Barrett v. Thorneycroft
| Decision Date | 14 June 1978 |
| Docket Number | No. 13579,13579 |
| Citation | 119 Ariz. 389,581 P.2d 234 |
| Parties | Thomas William BARRETT, Appellant, v. Philip THORNEYCROFT, Superintendent of Arizona State Motor Vehicle Department, Appellee. |
| Court | Arizona Supreme Court |
Ducey, Moore, Petsch, Robinson & Bennett by William F. Bennett, Scottsdale, for appellant.
Bruce E. Babbitt, Former Atty. Gen., John A. LaSota, Jr., Atty. Gen., by Paul S. Harter, Asst. Atty. Gen., Phoenix, for appellee.
Appellant Thomas William Barrett refused to take the "breathalyzer" test to determine the alcoholic content of his blood after he was arrested for being in actual physical control of a motor vehicle while under the influence of intoxicating liquor. The arresting officer notified the Arizona Highway Department, Drivers License Service, of appellant's arrest and refusal to take the breath test. Upon the basis of the affidavit presented by the officer, the State Motor Vehicle Department suspended the driver's license of appellant for six months pursuant to A.R.S. § 28-691(D). A hearing was held pursuant to A.R.S. § 28-691(E), and the suspension was upheld. The suspension was then challenged at a trial in the Superior Court of Maricopa County under authority of A.R.S. § 28-691(F). The trial court affirmed the suspension, and appellant appealed to the Court of Appeals. The Supreme Court has jurisdiction under 17A A.R.S. Supreme Court Rules, rule 47(e).
At approximately 2:15 P. M. on April 2, 1975, a Paradise Valley marshal received a radio dispatch indicating that a black Cadillac was southbound on Tatum Boulevard, that the driver appeared to be intoxicated, and that a private security officer was following the Cadillac. This marshal received a second radio call a few minutes later telling him that the vehicle was now on Lincoln Drive and had pulled off the road across from the Camelback Inn. The information in both these calls had been relayed to the dispatcher by Bogard, a private security officer who had been called by a resident of the Clearwater Hills subdivision to remove appellant from her home. Noting that appellant appeared to be intoxicated at that time, Bogard helped appellant from the residence and offered to give him a ride home. Appellant refused this offer, got into his car, and drove erratically until he pulled off of Lincoln Drive and stopped. Bogard followed appellant but did not apprehend him. Bogard joined the Paradise Valley officer at appellant's car within a few seconds of the officer's arrival.
The officer noted that the car was running and the keys were in the ignition, but appellant was slumped over the steering wheel, and he had to be shaken before he "woke up." After arresting appellant, the officer spoke to Bogard regarding what appellant had done prior to the officer's arrival.
At the time of the arrest, appellant's car was on an unpaved area used as a parking lot by two small shops. There was testimony that the left front bumper of appellant's car was no further than six inches off the pavement of Lincoln Drive.
Appellant claims that since he was arrested for a crime which occurred on private property, the implied consent law (A.R.S. § 28-691) under which his driver's license was suspended for failure to take the breathalyzer, is inapplicable. Appellant interprets A.R.S. § 28-691 to permit suspension of driver's licenses for refusal to take the breathalyzer only when the offense for which one is arrested occurred while the person was operating a motor vehicle upon the public highway. Appellant is raising a question of first impression, for this particular aspect of A.R.S. § 28-691 has never been interpreted by our court; other states with similar statutes apparently have not yet ruled on an argument similar to appellant's. We are aware of Application of Hendrix, 539 P.2d 1402 (Okl.App.1975), but we are not persuaded by the Oklahoma court's interpretation of their implied consent statute; we think that the differences in the language of the Arizona and Oklahoma statutes are significant and justify our refusal to follow Hendrix, supra. We believe that A.R.S. § 28-691 clearly authorizes the suspension of appellant's license. Because this statute has been amended recently, all quotations will be from the statute as it existed at the time of appellant's arrest. The applicable section provides:
Thus, the implied consent statute applies to anyone "who operates a motor vehicle upon the public highways of this state . . . (and who is) arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor." The statute does not extend just to persons arrested for offenses committed upon the public highways, and the statute clearly reaches appellant in this case.
There is one limitation to the implied consent of the statute; the statute is only operative when a law enforcement officer has "reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle upon the public highways of this state while under the influence of intoxicating liquor." The statute does not say that the officer must have witnessed the person's behavior upon the public highways. The officer is only required to have reasonable grounds to believe that the person has been driving, or in actual physical control of, a motor vehicle upon the public highways while under the influence of intoxicating liquor. The officer has reasonable grounds for such a belief if the officer has knowledge of facts and circumstances which would warrant the same belief in a prudent person. See In re Emberton, 109 N.J.Super. 211, 262 A.2d 899 (1970). Although the...
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State v. Zavala
...to make an arrest, see Erickson v. City Court of City of Phoenix, 105 Ariz. 19, 458 P.2d 953 (1969); cf. Barrett v. Thorneycroft, 119 Ariz. 389, 391-92, 581 P.2d 234, 236-37 (1978) (location of car off highway, position of driver slumped over steering wheel, and keys in ignition provide rea......
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Potter v. ARIZONA DEPT. OF TRANSP., 1 CA-CV 02-0078.
...officer had knowledge of "facts and circumstances which would warrant the same belief in a prudent person." Barrett v. Thorneycroft, 119 Ariz. 389, 391, 581 P.2d 234, 236 (1978). ¶ 10 The time of day, the location of Potter's car at a service station and outside a designated parking space, ......
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Willis v. State
...it is well established that the officer's report, as in this case, may be based on circumstantial evidence. Barrett v. Thorneycroft, 119 Ariz. 389, 581 P.2d 234 (1978); Erickson v. City Court, 105 Ariz. 19, 458 P.2d 953 (1969). The circumstantial evidence here was sufficient to support a fi......
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Pearson v. Motor Vehicle Div., Dept. of Transp.
... ... Supreme Court has defined "reasonable grounds" as "facts and circumstances which would warrant the same belief in a prudent person." See Barrett v. Thorneycroft, 119 Ariz. 389, 391, 581 P.2d 234, 236 (1978). Moreover, this court has added that officers have reasonable grounds to believe a ... ...