Nissley Violated A.R.S. § 28–1381 Before The
    Blood Draw.
    ¶25            Because law enforcement is not required “to show that the
    operator was in fact under the influence[,] only the probability and not a
    prima facie showing of intoxication is the standard for probable cause.”
    State v. Aleman, 
    210 Ariz. 232
    , 237 ¶ 15, 
    109 P.3d 571
    , 576 (App. 2005)
    (citation omitted). The police must have “collective knowledge” of
    “reasonably trustworthy information of facts and circumstances which are
    sufficient in themselves to lead a reasonable person to believe an offense
    has been committed and that the person to be arrested did commit it.” 
    Id.
    (citation omitted). As applied, the testimony of first-responder police
    officers demonstrates there was probable cause to believe Nissley violated
    A.R.S. § 28-1381 before the blood draw.
    ¶26           On appeal, Nissley focuses on other evidence considered by
    the superior court, suggesting the crash may have been caused by a medical
    emergency, the initial investigation did not include determining “if drugs
    (legal or otherwise) were present” and Plotnik “had not even made an
    assessment as to whether she believed [Nissley] was under the influence of
    alcohol or drugs.” It is true that the testimony at the hearing was not always
    consistent or definitive, causing the superior court to conclude that each of
    the first-responders who testified at the suppression hearing “had a
    somewhat different perspective but there were inherent similarities to their
    versions of events.” Resolving such issues involves the assessment of
    suppress was inconsistent with that recognition. Nissley’s opening and
    reply briefs on appeal do not argue the superior court shifted the burden of
    proof from the State. On appeal, this court allowed supplemental briefing
    on the applicability of Spencer, which was decided after Nissley’s
    sentencing and appeal, and the burden of proof. The parties’ supplemental
    briefs acknowledged that the State had the burden of proof and, consistent
    with his prior positions, Nissley did not argue the superior court shifted the
    burden of proof from the State.
    11
    STATE v. NISSLEY
    Opinion of the Court
    credibility, which is for the superior court alone. Estrada, 
    209 Ariz. at
    288 ¶
    2, 
    100 P.3d at 453
    . Moreover, the standard for probable cause “is not a
    subjective standard but an objective one.” State v. Turner, 
    142 Ariz. 138
    , 141,
    
    688 P.2d 1030
    , 1033 (App. 1984). The issue is whether the evidence supports
    the finding that the “collective knowledge” of the police showed probable
    cause. Aleman, 
    210 Ariz. at
    237 ¶ 15, 
    109 P.3d at 576
    . The record from the
    suppression hearing supports the superior court’s finding that the police had
    probable cause to believe that Nissley was driving while impaired to the
    slightest degree and, therefore, had violated A.R.S. § 28-1381(A)(1). See
    Aleman, 
    210 Ariz. at
    237 ¶ 15, 
    109 P.3d at 576
    ; see also State v. Quinn, 
    218 Ariz. 66
    , 69-70 ¶ 10, 
    178 P.3d 1190
    , 1193-94 (App. 2008) (depending on
    circumstances, unexplained erratic driving may give rise to probable cause
    for DUI) (dicta). Accordingly, the superior court did not err in finding the
    police had probable cause to believe Nissley violated A.R.S. § 28–1381
    before the blood draw.
    III.   The Superior Court Properly Found The State Showed Nissley Did
    Not Unambiguously, Clearly And Expressly Refuse Medical
    Treatment.
    ¶27            Nissley argued to the superior court that Estrada “answered”
    the “precise question” presented here. Under Estrada, the medical blood
    draw exception to the warrant requirement does not apply when a person
    “exercises his or her constitutional right to refuse medical treatment,” and
    does so “unambiguously,” “clearly and expressly.” Estrada, 
    209 Ariz. at
    290
    n.2 ¶ 9, 291 ¶ 15, 
    100 P.3d at
    455 n.2, 456; see also Spencer, 235 Ariz. at 499 ¶
    13, 333 P.3d at 826 (citing Estrada). Nissley argues he unambiguously,
    clearly and expressly refused medical treatment. Nissley also claims “it is
    undisputed that” he did not want to be transported to the hospital and did
    not want medical assistance on the trip to the emergency room. The State
    argues Nissley was not “alert and oriented” when contacted by paramedics
    and that his statements to paramedics were not the clear and express refusal
    of medical treatment required by Estrada.
    A.     The Concerns Expressed In Estrada And Spencer Are Not
    Present In This Case.
    ¶28            In Estrada, after a fatal accident, the defendant initially agreed
    to go to the hospital but then, while en route to the hospital in an
    ambulance, “apparently changed his mind.” 
    209 Ariz. at
    289 ¶ 4, 
    100 P.3d at 454
    . A police officer “then handcuffed and shackled [defendant] to the
    gurney.” 
    209 Ariz. at
    289 ¶ 5, 
    100 P.3d at 454
    . After being “secured to the
    gurney, he still expressed a desire to get out of the ambulance.” 
    Id.
     Following
    an evidentiary hearing, the superior court granted defendant’s motion to
    12
    STATE v. NISSLEY
    Opinion of the Court
    suppress test results of blood drawn at the hospital. 
