Campbell v. Superior Court In and For Maricopa County

• Decision Date: 15 January 1971
• Docket Number: No. 10110,10110
• Citation: 479 P.2d 685,106 Ariz. 542
• Parties: David H. CAMPBELL, Superintendent, Motor Vehicle Division, Arizona Highway Department, Petitioner, v. The SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, the Honorable W. E. Patterson, the Judge thereof, and Real Party in Interest, Frank Eugene WHITE, Respondents.
• Court: Arizona Supreme Court

Page 685

479 P.2d 685

106 Ariz. 542

David H. CAMPBELL, Superintendent, Motor Vehicle Division, Arizona Highway Department, Petitioner, v. The SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA, the Honorable W. E. Patterson, the Judge thereof, and Real Party in Interest, Frank Eugene WHITE, Respondents.

No. 10110.

Supreme Court of Arizona, In Banc.

Jan. 15, 1971.

Gary K. Nelson, Atty. Gen., by John H. Ryley, Asst. Atty. Gen., Phoenix, for petitioner.

Michael E. Benchoff, Phoenix, for respondent White.

HAYS, Justice.

Respondent, Frank Eugene White, (hereinafter referred to as respondent), was arrested for driving upon the public highways of Arizona while under the influence of intoxicating liquor in violation of A.R.S. § 28--692. The arresting officer requested that respondent submit to a chemical test of his breath pursuant to A.R.S. § 28--691, subsec. A. When in the opinion of the officer respondent refused to submit to the test, the officer submitted an affidavit pursuant to A.R.S. § 28--691, subsec. D to the Motor Vehicle Division of the Arizona Highway Department. On February 13, 1970, the department pursuant to A.R.S. § 28--691, subsec. D issued an order of suspension of respondent's driver's license. ¹ Upon receiving notice of his license suspension respondent requested a hearing before the Motor Vehicle Division. On March 20, 1970 a hearing was held and the suspension of respondent's driver's license was sustained. Respondent then petitioned respondent superior court for a review of the order of suspension. Respondent superior court held a trial De novo and after hearing evidence ordered the suspension of respondent's driver's license vacated. ²

This petition presents the following issues for decision by this court: (1) does Arizona's Implied Consent Law violate the privilege against self-incrimination; (2) does an arrested person have a right to the assistance of counsel in deciding whether or not to submit to a chemical test under the Implied Consent Law; (3) are proceedings to suspend the driver's license of a person who has refused to submit to the test under the Implied Consent Law civil or criminal in nature; (4) on which party is the burden of proof in a trial De novo before the superior court to review the validity of a license suspension; (5) does the provision for summary suspension of a driver's license under the Implied Consent Law satisfy procedural due process; (6) is Miranda applicable where a person is arrested for driving while intoxicated; (7) does A.R.S. § 28--691, subsec. B. require that a person be informed within the first fifteen minutes after he is stopped that a refusal to submit to the chemical test will result in suspension of his driver's license; (8) what constitutes a refusal to submit to a chemical test; (9) is it an unconstitutional retroactive enforcement of the Implied Consent Law to suspend a driver's license obained after the arrest but before the order of suspension is issued; (10) what constitutes probable cause under the Implied Consent Law; (11) is the affidavit of the arresting officer constitutionally deficient; (12) does the Implied Consent Law violate the Fourth Amendment of the U.S. Constitution?

We will consider the issues in the order presented. Before doing so, however, it will be helpful if we summarize the Arizona Implied Consent Law and determine whether it is a proper vehicle for regulating the use of the state's highways.

Under Arizona's Implied Consent Law any person who is arrested for an offense arising out of acts alleged to have been committed while operating a motor vehicle upon the public highways of Arizona while under the influence of intoxicating liquor 'shall be deemed to have given consent * * * to a chemical test or tests of his blood, breath or urine for the purpose of determining the alcholic content of his blood * * *.' A.R.S. § 28--691, subsec. A. The Test is to be administered at the direction of an Arizona Law enforcement officer having reasonable grounds to believe that the person operated a motor vehicle upon the public highways of Arizona while under the influence of intoxicating liquor. A.R.S. § 28--691, subsec. A. Following the arrest the officer shall allow fifteen minutes to elapse from the time the violator was stopped before administering any chemical tests and during this period the violator shall be informed that a refusal to submit to the test or tests shall result in the suspension of his driver's license. A.R.S. § 28--691, subsec. B. The fact that a person is dead, unconscious or otherwise in a condition incapable of refusing to submit does not constitute a refusal and the test may be administered. A.R.S. § 28--691, subsec. C. If the person refuses to submit to the test none shall be given; however, that person's license will be suspended for six months upon receipt of the law enforcement officer's sworn report that he had reasonable grounds to believe the person was operating a motor vehicle upon the public highways of Arizona while under the influence of intoxicating liquor. A.R.S. § 28--691, subsec. D. In the case of a resident arrested for driving while under the influence of intoxicating liquor who does not have a valid Arizon driver's license the department will deny him the issuance of a license for six months from the date of the alleged violation. A.R.S. § 28--691, subsec. D.

