 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Bucciarelli v. Arizona Department of Transportation10/25/1990
David J. Bucciarelli appeals from an order of the trial court dismissing his complaint seeking review of an order of the Arizona Department of Transportation (ADOT) suspending Bucciarelli's driver's license. For the reasons set forth below, we vacate the trial court's order and remand for further proceedings consistent with this opinion.
FACTS
On September 28, 1989, Bucciarelli was arrested for driving while under the influence of intoxicants (DUI). A breath test recorded a reading of .146 percent blood-alcohol content and ADOT promptly suspended his driver's license pursuant to A.R.S. § 28-694.
PROCEDURAL HISTORY
Following the suspension of Bucciarelli's driver's license, Bucciarelli was asked to choose between summary review and a full hearing. On a form entitled "Administrative Per Se Implied Consent Affidavit," Bucciarelli indicated that he wished to have ADOT conduct summary review regarding suspension of his license. Following summary review, ADOT concluded that suspension was appropriate. Bucciarelli then filed a complaint seeking review in superior court of the administrative order. The trial court dismissed Bucciarelli's complaint with prejudice.
ISSUES ON APPEAL
On appeal, Bucciarelli argues that he has been denied judicial review of ADOT's suspension of his license. Bucciarelli argues that (1) ADOT incorrectly asserts that no judicial review lies from adverse administrative summary review, and (2) the equal protection clauses of the Arizona and United States Constitutions require that judicial review be made available.
Standard of Review
Whether Bucciarelli is entitled to appeal from an adverse summary review resulting in the suspension of his driver's license is a question of law, reviewed de novo. Tovrea Land & Cattle Co. v. Linsenmeyer, 100 Ariz. 107, 114, 412 P.2d 47, 51 (1966); Hughes v. Creighton, 165 Ariz. 265, 267, 798 P.2d 403, 405 (App.1990).
Whether Judicial Review of Suspension is Available
A.R.S. § 28-451 provides a right to seek judicial review of ADOT's suspension of a person's driver's license. A.R.S. § 28-451 directs that judicial review be available as provided in Title 12, Chapter 7, article 6. That chapter and article of Title 12, entitled "Judicial Review of Administrative Decisions," states:
[Judicial review] applies to and governs every action to review judicially a final decision of an administrative agency except . . . where the act creating or conferring power on an agency or a separate act provides for judicial review of the agency decisions and prescribes a definite procedure for the review.
A.R.S. § 12-902(A).
ADOT argues that Bucciarelli could have obtained the judicial review of ADOT's suspension had he merely requested that ADOT review his suspension by hearing rather than summary review. ADOT points out that the form on which Bucciarelli requested summary review states:
The decision made by the Executive Hearing Officer to uphold or cancel the Order of Suspension is final and no further review or petition will be allowed.
A.R.S. § 28-694 sets forth two distinct procedures available to an individual whose license has been suspended pursuant to A.R.S. § 28-694(A). A hearing may be requested
pursuant to A.R.S. §
Page 1 2 3 Arizona DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|