    209 Ariz. at
    289 ¶ 7, 
    100 P.3d at 454
    . On appeal, deferring to the superior court’s finding that the
    defendant “unambiguously,” “clearly and expressly” refused medical
    treatment, Estrada found no abuse of discretion in granting defendant’s motion
    to suppress. 
    Id.
     at 292 ¶ 23, 
    100 P.3d at 457
    . In doing so, Estrada stated the
    medical draw exception did not apply “when the person is subjected to
    medical treatment that the person has expressly rejected,” finding that a
    contrary holding would allow “an unscrupulous police officer . . . [to] have the
    person forcibly taken to the hospital under the pretext of needing medical
    treatment in order to procure a blood sample without first obtaining a
    warrant.” 
    209 Ariz. at
    290-91 ¶¶ 13, 14, 
    100 P.3d at 455-56
    .
    ¶29            Here, by contrast, nothing in the record suggests that police
    officers directed or had anything to do with the decision to take Nissley to the
    hospital or to draw his blood at the hospital. Officer Jones testified that he did
    not tell the paramedics he wanted Nissley transported to the hospital and
    did not assist in doing so. Similarly, EMT Lowery testified that no police
    officer told him that they wanted Nissley taken to the hospital. Lowery
    added that Nissley’s blood was taken according to hospital protocol, not at
    his direction. Accordingly, the concerns identified in Estrada about “an
    unscrupulous police officer” directing medical treatment to obtain a blood
    sample are not present here.
    ¶30             In Spencer, decided after Nissley was convicted and
    sentenced, the defendant “steadfastly refused medical treatment. She
    capitulated only after being told [by a police officer] she would be arrested
    if she did not go to the hospital.” 235 Ariz. at 499-500 ¶ 15, 333 P.3d at 826-
    27. Given this “ultimatum,” Spencer found the defendant’s decision to go to
    the hospital (rather than jail) was “the product of coercion or duress” by the
    police officer and, accordingly, involuntary. 235 Ariz. at 499-500 ¶¶ 14, 16,
    333 P.3d at 826-27. Thus, Spencer held that the police officer’s directive to
    either go to jail or go to the hospital removed from the defendant the ability
    to voluntarily refuse medical care. Id. at 500 ¶ 16, 333 P.3d at 827. Unlike
    Spencer, however, there is no suggestion that any police officer had any
    involvement in the decision to transport Nissley to the hospital, threatened
    jail if he did not or had any involvement in the decision to draw his blood
    at the hospital. As a result, there was no “ultimatum” or police directive
    leading to the decision to draw blood from Nissley. Accordingly, Nissley
    did not face the Hobson’s choice presented to the defendant by the police
    in Spencer.
    13
    STATE v. NISSLEY
    Opinion of the Court
    B.      Under Estrada And Spencer, Nissley Has Not Shown The
    Superior Court Abused Its Discretion In Denying The
    Motion to Suppress.
    ¶31             Even if the facts here implicated the concerns expressed in
    Estrada and Spencer about “an unscrupulous police officer,” the issue would be
    whether the superior court abused its discretion on this record in finding that
    the State proved Nissley did not unambiguously, clearly and expressly refuse
    medical treatment. Estrada, 
    209 Ariz. at
    290 n.2 ¶ 9, 291 ¶15, 
    100 P.3d at
    455
    n.2, 456; see also Spencer, 235 Ariz. at 499 ¶ 13, 333 P.3d at 826 (citing Estrada).
    As applied, this inquiry focuses on three locations: (1) at the scene of the crash;
    (2) in the ambulance on the way to the hospital and (3) at the hospital. See
    Estrada, 
    209 Ariz. at
    289 ¶¶ 4-5, 
    100 P.3d at 454
     (where defendant consented to
    medical treatment and then revoked consent and, by implication, recognizing
    the opposite could occur).
    ¶32            As the superior court’s ruling reflects, the record includes no
    statement by Nissley specifically refusing medical assistance at the scene of
    the crash. He repeatedly stated he did not want help from first responders
    (including paramedics), for them to “leave him alone” and physically
    resisted efforts at aid and struck at first responders with closed fists. He also
    kicked his legs free when he was on a gurney and attempted to kick at
    medical personnel as they were placing him into an ambulance. As the
    superior court noted, the actions at the scene of the crash
    are subject to interpretation that could include
    resistance to touch due to pain or a delirious
    state of mind. While it is also possible to
    interpret [Nissley’s] actions and words to be a
    rejection of medical care, they do not rise to a
    clear and unambiguous rejection and are
    certainly not of the level of rejection voiced by
    Estrada.
    On this record, and given the deference owed to the superior court’s factual
    findings that provide the foundation for this conclusion, Nissley has not
    shown that the court erred in concluding that the State had shown Nissley
    did not unambiguously, clearly and expressly reject medical care at the
    scene of the crash. Estrada, 
    209 Ariz. at
    290 n.2 ¶ 9, 291 ¶ 15, 
    100 P.3d at
    455
    n.2, 456; see also Spencer, 235 Ariz. at 499 ¶ 13, 333 P.3d at 826 (citing Estrada).
