Sweitzer v. Department of Transp., Motor Vehicle Div.

Decision Date14 June 1984
Docket NumberCA-CIV,No. 1,1
Citation140 Ariz. 536,683 P.2d 335
PartiesWilliam Charles SWEITZER, Plaintiff-Appellant, v. DEPARTMENT OF TRANSPORTATION, MOTOR VEHICLE DIVISION, Juan Martin, Assistant Director, Defendant-Appellee. 6469.
CourtArizona Court of Appeals
OPINION

GRANT, Presiding Judge.

This appeal concerns the application of Arizona's Implied Consent Law. A.R.S § 28-691. 1 Appellant, William Sweitzer, was arrested on July 28, 1980 for driving while under the influence of intoxicating liquor 2 and refused to submit to a breath test. After a hearing the Motor Vehicle Division, Arizona Department of Transportation, found appellant violated the Implied Consent Law by refusing to submit to a breath test and accordingly ordered a six month suspension of his driver's license. On statutory appeal the trial court affirmed the order of suspension. Sweitzer then timely appealed to this court.

The facts giving rise to this appeal are as follows. On July 28, 1980 Arizona Department of Public Safety Officer S. Mason, while traveling northbound on Interstate 17, observed an automobile weaving erratically. The car at one point almost hit a railroad overpass. The officer managed to stop the car. Officer Mason got out of his police car and approached Sweitzer, the driver of the vehicle in question, who had his head laid back on the headrest and his eyes barely open. The officer noticed a strong alcoholic odor on Sweitzer's breath, Sweitzer's speech was slurred and confused, and he was unsteady when he stood up and walked. Officer Mason placed Sweitzer under arrest for driving while intoxicated and transported him to a police sub-station.

At the sub-station the officer informed Sweitzer of the Implied Consent Law, including the fact that if he refused to submit to a breath test he would have his license suspended for six months. Sweitzer verbally stated that he did not wish to take the test.

Thereafter, the officer submitted a certified report of refusal to take a breath test to the Motor Vehicle Division. A hearing was held at which Officer Mason and Sweitzer both testified. The hearing officer found that all the elements of a refusal pursuant to A.R.S. § 28-691(E) were proven and therefore ordered Sweitzer's license suspended for six months.

As of July 28, 1980 Arizona's Implied Consent Law provided:

A. Any person who operates a motor vehicle upon the public highways of this state shall be deemed to have given consent, subject to the provisions of § 28-692, to a chemical 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 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 upon the public highways of this state while under the influence of intoxicating liquor. The law enforcement agency which such officer represents shall designate which of such tests shall be administered, however only the breath test shall be administered in all cases except where circumstances preclude its use.

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C. Any person who is dead, unconscious or who is otherwise in a condition rendering him incapable of refusal, shall be deemed not to have withdrawn the consent provided by subsection A and the test or tests may be administered, subject to the provisions of § 28-692.

D. If a person under arrest refuses to submit to a chemical test designated by the law enforcement agency as provided in subsection A, none shall be given. The department, upon the receipt of a report of the law enforcement officer, certified and subject to the penalty for perjury as prescribed by § 28-1062, that he had reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle upon the public highways of this state while under the influence of intoxicating liquor and that the person had refused to submit to the test, shall suspend for a period of six months his license or permit to drive, or any nonresident operating privilege....

A.R.S. § 28-691. Before one's license can be suspended for violation of the Implied Consent Law the following facts must be established: (1) the police officer had reasonable grounds to believe the respondent was driving while intoxicated; (2) the officer arrested the respondent; (3) the officer requested the respondent submit to a chemical test of intoxication; and (4) the officer warned the respondent that a refusal to submit to the chemical test will result in suspension of the driver's license. Shope v. City Court, 132 Ariz. 464, 646 P.2d 895 (App.1982).

Sweitzer argues that due to his voluntary intoxication he was incapable of refusing to submit to a breath test. Thus, it is argued that the officer should have administered an involuntary blood alcohol level test, such as a blood test, as provided in A.R.S. § 28-691.

In Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685 (1971), our supreme court stated:

[A]...

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3 cases
  • People v. Carlyle, 83-1124
    • United States
    • United States Appellate Court of Illinois
    • January 23, 1985
    ...an express oral or physical refusal under circumstances where the defendant was intoxicated. Sweitzer v. Department of Transportation, Motor Vehicle Division (1984), 140 Ariz. 536, 683 P.2d 335; State of Washington, Department of Motor Vehicles v. McElwain (1972), 80 Wash.2d 624, 496 P.2d 9......
  • State, Dept. of Motor Vehicles and Public Safety v. Brown
    • United States
    • Nevada Supreme Court
    • October 24, 1988
    ...excessive, cannot fairly be included in the same semantic category with unconsciousness and death. See Sweitzer v. Dep't of Transp., M.V.D., 140 Ariz. 536, 683 P.2d 335 (Ariz.App.1984). Had the legislature intended that voluntary intoxication be a condition rendering a driver incapable of r......
  • Roberts v. State
    • United States
    • Indiana Appellate Court
    • February 14, 1985
    ...Vehicles (1975), 45 Cal.App.3d 653, 119 Cal.Rptr. 804, and a recent decision from Arizona, Sweitzer v. Dept. of Transportation, Motor Vehicle Division (1984), 140 Ariz. 536 (App.), 683 P.2d 335, are helpful in arriving at a resolution of the issue before us. In Eilinger, the California Cour......

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