Chavez v. Campbell

• Decision Date: 02 July 1973
• Docket Number: No. Civ-73-163 Phx WEC.,Civ-73-163 Phx WEC.
• Citation: 397 F. Supp. 1285
• Parties: Erenst Castaneda CHAVEZ, Plaintiff, v. David H. CAMPBELL, Superintendent, Motor Vehicle Division, Arizona Highway Department, Defendant.
• Court: U.S. District Court — District of Arizona

397 F. Supp. 1285

Erenst Castaneda CHAVEZ, Plaintiff, v. David H. CAMPBELL, Superintendent, Motor Vehicle Division, Arizona Highway Department, Defendant.

No. Civ-73-163 Phx WEC.

United States District Court, D. Arizona.

July 2, 1973.

George W. Oglesby, Phoenix, Ariz., for plaintiff.

Gary K. Nelson, Atty. Gen., by Donald O. Loeb, Asst. Atty. Gen., Phoenix, Ariz., for defendant.

Before TRASK, Circuit Judge, and CRAIG and MUECKE, District Judges.

OPINION

CRAIG, Chief Judge.

On February 1, 1973, plaintiff was driving his automobile on a public street in Phoenix, Arizona, and was arrested and charged with a violation of A.R.S. § 28-721(A), failure to drive on the right side of the roadway, and with violation of A.R.S. § 28-692, driving while under the influence of intoxicating liquor (DWI). Pursuant to A.R.S. § 28-691, Arizona's implied consent law, the arresting officer requested the plaintiff to submit to a breath test to determine whether the plaintiff was under the influence of alcohol. Plaintiff refused to submit to the test and requested permission to telephone and consult with an attorney, which request was denied by the officer. On February 7, 1973, defendant, under the provisions of the implied consent law, summarily suspended plaintiff's driver's license for a period of six months from February 6, 1973. This suspension was done without affording plaintiff an opportunity to be heard. In an administrative hearing held on March 16, 1973, defendant's action was sustained.

Plaintiff brings this action under 42 U.S.C. § 1983 and invokes this Court's jurisdiction under 28 U.S.C. § 1343. He attacks the constitutionality of A.R.S. § 28-691 on three grounds: 1) the statute denies him due process of law; 2) the statute is violative of the equal protection of the laws, and 3) the statute is invalid because a suspect requested to submit to the test is not permitted the assistance of counsel prior to the rendition of a decision to suspend.

A Three-Judge Court was convened pursuant to 28 U.S.C. §§ 2281 and 2284, as plaintiff contends that the implied consent law be declared unconstitutional, and that defendant be enjoined from enforcing the provisions of that statute against him.

Before we can reach the issues presented in this case, we must first resolve defendant's motion for partial abstention. Defendant argues that portions of the implied consent statute have not yet been construed by the Arizona Supreme Court. Defendant readily acknowledges that the statute has twice been construed in significant part by the Arizona Supreme Court in Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685 (1971), and in Campbell v. Superior Court, 107 Ariz. 330, 487 P.2d 397 (1971). In Campbell (I) it was held, inter alia, that a suspect does not have a right to an administrative hearing prior to the effective date of suspension of his license, and that a suspect does not have the right to consult with an attorney at the time he is requested to submit to a breath test. Campbell (II) declared that the entry of a plea of guilty by a non-consenter to the charge out of which the license suspension arose did not relieve him from the consequences of his refusal under the Act.

The case before us, then, is not one where provisions of a state statute have not previously been construed. See, e. g., Fornaris v. Ridge Tool Co., 400 U.S. 41, 91 S.Ct. 156, 27 L.Ed.2d 174 (1970). The doctrine of abstention is to be invoked when a state law is susceptible of a "construction by the state courts that would avoid or modify the constitutional question." Zwickler v. Koota, 389 U.S. 241, 249, 88 S.Ct. 391, 396, 19 L.Ed.2d 444 (1967); Reetz v. Bozanich, 297 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970). The doctrine does not apply where state law is settled or else where the statute is unconstitutional no matter how it may be construed by the state courts. Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965). Here we have a statute that has twice been construed by the Arizona courts, and which constructions are the very object of plaintiff's attack. Indeed, defendant has conceded that those sections of the statute already construed are ripe for a constitutional determination by this Court. Accordingly, we conclude that partial abstention is inappropriate to the instant case.

We note at the outset that the implied consent laws in many states have come under increasing attack. In addition to the Arizona Supreme Court, several other state courts of last resort have upheld the constitutionality of their states' statutes. See In re McCain, 506 P.2d 1204 (N.M.1973); Broughten v. Warren, 281 A.2d 625 (Del.1971); Craig v. Commonwealth of Kentucky, 471 S.W.2d 11 (Ky.1971). By contrast, a Three-Judge Federal Court in South Dakota has found that state's statute invalid. Holland v. Parker, 354 F.Supp. 196 (D.S.D.1973).

To reach a determination of the present cause, we need go no further than Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971) and Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983. 32 L.Ed.2d 556 (1972). In Bell v. Burson, supra, the United States Supreme Court held the Georgia Motor Vehicle Safety Responsibility Act unconstitutional on the grounds that "* * * since the statutory scheme makes liability an important factor in the State's determination to deprive an individual of his license, the State may not, consistently with due process, eliminate consideration of that factor in its prior hearing." 402 U.S. at 541, 91 S.Ct. at 1590. En route to its holding, the Court made various important declarations concerning due process and the revocation of drivers' licenses.

"Once licenses are issued, as in petitioner's case, their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without the procedural due process required by the Fourteenth Amendment (Citations omitted). This is but an application of the general proposition that relevant constitutional restraints limit state power to terminate an entitlement whether the entitlement is denominated a `right' or a `privilege'." (Citations omitted) 402 U.S. at 539, 91 S.Ct. at 1589. The Court then went on to state, 402 U.S. 542, 91 S.Ct. 1591:

"While `many controversies have raged about * * * the Due Process Clause,' ibid., it is fundamental that except in emergency situations (and this is not one) due process requires that when a State seeks to terminate an interest such as that here involved, it must afford `notice and opportunity for hearing appropriate to the nature of the case' before the termination becomes effective." (Citations omitted)

The meaning of the phrase "emergency situations"...