    ¶33           Nor does the evidence from the ambulance ride alter the
    analysis. The testimony of McDonald and Lowery, who rode with Nissley
    in the ambulance, does not suggest Nissley took a different position during
    14
    STATE v. NISSLEY
    Opinion of the Court
    the ride to the hospital. On this record, Nissley has not shown that the
    superior court erred in concluding the State showed Nissley did not
    unambiguously, clearly and expressly reject medical care during the
    ambulance trip to the hospital. Estrada, 
    209 Ariz. at
    290 n.2 ¶ 9, 291 ¶15, 
    100 P.3d at
    455 n.2, 456; see also Spencer, 235 Ariz. at 499 ¶ 13, 333 P.3d at 826
    (citing Estrada).
    ¶34            Finally, the testimony from Lowery and Plotnik suggests
    Nissley did not unambiguously, clearly and expressly reject medical care at
    the hospital, where he first was treated by nurses and doctors and where
    his blood was drawn. Plotnik testified that Nissley never told the nurses or
    doctors he did not want medical treatment. And the recording from the
    hospital, the substance of which is not of record on appeal, is presumed to
    support the superior court’s ruling, including the conclusion that “[n]one
    of the contents of the recording from the hospital would rise even near to
    the level of express rejection of medical care.” See Cullison v. City of Peoria,
    
    120 Ariz. 165
    , 168 n.2, 
    584 P.2d 1156
    , 1159 n.2 (1978) (“where an incomplete
    record is presented to an appellate court, the missing portions of that record
    are to be presumed to support the action of the trial court”) (citing cases).
    ¶35            Referring to the medical treatment provided at the hospital,
    the Dissent at ¶ 48 states “an eventual capitulation to the persistent
    demands of medical personnel” cannot “qualify as ‘free’ and ‘voluntary’
    submission to treatment.” The record, however, does not reflect any
    “demands of medical personnel” at the hospital and the missing recording
    is presumed to support a contrary finding. Moreover, the superior court
    properly could find the records received in evidence do not show a rejection
    of medical treatment by Nissley at the hospital, any demands of medical
    personnel or a capitulation to such demands by Nissley. These records do
    not run counter to the superior court’s factual finding that the State showed
    Nissley did not expressly reject medical treatment at the hospital. Nissley
    has not shown that the superior court erred in concluding that the State
    showed Nissley did not unambiguously, clearly and expressly reject
    medical care at the hospital. See Estrada, 
    209 Ariz. at
    290 n.2 ¶ 9, 291 ¶15,
    
    100 P.3d at
    455 n.2, 456; see also Spencer, 235 Ariz. at 499 ¶ 13, 333 P.3d at 826
    (citing Estrada).5
    5Although the Dissent at ¶ 49 states the superior court’s ruling “arguably
    results in structural error, . . . which cannot be harmless and need not have
    been raised” with the superior court, Nissley has never claimed structural
    error and his motion to suppress preserved the issue discussed above.
    15
    STATE v. NISSLEY
    Opinion of the Court
    *****
    ¶36            The Dissent advocates for a standard different than Estrada
    and, in concluding the superior court applied the incorrect legal standard,
    takes exception to the application of Estrada to this case. The Dissent does
    not, however, argue that the analysis in Estrada was incorrect or that Estrada
    was wrongly decided. And it bears repeating that Nissley’s motion to
    suppress relied exclusively on Estrada, argued Estrada answered the
    “precise question” presented here and stated Estrada’s test was whether the
    blood was “drawn from an individual who expressly refused medical
    treatment.” Having been asked by Nissley to apply the legal standard set
    forth in Estrada, the superior court cannot be faulted for then applying
    Estrada’s test to the facts presented. It is also hard to find fault with the
    superior court not applying a standard that Nissley has not advocated and
    that does not appear in Estrada.6
    ¶37           Nor did Nissley change course on appeal. Although citing
    cases supporting the proposition that a person typically may refuse medical
    treatment and that a blood draw is a seizure under the Fourth Amendment,
    Nissley’s opening brief on appeal argues that the blood draw ran afoul of
    Estrada. At no point does Nissley challenge the Estrada analysis. “The rule
    that issues not clearly raised in the opening brief are waived serves to avoid
    surprising the parties by deciding their case on an issue they did not present
    Moreover, the Dissent cites no case applying structural error to an appeal
    from the denial of a motion to suppress. See State v. Tucker, 
    215 Ariz. 298
    ,
    316 ¶ 66, 
    160 P.3d 177
    , 195 (2007) (“We have recognized structural error in
    only a few instances,” such as “when trial judge biased; defendant denied
    counsel, access to counsel, self-representation, and public trial; reasonable
    doubt instructions defective; and jurors excluded because of race or views
    on death penalty”) (citing authority).
    6 An additional reason for the requirement that a defendant unambiguously,
    clearly and expressly refuse medical treatment as set forth in Estrada is to allow
    law enforcement to timely assess alternatives. Here, had Nissley
    unambiguously, clearly and expressly refused medical treatment, law
    enforcement likely would have obtained a warrant to secure a blood sample.
    Cf. Missouri v. McNeely, 
    133 S. Ct. 1552
    , 1563 (2013) (noting that blood alcohol
    content “is lost gradually and relatively predictably,” such that the “natural
    dissipation of alcohol in the blood” does not support a finding of exigency
    “categorically”).
