Svendsen v. Ariz. Dep't of Transp.

Decision Date30 April 2014
Docket NumberNo. 2 CA–CV 2013–0143.,2 CA–CV 2013–0143.
Citation234 Ariz. 528,685 Ariz. Adv. Rep. 26,323 P.3d 1179
CourtArizona Court of Appeals


Nesci & St. Louis, PLLC By James Nesci, Tucson, Counsel for Plaintiff/Appellee.

Thomas C. Horne, Arizona Attorney General By Misty D. Guille, Assistant Attorney General, Phoenix, Counsel for Defendants/Appellants.



¶ 1 Appellant Arizona Department of Transportation (“the department”) appeals from the superior court's order reversing the administrative suspension of appellee Nicholas Svendsen's driver's license. For the following reasons, we reverse the superior court and reinstate the suspension.

Factual and Procedural Background

¶ 2 We view the evidence in the administrative record in the light most favorable to upholding the decision of the administrative law judge (ALJ). Tornabene v. Bonine, 203 Ariz. 326, ¶ 2, 54 P.3d 355, 358 (App.2002). In April 2012, Officer Bobby Nielsen of the Tucson Police Department stopped Svendsen for speeding. During the stop, the officer noticed several indications that Svendsen might be intoxicated, including watery and bloodshot eyes, a flushed face, a smell of intoxicants on his breath and person, slurred speech, and difficulty standing and walking. After performing field sobriety tests, Officer Nielsen arrested Svendsen and advised him of his Miranda1 rights. He then read Svendsen an Admin Per Se/Implied Consent Affidavit form. The officer asked if Svendsen would submit to a breath test, and Svendsen did not respond. Nielsen made several attempts to explain the form to Svendsen and still received no verbal or physical response. Another officer also attempted to solicit a response from Svendsen, but likewise received no verbal or physical answer. The only physical response Svendsen gave was to spit out his gum when asked.

¶ 3 Officer Nielsen told Svendsen that he was not entitled to further delay and that such would be considered refusal, and asked again if he would take the breath test. Svendsen still did not respond. Svendsen's license was suspended for refusing to consent to a breath test pursuant to Arizona's implied consent statute, A.R.S. § 28–1321.2

¶ 4 Svendsen requested a hearing to review the order of suspension. After that hearing, the ALJ affirmed the suspension. Svendsen appealed to the superior court, which reversed the suspension. This appeal followed.


¶ 5 The right of appeal exists only as provided by statute, and this court has an independent duty to confirm whether we have jurisdiction over a case. Meyer v. Campbell, 13 Ariz.App. 601, 601, 480 P.2d 22, 22 (1971) (per curiam). We accepted supplemental briefs from the parties in this case addressing whether the department has a statutory right of appeal to this court.

¶ 6 Section 28–1321(M) provides, in relevant part: “Within thirty days after a suspension order is sustained, the affected person may file a petition in the superior court to review the final order of suspension or denial by the department in the same manner provided in [A.R.S.] § 28–3317.” The latter statute provides, in pertinent part:

Unless the cancellation or revocation is mandatory under this chapter, a person who is denied a license or whose license is canceled, suspended or revoked by the department may seek judicial review pursuant to [the Administrative Review Act (ARA), A.R.S. §§ 12–901 through 12–914], except that § 12–910, subsections A, B, D and E do not apply.

§ 28–3317(A).

¶ 7 The department first asserts that we have jurisdiction over its appeal from the superior court pursuant to A.R.S. § 12–2101(A)(1). See Forino v. Ariz. Dep't of Transp., 191 Ariz. 77, 79, 952 P.2d 315, 317 (App.1997) (listing formerly numbered provision among grounds for appellate jurisdiction); Ricard v. Ariz. Dep't of Transp., 187 Ariz. 633, 635, 931 P.2d 1143, 1145 (App.1997) (same); Diaz v. Ariz. Dep't of Transp., 186 Ariz. 59, 61, 918 P.2d 1077, 1079 (App.1996) (same); Braun v. Motor Vehicle Div., 161 Ariz. 487, 487, 779 P.2d 362, 362 (App.1989) (same).3 That subsection, however, grants a right of appeal in an action or special proceeding “commenced in a superior court, or brought into a superior court from any other court.” § 12–2101(A)(1). Section 28–3317(B) designates the review proceeding in the superior court an “appeal[ ].” As our supreme court aptly observed, [t]he nature of the appeal to the court ... logically contemplates a prior proceeding to be reviewed—an administrative hearing.” Campbell v. Chatwin, 102 Ariz. 251, 258, 428 P.2d 108, 115 (1967). Thus, an appeal to the superior court does not originate or commence there. Stant v. City of Maricopa Emp. Merit Bd., 234 Ariz. 196, ¶ 8, 319 P.3d 1002, 1005 (App.2014). This is true regardless of the scope of review undertaken in the superior court and regardless of whether the proceeding there begins with the filing of a “complaint.” Anderson v. Valley Union High Sch., Dist. No. 22, 229 Ariz. 52, ¶ 4, 270 P.3d 879, 882 (App.2012). Even when an appeal involves a trial de novo, the superior court is still functioning in an appellate capacity, meaning the action does not originate or commence in that court for purposes of our own appellate jurisdiction. Id.;State v. Eby, 226 Ariz. 179, ¶ 5, 244 P.3d 1177, 1179 (App.2011); see Duncan v. Truman, 74 Ariz. 328, 331, 248 P.2d 879, 881–82 (1952); see also Ariz. Dep't of Rev. v. Navopache Elec. Co–op, Inc., 151 Ariz. 318, 321–22, 727 P.2d 813, 816–17 (App.1986) (distinguishing superior court's appellate and original jurisdiction).

