State of Arizona v. Edward Charles Noceo, Michael Harris

FILED BY CLERK
IN THE COURT OF APPEALS DEC 15 2009
STATE OF ARIZONA
COURT OF APPEALS
DIVISION TWO DIVISION TWO
STATE OF ARIZONA, )
) 2 CA-CR 2008-0315
Plaintiff/Appellant, ) 2 CA-SA 2009-0020
) (Consolidated)
v. ) DEPARTMENT A
)
EDWARD CHARLES NOCEO, ) OPINION
)
Defendant/Appellee. )
)
)
MICHAEL HARRIS, )
)
Petitioner, )
)
v. )
)
HON. HOWARD FELL, Judge Pro )
Tempore of the Superior Court of the )
State of Arizona, in and for the County of )
Pima, )
)
Respondent, )
)
and )
)
THE STATE OF ARIZONA, )
)
Real Party in Interest. )
)
APPEAL AND SPECIAL ACTION PROCEEDING
FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause Nos. CR-20073381 and CR-20084006
Honorable Richard S. Fields, Judge
Honorable Howard Fell, Judge Pro Tempore
REVERSED AND REMANDED
JURISDICTION GRANTED; RELIEF DENIED
Barbara LaWall, Pima County Attorney
By Jacob R. Lines Tucson
Attorneys for Plaintiff/Appellee/
Real Party in Interest
Law Offices of Henry Jacobs
By Henry Jacobs and Thomas Jacobs Tucson
Attorneys for Appellee Noceo
and Petitioner Harris
E S P I N O S A, Presiding Judge.
¶1 In the summer of 2007, appellee Edward Noceo and petitioner Michael Harris
were separately arrested and charged with driving under the influence of an intoxicant (DUI).
Both had samples of their blood drawn by law enforcement officers at the scene of their
arrests, and both subsequently moved to prevent admission of the blood test results at trial,
asserting that the procedures used to draw their blood were unconstitutional.
¶2 Noceo’s motion was granted, and the state appeals from the superior court’s
order precluding the introduction of blood-alcohol evidence at trial. Harris’s motion was
denied, he was convicted after trial in Tucson city court, and his conviction was affirmed by
the superior court on appeal. Having no right of appeal from the superior court’s ruling,
Harris has petitioned this court for special action relief. Because the legal issues presented
in the two cases are substantially identical, we have ordered them consolidated. We now
2
address Noceo’s appeal and accept jurisdiction of Harris’s petition for special action because
our trial courts’ inconsistent applications of case law concerning the constitutionality of
blood-draw evidence are a matter of statewide importance. See State ex rel. Pennartz v.
Olcavage, 200 Ariz. 582, ¶ 10, 30 P.3d 649, 652 (App. 2001) (special action jurisdiction
appropriate to resolve issues of statewide importance on which courts are divided).
Factual and Procedural Background
¶3 The only relevant facts are those relating to the two blood draws. See
Schmerber v. California, 384 U.S. 757, 771-72 (1966) (constitutionality of blood draw turns
on specific facts); State v. May, 210 Ariz. 452, ¶ 9, 112 P.3d 39, 42 (App. 2005) (examining
circumstances of individual blood draw to determine constitutionality); see also Ove v.
Gwinn, 264 F.3d 817, 824 (9th Cir. 2001) (“To allege a constitutional violation, plaintiffs
needed to assert that their blood tests were unreasonable and not taken in accordance with
medical practices.”). We review a trial court’s ruling on a motion to suppress evidence for
an abuse of discretion, considering only the evidence presented at the suppression hearing.
We defer to the court’s findings of fact unless they are clearly erroneous, but we review
questions of law de novo. May, 210 Ariz. 452, ¶ 4, 112 P.3d at 41. An error of law
constitutes an abuse of discretion. State v. Campoy, 220 Ariz. 539, ¶ 37, 207 P.3d 792, 804
(App. 2009).
