Tornabene v. Bonine ex rel. Arizona Highway Dept., No. 2 CA-CV 2001-0124.

• Court: Court of Appeals of Arizona
• Writing for the Court: PELANDER, J.
• Citation: 54 P.3d 355,203 Ariz. 326
• Parties: Wendy Lyn TORNABENE, Plaintiff/Appellee, v. Larry BONINE, ex rel. ARIZONA HIGHWAY DEPARTMENT, and Motor Vehicle Division aka Arizona Department of Transportation, Defendants/Appellants.
• Docket Number: No. 2 CA-CV 2001-0124.
• Decision Date: 19 September 2002

54 P.3d 355
203 Ariz. 326

Wendy Lyn TORNABENE, Plaintiff/Appellee,
v.
Larry BONINE, ex rel. ARIZONA HIGHWAY DEPARTMENT, and Motor Vehicle Division aka Arizona Department of Transportation, Defendants/Appellants

No. -0124.

Court of Appeals of Arizona, Division 2, Department B.

September 19, 2002.

54 P.3d 358

Janet Napolitano, Arizona Attorney General by Richard L. Rice and Peter C. Gulatto, Phoenix, for Defendants/Appellants

Stephen Paul Barnard, Tucson, for Plaintiff/Appellee.

OPINION

PELANDER, J.

¶ 1 The Arizona Department of Transportation, Motor Vehicle Division (MVD), appeals from a Pima County Superior Court order vacating the suspension of appellee Wendy Lyn Tornabene's driver's license by a MVD administrative law judge (ALJ). This case presents an issue of first impression in Arizona: does the alleged unconstitutionality of a law enforcement officer's stop of a vehicle invalidate the state's subsequent suspension of the motorist's driver's license, pursuant to A.R.S. § 28-1321, based on the motorist's refusal to submit to a breath test after having been arrested for driving under the influence of alcohol (DUI)?¹ The ALJ implicitly answered that question in the negative. On review, however, the superior court ruled otherwise, concluding that MVD may not suspend a DUI arrestee's driver's license if the underlying stop was illegal. Because we disagree with that conclusion, we reverse the superior court's order and reinstate the ALJ's license suspension order.

BACKGROUND

¶ 2 We view the evidence in the MVD administrative record in the light most favorable to sustaining the ALJ's decision, which "may be set aside only if it is unsupported by competent evidence." Ontiveros v. Arizona Dep't of Transp., 151 Ariz. 542, 543, 729 P.2d 346, 347 (App.1986). See also Owen v. Creedon, 170 Ariz. 511, 512, 826 P.2d 808, 809 (App.1992). On the evening of September 4, 2000, Tucson Airport Authority Police (TAAP) received a telephone tip from an anonymous caller² who reported having seen a woman, whom the caller believed to be intoxicated, staggering around the terminal. The caller described the woman's hair and clothing and reported that she was boarding a shuttle van run by one of two extended-stay parking lot operators near the airport. TAAP Sergeant Ivanoff contacted the booth attendants of both lots and asked them to watch for a person fitting that description. Moments later, booth attendants at Park N' Save notified TAAP that they believed that the woman TAAP was seeking was at their exit booth.

¶ 3 Ivanoff arrived at Park N' Save at 7:48 p.m. and positioned his patrol car at the payment booth in front of the vehicle, blocking its exit. Ivanoff then walked toward the passenger side of the vehicle and noted that the driver's clothes and hairstyle were consistent with the caller's description and that the car's engine was running and in drive, although the vehicle was stopped at the booth. As Ivanoff reached the driver-side window, he told the driver he wished to speak with her and asked her to step out of the car. He then noticed a very strong odor of alcohol emanating from her face and mouth, that she appeared confused, that her speech was slurred, and that her eyes were bloodshot and watery. Because Ivanoff recognized those as signs of intoxication, he called TAAP Officer Price to perform field sobriety tests.

¶ 4 Price arrived shortly thereafter and spoke with the driver, who identified herself as Tornabene and consented to undergo

54 P.3d 359

some field sobriety tests. Price smelled a strong odor of alcohol on her breath and observed that her speech was slurred, that her eyes were watery and bloodshot, and that she swayed a bit as she stood. Price performed the Horizontal Gaze Nystagmus (HGN) test on Tornabene and noted all six cues of impairment under the test. Tornabene told Price she would not take any additional tests until she had spoken with her attorney. Price then assisted Tornabene in contacting her attorney by cellular telephone. After speaking with Tornabene, the attorney spoke with Price, inquiring about testing procedures and what would happen if Tornabene refused additional testing. Price informed him that TAAP would decide whether to arrest Tornabene for DUI based on the information they had at that point. When the attorney asked Price to wait until he arrived before conducting any more tests, Price informed him that they were working under a two-hour time limit³ in which to "obtain some breath, blood or other bodily substance" evidence. The attorney stated that he would come out to meet them, and Price said, "fine."