    16
    STATE v. NISSLEY
    Opinion of the Court
    and to prevent the court from deciding cases with no research assistance or
    analytical input from both parties.” State v. Lopez, 
    223 Ariz. 238
    , 240 ¶ 6, 
    221 P.3d 1052
    , 1054 (App. 2009) (citations omitted). Although Nissley argues
    the superior court misapplied Estrada, the time for Nissley to argue that an
    analysis different than Estrada should apply has long since passed.
    ¶38           Finally, it is true that the evidence considered by the superior
    court was not entirely consistent. The superior court acknowledges as much
    in noting Nissley’s actions at the scene were “subject to interpretation.” This
    court, however, defers to the superior court’s factual findings that are
    supported by the record and not clearly erroneous. Estrada, 
    209 Ariz. at
    288
    ¶ 2, 
    100 P.3d at 453
    . On this record, Nissley has not shown that the superior
    court erred in weighing and assessing the testimony and other evidence
    received at the suppression hearing and concluding that the State showed
    Nissley did not unambiguously, clearly and expressly reject medical care at
    the hospital. See Estrada, 
    209 Ariz. at
    290 n.2 ¶ 9, 291 ¶ 15, 
    100 P.3d at
    455
    n.2, 456; see also Spencer, 235 Ariz. at 499 ¶ 13, 333 P.3d at 826 (citing
    Estrada).7 Accordingly, Nissley has not shown that the court erred in
    denying his motion to suppress.
    CONCLUSION
    ¶39           At sentencing, the superior court ordered Nissley to “pay the
    applicable fee for the cost of” his DNA testing. In State v. Reyes, 
    232 Ariz. 468
    , 472 ¶ 14, 
    307 P.3d 35
    , 39 (App. 2013), this court held that A.R.S. § 13–
    610 does not authorize the court to impose a DNA testing fee on a convicted
    defendant. Accordingly, pursuant to Reyes, which was issued after Nissley
    was sentenced, his sentence is modified to vacate the requirement that
    Nissley pay for the cost of DNA testing. In all other respects, Nissley’s
    convictions and sentences are affirmed.
    7 Given this conclusion, this court need not address the State’s argument
    that Nissley lacked the capacity to deny consent to receive medical care,
    which may justify a warrantless blood draw where applicable. See Estrada,
    
    209 Ariz. at
    290 n.2 ¶ 9, 
    100 P.3d at
    455 n.2 (noting person who is
    unconscious or otherwise rendered incapable of refusing medical treatment
    “’is deemed not to have withdrawn’” implied consent) (quoting A.R.S. § 28-
    1321(C)).
    17
    STATE v. NISSLEY
    Jones, J., dissenting in part
    J O N E S, J., dissenting in part:
    ¶40           In my view, the trial court applied the incorrect legal standard
    in denying the motion to suppress. Although the majority correctly notes
    there has never been any dispute that the State bears the burden of
    establishing “the lawfulness in all respects of the acquisition of all evidence
    which [it] will use at trial,” Ariz. R. Crim. P. 16.2(b), the question remains
    as to what the State must prove to admit blood evidence obtained pursuant
    to the “medical purpose” exception to the warrant requirement,
    enumerated within A.R.S. § 28-1388(E). This provision allows law
    enforcement to obtain and test a sample of a person’s blood taken for
    medical purposes if probable cause exists to believe the person has violated
    Arizona’s DUI laws. See State v. Cocio, 
    147 Ariz. 277
    , 284, 
    709 P.2d 1336
    ,
    1345 (1985); State v. Aleman, 
    210 Ariz. 232
    , 236, ¶ 11, 
    109 P.3d 571
    , 575 (App.
    2005). We have held that the statute does not apply “when a person is
    receiving medical treatment against his or her will.” State v. Estrada, 
    209 Ariz. 287
    , 291, ¶ 15, 
    100 P.3d 452
    , 456 (App. 2004).
    ¶41            Here, the trial court admitted the challenged blood evidence
    after finding the State had proven Nissley’s actions “d[id] not constitute an
    express refusal to submit to medical treatment” in the manner
    “contemplated by Estrada.” The majority accepts this as the standard and
    defers to the trial court’s findings. However, a discussion limited to
    whether the rejection of medical treatment is unequivocal, and therefore
    sufficient to preserve the defendant’s constitutionally protected right to
    bodily integrity, is misleading and contrary to established Fourth
    Amendment jurisprudence. Predicating suppression of the blood evidence
    upon the sufficiency of a rejection of medical care upends the historical
    requirement of consent in the absence of a warrant. At a minimum, this
    relieves the State of its full burden of proving the admissibility of the blood
    evidence, and in application may result in a de facto shifting of the burden
    of proof to the defendant to prove the “adequacy” of his rejection, upon no
    greater evidence being presented than the suggestion by the State that the
    rejection was unclear or ambiguous. For these reasons, I would hold the
    proper inquiry is not whether the defendant was able to prove he
    adequately rejected medical care, but rather, whether he freely and
    voluntarily consented to medical treatment. See State v. Spencer, 
    235 Ariz. 496
    , 499, ¶ 12, 
    333 P.3d 823
    , 826 (App. 2014). Even viewing the facts in the
    light most favorable to affirming the trial court’s order, the State did not
    present any evidence of consent. Therefore, I respectfully dissent from the
    majority’s conclusion that Nissley failed to demonstrate reversible error.
