Montano v. Superior Court In and For Pima County

• Decision Date: 18 April 1986
• Docket Number: No. 18186-PR,18186-PR
• Citation: 149 Ariz. 385,719 P.2d 271
• Parties: Jose Roberto MONTANO, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF PIMA, and Honorable William L. Scholl, a Judge Pro Tempore thereof, Respondents, and The STATE of Arizona, ex rel. Stephen D. NEELY, County Attorney for the County of Pima, Real Party in Interest.
• Court: Arizona Supreme Court

Page 271

719 P.2d 271

149 Ariz. 385

Jose Roberto MONTANO, Petitioner, v. SUPERIOR COURT of the State of Arizona, In and For the COUNTY OF PIMA, and Honorable William L. Scholl, a Judge Pro Tempore thereof, Respondents, and The STATE of Arizona, ex rel. Stephen D. NEELY, County Attorney for the County of Pima, Real Party in Interest.

No. 18186-PR.

Supreme Court of Arizona, In Banc.

April 18, 1986.

Supplemental Opinion June 10, 1986.

Frederic J. Dardis, Pima County Public Defender, Amanda McGee, Deputy Pima County Public Defender, Tucson, for petitioner.

Stephen D. Neely, Pima Co. Atty., Paula Davidon, William Mills, Deputy Pima Co. Attys., Tucson, for respondents.

GORDON, Vice Chief Justice

We accepted review of this petition after the Court of Appeals declined to accept jurisdiction of a Petition for Special Action arising from the trial court's determination of two issues: whether A.R.S. § 28-691 (the Implied Consent statute) requires all police departments to provide some form of alcohol testing to those arrested for Driving Under the Influence of Intoxicating Liquor (DWI); and whether, when no alcohol test is provided, police must inform those arrested for DWI of their right to an independent chemical test. We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and Rule 23, Ariz.R.Civ.App.P., 17A A.R.S.

The essential facts of this case have been stipulated to by both parties and are not in dispute. Petitioner, Jose Roberto Montano, was arrested in South Tucson on the early morning of December 8, 1983, for driving under the influence of intoxicating liquor. At the time of petitioner's arrest South Tucson Police Department policy did not require the testing of DWI suspects' breath, blood, or urine for alcohol, presumably because South Tucson had no functioning intoxilyzer machine. South Tucson obtained an intoxilyzer machine in the spring of 1982. It was operational for only two months. From the time the intoxilyzer machine was put out of service in the summer of 1982, until at least April of 1984, South Tucson had no equipment to analyze breath samples for blood-alcohol content. Moreover, the police department had no agreement with any other law enforcement agency to borrow an intoxilyzer machine. Nor did the police department make arrangements with any hospital, laboratory, or medical personnel to analyze blood or urine samples.

As a consequence, upon arrest the petitioner was not requested to submit to any test of his breath, blood, or urine, although the arresting officer could have made such a demand pursuant to A.R.S. § 28-691. Petitioner did not request that any test be done and the arresting officer did not inform the petitioner that he had the right to an independent test of breath, blood, or urine. The policy of the South Tucson Police Department prescribed that when a person requested an independent test he could receive it only at his own expense and only after release from jail for the initial appearance. Suspects in custody who requested an independent blood test were not transported to a doctor or hospital.

After the petitioner's arrest he was taken to the Pima County Jail and booked on a felony DWI charge. The petitioner remained in custody until after 2:00 p.m. when his initial appearance was held--some thirteen hours after his arrest. Petitioner made an offer of proof that he would testify that if he had been requested, he would have submitted to any test of his breath, blood, or urine; that he was not informed of his right to an independent test; and that he was not aware of his right to an independent test. Petitioner moved to dismiss the DWI charge, claiming that A.R.S. § 28-691 requires police to request that all DWI suspects submit to a breath, blood, or urine test, and that in addition failure to inform petitioner of his right to an independent test denies due process of law in violation of the Fifth and Fourteenth Amendments to the United States Constitution and Article 2, section 4 of the Arizona Constitution. Petitioner's motion to dismiss was denied, and his Special Action to the court of appeals was declined. We granted the petition for review in order to resolve the issues raised by petitioner's motion to dismiss.

