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Gaunt v. Motor Vehicle Division3/31/1983
Two issues are presented in this appeal from the suspension of appellant's driving license pursuant to Arizona's implied consent statute. A.R.S. § 28-691. First, will a motorist's mistaken belief that he has the right to see an attorney prior to deciding whether to take a breath test excuse his refusal to take the test? Second, under what circumstances, if any, will a subsequent consent to take the test excuse the initial refusal? We decide these issues in favor of the appellee and affirm the judgment.
I. FACTS
The facts in the case are as follows. Appellant Charles Arthur Gaunt was arrested after an automobile accident for driving under the influence of alcohol in violation of A.R.S. § 28-692. He was given his Miranda warnings and was then brought to the police station by Officer Glenn J. Vaccaro.
At the station, Vaccaro requested that Gaunt submit to a breath test. Vaccaro asked for compliance three times, and three times Gaunt refused. The officer prefaced each request by reading the following to Gaunt from an implied consent form. Gaunt was advised that his license would be suspended if he refused to take the breath test and that his silence would constitute a refusal. He was told that he had no right to an attorney with regard to his decision on whether or not to take the test. On the first two denials, Gaunt merely said "No." When Vaccaro asked him why he stated "If I can't have my lawyer here, I refuse to take the test." The officer then re-read the section regarding the right to an attorney, but Gaunt refused to talk further.
Gaunt was brought to the station at about 1:30 a.m. Vaccaro spent approximately an hour with him, booking him and trying to get him to take the test. Then the officer placed him in a cell and left the station. Gaunt was in his cell for 30-60 minutes, until his parents bonded him out. He was then released from his cell and was in the process of getting back his personal belongings when he began a discussion with a police aide. They discussed the effects of his failure to take the test, whereupon Gaunt decided he wanted to take the test. He told the aide of his change of decision, but she said it was "too late." Gaunt then left the station.
Officer Vaccaro filed an affidavit reporting Gaunt's refusal to take the breath test with appellee Motor Vehicle Division, Department of Transportation (MVD). A hearing was scheduled, at which MVD's hearing officer decided the matter adversely to Gaunt and suspended his driving privileges for the statutory period. The hearing officer concluded that because Gaunt had been released from custody and was no longer under arrest, he was not entitled to take the breath test.
The matter was appealed to the superior court pursuant to the Administrative Review Act. A.R.S. §§ 12-901-914. The trial court sustained the suspension order and denied Gaunt's motion for new trial. Gaunt appealed from the judgment and the formal written order denying a new trial.
II. MISTAKEN BELIEF
In Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685 (1971), the Arizona Supreme Court held, inter alia, that a motorist arrested for driving while intoxicated does not have a right to counsel in deciding whether to take the intoxication test. In McNutt v. Superior Court, 648 P.2d 122, 125 n. 2 (1982), the supreme court held that the defendant did not have the right to delay the taking of the test by demanding to consult with counsel.
In this case, however, we are faced with an issue not previously presented
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