Caretto v. Arizona Dept. of Transp.

• Decision Date: 17 February 1998
• Docket Number: No. 1,CA-CV,1
• Citation: 192 Ariz. 297,965 P.2d 31
• Parties: , 2636 Ariz. Adv. Rep. 10 John P. CARETTO, Plaintiff-Appellee, v. ARIZONA DEPARTMENT OF TRANSPORTATION and Patricia J. d'Entremont, Hearing Officer, Defendants-Appellants. 97-0318.
• Court: Arizona Court of Appeals

Page 31

965 P.2d 31

192 Ariz. 297, 2636 Ariz. Adv. Rep. 10

John P. CARETTO, Plaintiff-Appellee, v. ARIZONA DEPARTMENT OF TRANSPORTATION and Patricia J. d'Entremont, Hearing Officer, Defendants-Appellants.

No. 1 CA-CV 97-0318.

Court of Appeals of Arizona Division 1, Department C.

Feb. 17, 1998.

Review Denied Oct. 20, 1998.

Grant Woods, Attorney General by Peter C. Gulatto, Assistant Attorney General, Phoenix, for Defendants-Appellants.

Toles & Associates, P.C. by Richard M. Gerry, Phoenix, for Plaintiff-Appellee.

SULT, Judge.

¶1 Pursuant to the implied consent provisions of Arizona Revised Statutes Annotated ("A.R.S.") section 28-691(B) (Supp.1997), an administrative law judge ("ALJ") suspended the driver's license of John P. Caretto for one year for refusing to submit to the second of two breath tests administered during duplicate testing. On appeal to the superior court, the ALJ's order was vacated and the superior court granted judgment in Caretto's favor. The Arizona Department of Transportation ("ADOT") has appealed the decision of the superior court. For the following reasons, we reverse.

BACKGROUND

¶2 On November 11, 1995, Department of Public Safety Officer Sayers arrested Caretto for driving under the influence of alcohol. Sayers transported Caretto to the police station where Sayers intended to conduct ¶3 To complete the duplicate testing, Sayers waited approximately five minutes before attempting to administer the second breath test. However, Caretto would not submit to a second test and instead asked to speak to an attorney. Sayers responded that he needed a name and number to contact the attorney, but Caretto remained silent. Sayers then reread several warnings to Caretto, informing him that he was not entitled to any further delay in taking the tests "for any reason" and that further delay would be considered as a refusal to submit. The officer also explained that the worst that could happen if Caretto submitted to the test would be a three-month driver's license suspension for a BAC over the legal limit, while a refusal to submit would result in a one-year suspension. When Caretto steadfastly declined to be further tested, the officer found a refusal to submit.

                duplicate breath testing. 1  Sayers began, however, by conducting an "observation" period for approximately twenty minutes, and then requesting that Caretto submit to a breath test.  Sayers also read Caretto several warnings, including a warning that a refusal to "submit to" or "successfully complete the specified test(s)" would result in a one-year suspension of his driver's license.  Caretto submitted to the first breath test, which revealed that his blood alcohol concentration ("BAC") level was .145%, well above the legal limit in Arizona
                

¶4 Subsequently, Caretto was notified that his license would be suspended for one year, and he requested an administrative hearing. In the interim, a justice of the peace found the BAC result admissible as evidence in a separate criminal DUI proceeding against Caretto. At the conclusion of the administrative hearing, the ALJ found a refusal to submit and ordered that Caretto's license be suspended for one year.

¶5 Caretto sought review by the Maricopa County Superior Court, which vacated the ALJ's order and granted judgment to Caretto for the following reasons:

1. Having submitted to one valid breath test, the results of which were used to convict [Caretto] in the criminal case, A.R.S. § 28-691 does not authorize license suspension for refusal to supply a breath sample for a subsequent breath test requested by the officer. See Sherrill v. ADOT, 165 Ariz. 495, 502, 799 P.2d 836, 843 (1990).

2. Having requested to contact an attorney between the first valid test and the second test he was deemed to have refused, the officers were required to clearly inform [Caretto] that he had no right to consult an attorney before submitting to the second test. Gaunt v. MVD, 136 Ariz. 424, 426, 666 P.2d 524, 526 (App.1983). They failed to do so.

3. Fairness requires that the officer who insisted on the second breath sample advise [Caretto] that his license can and will be suspended for failure to take the second test notwithstanding his cooperation in completing the first test. [Caretto] was not so advised and could well have believed that he had already discharged his implied consent duty, as well he had.

ADOT timely appealed.