¶4 After being arrested for DUI in August 2007, Noceo consented to a blood draw
at the scene. Department of Public Safety (DPS) Officer Palmer, who was also a qualified
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phlebotomist, placed him in the back seat of his patrol car. Before drawing Noceo’s blood,
Palmer put on latex gloves and cleaned Noceo’s arm with iodine. Because lighting was poor,
the officer turned on the dome light in his vehicle and asked another officer to assist him by
shining a flashlight on Noceo’s arm. Palmer then successfully drew Noceo’s blood on his
first attempt. Noceo fell asleep during the procedure.
¶5 After Harris’s July 2007 arrest for DUI, he, too consented to a blood draw at
the location where he was stopped. Like Noceo, Harris was seated in a patrol car while a
sheriff’s deputy, who was also a trained phlebotomist, drew his blood. As in Noceo’s case,
the blood draw was successful and was completed without incident.
Discussion
Noceo
¶6 The state contends the trial court erred in suppressing Noceo’s blood evidence
for perceived flaws in DPS’s phlebotomy program. 1 Citing Schmerber, May, and Ove, the
state argues that precluding blood-draw evidence requires the blood draw have been
performed in an unreasonable manner, which, it maintains, did not happen here. Noceo
responds that the trial court properly suppressed the blood evidence because it was collected
in violation of the Fourth Amendment. According to Noceo, Schmerber provides that a
1
DPS trains officers in a “Law Enforcement Phlebotomy Program,” whose participants
receive instruction and must complete one hundred successful blood draws to become
qualified phlebotomists. The DPS phlebotomists receive ongoing annual training and
performance reviews. DPS employs a phlebotomy coordinator and has produced a manual
detailing the program’s protocol. DPS phlebotomists conduct blood draws in the field for
their own cases and also for other agencies.
4
blood draw performed in a nonmedical setting by a “minimally qualified police officer is
substantially beyond the scope of the Fourth Amendment.”
¶7 But Noceo’s reading of Schmerber is at odds with our decision in May, which
both the state and Noceo cited below but the trial court apparently overlooked in making its
ruling. We held in May that allowing a properly qualified police officer to draw blood during
a DUI arrest does not violate the Fourth Amendment.2 210 Ariz. 452, ¶¶ 3, 9-10, 112 P.3d
at 41-42. There, a police phlebotomist drew May’s blood while he stood at the rear of the
officer’s car, with his arm resting on the car’s trunk. Id. ¶ 7. In the trial court, an expert
witness opined that standing blood draws increase the risk of injury and violate the applicable
standard of care. Id. The trial court nonetheless found the blood draw reasonable because
the procedure “resulted in only a ‘slightly higher’ risk of complications ‘in a field setting’
than those of a clinical setting.” Id. ¶ 8. On review, we found no constitutional or statutory
basis to disturb the trial court’s ruling, noting that the training the officer had received and
his experience in having previously “drawn blood 150 to 200 times,” id. ¶ 10, ensured that
the procedure was reasonable. Id. ¶¶ 9-10.
2
Although Noceo argues Officer Palmer was not qualified to draw blood under A.R.S.
§ 28-1388, the record reflects that this officer’s training and experience is on par with that
of the officer in May, who we determined was properly found qualified for purposes of this
statute. 210 Ariz. 452, ¶ 10, 112 P.3d at 42.
5
¶8 Here, we are presented with facts nearly identical to those in May,3 yet the trial
court suppressed the evidence based on its findings regarding the phlebotomy program as a
whole rather than the circumstances of Noceo’s blood draw in particular. The fundamental
question with respect to compelled blood draws and the Fourth Amendment, however, is not
whether the blood draw program as a whole is reasonable—a question our state legislature
implicitly has answered in A.R.S. §§ 28-1321 and 28-1388—but rather, “whether the means
and procedures employed in taking [a suspect’s] blood respected relevant Fourth Amendment
standards of reasonableness.” Schmerber, 384 U.S. at 768. Thus, the trial court erred as a
matter of law by evaluating the entire DPS phlebotomy program instead of the
reasonableness of Noceo’s particular blood draw. As a result, it abused its discretion.