    18
    STATE v. NISSLEY
    Jones, J., dissenting in part
    DISCUSSION
    ¶42             In State v. Estrada, we held the medical purpose exception
    does not apply “when a person is receiving medical treatment against his
    or her will.” 
    209 Ariz. at 291, ¶ 15
    , 
    100 P.3d at 456
    . Apparently guided by
    the specific facts of Estrada, where the defendant “changed his mind about
    going [to the hospital] voluntarily and became agitated and attempted to
    get out of the ambulance,” we attempted to further define the issue by
    adding: “In other words, if a person exercises his or her constitutional right
    to refuse medical treatment in the first place, and does so clearly and
    expressly . . . he or she cannot be forced to accommodate law enforcement’s
    desire for a blood sample.” 
    Id. at 289, 291, ¶¶ 4, 15
    , 
    100 P.3d at 454, 456
    . It
    is the “other words” the majority focuses upon in affirming the trial court’s
    denial of Nissley’s motion to suppress, see infra ¶ 9, and which the State
    relies upon in arguing its responsibility was “to show the defendant did not
    expressly reject treatment.” However, the two statements, while leading to
    the same result in Estrada, are not the same. In my view, it is the initial
    statement which was intended to fix the standard for determining the
    applicability of A.R.S. § 28-1388(E).
    ¶43             The phrase “against his will,” as articulated in Estrada, is
    admittedly problematic. Indeed, it is unworkable to require the State to
    prove medical treatment was “against the will” of the defendant; the State
    has no interest or incentive to offer proof illustrating the inapplicability of
    the statute it is relying upon to establish the admissibility of its evidence. It
    would be equally inappropriate and unconstitutional to place the burden
    upon the defendant to prove the statutory exception to the warrant
    requirement does not apply, i.e., that the treatment was given “against his
    will.” See State v. Ault, 
    150 Ariz. 459
    , 464, 
    724 P.2d 545
    , 550 (1986) (“The
    burden is on the state when it seeks an exception to the warrant
    requirement.”) (citation omitted). And, because the parties in Estrada did
    not dispute that the defendant was transported to the hospital “against his
    will,” the opinion does not address what, precisely, the State must prove in
    order to establish the admissibility of blood evidence obtained pursuant to
    A.R.S. § 28-1388(E).
    ¶44           The majority settles the semantical problem presented by the
    phrase “against his will” by allowing the State to proceed solely upon
    evidence that the defendant’s attempted rejection of medical care was
    insufficient. This interpretation is not consistent with the commonly
    understood meaning of the phrase “against the will,” which is typically
    used to indicate a lack of consent. See Large v. Superior Court, 
    148 Ariz. 229
    ,
    234, 
    714 P.2d 399
    , 404 (1986) (noting drugs administered to petitioner were
    “against his will” where he refused to consent to treatment); State v. Miguel,
    19
    STATE v. NISSLEY
    Jones, J., dissenting in part
    
    125 Ariz. 538
    , 542, 
    611 P.2d 125
    , 129 (App. 1980) (holding that consent is a
    defense to a crime that requires the State to prove a taking was “against the
    will” of the victim); Fonseca v. Hall, 
    568 F. Supp. 2d 1110
    , 1131 (C.D. Cal.
    2008) (“[A] finding that the victims were confined against their will
    necessarily implied that the victims had not consented.”) (internal
    quotation and citation omitted); Against the Will, Black’s Law Dictionary
    (10th ed. 2014) (noting “against the will” is used in indictments to indicate
    a lack of consent). Estrada itself suggests some lesser level of resistance
    would be sufficient, noting that its holding would apply to an “attempt[] to
    decline medical treatment by refusing to go to the hospital” — something
    less than an express rejection of care. 
    209 Ariz. at
    291 n.3, ¶ 15, 
    100 P.3d at
    456 n.3.
    ¶45            More importantly, the majority’s approach conflicts with
    long-standing federal and state constitutional authority intended to protect
    persons from unreasonable bodily intrusion. This authority applies
    independent from the legislative direction contained in A.R.S. § 28-1388(E).