¶ 8 The department is correct, however, that an appeal lies to this court under § 12–913 of the ARA. See State ex rel. Ross v. Nance, 165 Ariz. 286, 287, 798 P.2d 1295, 1296 (1990). Although Svendsen contends the department has no right of appeal, this position is no longer correct in light of changes to our code. But because we have discovered no precedent that expressly and clearly establishes the existence of appellate jurisdiction under our current implied consent law, see Anderson, 229 Ariz. 52, ¶ 6, 270 P.3d at 882, we believe further discussion on the topic is warranted.

¶ 9 Our original implied consent statute was enacted in 1969 and codified in A.R.S. § 28–691. 1969 Ariz. Sess. Laws, ch. 41, § 1. It provided a right of appeal by referring to the former A.R.S. § 28–451, which granted a person whose license had been suspended the right to “a hearing in the matter in the superior court.” 1973 Ariz. Sess. Laws, ch. 146, § 17, repealed by 1980 Ariz. Sess. Laws, ch. 231, § 29; 1951 Ariz. Sess. Laws, ch. 115, § 29 (former Ariz.Code Ann., § 66–283 (1939) (Supp.1952)). Our supreme court determined “the appeal provided for in this statute was adopted with the intent of actually providing a trial de novo” in the superior court. Chatwin, 102 Ariz. at 257, 428 P.2d at 114.

¶ 10 The ARA “is not complementary to other statutory review proceedings and if any independent statutory review is provided, the Administrative Review Act is not applicable.” Sarwark v. Thorneycroft, 123 Ariz. 1, 4, 596 P.2d 1173, 1176 (App.1979), approved per curiam,123 Ariz. 23, 23, 597 P.2d 9, 9 (1979). Section 12–902(A)(1) still specifies that the ARA does not apply when a statute that “confer[s] power on an agency ... provides for judicial review of the agency decisions and prescribes a definite procedure for the review.” Based on this provision, we therefore found a right of appeal exclusively to the superior court under these prior implied consent and appeal laws, which made no reference to the ARA. Sarwark, 123 Ariz. at 4, 596 P.2d at 1176;Campbell v. Superior Court, 18 Ariz.App. 216, 216–17, 501 P.2d 57, 57–58 (1972); Meyer, 13 Ariz.App. at 602, 480 P.2d at 23.4

¶ 11 In 1980, however, the legislature amended a number of laws concerning administrative appeals, including the aforementioned implied consent and appeal statutes. The legislature explained: “The purpose of this act is to regularize the procedure whereby administrative decisions are judicially reviewed by prescribing that appeals from certain administrative decisions are to be governed by the administrative review act.” 1980 Ariz. Sess. Laws, ch. 231, § 1. As amended, the statute governing implied consent appeals, § 28–451, provided that a person whose license had been suspended “shall have the right to seek judicial review of such action pursuant to title 12, chapter 7, article 6,” or the ARA.1980 Ariz. Sess. Laws, ch. 231, § 30. In light of this change, we expressly acknowledged our appellate jurisdiction in a number of implied consent cases. E.g., Forino, 191 Ariz. at 79, 952 P.2d at 317;Miernicki v. Ariz. Dep't of Transp., 183 Ariz. 542, 543, 905 P.2d 551, 552 (App.1995); Braun, 161 Ariz. at 487, 779 P.2d at 362.

¶ 12 In 1996, the legislature deviated somewhat from this policy of ARA regularization, but lawmakers did not expressly or effectively eliminate the right of appeal to this court; that is, they created no “definite procedure for ... review” within the meaning of § 12–902(A)(1).5 That year, an amendment to § 28–451 changed some language concerning implied consent appeals and exempted some newly enacted procedural provisions of § 12–910 of the ARA, specifically subsections (A), (B), (D), and (E). See 1996 Ariz. Sess. Laws, ch. 102, §§ 16, 23. In effect, this amendment made implied consent appeals governed by the previous version of § 12–910. See 1996 Ariz. Sess. Laws, ch. 102, § 23; 1980 Ariz. Sess. Laws, ch. 72, § 1. These changes to § 28–451 were then incorporated into the renumbered A.R.S. § 28–3317, with some stylistic alterations. See 1997 Ariz. Sess. Laws, ch. 1, § 213; Koller v. Ariz. Dep't of Transp., 195 Ariz. 343, n. 3, 988 P.2d 128, 130 n. 3 (App.1999) ([T]he two sections are substantively identical.”). The general right of appeal found in § 12–913 of the ARA,...

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