State ex rel. Baumert v. Municipal Court of City of Phoenix

• Citation: 119 Ariz. 142,579 P.2d 1112
• Decision Date: 21 March 1978
• Docket Number: No. 1,CA-CIV,1
• Parties: STATE of Arizona ex rel. Andy BAUMERT, Phoenix City Attorney, Appellant, v. The MUNICIPAL COURT OF the CITY OF PHOENIX, Arizona, and the Honorable H. B. Daniels, Judge thereof, and Paul A. Miller, Defendant and Real Party in Interest, Appellees. 3887.
• Court: Court of Appeals of Arizona

Page 1112

579 P.2d 1112

119 Ariz. 142

STATE of Arizona ex rel. Andy BAUMERT, Phoenix City Attorney, Appellant, v. The MUNICIPAL COURT OF the CITY OF PHOENIX, Arizona, and the Honorable H. B. Daniels, Judge thereof, and Paul A. Miller, Defendant and Real Party in Interest, Appellees.

No. 1 CA-CIV 3887.

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

March 21, 1978.

Rehearing Denied April 21, 1978.

Review Denied May 31, 1978.

City of Phoenix by Oscar L. Sutton, Asst. City Prosecutor, Phoenix, for appellant

Reginald R. Kiefer, Jr., Phoenix, for appellee Paul A. Miller, real party in interest.

OPINION

HAIRE, Presiding Judge.

This appeal arises out of a criminal prosecution for driving while intoxicated (DWI) and concerns the admissibility of evidence of the defendant's alleged refusal to take a breathalyzer test. The question has been presented to this Court on an appeal from a Maricopa County Superior Court special action proceeding wherein the superior court upheld the ruling denying admissibility made by the municipal court judge. The state contends that the appellee municipal court judge erroneously granted the defendant's motion in limine to prohibit the state from introducing any evidence relating to the defendant's alleged refusal to submit to the test under the provisions of A.R.S. § 28-691. The procedural background which gave rise to the municipal court's ruling is as follows.

After the arrest of the defendant on DWI charges, he was taken to the Phoenix Police Main Station and offered a breathalyzer test, which, according to the state, he refused to take. Thereafter, and prior to trial on the DWI charges, the Motor Vehicle Department, acting pursuant to § 28-691 D, suspended defendant's drivers license because of the alleged refusal to submit to the breathalyzer test. Defendant, contending that he had not refused to submit to the test, timely requested an administrative hearing relating to that question. At the administrative hearing, he presented testimony, including that of an expert medical witness, which led the hearing officer to conclude that defendant did not refuse, within the meaning of the statute, to take the breathalyzer test. Rather, the hearing officer concluded that defendant was physically unable to take the test because of an asthma problem. The state allowed the hearing officer's administrative findings to become final without any request for further review in the superior court.

Subsequently, on the day set for defendant's trial on the DWI charges, the state moved in limine requesting that the municipal court judge enter an order precluding the defendant from introducing into evidence at the criminal trial the finding of the administrative hearing officer that defendant had not refused to take the breathalyzer test. The defendant then countered with his own motion in limine, requesting that, in view of the administrative hearing results, the state be precluded from introducing any evidence relating to defendant's alleged refusal to take the breathalyzer test. The municipal court judge granted the defendant's motion, thereby precluding the introduction of any evidence in the criminal proceeding relating to the alleged refusal to take the test. As previously indicated, the action of the municipal court judge was upheld in special action proceedings in the Maricopa County Superior Court, resulting in the appeal by the state to this Court. In Arizona, the state's right in a criminal prosecution to introduce evidence of the defendant's refusal to submit to a chemical test for intoxication arises from the provisions of A.R.S. § 28-692 H. ¹ In support of the trial court's ruling, the defendant emphasizes that pursuant to the statutory authorization, not every refusal of a defendant to submit to a chemical test for intoxication is made admissible in evidence in subsequent civil or criminal proceedings. Rather, only those refusals "under the provisions of § 28-691" are made admissible. From this premise, the defendant urges that in his case, by the time of the DWI prosecution trial there had already been a determination that he had not refused to submit to the chemical test "under the provisions of § 28-691", and that this determination had been made through the administrative machinery expressly set forth for that purpose in § 28-691. ²

In our opinion, the defendant's contentions are sound. In arriving at this conclusion, we are aware of the Arizona Supreme Court's two Campbell decisions ³ wherein the court recognized that proceedings to determine or review suspension of a driver's license for refusal to submit to a chemical test are civil and administrative proceedings separate and distinct from any criminal action on a charge of driving while under the influence of intoxicating liquor or drugs. The court stated that the outcome of one action is of no consequence to the other, and that acquittal of the criminal charge of operating a motor vehicle while intoxicated does not preclude the Motor Vehicle Department from revoking the defendant's drivers license. These statements are without question correct when applied in the context in which the Arizona Supreme Court was speaking the final result in one cannot control the final result in the other. There is no legal or logical inconsistency in a finding of not guilty on the DWI charges, while at the same time finding, pursuant to appropriate administrative procedures, that a...