Koller v. ARIZONA DEPT. OF TRANSP.

• Decision Date: 09 March 1999
• Docket Number: No. 1 CA-CV 98-0310.,1 CA-CV 98-0310.
• Citation: 195 Ariz. 343,988 P.2d 128
• Parties: Betty K. KOLLER, Plaintiff-Appellee, v. ARIZONA DEPARTMENT OF TRANSPORTATION, MOTOR VEHICLE DIVISION, an administrative agency of the State of Arizona; and State of Arizona, real party in interest, Defendants-Appellants.
• Court: Arizona Court of Appeals

988 P.2d 128

195 Ariz. 343

Betty K. KOLLER, Plaintiff-Appellee, v. ARIZONA DEPARTMENT OF TRANSPORTATION, MOTOR VEHICLE DIVISION, an administrative agency of the State of Arizona; and State of Arizona, real party in interest, Defendants-Appellants.

No. -0310.

Court of Appeals of Arizona, Division 1, Department A.

March 9, 1999.

Review Denied October 26, 1999.

Janet A. Napolitano, The Attorney General By John C. Dutton, Assistant Attorney General, Transportation Section, Phoenix, Attorneys for Appellant.

Thomas A. Scarduzio, Jr., Phoenix, Attorney for Appellee.

OPINION

TOCI, Judge.

¶ 1 After a hearing, an administrative law judge ("ALJ") entered an order suspending plaintiff Betty Koller's ("Koller's") driver's license for refusing to take a breath test under Arizona's implied consent statute, Arizona Revised Statutes Annotated ("A.R.S.") section 28-691.¹ The trial court reversed the ALJ's suspension order. The Motor Vehicle Division of the Arizona Department of Transportation ("MVD") now seeks reversal of the trial court's judgment.

¶ 2 The issues presented are (1) whether a trial de novo is mandatory under A.R.S. section 12-910(C) (Supp.1997) when the administrative hearing was recorded but a transcript is unavailable because the tape recording was lost, and (2) whether Koller could effectively recant her refusal to take a breath test, thereby avoiding suspension of her driver's license, after the city court judge issued a search warrant for a blood sample. We hold that a trial de novo is required and that because Koller did not establish that she recanted before the warrant was issued, her recantation was ineffective to prevent suspension of her license. We therefore reverse.

I. FACTS AND PROCEDURAL HISTORY

¶ 3 Koller was arrested in July 1996 for DUI. At the scene, Officer Randal Fougner read to Koller from an implied consent form, which notified her that if she refused to submit to a breath test, her driver's license would be suspended for twelve months. When Fougner asked Koller to submit to a test, she refused. Fougner again explained to her that if she refused, she would lose her license. Fougner reported that she responded, "We'll see. I want to call my attorney." Another officer then transported Koller to the police station.

¶ 4 When Fougner arrived at the station, he again asked Koller to take a breath test. After she refused, he placed her in a holding cell for approximately thirty to forty minutes while he obtained a search warrant for a blood sample. After Fougner served the warrant on Koller, he transported her to Tempe St. Luke's Hospital, where her blood was drawn for testing. Test results indicated that her blood alcohol concentration was.20. She later was released from custody approximately two and one-half hours after the initial stop.

¶ 5 At the MVD license suspension hearing, the ALJ found that Koller's testimony "lack[ed] credibility" and that she failed to meet her burden of proving that she recanted her refusal to take the breath test. Accordingly, the ALJ ordered that her driver's license be suspended for twelve months. Koller appealed the ALJ's decision to the superior court pursuant to the Administrative Review Act. See A.R.S. §§ 12-901 through 12-914 (1992).

¶ 6 The trial court stayed the license suspension until final disposition of the matter. Koller thereafter moved for a trial de novo under A.R.S. section 12-910(C) on the grounds that the tape recording of the MVD hearing had been misplaced and, as a result, no transcript could be made for the trial court to review. The MVD opposed the motion, arguing that A.R.S. section 12-911(A)(7) (1992) gives the court discretion to remand the case for another hearing. Koller also moved to amend her complaint to add a demand for a trial de novo. See A.R.S. § 12-910(C); Ariz. R. Civ. P. 15(a)(1). The trial court granted Koller's motions.

¶ 7 Following a bench trial held on February 13, 1998, the trial court found that Koller recanted her refusal. The court reversed the ALJ's decision and voided the twelve-month license suspension. The MVD timely appealed from the judgment.

II. DISCUSSION

A. Trial de Novo Under A.R.S. Section 12-910(C)

¶ 8 Issues of statutory interpretation are issues of law; our standard of review therefore is de novo. See Lewis v. Arizona Dep't of Econ. Sec., 186 Ariz. 610, 614, 925 P.2d 751, 755 (App.1996)

.