    State v. Butler, 
    232 Ariz. 84
    , 88, ¶ 18, 
    302 P.3d 609
    , 613 (2013). Indeed, in
    over two hundred years of Fourth Amendment jurisprudence, I am
    unaware of any court, in any jurisdiction, having ever upheld the validity
    of a warrantless intrusion premised purely upon the inadequacy of the
    defendant’s objection to the search; instead, courts have inerrantly required
    the State to affirmatively establish consent. See, e.g., United States v. Murphy,
    
    516 F.3d 1117
    , 1124-25 (9th Cir. 2008) (noting a “refusal to grant consent”
    effectively bars a warrantless search); Karwicki v. United States, 
    55 F.2d 225
    ,
    226 (4th Cir. 1932) (“The fact that [the defendant] did not protest against the
    search of his living quarters is without significance. He was not required
    to protest. The officers had no right to search same without a warrant,
    unless they had his consent to the search.”); United States v. Lerner, 
    100 F. Supp. 765
    , 767 (N.D. Cal. 1951) (declining to find consent where it was
    “apparent that the attitude of the defendant was one of protest rather than
    consent”). This Court recognized as much in State v. Spencer, which recently
    articulated the State’s burden, “as the party seeking to admit evidence
    seized without a warrant [and] establish[] the medical [purpose]
    exception’s applicability,” to include “demonstrating that . . . consent [to
    medical treatment] was ‘freely and voluntarily given.’” 235 Ariz. at 499,
    ¶ 12, 333 P.3d at 826 (citing Butler, 232 Ariz. at 88, ¶ 19, 302 P.3d at 613, and
    State v. Peterson, 
    228 Ariz. 405
    , 408, ¶ 9, 
    267 P.3d 1197
    , 1200 (App. 2011)).
    And requiring consent is consistent with statutory and judicially
    recognized exceptions to the warrant requirement. See A.R.S. § 28-1321(A)
    (implied consent); Butler, 232 Ariz. at 87, ¶ 13, 302 P.3d at 612 (2013)
    (recognizing “[c]onsent can also allow a warrantless search” in the context
    of blood drawn during a DUI investigation).
    20
    STATE v. NISSLEY
    Jones, J., dissenting in part
    ¶46            Yet, the trial court did not require the State to prove Nissley
    consented to medical treatment, and the State’s evidence objectively fails to
    establish consent. Whether consent is given is a question determined by the
    totality of the circumstances, State v. Paredes, 
    167 Ariz. 609
    , 612, 
    810 P.2d 607
    , 610 (App. 1991) (citing Schneckloth v. Bustamonte, 
    412 U.S. 218
    , 248-49
    (1973), and State v. King, 
    140 Ariz. 602
    , 604, 
    684 P.2d 174
    , 176 (App. 1984)),
    and an exception to the warrant requirement must be proven “‘by clear and
    positive evidence in unequivocal words or conduct expressing consent,’”
    State v. Canez, 
    202 Ariz. 133
    , 151, ¶ 53, 
    42 P.3d 564
    , 582 (2002) (quoting State
    v. Kananen, 
    97 Ariz. 233
    , 235, 
    399 P.2d 426
    , 427 (1965)); see also United States
    v. Shaibu, 
    920 F.2d 1423
    , 1427-28 (9th Cir. 1990) (“The consent [to a search]
    must be unequivocal and specific and freely and intelligently given.”)
    (internal quotations omitted). “Failing to actively resist or vocally object to
    a test does not itself constitute express agreement. Instead, . . . the arrestee
    must unequivocally manifest assent to the [warrantless chemical] testing by
    words or conduct.”8 Carrillo v. Houser, 
    224 Ariz. 463
    , 466-67, ¶ 19, 
    232 P.3d 1245
    , 1248-49 (2010) (holding actual consent is required prior to chemical
    testing initiated under A.R.S. § 28-1321 and noting the legislature’s
    clarification that a “failure to expressly agree constitutes a refusal” to take
    the test under A.R.S. § 28-1321(B)); see also Stoner v. California, 
    376 U.S. 483
    ,
    489 (1964) (noting defendant could waive Fourth Amendment rights only
    “by word or deed”). Upon these principles, the trial court was tasked with
    determining whether the State met its burden of showing Nissley freely and
    voluntarily exhibited a manifestation of consent to medical treatment.
    Although the trial court acknowledged that the State had the burden of
    proof, it considered only the sufficiency of Nissley’s objection to medical
    8       An eloquent and detailed statement of refusal is not and cannot be
    required to overcome the State’s burden of showing free and voluntary
    consent. The necessity of uttering a specific phrase at the precisely correct
    moment would create an artificial predicate to finding a refusal that is
    neither mandated by, nor consistent with, the broad protections against
    bodily invasion contained within the U.S. and Arizona Constitutions. See
    United States v. Ramirez, 
    79 F.3d 298
    , 304 (2d Cir. 1996) (“A suspect need not
    rely on talismanic phrases or any special combination of words to invoke
    his Fifth Amendment right to remain silent.”) (cited with approval by State
    v. Cota, 
    229 Ariz. 136
    , 145, ¶ 26, 
    272 P.3d 1027
    , 1036 (2012)). Under some
    circumstances, a verbal announcement may not be necessary or even
    possible, and our supreme court has already recognized that active
    resistance and vocal objections are not necessary to negate consent. Carrillo,
    224 Ariz. at 466-67, ¶ 19, 
    232 P.3d at 1248-49
    . It necessarily follows that such
    activity is, at a minimum, affirmative evidence of a lack of consent.
    21
    STATE v. NISSLEY
    Jones, J., dissenting in part
    treatment — ultimately determining that, while Nissley may have rejected,
    he did not reject enough.