¶9 Moreover, even if the trial court’s evaluation of the DPS phlebotomy program
had been appropriate, the court’s findings do not appear to be supported by the record. See
State v. Childress, 222 Ariz. 334, ¶ 9, 214 P.3d 422, 426 (App. 2009) (“An abuse of
discretion occurs when the reasons given by the court for its decision are clearly untenable,
legally incorrect, or amount to a denial of justice.”). First, the court found “[t]he DPS
phlebotomy program and manual lacked appropriate medical oversight when originated.”
But the former director of the DPS program and author of the first program manual testified
that he previously had worked as a hospital corpsman with the United States Navy and had
3
In fact, Noceo’s blood draw appears to have been even more reasonable than that
conducted in May. As noted above, May involved an arguably more dangerous standing
blood draw whereas Noceo was seated in a patrol car.
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been an emergency medical technician, a nurse’s assistant, and a field medic with the United
States Marine Corps. In addition, he testified that the first director of the DPS phlebotomy
program was a medical doctor, who had reviewed the manual and had overseen the entire
program at its inception. Although Noceo’s expert witness was critical of the program,
Noceo failed to present any evidence that the program and manual had lacked medical
oversight at their creation.
¶10 The court also found that blood draws conducted in poor lighting, under less
than sanitary conditions, and “often-times in violation of protocol” create an unreasonable
risk of infection and injury. But even Noceo’s expert did not testify that poor lighting
conditions rendered a blood draw unacceptable. Rather, he testified, “I don’t think they
would be optimal conditions, and you’d like to avoid them if possible.” Officer Palmer
testified that lighting conditions had never caused problems with any blood draws he had
performed. Nor did Noceo’s expert comment on hygienic conditions attending blood draws
under the DPS program, although Palmer testified about his own use of protective gloves and
his attention to cleaning and disinfecting the venipuncture site. The “violation of protocol”
to which the court refers is unclear, but it may relate to Officer Palmer’s testimony that on
occasion he had conducted blood draws while a subject leaned over a stationary object
despite departmental protocol which forbade standing blood draws.4 However, as noted
4
Noceo’s expert also testified generally that the phlebotomy program consists of
“people who are totally incompetent, who are certified by their agencies to be drawing blood.
There are people who just aren’t following protocol.” But he admitted this opinion was
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earlier, a standing blood draw was at issue in May, and we determined that any additional risk
inherent in that procedure was not so unreasonable that it offended the Constitution. 210
Ariz. 452, ¶¶ 7-9, 112 P.3d at 41-42.
¶11 The trial court next found that “[t]he lack of any realistic mechanism to
evaluate continued proficiency . . . endangers the health of suspects whose blood is drawn
roadside,” and the lack of “individual performance appraisals” violates Schmerber. These
conclusions, however, find little support in either Schmerber or the evidence. Schmerber did
not set forth standards for evaluating proficiency or appraising individual performance. See
May, 210 Ariz. 452, ¶ 6, 112 P.3d at 41 (“Schmerber ‘did not attempt to set any specific rules
for blood tests conducted outside the hospital setting.’”), quoting People v. Esayian, 5 Cal.
Rptr. 3d 542, 549 (Cal. Ct. App. 2003). And the state’s witnesses testified that officers are
required to participate in regular training courses to update their skills. Periodically,
phlebotomy instructors evaluate the officers’ performance in the field as well. Moreover,
DPS requires phlebotomists to document their blood draws and to report any complications
or problems. Additionally, departmental protocols are regularly reviewed and revised in light
of changes in the law and in technology. Even Noceo’s expert admitted that the program
contains oversight procedures, albeit ones he did not find adequate. Accordingly, we
conclude the trial court made erroneous findings not supported by the evidence. See
Childress, 222 Ariz. 334, ¶ 9, 214 P.3d at 426.
based on other cases in which he had testified and did not relate to Officer Palmer or any
alleged incompetence or failure to follow protocol in Noceo’s case.
