Braun v. Motor Vehicle Division

779 P.2d 362, 161 Ariz. 487, 43 Ariz. Adv. Rep. 3, 1989 Ariz. App. LEXIS 239
CourtCourt of Appeals of Arizona
DecidedSeptember 12, 1989
DocketNo. 1 CA-CV 88-281
StatusPublished
Cited by2 cases

This text of 779 P.2d 362 (Braun v. Motor Vehicle Division) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Braun v. Motor Vehicle Division, 779 P.2d 362, 161 Ariz. 487, 43 Ariz. Adv. Rep. 3, 1989 Ariz. App. LEXIS 239 (Ark. Ct. App. 1989).

Opinion

OPINION

CLABORNE, Judge.

This case is on appeal from a review of a decision of the Arizona Department of Transportation, Motor Vehicle Division, by the Superior Court of Navajo County. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 12-913 and 12-2101(B).

The principal issue raised is whether A.R.S. § 28-691, Arizona’s “Implied Consent Statute,” grants an arresting officer discretion to determine which chemical sobriety test to offer an operator of a motor vehicle arrested for driving while under the influence of intoxicating liquor or whether the statute obligates the officer to follow [488]*488the internal policy of his or her law enforcement agency. Specifically, we must decide whether a refusal by an operator of a motor vehicle to submit to a blood test is a refusal within the meaning of the statute when the internal policy of the arresting officer’s agency provides that a breath test is to be offered first and no such test was offered. We find that it is a refusal within the meaning of the statute, and reverse the decision of the superior court.

The events leading up to this appeal began on February 6,1987 when appellee was stopped by Officer Davis of the Department of Public Safety for exceeding the posted speed limit. Appellee, a resident of Garden City, Kansas, was enroute from Garden City to Phoenix, Arizona, with his wife when he was stopped. Because of appellee’s appearance and his poor performance on several field sobriety tests, Officer Davis arrested appellee for driving while under the influence of intoxicating liquor. While transporting appellee to the Holbrook Police Station for a Breathalyzer test, Officer Davis inquired by radio concerning the operating condition of the intoxilyzer machine. Officer Stanton responded that he (Stanton) had difficulty with the machine the night before, but he did not specify the precise nature of the problem.

Based upon Officer Stanton’s response, Officer Davis transported appellee to the Holbrook Hospital for a blood test. When they arrived at the hospital, Officer Davis read four paragraphs of A.R.S. § 28-691 to appellee. He then requested appellee to submit to a blood test. Appellee refused. Based upon the refusal the Arizona Department of Transportation, Motor Vehicle Division (department), suspended appellee’s driver’s license for twelve months as required by A.R.S. § 28-691.

Appellee requested and was granted an administrative hearing pursuant to A.R.S. § 28-691(E). The hearing officer concluded that the evidence supported the department’s decision, finding that:

1. The Officer had reasonable grounds to believe that Petitioner had been driving while under the influence of intoxicating liquor.
2. Petitioner was placed under arrest.
3. Petitioner was requested by the Officer to submit to a [blood] test to determine the alcoholic content of his blood.1
4. Petitioner was warned by the Officer that a refusal to submit to the designated test will result in the suspension of his driver’s license or driving rights.
5. Petitioner refused to take the test.

Dissatisfied with the hearing officer’s decision, appellee filed a petition for review in the Superior Court of Navajo County pursuant to A.R.S. § 28-691(F). In his petition, appellee contended that the decision of the department was in error and contrary to law. The trial court agreed and reversed the department’s decision, reinstating appellee’s driver’s license. The appellant filed a notice of appeal bringing the matter before this court.

Appellant’s principal contention on appeal is that an arresting officer has discretion under A.R.S. § 28-691 concerning which chemical sobriety test to offer an operator of a motor vehicle arrested for driving under the influence. Appellee, on the other hand, contends the statute obligates the officer to follow the internal policy of his or her agency when offering a chemical sobriety test to a driver under A.R.S. § 28-691.

The chemical sobriety tests prescribed by A.R.S. § 28-691 are those of blood, breath or urine. The statute provides in relevant part:

A. Any person who operates a motor vehicle within this state gives his consent, subject to the provisions of § 28-692, to a test or tests of his blood, breath or urine for the purpose of determining the alcoholic or drug content of his blood if arrested for any [489]*489offense 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 be administered at the direction of a law enforcement officer having reasonable grounds to believe the person to have been driving or in actual control of a motor vehicle within this state while under the influence of intoxicating liquor or drugs.
B. Following an arrest a violator shall be requested to submit to any test prescribed by subsection A of this section, and if the violator refuses he shall be informed that his license or permit to drive will be suspended or denied if he refuses to submit to the test.
D. If a person under arrest refuses to submit to a test designated by the law enforcement agency as provided in subsection A of this section, none shall be given except pursuant to § 28-692, subsection M.

Appellee relies on the language of the statute allowing the law enforcement agency to designate which test or tests to administer. Because the internal policy of the Department of Public Safety is to offer a breath test first, and if unavailable then to offer a blood test, appellee argues that A.R.S. § 28-691 obligates the agency’s police officers to offer an arrested driver a breath test. Since he was not offered a breath test, appellee reasons his refusal to submit to a blood test was not a refusal within the meaning of the Implied Consent Statute.

The Wisconsin Court of Appeals had before it a similar issue. In State v. Pawlow, 98 Wis.2d 703, 298 N.W.2d 220 (App.1980), appellant Pawlow was arrested for driving under the influence and requested to submit to a breath test. Id. at 704, 298 N.W.2d at 221.

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Cite This Page — Counsel Stack

Bluebook (online)
779 P.2d 362, 161 Ariz. 487, 43 Ariz. Adv. Rep. 3, 1989 Ariz. App. LEXIS 239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/braun-v-motor-vehicle-division-arizctapp-1989.