    ¶47            The trial court’s conclusion that Nissley’s rejection was
    insufficient places in stark contrast the difference between requiring proof
    from the State that the defendant consented to medical treatment, and
    requiring proof that he “unambiguously, clearly and expressly rejected”
    treatment. The record is replete in its characterization of Nissley’s lack of
    consent, having been strapped to a backboard for placement in the
    ambulance, working his feet free, cursing and screaming as he tried to kick
    the emergency medical personnel to prevent them from putting him into
    the ambulance for transportation to the hospital, and wiggling his body
    furiously in an attempt to keep the paramedics from touching him or
    otherwise providing aid. The record indicates that from the moment
    emergency personnel arrived at the scene of the accident at approximately
    5:40 p.m., until his forced sedation and subsequent blood draw nearly an
    hour later, Nissley was “extremely combative,” screaming “leave me
    alone,” “don’t touch me,” “I don’t want your help,” “I’m fine,” and “just go
    away,” interlaced with near-constant profanity and name-calling. There is
    no legal interpretation capable of being given this conduct or these phrases,
    especially when uttered to a paramedic actively attempting to render
    medical care, that stands apart from their ordinary everyday meaning,
    which would give rise to a finding of free and voluntary consent.9 Yet, the
    trial court concluded, and the majority affirms, that these facts are
    insufficient to establish rejection of medical care.
    ¶48            Similarly, even accepting the trial court’s suggestion that
    Nissley may have been reacting to pain at the time he arrived at the
    hospital, an expression of pain does not equate to free and voluntary
    consent to medical treatment. See Rasmussen v. Fleming, 
    154 Ariz. 207
    , 216-
    17, 
    741 P.2d 674
    , 683-84 (1987); see also Hales v. Pittman, 
    118 Ariz. 305
    , 309,
    
    576 P.2d 493
    , 497 (1978) (noting “the fundamental right of every adult of
    sound mind to determine what should be done to his body”); see also Cruzan
    ex rel. Cruzan v. Dir. Mo. Dep’t of Health, 
    497 U.S. 261
    , 305-06 (1990) (Brennan,
    J., dissenting) (noting “each man is considered to be master of his own body,
    9      The majority implicitly recognizes the lack of evidence to establish
    Nissley’s consent to medical treatment by limiting its use of the word
    “consent” to a discussion of inapplicable alternatives to A.R.S. § 28-1388(E),
    supra ¶¶ 22, 38 n.6, and a parenthetical explanation of revocation, supra
    ¶ 31, instead focusing its attention entirely upon the conclusion that
    “Nissley did not unambiguously, clearly and expressly reject medical care,”
    supra ¶¶ 22, 31-35, 38.
    22
    STATE v. NISSLEY
    Jones, J., dissenting in part
    and he may, if he be of sound mind, expressly prohibit . . . medical
    treatment” and therefore the right to bodily integrity protects the right to
    decline even lifesaving treatment) (quotation and citations omitted). Nor
    can an eventual capitulation to the persistent demands of medical
    personnel qualify as “free” and “voluntary” submission to treatment. See
    Spencer, 235 Ariz. at 499-500, ¶ 15, 333 P.3d at 826-27; see also State v.
    Flannigan, 
    194 Ariz. 150
    , 153, ¶ 16, 
    978 P.2d 127
    , 130 (App. 1998) (finding
    mere “‘acquiescence to a claim of lawful authority’” insufficient to meet
    burden of establishing a person consented to a search) (quoting Bumper v.
    North Carolina, 
    391 U.S. 543
    , 548-49 (1968)). Yet, again, the trial court
    concluded, and the majority affirms, that the conduct was not an
    unambiguous rejection of medical care.
    ¶49             The concept of consent is materially different from that of
    rejection. I would find the trial court applied the wrong standard in
    determining the applicability of A.R.S. § 28-1388(E) and, in doing so, abused
    its discretion. State v. Mohajerin, 
    226 Ariz. 103
    , 108, ¶ 18, 
    244 P.3d 107
    , 112
    (App. 2010) (“When a trial court predicates its decision on an incorrect legal
    standard, . . . it commits an error of law and thereby abuses its discretion.”)
    (citing State v. Mangum, 
    214 Ariz. 165
    , 167, ¶ 6, 
    150 P.3d 252
    , 254 (App.
    2007)). The test adopted by the trial court puts the cart before the horse, see
    United States v. Gray, 
    369 F.3d 1024
    , 1026-27 (8th Cir. 2004) (considering
    whether defendant withdrew his consent only after recognizing that
    consent was originally granted), permits the State to introduce evidence
    obtained without a warrant based upon something less than the
    constitutionally required free and voluntary consent,10 and arguably results
    in structural error, see State v. Glassel, 
    211 Ariz. 33
    , 53, ¶ 74, 
    116 P.3d 1193
    ,
    1213 (2005) (finding structural error where circumstance improperly
    reduces the state’s burden of proof) (citing Sullivan v. Louisiana, 
    508 U.S. 275
    ,
    280-82 (1993), and State v. Portillo, 
    182 Ariz. 592
    , 594, 
    898 P.2d 970
    , 972
    (1995)); see also State v. Henderson, 
    210 Ariz. 561
    , 565, ¶ 12, 
    115 P.3d 601
    , 605
    (2005) (defining structural errors as “those which ‘deprive defendants of
    basic protections without which a criminal trial cannot reliably serve its
    10     Requiring the State to prove a defendant consented to medical
    treatment in order to admit evidence obtained pursuant to A.R.S. § 28-
    1388(E) would not affect the admissibility of bodily evidence obtained from
    an unconscious driver. See supra ¶ 38 n.6. Under A.R.S. § 28-1321(A), the
    unconscious driver has already given consent to chemical testing under
    certain circumstances when he operates a motor vehicle in this state and is
    incapable of revoking that consent under A.R.S. § 28-1321(C). Where the
    State chooses to proceed under this section, it need not separately prove
    consent to medical treatment.