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¶12 Furthermore, even were they relevant, the trial court’s generalized legal
conclusions regarding the DPS phlebotomy program are inconsistent with established case
law. In determining the program was so unreasonable as to render it unconstitutional, the
court found the “program and manual lacked appropriate medical oversight,” “[b]lood draws
carried out in roadside situations . . . subject the suspects . . . to an unreasonable risk of
infection and injury,” current practices lack appropriate oversight in violation of Schmerber,
and the availability of alternative means of testing blood alcohol render roadside blood draws
unconstitutional. But we noted in May that “‘[t]he test for lawful searches and seizures is the
unreasonableness of the search under the circumstances,’” 210 Ariz. 452, ¶ 6, 112 P.3d at 41,
quoting State v. Hutton, 108 Ariz. 504, 507, 502 P.2d 1323, 1326 (1972), and we held that
a roadside blood draw performed in a reasonable manner by an officer who has demonstrated
competency through training or experience did not run afoul of either Schmerber or the
Constitution. 210 Ariz. 452, ¶¶ 9-10, 112 P.3d at 42. Because the trial court’s ruling
contradicts our holding in May—that a reasonably conducted roadside blood draw by a
qualified officer is constitutional—it is erroneous as a matter of law.5
5
Noceo argues May is inapplicable and asserts this court “was presented with an
inadequate record, and did not feature testimony from physicians.” He further claims that,
“upon a more complete record[, we] probably would have decided that case differently”
based on the standing blood draw conducted there. These claims are perplexing. Nothing
indicates the record in May was incomplete. Moreover, even had we found that particular
standing blood draw unreasonable and unconstitutional, it would not necessarily dictate the
same conclusion for the seated blood draw at issue here.
9
Harris
¶13 In contrast, the superior court that reviewed the city court’s ruling properly
evaluated the specific facts of Harris’s blood draw before upholding the admission of the
evidence. The court considered the deputy’s testimony about his phlebotomy training and
concluded that he was qualified to draw blood and that “the field draw conducted in this case
was conducted in a reasonable manner.” 6 It noted the deputy had completed a forty-hour
phlebotomy course, had successfully completed one hundred blood draws under the
supervision of trained medical personnel, and was required to undergo “periodic refresher
training.” The court also noted evidence showing that, during Harris’s blood draw, the
deputy used procedures similar to those used in May, including wearing protective gloves,
cleaning and disinfecting the puncture site, using a tourniquet, and ensuring the punctured
vein clotted properly. The record does not show that any theoretically increased risk
associated with on-site testing rendered the blood draw in Harris’s case unreasonable, and
the trial court did not abuse its discretion in so ruling. See May, 210 Ariz. 452, ¶ 9, 112 P.3d
at 42.
6
The record is unclear whether the deputy who drew Harris’s blood did so under the
DPS program or a different law enforcement agency’s phlebotomy program. This fact is not
material, however, because the trial court evaluated the individual circumstances of Harris’s
blood draw rather than the phlebotomy program or protocols under which the deputy
operated.
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Disposition
¶14 For the foregoing reasons, we vacate the trial court’s order granting Noceo’s
motion to suppress and remand his case for further proceedings consistent with this decision.
Finding no error in Harris’s case, we deny relief.
PHILIP G. ESPINOSA, Presiding Judge
CONCURRING:
JOSEPH W. HOWARD, Chief Judge
ANN A. SCOTT TIMMER, Judge*
*The Honorable Ann A. Scott Timmer, Chief Judge of Division One of the Arizona Court
of Appeals, is authorized to participate in this appeal pursuant to A.R.S. § 12-120(F) (2003).
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