Opinion
No. 2 CA-CV 2017-0032
04-25-2018
ROBERT K. GOLDER, Appellant, v. JOHN S. HALIKOWSKI, EX REL. ARIZONA HIGHWAY DEPARTMENT AND MOTOR VEHICLE DIVISION AKA ARIZONA DEPARTMENT OF TRANSPORTATION, Appellee.
COUNSEL Thrush Law Group, Tucson By Peter Gutierrez Counsel for Appellant Mark Brnovich, Arizona Attorney General By Stephanie A. Lillie, Assistant Attorney General, Phoenix Counsel for Appellee
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Civ. App. P. 28(a)(1), (f). Appeal from the Superior Court in Pima County
No. C20162154
The Honorable Catherine Woods, Judge
AFFIRMED
COUNSEL Thrush Law Group, Tucson
By Peter Gutierrez
Counsel for Appellant Mark Brnovich, Arizona Attorney General
By Stephanie A. Lillie, Assistant Attorney General, Phoenix
Counsel for Appellee
MEMORANDUM DECISION
Presiding Judge Staring authored the decision of the Court, in which Chief Judge Eckerstrom and Judge Brearcliffe concurred. STARING, Presiding Judge:
¶1 Robert Golder's driving privileges were suspended after he refused to submit to testing following his arrest for driving under the influence of an intoxicant (DUI). After a hearing, an administrative law judge (ALJ) affirmed his suspension, finding he had refused to submit to testing and had been fully informed of the consequences of refusing. The superior court affirmed the ALJ's decision, and this appeal followed. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to sustaining the ALJ's decision. Tornabene v. Bonine ex rel. Ariz. Highway Dep't, 203 Ariz. 326, ¶ 2 (App. 2002). On February 26, 2016, at 11:53 p.m., Pima County Deputy Sheriff Clint Enderle stopped the vehicle Golder was driving after observing that the taillights were not illuminated. Golder exhibited symptoms of impairment: red, watery, and bloodshot eyes; droopy eyelids; a strong odor of intoxicants emanating from his mouth; a flushed face; and mumbled speech. Enderle administered field sobriety tests and a preliminary breath test, after which he arrested Golder for DUI.
¶3 Deputy Enderle informed Golder he was requesting that Golder submit to a blood draw and read Golder a list of admonitions from an "Admin Per Se/Implied Consent Affidavit," which provided:
Arizona law states that a person who operates a motor vehicle at any time in this state gives consent to a test or tests of blood, breath, urine or other bodily substance for the purpose of determining alcohol concentration or drug content. The law enforcement officer is authorized to request more than one test and may choose the types of tests.
. . . .
If you refuse, do not expressly agree to submit to, or do not successfully complete the tests, your Arizona driving privilege will be suspended. The suspension will be requested for 12 months, or for two years if you've had a prior implied consent refusal within the last 84 months.Enderle read these admonitions verbatim to Golder. Enderle was asked at the hearing whether he had explained to Golder "in layman's terms what would happen if he didn't submit to the testing," and he responded, "yes, I did."
¶4 Golder initially asked to seek legal counsel and Deputy Enderle allowed him access to his cellular telephone and a telephone book. After twenty minutes had passed, Enderle read Golder the final admonition, which provides: "You are not entitled to further delay taking the tests for any reason. Further delay will be considered a refusal to submit to the tests." Enderle again asked Golder if he would submit to a blood draw, but Golder refused because he could not obtain legal advice, prompting Enderle to begin seeking a search warrant for Golder's blood. Approximately forty-five minutes elapsed from the time Enderle first asked Golder for consent to a blood draw until he obtained a search warrant, during the entirety of which Golder could have sought legal counsel. After Enderle obtained the warrant, but before executing it, he asked again if Golder would submit to a blood draw and Golder said, "No." Enderle then conducted a blood draw pursuant to the search warrant.
¶5 Golder's license was suspended and he timely requested a hearing regarding the suspension pursuant to A.R.S. § 28-1321(G) and (K). After the hearing, at which Deputy Enderle testified and Golder presented no evidence, the ALJ found the four requisite factors of § 28-1321(K) proven by a preponderance of the evidence and affirmed the suspension. Pursuant to § 28-1321(M), Golder petitioned the superior court for review and, after oral argument, the court affirmed the ALJ's decision, finding there was substantial evidence to support the findings that Golder refused to submit to testing and was informed of the consequences of refusal. This appeal followed. We have jurisdiction pursuant to A.R.S. § 12-913. See Svendsen v. Ariz. Dep't of Transp., Motor Vehicle Div., 234 Ariz. 528, ¶ 13 (App. 2014).
Discussion
¶6 On appeal, Golder contests the ALJ's findings that he refused to submit to testing and was fully informed of the consequences of doing so. Where the superior court's review is based solely on the administrative record, with no additional evidence presented, its review is limited to determining whether the agency's decision was "arbitrary, capricious, or involved an abuse of discretion." Id. ¶ 15, quoting Schade v. Ariz. State Ret. Sys., 109 Ariz. 396, 398 (1973). Our review is similarly limited, and we will not reverse the agency's decision unless it is unsupported by substantial evidence. Id. ¶¶ 15-16. Whether substantial evidence supports the ALJ's decision is a question of law we review de novo. Berenter v. Gallinger, 173 Ariz. 75, 77 (App. 1992). But, "in reviewing factual determinations, we will not substitute our conclusion for that of the administrative agency." State ex rel. Winkleman v. Ariz. Navigable Stream Adjudication Comm'n, 224 Ariz. 230, ¶ 14 (App. 2010).