    23
    STATE v. NISSLEY
    Jones, J., dissenting in part
    function as a vehicle for guilt or innocence.’”) (quoting State v. Ring, 
    204 Ariz. 534
    , 552, ¶ 45, 
    65 P.3d 915
    , 933 (2003)), which cannot be harmless and
    need not have been raised below, see State v. Valverde, 
    220 Ariz. 582
    , 585, ¶
    10, 
    208 P.3d 233
    , 236 (2009) (“If an appellate court finds structural error,
    reversal is mandated regardless of whether an objection is made below or
    prejudice is found.”); see also United States v. Atkinson, 
    297 U.S. 157
    , 160
    (1936) (“In exceptional circumstances, especially in criminal cases, appellate
    courts, in the public interest, may, of their own motion, notice errors to
    which no exception has been taken, if the errors are obvious, or if they
    otherwise seriously affect the fairness, integrity, or public reputation of
    judicial proceedings.”).
    CONCLUSION
    ¶50           In the absence of consent to medical treatment, freely and
    voluntarily given, the medical purpose exception does not apply. Given
    the record before us, the State did not prove by a preponderance of the
    evidence that Nissley freely and voluntarily consented to medical care.11
    Therefore, I would find the warrantless seizure of Nissley’s blood was
    improper, vacate Nissley’s convictions and sentences, and remand for a
    new trial that does not include evidence derived from the blood draw.
    ¶51           I appreciate the concerns of the majority regarding the
    challenges faced by law enforcement in assessing available alternatives to
    gather what may be time-sensitive evidence. See supra ¶ 36 n.5. However,
    “a grudging or negative attitude by reviewing courts toward warrants . . .
    is inconsistent with the Fourth Amendment’s strong preference for searches
    conducted pursuant to a warrant.” Illinois v. Gates, 
    462 U.S. 213
    , 236 (1983).
    Constitutional protections are not subject to exception simply for the
    11     The State argues a defendant must show it had some hand in forcing
    unwanted medical care upon him before the blood evidence can be
    suppressed. To read an additional requirement into the statute would run
    contrary to the legislature’s chosen language, which articulates only the
    need for probable cause and a blood draw resulting from medical treatment
    voluntarily received. See A.R.S. § 28-1388(E); Spencer, 235 Ariz. at 499, ¶ 12,
    333 P.3d at 826. And the law is express: in the absence of these elements,
    implied consent, or a warrant, “the [blood] test shall not be given.” A.R.S.
    § 28-1321(A), (D)(1) (emphasis added). Given the clear statutory language,
    it is unsurprising no argument or evidence was presented at the
    suppression hearing, and the trial court made no findings, regarding law
    enforcement’s willingness to allow Nissley to be removed from the accident
    scene, despite his protests, and transported to the hospital to receive
    medical treatment.
    24
    STATE v. NISSLEY
    Jones, J., dissenting in part
    convenience of a criminal investigation, see, e.g., United States v. Taylor, 
    934 F.2d 218
    , 220 (9th Cir. 1991) (“We recognize that individual interests
    outrank government convenience in the fourth amendment balancing.”)
    (citing United States v. Martinez-Fuerte, 
    428 U.S. 543
    , 557-58 (1976)), and our
    supreme court has rejected the notion that requiring law enforcement
    officers to obtain warrants for blood draws is unduly burdensome, Butler,
    232 Ariz. at 87, ¶ 11 (“‘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.’”) (quoting Missouri v.
    McNeeley, 
    133 S. Ct. 1552
    , 1561 (2013)). Moreover, while consideration of
    the degree of rejection is subjective, the concept of consent is not subject to
    a continuum; consent is either given or it is not. See Illinois v. Rodriguez, 
    497 U.S. 177
    , 188 (1990) (holding factual determination of consent must be
    judged against an objective standard) (citing Terry v. Ohio, 
    392 U.S. 1
    , 21-22
    (1968)); People v. Smith, 
    638 P.2d 1
    , 6 (Colo. 1981) (“Whether consent existed
    at the relevant time is an objective fact.”) (citing People v. Edmonds, 
    578 P.2d 655
     (Colo. 1978)). The objective standard advanced herein will only assist
    law enforcement in the fair and orderly collection and preservation of
    evidence.
    ¶52           I agree with the trial court’s conclusion that probable cause
    existed to believe Nissley had violated A.R.S. § 28-1381. Based upon such
    probable cause, and where there was any question as to the applicability of
    A.R.S. § 28-1388(E), the officers could and should have secured a warrant
    to obtain a sample of Nissley’s blood.
    ¶53           For these reasons, I respectfully dissent.
    :ama
    25