White v. State

• Citation: 695 P.2d 288,144 Ariz. 39
• Decision Date: 22 January 1985
• Docket Number: CA-CIV,Nos. 1,s. 1
• Parties: Cecil Dale WHITE, Plaintiff-Appellant, v. The STATE of Arizona and Philip Thorneycroft, Assistant Director of the Arizona Department of Transportation for the Motor Vehicle Division, Real Party in Interest, Defendants-Appellees. Jo Ann Kathryn MORTON, Plaintiff-Appellee, v. The STATE of Arizona and Philip Thorneycroft, Assistant Director of the Arizona Department of Transportation for the Motor Vehicle Division, Real Party in Interest, Defendants-Appellants. 6756, 1 6840.
• Court: Arizona Court of Appeals

Page 288

695 P.2d 288

144 Ariz. 39

Cecil Dale WHITE, Plaintiff-Appellant, v. The STATE of Arizona and Philip Thorneycroft, Assistant Director of the Arizona Department of Transportation for the Motor Vehicle Division, Real Party in Interest, Defendants-Appellees.

Jo Ann Kathryn MORTON, Plaintiff-Appellee, v. The STATE of Arizona and Philip Thorneycroft, Assistant Director of the Arizona Department of Transportation for the Motor Vehicle Division, Real Party in Interest, Defendants-Appellants.

Nos. 1 CA-CIV 6756, 1 CA-CIV 6840.

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

Jan. 22, 1985.

Wilkinson & Quarelli by O.J. Wilkinson, Jr., Phoenix, for plaintiff-appellant and plaintiff-appellee

Robert K. Corbin, Atty. Gen., by Peter C. Gulatto, Asst. Atty. Gen., Phoenix, for defendants-appellees and defendants-appellants.

OPINION

JACOBSON, Chief Judge.

In both of these cases, individuals were arrested for driving under the influence of intoxicating liquor and were advised that failure to submit to an intoxication test would result in the suspension of their respective licenses under the implied consent statute, A.R.S. § 28-691(B). Both refused to submit to the test. However, neither was advised that he or she had a right to have a second sample of the test taken and preserved in accordance with the Supreme Court's decision in Baca v. Smith, 124 Ariz. 353, 604 P.2d 617 (1979).

The question presented in these consolidated appeals is whether the failure to advise of the Baca rights precludes a subsequent suspension of their drivers' licenses under the implied consent statute.

Both appeals arise out of a judicial review of decisions by the Assistant Director of Motor Vehicles, ordering suspension of the licenses involved. However, different divisions of the Maricopa County Superior Court reached different legal conclusions on the issue presented. In White v. State, 1 CA-CIV 6756, the trial court affirmed the suspension. In Morton v. State, 1 CA-CIV 6840, the trial court reversed the order of suspension and reinstated the driving privileges. Because of these conflicting rulings, the parties sought, and this court granted, consolidation of these appeals to resolve the conflict.

Both of the license suspensions before the Superintendent were authorized under A.R.S. § 28-691, which provides that "any person who operates a motor vehicle within this state gives consent ... to a test or tests of his blood, breath or urine for the purpose of determining the alcoholic content of his blood ..." A.R.S. § 28-691(A).

The penalty for refusing to submit to the requested test is suspension of driving privileges upon a finding that:

a law enforcement officer had reasonable grounds to believe the person had been driving ... a motor vehicle within this state while under the influence of intoxicating liquor ... the person was placed under arrest, and he refused to submit to the test....

A.R.S. § 28-691(E)

The statute also provides that the suspected offender must be requested to take the test and "be informed that his license or permit to drive will be suspended or denied if he refuses to submit to the test." A.R.S. § 28-691(B)

No other statutory requirements are necessary to authorize the suspension and there is no contention in either of these cases that these statutory prerequisites were not met. Rather, the contention is made that in addition to the statutory requirements for suspension the arresting officer must also advise the suspected offender of the right to have a second test performed and the sample preserved in accordance with Baca v. Smith, supra. We disagree.

Baca arose out of a criminal prosecution for driving under the influence in violation of A.R.S. § 28-692(A). At issue was whether a criminal defendant had a due process right to obtain a sample of his breath (upon which his guilt or innocence would be determined) for independent testing to prove his innocence. The court found such a due process right and held:

[T]he right to test incriminating evidence where the evidence is completely destroyed by testing becomes all the more important because the defense has little or no recourse to alternative scientific means of contesting the test results, and, therefore, when requested, the police must take and preserve a separate sample for the suspect by means of a field collection unit.

124 Ariz. at 356, 604 P.2d 617.

The court then embarked upon an analysis of whether a second sample must be taken and preserved in every DWI case. The court concluded this was not necessary and that where no request to take a second sample was made, a waiver of taking and preservation occurred. However, to allow an intelligent exercise of that waiver "the suspect shall be told that the intoximeter sample will be preserved for seven days for delivery to him or his agent and thereafter it will be destroyed...." (Emphasis added). 124 Ariz. at 357, 604 P.2d 617.

As can be seen, the Baca advice deals not with whether a suspect can make an informed decision to take or refuse a test, but rather with whether an intelligent waiver of the right to preserve evidence germane to a criminal prosecution occurred.

Moreover, the due process right recognized in Baca rises out of a criminal proceeding. A suspension occurring under A.R.S. § 28-691 is civil in nature, not criminal. Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685 (1971).

However, the trial court in Morton v. State concluded that Baca advice was necessary in a suspension proceeding as a "natural extension" of that case, relying on Connolly v. State, 79 Wash.2d 500, 487 P.2d 1050 (1971) and Couch v....