¶7 Evidence may be regarded as substantial for purposes of an administrative decision, "[e]ven when 'two inconsistent factual conclusions could be supported by the record.'" Ontiveros v. Ariz. Dep't of Transp., 151 Ariz. 542, 543 (App. 1986), quoting Webster v. State of Ariz. Bd. of Regents, 123 Ariz. 363, 365-66 (App. 1979). The credibility of witnesses is strictly within the province of the trier of fact, which, in this case, was the ALJ. See Berenter, 173 Ariz. at 79.
¶8 Under § 28-1321(A), a motorist consents "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 DUI. Should the motorist refuse, he is to be informed that his driving privileges will be suspended unless he "expressly agrees to submit to and successfully completes the test or tests. A failure to expressly agree to the test or successfully complete the test is deemed a refusal." § 28-1321(B). If the motorist continues to refuse to submit to testing, "[t]he test shall not be given," and the officer involved shall "serve an order of suspension on the person" and "[r]equire the immediate surrender of any license or permit to drive that is issued by this state." § 28-1321(D)(2)(b)-(c).
¶9 In order to avoid suspension an arrestee must "'expressly agree' to warrantless testing. 'Expressly' . . . means 'in direct or unmistakable terms' and not merely implied or left to inference. . . . [T]o satisfy the statutory requirement, the arrestee must unequivocally manifest assent to the testing by words or conduct." Carrillo v. Houser, 224 Ariz. 463, ¶ 19 (2010), quoting In re Estelle's Estate, 122 Ariz. 109, 113 (1979). "An arrested motorist is deemed to have refused to submit to testing when his or her conduct 'is such that a reasonable person in the officer's position would be justified in believing that such motorist was capable of refusal and manifested an unwillingness to submit to the test.'" Tornabene, 203 Ariz. 326, ¶ 35, quoting Campbell v. Superior Court, 106 Ariz. 542, 553 (1971).
¶10 Should the motorist request a hearing to contest the suspension, § 28-1321(K) limits the scope of an implied consent hearing to whether:
1. A law enforcement officer had reasonable grounds to believe that the person was driving or was in actual physical control of a motor vehicle in this state either:See Sherrill v. Dep't of Transp., 165 Ariz. 495, 497-98 (1990). The state bears the burden of establishing these elements by a preponderance of the evidence. Id. at 498.
(a) While under the influence of intoxicating liquor or drugs.
(b) If the person is under twenty-one years of age, with spirituous liquor in the person's body.
2. The person was placed under arrest.
3. The person refused to submit to the test.
4. The person was informed of the consequences of that refusal.
¶11 Citing Gaunt v. Motor Vehicle Division, Department of Transportation, 136 Ariz. 424 (1983), Golder argues the ALJ erroneously found he had refused to submit to the tests. Specifically, he asserts that because Deputy Enderle permitted him to seek legal counsel before responding definitively to requests for testing, he "mistakenly" believed "he had the right to be represented by counsel before he was required to submit to testing."
Motorists facing civil license suspension are not entitled to the assistance of counsel in deciding whether to submit to testing. Tornabene, 203 Ariz. 326, ¶ 32. --------
¶12 Golder's reliance on Gaunt is misplaced. In Gaunt, we noted other courts had concluded that "where the motorist has become confused by the Miranda warnings and demands to talk to an attorney to decide whether to take the test, this 'refusal' does not constitute such a refusal as to suspend the motorist's license." 136 Ariz. at 426. But, when the defendant "is clearly and unequivocally told that he has no right to talk to an attorney before submitting to a test, his further non-compliance constitutes a refusal such as to justify suspension." Id. Here, Golder presented no evidence of any kind, much less evidence that he had been confused as to whether he was entitled to consult with an attorney before deciding whether to submit to testing. Any conclusion Golder was confused therefore rests entirely on speculation, not evidence submitted to the ALJ.
¶13 Golder also argues he was not informed of the consequences of any refusal to be tested. He claims he was "preoccupied with obtaining an attorney to advise him as to whether or not to consent to be tested," and "under the circumstances [he] did not fully understand the ramifications of a refusal to be tested." Again, Golder's claims are speculative because he presented no evidence of either his alleged preoccupation or his failure to understand the consequences of refusing to submit to testing.
¶14 In contrast, Deputy Enderle testified he read a list of admonitions to Golder, which informed him his refusal, or anything short of an express agreement, to submit to testing would result in the suspension of his driving privileges. And, as we noted above, Enderle explained these admonitions to Golder "in layman's terms." After Golder spent twenty minutes attempting to obtain legal counsel, Enderle informed Golder he could no longer delay submitting to testing, and any further delay would "be considered a refusal to submit to the tests." Enderle then asked Golder if he would submit to testing, and Golder said he would not without the advice of counsel. And, after obtaining the search warrant, Enderle yet again asked Golder if he would submit to testing, and Golder responded, "No." Accordingly, the record amply supported the ALJ's findings that Golder refused to submit to testing and was informed of the consequences of that decision.
Disposition
¶15 For the foregoing reasons, we affirm the superior court's order, affirming the ALJ's suspension of Golder's driving privileges.