¶ 5 Price then spoke with his supervisor, TAAP Sergeant Riley, about the attorney's request. Riley told Price that because of the time constraints involved in a DUI investigation, Price could not delay the decision whether to arrest Tornabene until her attorney arrived. Based upon his observations and the results of the field sobriety test, Price arrested Tornabene at 8:37 p.m., handcuffed her, and read her the Miranda⁴ warnings. He then read her the following statements from an "Admin Per Se/Implied Consent Affidavit" form:

Arizona law requires you to submit to and successfully complete tests of breath, blood or other bodily substance as chosen by the law enforcement officer to determine alcohol concentration or drug content. The law enforcement officer may require you to submit to two or more tests. You are required to successfully complete each of the tests.

If the results of the tests indicate your alcohol concentration is .10 or above or .04 or above in a commercial vehicle, your Arizona driver license/permit or nonresident driving privilege will be suspended for not less than 90 consecutive days.

If you refuse to submit or do not successfully complete the specified tests, your Arizona driver license/permit or nonresident driving privilege will be suspended for 12 months, or for 2 years if there is a prior implied consent refusal, within the last 60 months, on your record. You are, therefore, required to submit to the specified tests.

When Price then asked the question on the form, "Will you submit to the specified tests?," Tornabene did not respond either yes or no. Instead, she told Price he should be reading this to her lawyer and that she would not answer until the lawyer arrived. At that point, Price read the following statement to Tornabene, as required by the form if the person being questioned "unreasonably delays the completion of test": "You are not entitled to further delay taking the tests for any reason. Further delay will be considered refusal to submit to the tests." Riley then drove Tornabene to pretrial services at the Pima County Jail to process Tornabene's arrest, with the hope that Tornabene would submit to chemical breath testing there.

¶ 6 While en route to the jail, Tornabene's attorney called Riley on her cellular telephone and asked to speak with Tornabene. Because Tornabene was in the back seat behind security screening, however, Riley informed the attorney that he would have to talk with her unconfidentially by speaker telephone.⁵ Tornabene and her attorney discussed whether she should submit to a

54 P.3d 360

breathalyzer test. The attorney advised her to take the test, and Tornabene stated that she would. Riley recommended, and the attorney agreed, that he should go to pretrial services so that Tornabene could be released to him that night

¶ 7 When Riley and Tornabene arrived at the jail, Riley asked Pima County Pretrial Services staff to send Tornabene's attorney back to the testing area when he arrived. Staff refused that request, however, explaining that they did not permit any outside persons, including attorneys, into the area where they kept arrested persons. At 9:28 p.m., as Riley prepared to administer the breathalyzer test, Tornabene told Riley that she would not take the test without her attorney present. By that time, the attorney apparently had arrived but had been refused entry to the testing area. Riley informed Tornabene that staff would not allow the attorney into the testing area and asked her again to take the test, but Tornabene repeated that she wanted her attorney present. At 9:36 p.m., just short of two hours after Ivanoff had stopped Tornabene, Riley read and served on Tornabene the order of suspension. About ten or fifteen minutes later, after placing Tornabene in a holding cell, Riley spoke with Tornabene's attorney, who asked if he could once again try to convince Tornabene to take the test. Riley told him it was too late.

¶ 8 After an evidentiary hearing pursuant to § 28-1321(G) and (K), at which only the three TAAP officers testified, the ALJ entered written findings of fact and suspended Tornabene's license for twelve months. On Tornabene's petition for review pursuant to § 28-1321(M), after briefing and oral argument by counsel, the superior court concluded that the police had lacked "probable cause to stop" Tornabene and that she had not refused to take the breathalyzer test. On those two grounds, the court vacated the ALJ's decision, finding it "arbitrary, capricious and not supported by the evidence." This appeal by MVD followed.

DISCUSSION

I. Scope and Constitutionality of Administrative License Suspension Hearing

A. Interpretation of Implied Consent Statute

¶ 9 Section 28-1321(A), A.R.S., Arizona's implied consent statute,⁶ provides in pertinent part:

A person who operates a motor vehicle in this state gives consent ... to a test or tests of the person's blood, breath, urine or other bodily substance for the purpose of determining alcohol concentration or drug content if the person is arrested for any offense arising out of acts alleged to have been committed in violation of this chapter... while the person was driving or in actual physical control of a motor vehicle while under the influence of intoxicating liquor or drugs. The test or tests chosen by the law enforcement agency shall

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