Smith v. Arizona Dept. of Transp., 2
| Decision Date | 11 September 1985 |
| Docket Number | No. 2,CA-CIV,2 |
| Citation | 146 Ariz. 430,706 P.2d 756 |
| Parties | Jose P. SMITH, Plaintiff/Appellee, v. ARIZONA DEPARTMENT OF TRANSPORTATION, Defendant/Appellant. 5388. |
| Court | Arizona Court of Appeals |
This appeal is from a review of a decision of the Motor Vehicle Division of the Arizona Department of Transportation by the superior court under the Administrative Review Act, A.R.S. §§ 12-901 to 12-914. A hearing was held before a hearing officer for the division who held that there was sufficient evidence to suspend appellee's driver's license. Appellee appealed the suspension to the Pima County Superior Court which reversed, holding that there was not substantial evidence in the administrative record to support appellant's conclusion that reasonable grounds existed to believe that appellee was operating a motor vehicle while under the influence of alcohol or that appellee refused to take the requested test. We do not agree with the trial court and reverse.
The record before the hearing officer discloses that at 1:14 a.m. on November 30, 1983, appellee stopped his vehicle at a signalized street intersection. There were two vehicles stopped at the opposite side of the intersection. When the traffic signal changed, appellee started to make a left turn in front of those two vehicles. He stopped his vehicle in an opposing traffic lane and the two opposing vehicles, which had also started into the intersection, had to stop or drive around appellee's vehicle in order to avoid a collision. This was all observed by a motorcycle officer who followed and stopped appellee's vehicle.
Upon approaching appellee's vehicle, the officer noticed appellee had a stuporous appearance. A mild odor of alcohol was detectable on appellee's breath over a strong odor from a throat lozenge. Appellee admitted that he had been drinking. His eyes were watery and bloodshot and his pupils had a poor reaction to light. When appellee was asked for his driver's license, he fumbled through his wallet and after about 25 seconds he produced a University of Arizona identification card. Appellee then fumbled through his wallet again and after approximately another 25 seconds he produced an Arizona driver's license.
The officer asked appellee to perform several tests on a level sidewalk. When appellee was asked to count backwards from 60 to 40 with his eyes closed, he opened his eyes at one point and at another point repeated several numbers. He also continued to count beyond 40 even though he had been instructed to stop at 40. During this test appellee weaved back and forth.
Appellee was asked to balance on one leg for 30 seconds, with his arms straight down on his sides and his other foot approximately 6 inches off the ground. Appellee put his arms out for balance, he weaved from side to side and had difficulty maintaining his balance.
Appellee was asked to do a finger to nose test by repeatedly touching a finger to the tip of his nose with the hand requested by the officer. Rather than touching the tip of his nose, appellee touched between his nostrils. The officer requested that appellee touch his nose three times with his left hand followed by his right. Appellee did this. When the officer switched his instructions by requesting that appellee touch his nose with his right hand then his left hand, appellee used his left hand then his right hand instead. Appellee also weaved back and forth during this test.
Appellee was asked to touch each of the fingers of his hand with the thumb of his hand four times. He did it five times. Appellee was asked to write out the alphabet, the even numbers from 0 to 30 and the date, time and his signature. He did this although the officer had to repeat his instructions after each operation.
Prior to performing the tests, appellee asked the officer if he could give him the keys to his automobile and walk away. The officer told him that this could not be done and that he had to perform a sobriety test.
Based on the foregoing, the officer arrested appellee for driving while under the influence of intoxicating liquor. Appellee was asked to submit to a breath test to determine the alcoholic content of his blood. He was informed that a refusal to submit to this test would result in the suspension of his driver's license. At 1:30 a.m. appellee responded that he would take the test. Then, at 1:50 a.m. he stated that he would not. For more than 30 minutes he was repeatedly asked to take the test. He stated that he did not know if he would take the test and that he...
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