Kuznicki v. Arizona Dept. of Transp., 2

• Decision Date: 18 December 1986
• Docket Number: No. 2,CA-CV,2
• Citation: 732 P.2d 1119,152 Ariz. 381
• Parties: Kenneth A. KUZNICKI, Plaintiff/Appellee, v. ARIZONA DEPARTMENT OF TRANSPORTATION, Defendant/Appellant. 5863.
• Court: Arizona Court of Appeals

Page 1119

732 P.2d 1119

152 Ariz. 381

Kenneth A. KUZNICKI, Plaintiff/Appellee, v. ARIZONA DEPARTMENT OF TRANSPORTATION, Defendant/Appellant.

No. 2 CA-CV 5863.

Court of Appeals of Arizona Division 2, Department B.

Dec. 18, 1986.

Reconsideration Denied Jan. 26, 1987.

[152 Ariz. 382] Law Offices of John A. O'Brien, P.C., John A. O'Brien, Tucson, for plaintiff/appellee.

Robert K. Corbin, Atty. Gen., by Samuel Ruiz, Phoenix, for defendant/appellant.

OPINION

LIVERMORE, Presiding Judge.

Appellee, Kenneth Kuznicki, was arrested for driving while intoxicated. He was given the opportunity to take a breath test five times. On each occasion, he blew out the side of his mouth despite instructions not to do so. On one occasion, however, a reading was obtained although the machine characterized the breath sample as "deficient." The arresting officer then told appellee that he would be treated as having refused the test. The officer also charged appellee with driving with a blood alcohol level in excess of .10. At the administrative hearing to revoke appellee's license for failure to take the breath test, it was argued that the state could not on the one hand contend that the sample furnished provided proof of guilt and on the other hand contend that the appellee had refused to be tested. The hearing officer disagreed and revoked appellee's license. On appeal, the superior court reversed. We reverse the superior court.

As we said in Ontiveros v. Arizona Department of Transportation, --- Ariz. ---, 729 P.2d 346 (App.1986):

"An administrative decision may be set aside only if it is unsupported by competent evidence. City of Tucson v. Mills, 114 Ariz. 107, 559 P.2d 663 (App.1976). Even when 'two inconsistent factual conclusions could be supported by the record, then there is substantial evidence to support an administrative decision that elects either conclusion.' Webster v. State of Arizona Board of Regents, 123 Ariz. 363, 365-66, 599 P.2d 816, 818-19 (App.1979). The superior court cannot substitute its judgment for that of the administrative agency involved."

The parties are agreed that the failure to furnish a sufficient breath sample is properly treated as a refusal to take the test. We so held in Ontiveros. Thus, there was competent evidence to support the finding of the hearing officer in this case.

Appellee seeks to avoid affirmance of the hearing officer by arguing that he was prevented from offering evidence that he had not refused to take the test....