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Sherrill v. Department of Transportation10/9/1990
Nancy Jane Sherrill (petitioner) seeks review of a court of appeals decision affirming her license suspension for refusal to successfully complete a blood alcohol test. 164 Ariz. 442, 793 P.2d 1109. The issue presented is whether the Arizona Department of Transportation (DOT) sufficiently
established a "refusal" under the implied consent statute, A.R.S. § 28-691, absent any evidence of petitioner's willful non-cooperation. DOT's finding was based only on an Intoxilyzer reading indicating "deficient sample" and a blood alcohol content (BAC) level above the legal presumption of intoxication. The prosecution used the test result to obtain a criminal conviction for driving while under the influence of intoxicating liquors (DUI). We have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3), and A.R.S. § 12-120.24. We granted review pursuant to rule 23, Arizona Rules of Civil Appellate Procedure.
Facts and Procedural Background
Petitioner was arrested on January 29, 1988. The arresting officer transported her to the Scottsdale Police Department, and requested she submit to a blood alcohol test on an Intoxilyzer 5000 to determine her BAC. After admitting she was intoxicated, petitioner agreed to take the test. She attempted to cooperate and comply after being instructed by the Intoxilyzer operator about how to blow her breath into the machine. On her first try, the machine reported a BAC result of 0.000% and read "deficient sample." The operator again instructed her on how to use the machine, and petitioner tried again. Her second attempt resulted in a BAC result of .295%, again with a reading of "deficient sample." The officer determined that petitioner failed to successfully complete the test as required under the implied consent statute, and reported her refusal to the Motor Vehicle Division as a civil violation for suspension of her driver's license. See A.R.S. § 28-691. The Scottsdale City Prosecutor also brought a criminal action against petitioner in Scottsdale City Court, charging her with DUI, in violation of A.R.S. § 28-692(A) and (B).
In the criminal action, petitioner moved to suppress the results of the test. The prosecutor argued that the test results met the foundational requirements of A.R.S. § 28-692.03(A), and thus were admissible as valid evidence of petitioner's intoxication. The trial court denied petitioner's motion to suppress. She then pleaded guilty to the criminal charge of driving while intoxicated.
Petitioner requested an administrative hearing in the civil suspension action to contest the arresting officer's determination that she "refused" to take the test. DOT presented the test results of "deficient sample" as evidence that petitioner failed to successfully complete the test, even though she gave no indication of willful noncooperation and every indication of cooperation. The hearing officer concluded that petitioner refused the test, and suspended her license for 12 months. The superior court affirmed the hearing officer's suspension, and petitioner appealed to the court of appeals, which also affirmed the decision. Petitioner then sought review in this court. Although the state failed to respond to the petition for review, it did file a brief in the court of appeals.
Court of Appeals Opinion
The court of appeals rejected petitioner's contention that she satisfied the requirements of the implied consent statute by providing a test result above the legal presumption o
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