Miernicki v. Arizona Department of Transportation

905 P.2d 551, 183 Ariz. 542, 193 Ariz. Adv. Rep. 43, 1995 Ariz. App. LEXIS 137
CourtCourt of Appeals of Arizona
DecidedJune 27, 1995
DocketNo. 1 CA-CV 94-0528
StatusPublished
Cited by1 cases

This text of 905 P.2d 551 (Miernicki v. Arizona Department of Transportation) 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
Miernicki v. Arizona Department of Transportation, 905 P.2d 551, 183 Ariz. 542, 193 Ariz. Adv. Rep. 43, 1995 Ariz. App. LEXIS 137 (Ark. Ct. App. 1995).

Opinion

OPINION

VOSS, Judge.

The Arizona Department of Transportation, Motor Vehicle Division (“ADOT”) timely appealed the superior court’s judgment terminating the driver’s license suspension of Paul C. Miernicki. We have jurisdiction pursuant to Arizona Revised Statutes Annotated (“AR.S.”) section 12-913 (1992). The court’s judgment is vacated and this matter is remanded to superior court for the imposition of the remainder of the suspension period.

FACTS AND PROCEDURAL HISTORY

At approximately 12:35 a.m. on December 26,1993, Arizona Department of Public Safety Officer P.M. Wagner was called to mile-, post 154 on Interstate 10 to assist another officer with a driver who had been pulled over. When Wagner arrived, he was advised that the driver, Miernicki, was pulled over because he had been weaving and driving half-way in the parking lane.

Wagner approached Miernicki, who had watery eyes, slurred speech, and an odor of alcohol on his breath and clothing. Miernicki then agreed to participate in a series of field sobriety tests. The first test administered was the Horizontal Gaze Nystagmus Test. The results indicated probable impairment. The second test administered was the Rhomberg Modified Test. Not only was Miernicki decreasingly cooperative, but he also was swaying during the administration of this test. Ultimately, Miernicki’s lack of cooperation, demeanor, odor of alcohol, and physical condition prompted Wagner to place Miernicki under arrest for a violation of A.R.S. section 28-692 (Supp.1993).

Miernicki was transported to a police station and advised of his Miranda rights.1 After reading verbatim the admonitions listed on the DUI Implied Consent Affidavit to Miernicki two times, Wagner asked Miernicki to submit to an intoxilyzer test to determine his blood-alcohol concentration. Miernicki refused. Miernicki’s driver’s license then was suspended pursuant to A.R.S. section 28-691 (Supp.1994). Wagner filled out a certified report, which subsequently was filed with ADOT, stating:

On [December 26, 1993,] at [12:45 a.m.] at [Interstate 10, milepost 154] I had reasonable grounds to believe the person named had been driving or was in actual physical control of a motor vehicle under the influence of intoxicating liquor or drugs. Among the actions which led me to that belief were: suspect stopped for driving [half! off in the parking lane. (Emphasis added.)

[544]*544Miernicki timely requested an administrative hearing. At the beginning of the hearing, Miernicki moved to dismiss the suspension of his license. He alleged that ADOT lacked subject matter jurisdiction to suspend his license because the officer’s certified report failed to set forth reasonable grounds to believe that Miernicki was driving under the influence as required by A.R.S. section 28-691(D).2 The hearing officer denied the motion. The hearing continued and Wagner testified to the facts as described above. The hearing officer affirmed the suspension of Miernicki’s driver’s license.

Miernicki then filed a Petition for Judicial Review of Final Administrative Decision in superior court, raising the same jurisdictional argument. The court reversed the ruling of the hearing officer and ordered ADOT to terminate the suspension of Miernicki’s driver’s license. ADOT timely appealed to this court. ADOT does not contend that Wagner’s certified report listed reasonable grounds as required by A.R.S. section 28-691(D). Rather, the only issue ADOT raises is whether the error in Wagner’s certified report is jurisdictional.

DISCUSSION

This issue recently was resolved in Pearson v. Motor Vehicle Division, 181 Ariz. 235, 889 P.2d 28 (App.1995). In Pearson, this court determined that an officer’s error in failing to list reasonable grounds in a certified report as required by AR.S. section 28-691(D) was not jurisdictional. Id. 889 P.2d at 30-31. It then concluded that such an error should be reviewed to determine whether it was reversible or harmless. Id. 889 P.2d at 31. Arguing that Pearson is not controlling, Miernicki raises two new arguments for the proposition that an officer’s erroneous failure to list reasonable grounds in a certified report is jurisdictional.3

A ADOT Form E-2.

Miernicki argues that ADOT Form E-2 supports his position that an officer’s erroneous failure to list reasonable grounds in a certified report is jurisdictional. We disagree.

Miernicki correctly notes that Form E-2 informs a driver that his or her driver’s license is not suspended because “the information required on the affidavit was not complete.” 4 Miernicki, however, neglects to mention that Form E-2 later notes that “[i]f the court convicts [a driver] of Driving Under the Influence [pursuant to A.R.S. section 28-692], [ADOT] is required to suspend [the driver’s] driving privileges for ninety (90) consecutive days upon receipt of the conviction.” See A.R.S. § 28-692.0KK) (Supp. 1994).

As a threshold matter, we note that ADOT’s discretionary decision not to proceed on any given affidavit does not affect this court’s legal analysis of ADOT’s jurisdiction. Indeed, it has been recognized both that an administrative agency has only those powers delegated to it by the legislature and that the language of an agency’s own regulations cannot confer any additional authority on such agency. Cochise County v. Kirschner, 171 Ariz. 258, 261-62, 830 P.2d 470, 473-74 (App.1992). Thus, ADOT Form E-2 is not dispositive of our jurisdictional analysis. Moreover, after considering this form in its entire[545]*545ty, we believe that it is consistent with the conclusion in Pearson that when an officer erroneously fails to list reasonable grounds in a certified report, such error is rendered harmless when subsequent proceedings establish that the officer did, in fact, have reasonable grounds to believe the driver was operating a motor vehicle under the influence.

B. Analogy To Proceedings Pursuant To AR.S. Section 28-691.

Miernicki analogizes a driver’s license suspension pursuant to A.R.S. section 28-691 (“implied consent suspension”) with a suspension pursuant to A.R.S. section 28-694 (Supp. 1994) (“0.10 suspension”). He notes that Pearson creates inconsistent results between an implied consent suspension and a 0.10 suspension. Because of this inconsistency, Miernicki contends that Pearson incorrectly interprets A.R.S. section 28-691 and argues that an error in the certified report is jurisdictional. We disagree.

A 0.10 suspension occurs when a driver submits to an intoxilyzer test and the results indicate that the driver had a blood or breath alcohol concentration of 0.10 or more. A.R.S. § 28-694(A). There are two methods of reviewing a 0.10 suspension: (1) a summary review pursuant to Arizona Administrative Code (“A.A.C.”) R17-4-913;5 or (2) a hearing pursuant to A.R.S. section 28-694(E).

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Bluebook (online)
905 P.2d 551, 183 Ariz. 542, 193 Ariz. Adv. Rep. 43, 1995 Ariz. App. LEXIS 137, Counsel Stack Legal Research, https://law.counselstack.com/opinion/miernicki-v-arizona-department-of-transportation-arizctapp-1995.