ISSUES

¶6 When the state seeks to suspend a driver's license for a refusal to submit to testing, it must prove by a preponderance of the evidence that a law enforcement officer had reasonable grounds to believe the licensee was controlling an automobile while under the influence of alcohol, that the licensee was placed under arrest, that the licensee refused to submit to a test to determine his BAC, and that the licensee was informed of the consequences of refusing to submit to such a test. Sherrill v. Department of Transp., 165 Ariz. 495, 497-98, 799 P.2d 836, 838-39 (1990). In this case, the latter two elements are in dispute, with ADOT asserting

that the ALJ was correct in finding that Caretto refused to submit to breath testing and received adequate notice of the consequences of his refusal, and that the superior court erred in finding to the contrary. ²

ANALYSIS

I. Standard of Review

¶7 When reviewing an ALJ's decision under the implied consent law, the superior court is limited to determining whether the ALJ's decision was "arbitrary, capricious, or an abuse of discretion." Edwards v. Department of Transp., 176 Ariz. 137, 140, 859 P.2d 760, 763 (App.1993). The superior court must affirm administrative decisions that are supported by "competent evidence." Id. In turn, we review the superior court's decision "to determine whether the record contains evidence to support the judgment." Havasu Heights Ranch & Dev. Corp. v. Desert Valley Wood Products, Inc., 167 Ariz. 383, 386, 807 P.2d 1119, 1122 (App.1990). Our review necessarily involves reaching the underlying issues of whether competent evidence supports the ALJ's decision and whether the ALJ's action was "illegal, arbitrary, capricious, or involved an abuse of discretion." Id.

II. Refusal to Submit

¶8 In its findings (1) and (2), the superior court set forth separate bases for its conclusion that Caretto did not refuse to submit to testing. In finding (1), the court decided that the state's use of the test result in a concurrent criminal proceeding for DUI precluded a finding of refusal. In finding (2), the court determined that the officer failed to clearly inform Caretto that he had no right to consult an attorney before deciding whether to take the second test. We address each finding in turn.

A. Use of Test Result in Criminal Proceedings

¶9 Caretto first argues that the superior court's finding (1) was mandated by Sherrill. Caretto asserts that Sherrill stands for the proposition that whenever the state successfully introduces a BAC test result in a companion criminal prosecution for DUI, the state is per se prohibited from seeking an implied consent suspension for a refusal related to that test. While the superior court apparently agreed with this proposition, we do not read Sherrill so broadly.

¶10 Sherrill involved a DUI suspect who attempted to cooperate and follow instructions in supplying a breath sample. 165 Ariz. at 496, 799 P.2d at 837. However, the suspect provided a "deficient sample" in her first attempt at breathing into the machine, and the result was a BAC reading of 0.0%. Id. The suspect again provided a deficient sample in her second attempt, but a BAC reading of .295% resulted. Id. The officer construed this effort as a failure to "successfully complete" the test. Id.

¶11 Sherrill held that the successful use of the deficient sample in a criminal proceeding against the suspect, combined with evidence of the suspect's cooperation and a lack of sufficient proof that the suspect caused the deficient sample, precluded a finding of refusal for a failure to successfully complete the test. Id. at 503, 799 P.2d at 844. However, Sherrill expressly rejected any notion that the admission of a test result in a criminal proceeding, standing alone, automatically precluded an implied consent suspension:

In the absence of any other evidence of ... resistance to the test, indicated by either verbal or nonverbal willful noncooperation, we believe the fact that the prosecution utilized a test result ... to obtain a criminal DUI conviction, is a relevant factor in determining whether [the suspect] "refused" to take the test. Such a factor need not preclude a finding of refusal, however, if other evidence in the record satisfies the state's burden of proof.

Id. at 498-99, 799 P.2d at 839-40 (emphasis added).

¶12 In this case, there is "other evidence" which satisfies the state's burden. When Sayers requested that Caretto take the second test, Caretto instead asked to speak to his attorney. When the officer asked for the attorney's name and address, Caretto unaccountably remained silent. The officer then reread the implied consent admonitions and offered the intoxilyzer tube to Caretto, who declined to take it. Under these circumstances, the ALJ did not act arbitrarily or abuse her discretion in finding a refusal, and nothing in Sherrill precludes such a finding.

¶13 Caretto seeks alternatively to justify the superior court's finding (1) by arguing that administration of the second test was statutorily unauthorized and that a suspension cannot be based on a refusal of an unauthorized test, citing Ricard v. Department of Transp., 187 Ariz. 633, 931 P.2d 1143 (App.1997). In support of this argument, Caretto first points out that A.R.S. section 28-695(A)(3) (Supp.1997), which provides for admissibility of BAC results obtained either through duplicate breath tests or a single breath test preceded by a twenty-minute observation period, is phrased in the disjunctive. Caretto next observes that his first breath...