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State v. Superior Court of Pima County6/2/1986
f § 28-691 . . . evidence of refusal is admissible in any civil or criminal action or proceeding arising out of acts alleged to have been committed while the person was driving or in actual physical control of a motor vehicle within the state . . . The issue of refusal shall be an issue of fact and will be determined by the trier of fact in all cases."
Following Hays' exoneration by MVD, a motion to suppress evidence, of her refusal to take the intoxilyzer test was filed in the criminal action on the ground that the finding of the MVD hearing officer collaterally estops the state from offering such evidence. A hearing was held in city court on March 20, 1985, at which the motion was denied. Hays took the collateral estoppel issue to the superior court in the form of a special action, and the court held that a refusal must be intentional or knowing and that Rule 16.2, Rules of Criminal Procedure, 17 A.R.S., requires that the voluntariness of Hay's refusal be heard by the trial court. The court, however, refused to suppress the evidence on the basis of collateral estoppel. The court then ordered a hearing to be held on Hay's motion to suppress the evidence of refusal. It is from that order that the state appeals.
The sole issue raised by the state on appeal is whether the trial court erred in ordering a hearing to determine whether defendant voluntarily refused to take a breath test prior to submitting evidence of defendant's refusal to the jury. Hays disagrees with the state and, in addition, argues that the doctrine of collateral estoppel should bar the state from introducing evidence of Hays' refusal.
I. INTENTIONAL OR KNOWING REFUSAL
The MVD hearing officer and the trial court agree that in order for a refusal pursuant to § 28-691(D) to be sufficient for license suspension, that refusal must be intelligent or knowing. Additionally, the trial court held that in order for a refusal to be evidence in a criminal trial, it must be intelligent or knowing. Neither § 28-691(D) nor § 28-692(K), however, establish the state of mind required for the refusal. Section 28-691(D) provides that the department shall suspend the license for 12 months if ". . . the person had refused to submit to the test . . . ." Section 28-692(K) states that evidence of refusal shall be admissible if ". . . a person under arrest refuses to submit to a test . . . ." there is no mention in either statute of intentional or knowing refusal or any lesser state of mind.
The state argues, therefore, that the statutes are in the nature of a strict liability crime and require no culpable mental state. Both sides concede that Hays both physically and orally refused to take the test.
The only real issue is her mental state at the time of refusal. Therefore, if the state is correct, the ruling of the hearing officer is erroneous and could not possibly have any collateral estoppel effect in the present case. Additionally, there would be no need to hold a hearing on voluntariness.
The state cites Knoblich v. City Court of the City of Tucson, 134 Ariz. 493, 657 P.2d 906 (App.1982), for the proposition that an intoxilyzer refusal is admissible whether or not it is voluntary. The Knoblich case, however, is inapposite. Knoblich was decided under a former implied consent statute which permitted the forced implementation of the intoxilyzer test. The present statute does not permit such forced tests. Additionally in Knoblich, the parties, pursuant to a false statement by the police officers, did take breath samples
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