After suspension or a determination that a license should not be issued the person whose license has been suspended shall immediately be notified in writing and the department shall afford him an opportunity for a hearing. A.R.S. § 28--691, subsec. E. Upon his request a hearing will be held to determine whether the law enforcement officer 'had reasonable grounds to believe the person had been driving or was in actual physical control of a motor vehicle upon the public highways of this state while under the influence of intoxicating liquor, whether the person was placed under arrest, and whether he refused to submit to the test.' A.R.S. § 28--691, subsec. E. If the result of the hearing is the affirmance of the suspension the aggrieved driver has a right to petition the superior court to review the final order of suspension or denial. A.R.S. § 28--691, subsec. F.

In Arizona the use of the highways of this state is a right which all qualified citizens possess subject to reasonable regulation under the police power of the sovereign. Schecter v. Killingsworth, 93 Ariz. 273, 280, 380 P.2d 136 (1963). The state acting pursuant to its police powers may 'make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances either with penalties or without as shall be judged to be good for the welfare of the state and its residents.' McKinley v. Reilly, 96 Ariz. 176, 179, 393 P.2d 268, 270 (1964). In Myerson v. Sakrison, 73 Ariz. 308, 240 P.2d 1198 (1952) we quoted with approval the following language from 16 C.J.S. Constitutional Law § 198, page 573, concerning the test of the validity of a legislative act pursuant to the police power:

'(T)he test of validity within the police power is whether or not ends sought to be attained are appropriate and the regulations prescribed are reasonable. The measure of reasonableness of a police reglation is what is fairly appropriate to its purpose under all circumstances, and not necessarily what is best; and the test of reasonablenss is whether the attempted regulation make efficient constitutional guaranties and conserves rights, or is destructive of inherent rights.' 73 Ariz. at page 313, 240 P.2d at page 1201.

In other words, for valid legislation to be enacted pursuant to the police power it must be shown that the legislation seeks to achieve a legitimate legislative end through reasonable means under the circumstances. If the legislation enacted pursuant to the police power bears some reasonable relation to the objects sought to be achieved this court will not substitute its judgment for that of the legislature. State v. A. J. Bayless Markets, Inc., 86 Ariz. 193, 342 P.2d 1088 (1959).

The purpose of the Implied Consent Law is to remove from the highways of this state drivers who are a menace to themselves and to others because they operate a motor vehicle while under the influence of intoxicating liquor. We recognized the legitimacy of this purpose in State v. Harold, 74 Ariz. 210, 246 P.2d 178 (1952), where we said:

'The advent of millions of automobiles upon the highways of the state and nation in recent years and the rapidly increasing death toll that is being taken as a result of their operations thereon has made it mandatory that regulatory measures be taken to remove insofar as possible the causes contributing to this useless waste of human life and property. It appears to us to be even more important for the legislature to prevent operators of cars who are under the influence of intoxicating liquors * * * from entering upon the highways and into the stream of traffic than to permit them to enter thereon and after a tragic accident has happened to punish them for maiming or causing the death of those who are lawfully in the use of such highways. It is frequently the entry upon the highway by reckless or intoxicated drivers that causes the death and destruction this law seeks to prevent.' (Emphasis supplied) 74 Ariz. at page 215, 246 P.2d at page 181.

Even though Arizona's Implied Consent Law seeks to achieve a legitimate legislative purpose the question remains whether the means are reasonable. More specifically is it reasonable under the circumstances to require a person to submit to a chemical test of his blood, breach or urine if arrested for driving while intoxicated or face a six months suspension of his driver's license. We are of the opinion that it is.

In Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448 (1957) the defendant was convicted of manslaughter resulting from driving a car while intoxicated. He...