¶ 9 In granting Koller's motion for a trial de novo, the trial court stated that it felt "compelled by the holding in Schmitz v. Arizona Board of Dental Examiners, 141 Ariz. 37, 40-41, (App.1984)... that `A.R.S. § 12-910[C] provides that the trial ... shall be de novo if a trial de novo was demanded and the proceedings were not reported so that a transcript might be made.'" The MVD argues on appeal that A.R.S. sections 12-911(A)(7)² and 28-3317 (1998)³ provide discretion to the trial court to remand cases for a hearing when transcripts cannot be generated. We are not persuaded.

¶ 10 Arizona Revised Statutes Annotated section 12-910(C) applies to a review of a final administrative decision of the MVD and provides that "the trial shall be de novo if trial de novo is demanded in the complaint... and if ... the proceedings before the agency were not stenographically reported or mechanically recorded so that a transcript might be made." In Schmitz, the plaintiff requested a trial de novo following an Arizona State Board of Dental Examiners' decision on the grounds that although a transcript had been made, it contained numerous "inaudible" designations as well as statements and questions by unnamed persons and therefore was insufficient to serve as a basis for judicial review. 141 Ariz. at 40, 684 P.2d at 921. In its analysis, this court reasoned that whether the plaintiff was entitled to a trial de novo "depends on the sufficiency of the transcript.... The threshold question is whether the record is complete enough to reflect a basis for the board's decision so as to enable a meaningful judicial review." See id. The court concluded that the record before it was so insufficient that it "defie[d] intelligent consideration." See id. at 41, 684 P.2d at 922.

¶ 11 Here, the complete lack of a transcript precludes any judicial review whatsoever. A lost tape has the same effect as a hearing that was "not stenographically reported or mechanically recorded," see A.R.S. section 12-910(C), that is, in each of these cases, a transcript cannot be produced for review.

¶ 12 Like the board in Schmitz, the MVD argues that the trial court could have remanded the matter for another hearing pursuant to A.R.S. section 12-911(A)(7). The Schmitz court rejected this argument, noting that the board "was responsible for preparing an adequate transcript" of the proceedings. See Schmitz, 141 Ariz. at 41,

684 P.2d at 922 (citing A.R.S. §§ 41-1009(F) (now 41-1061(F)) and 12-909(B)). The court stated that "A.R.S. § 12-910[C] provides that the trial shall be de novo if a trial de novo was demanded and the proceedings were not reported so that a transcript might be made. The Administrative Review Act ... does not require, in the absence of an adequate record, that an individual must first seek a remand to the agency...." See id. (citations omitted).

¶ 13 Here, the MVD was responsible for securing the tape recording so that a transcript could be produced for review on appeal. Because the MVD could not produce the recording for transcription and because Koller requested a trial de novo in her amended complaint, A.R.S. section 12-910(C) required a trial de novo. See id.

¶ 14 Finally, the MVD argues that A.R.S. section 28-3317 allows the trial court to remand for another hearing. This argument ignores the language of section 28-3317 that a person whose license has been suspended may seek judicial review "except that § 12-910, subsections A, B, D and E do not apply." Because no exception exists in section 28-3317 for section 12-910, subsection C, and subsection C mandates a trial de novo, the MVD's argument is without merit.

B. Issuing of the Search Warrant

¶ 15 The second issue on appeal is whether Koller effectively recanted her refusal to submit to a breath test. To decide that issue, we must determine if the Arizona implied consent law is affected by the 1990 amendment that allows a search warrant for a blood sample following a driver's refusal to submit to a chemical test. See A.R.S. § 28-1321(D)(1).⁴ We hold that, because of the legislative changes to the implied consent law, a driver cannot prevent a license revocation by recanting his refusal to agree to a chemical test after a search warrant for a blood sample is issued. Here, because Koller did not establish that she recanted her refusal before the search warrant issued, her attempted change of mind was ineffective to prevent the suspension of her license.

¶ 16 The nature and scope of a de novo review of administrative agency orders depend upon the presence or absence of any statutorily imposed restrictions. See Herzberg v. State ex rel. Humphrey, 20 Ariz.App. 428, 431, 513 P.2d 966, 969 (1973)

. De novo review under A.R.S. section 12-910(C) is unrestricted. Consequently, the trial court hears the matter "the same as though it were an original proceeding upon evidence introduced in [that] court, and with [that] court making an entirely independent determination unfettered by presumptions created by the decision of the administrative agency." Herzberg, 20 Ariz.App. at 431,

513 P.2d at 969. It follows that as a reviewing court, we will sustain the trial court's findings unless they are arbitrary, capricious or an abuse of discretion. See Carondelet Health Serv. v. Arizona Health Care Cost Containment Sys. Admin., 187 Ariz. 467, 469, 930 P.2d 544, 546 (App.1996). We determine only whether those findings are supported by substantial evidence. See id. We may, however, draw our own legal conclusions and determine whether the trial court erred in its interpretation of the law. See...