I

The petitioner contends that A.R.S. § 28-691, the Implied Consent statute, obligates rather than permits police departments to request tests of breath, blood, or urine of DWI suspects. The petitioner arrives at this conclusion by analyzing the relevant statutory language extant at the time of his arrest. In particular, the petitioner points to the language of A.R.S. § 28-691(B), which at the time of petitioner's arrest stated "B. Following an arrest a violator shall be requested to submit to any test prescribed by subsection A of this section, and if the violator refuses he shall be informed that his license or permit to drive will be suspended or denied if he refuses to submit to the test."

(emphasis added)

The tests prescribed by subsection A are those of breath, blood, or urine. A.R.S. § 28-691(A) provided:

"A. Any person who operates a motor vehicle within this state gives consent, subject to the provisions of § 28-692, to a test or tests of his blood, breath, or urine for the purpose of determining the alcoholic content of his blood if arrested for any offense arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor. The test or tests chosen by the law enforcement agency shall be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual physical control of a motor vehicle within this state while under the influence of intoxicating liquor."

(emphasis added)

Petitioner places great weight upon the use of "shall" in A.R.S. § 28-691(A) and (B), suggesting that its use reflects a legislative decision that A.R.S. § 28-691 be mandatory rather than permissive upon police departments. If statutory interpretation turned upon the ordinary meaning of isolated words, bereft of context, we might well be persuaded. However, statutory interpretation is inherently contextual, and A.R.S. § 28-691(A) provided that "[t]he test or tests chosen ... shall be administered...." (emphasis added)

Emphasizing this different but related word betrays the weakness of petitioner's argument. The discretion conferred upon police departments by the statute is not limited to choosing from among the designated tests, but includes the power to forgo altogether any alcohol testing of DWI suspects. Our reading of A.R.S. § 28-691(A) is consistent with the plain language of the statute and fully comports with the rule of construction that "a court should examine the language used in the statute, the context, the subject matter, the effects, the consequences and the spirit and reason of the law." Castregon v. Huerta, 119 Ariz. 343, 345, 580 P.2d 1197, 1199 (1978).

The "spirit and reason" of the implied consent statute "is to remove drunk drivers from the state's highways, not to provide a shield for a drunk driver...." State v. Waicelunas, 138 Ariz. 16, 20, 672 P.2d 968, 972 (App.1983). The statute was enacted as an aid to law enforcement agencies, and it would be ironic indeed if the sword offered to law enforcement in our battle against the appalling consequences of drunk driving were transformed into "a shield for a drunk driver." The implied consent statute has always been an invitation to law enforcement which may be declined, not a directive. By promulgating A.R.S. § 28-691 the state extended to law enforcement agencies the opportunity to take advantage of the statute's license suspension provisions, as well as related provisions in A.R.S. § 28-692.

Although the petitioner's theory relies upon statutory language for support and is therefore somewhat state-specific, a brief survey of other jurisdictions with similar statutes confirms that his argument has been consistently rejected. In People v. Gillett, 629 P.2d 613 (Colo.1981), the Colorado Supreme Court had occasion to analyze the very issue posed here. In concluding that its implied consent statute is permissive rather than mandatory, the court noted:

"The arresting officer, in the first instance, has the right to invoke the implied consent law by requesting the driver to submit to a chemical test or face revocation of his license. Alternatively, the officer may arrest the driver without invoking the statute and the prosecution thereafter may attempt to establish intoxication 629 P.2d at 617 (emphasis added)

[149 Ariz. 388] by means other than the statutory presumptions."

In City of Kettering v. Baker, 42 Ohio St.2d 351, 328 N.E.2d 805 (1975), the city of Kettering, Ohio, like South Tucson, chose not to perform breath or blood tests. The appellant argued that the city's failure to prescribe chemical sobriety tests violated his constitutional rights. After reviewing Ohio's implied consent statute, R.C. 4511.191, the court concluded, "There is nothing whatsoever in the language stated therein that entitles anyone to the administration of the tests by the city or any arresting officer. Nor can this section be read in such a manner as to impose an obligation mandating these tests." 42 Ohio St.2d at 353, 328 N.E.2d at 807.

Finally, in another leading state case, Hammer v. Town of Jackson, 524 P.2d 884 (Wyo.1974), the Wyoming Supreme Court reached the same conclusion with regard to Wyoming's implied consent statute, declaring that:

"The Implied Consent Law does not require that every person arrested for the offense of driving while under the influence of intoxicating liquor be given a chemical test of his blood, breath or urine. It merely provides that such a person is deemed to have given his consent and provides certain guidelines for the testing in the event that it is used or sought to be used. § 31-247.2(a),...