Owen v. Creedon
| Decision Date | 20 February 1992 |
| Docket Number | CA-CV,No. 2,2 |
| Citation | 826 P.2d 808,170 Ariz. 511 |
| Parties | William Paul OWEN, Plaintiff/Appellant, v. James S. CREEDON, Acting Director, and Richard W. Raymond, Hearing Officer, Motor Vehicle Division, Department of Transportation, State of Arizona, Defendants/Appellees. 91-0206. |
| Court | Arizona Court of Appeals |
This is an appeal from a superior court order affirming an order of the Arizona Department of Transportation, Motor Vehicle Division, suspending appellant's driver's license for refusal to submit to an intoxilyzer. Appellant contends the superior court erred in sustaining the decision of the Motor Vehicle Division because there was insufficient evidence that he was driving or in physical possession of a motor vehicle while under the influence of intoxicants and because he did not refuse to submit to an intoxilyzer. We disagree and affirm.
The facts addressed before the hearing officer of the Motor Vehicle Division are as follows. Officer French of the Tucson Police Department responded to the East Second and North Santa Rosa area to assist off-duty Officer Rillos in reference to a domestic dispute which was taking place in front of Rillos' residence. Upon arrival, French found a woman standing by the curb crying and appellant standing near a vehicle. The engine of the vehicle had been turned off and the keys to the vehicle had apparently been thrown into the front yard of Rillos' home.
The woman advised French that appellant was giving her a ride home when they began having an altercation. Appellant admitted that he had been driving the vehicle. Because French could detect a strong odor of alcohol on appellant's breath and because appellant admitted that he had been drinking, a field sobriety test was administered which appellant failed.
French arrested appellant for driving while under the influence and Officer Rhind of the Tucson Police Department DUI Squad arrived at the scene to administer a breath test.
Appellant was given two breathalyzer tests. On the first test appellant started out not blowing and then afterwards blew around the mouthpiece instead of into it. The machine reported a blood alcohol content result of 0.150 percent and read "deficient sample."
The second test resulted in another deficient sample because appellant blew around the mouthpiece instead of into it. Appellant blew with and without his false teeth on each of the two tests. He was advised several times that blowing an incomplete or deficient test was a refusal and his license could be suspended. No further attempts were made to administer any additional test and the deficient results were considered a refusal thus leading to the hearing before a hearing officer for the Motor Vehicle Division. Appellant did not testify at that hearing.
An administrative decision may be set aside only if it is unsupported by competent evidence. Even if two inconsistent factual conclusions could be supported by the record, there is substantial evidence to support an administrative decision that chooses either conclusion. The superior court is not permitted to substitute its judgment for that of the administrative agency involved. Ontiveros v. Arizona Department of Transportation, 151 Ariz. 542, 729 P.2d 346 (App.1986); Kuznicki v. Arizona Department of Transportation, 152 Ariz. 381, 732 P.2d 1119 (App.1986).
Relying on State v. Zavala, 136 Ariz. 356, 666 P.2d 456 (1983), appellant contends there were no reasonable grounds to believe he was driving or in actual physical control of the motor vehicle.
We do not believe that Zavala is controlling since it involved a criminal prosecution for driving under the influence and not a license suspension which is a civil action. 1 The governing statute in this case is our implied consent law, A.R.S. § 28-691. The scope of implied consent is limited to the following...
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