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State v. Superior Court of Pima County6/2/1986
Real party in interest, Zettie Jane Hays (Hays), was indicted for driving while intoxicated pursuant to A.R.S. § 28-692(A). She seeks to have evidence of her refusal to take the intoxilyzer test suppressed pursuant to a ruling by the Arizona Motor Vehicle Division (MVD) that she had not voluntarily declined to take the test.
Following Hays' arrest on April 4, 1984, the Tucson Police Department arresting officers explained the implied consent law, A.R.S. § 28-691. Section 28-691(A) provides that any person who operates a motor vehicle impliedly gives consent to have his blood, breath or urine tested for the purpose of determining alcoholic content if that person is alleged to have driven a motor vehicle while under the influence of intoxicating liquor. Under subsection (D) of that statute, if a person refuses to submit to such test, none shall be given. However, the MVD, upon receipt of a report that:
"There are reasonable grounds to believe the arrested person had been driving or was in actual physical control of a motor vehicle within the state while under the influence of intoxicating liquor and that the person had refused to submit to the test shall suspend for a period of 12 months his license or permit to drive . . . ." A.R.S. § 28-691(D).
Subsection (C) of § 28-691 permits officers to take blood samples from any person who is "dead, unconscious or otherwise in a condition rendering him incapable of refusal." Hays refused to submit to the intoxilyzer test, and the officers therefore filed a refusal affidavit with MVD. The officers obviously did not consider her incapable of refusal.
Upon receipt of the refusal affidavit, MVD notified Hays that her license had been suspended for 12 months. She requested a hearing on the propriety of that suspension pursuant to A.R.S. § 28-691(E). The scope of such a hearing is limited to whether a law enforcement officer had reasonable grounds to believe the person had been "driving or was in actual physical control of a motor vehicle within this state while under the influence of an intoxicating liquor, whether the person was placed under arrest, and whether he refused to submit to the test." (Emphasis added)
Hays contends that because of her psychological condition at the time of the arrest, her refusal was not voluntary and therefore she did not violate A.R.S. § 28-691(D). At the initial hearing, the hearing officer heard the testimony of the two arresting police officers and Hays. Despite the testimony by the police officers that Hays seemed emotionally distraught and Hay's testimony that she did not even understand the request to take the intoxilyzer test, the hearing officer found that her license should be suspended. Hays moved and was granted a rehearing on the matter. At that rehearing, the hearing officer considered a letter from Dr. Gurland, a psychiatrist, stating that Hays was
in a severely disturbed emotional state on the night of her arrest and was unable to appreciate the circumstances surrounding her arrest. The letter concluded that Hays was incapable of voluntarily refusing the test. Based upon that letter, the hearing officer concluded that defendant could not have voluntarily refused within the meaning of A.R.S. § 28-691 and that her license should be reinstated. The criminal charge, however, still remained.
A.R.S. § 28-692(K) provides:
"If a person under arrest refuses to submit to a test under the provisions o
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