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State v. Superior Court of Pima County6/2/1986
which the court permitted into evidence
despite the involuntary nature of the samples.
The issue before us now is different. Under the current statute, there is a penalty for refusal. The penalty is suspension of license for one year under § 28-691(D), and the admission of such evidence in civil or criminal proceedings pursuant to § 28-692(K). Basic due process requires that in order for a person to be penalized for disobeying a request, that person must understand what is being requested of them. Without such understanding, the refusal is of no force. Therefore, implicit in both these statutes is a voluntary, i.e., intelligent or knowing, refusal. We therefore agree with both the trial court and MVD that such a requirement is implicit in both statutes. However, intoxication at the time cannot negate the voluntariness of the refusal lest the purpose of the statute be circumvented. Cf. A.R.S. § 13-503, where voluntary intoxication only negates intentional acts, not knowing acts.
II. COLLATERAL ESTOPPEL AND STATUTORY CONSTRUCTION
Appellee Hays argues that because of her exoneration in the administrative hearing, evidence of her refusal cannot be admitted at trial. Appellee's argument is based on two premises. The first is a statutory interpretation which would make admission of refusal evidence under § 28-692(K) dependent on the outcome of the MVD hearing under § 28-691(D). See State ex rel. Baumert v. Municipal Court of the City of Phoenix, 119 Ariz. 142, 579 P.2d 1112 (1978), and Shope v. City Court of the City of Tucson, 132 Ariz. 464, 646 P.2d 895 (App.1982), (construing prior versions of § 28-692 and § 28-691). The second argument is that the decision by MVD acts, under the rule of collateral estoppel, to bar presentation of evidence of refusal in her current criminal case. See People v. Sims, 32 Cal.3d 468, 186 Cal.Rptr. 77, 651 P.2d 321 (1982); Buttimer v. Alexis, 146 Cal.App.3d 754, 194 Cal.Rptr. 603 (1983); Shackelton v. Department of Motor Vehicles, 46 Cal.App.3d 327, 119 Cal.Rptr. 921 (1975). But see City of St. Joseph v. Johnson, 539 S.W.2d 784 (Mo.App.1976); People v. Lalka, 113 Misc.2d 474, 449 N.Y.S.2d 579 (1982); 30 A.L.R.4th 856 (1984). See also State v. Williams, 131 Ariz. 211, 639 P.2d 1036 (1982). We note, however, that Hays is neither the appellant nor cross-appellant in this case. The trial court's refusal to apply collateral estoppel or to adopt Hays' statutory interpretation argument is not before this court. The only party that has appealed is the state which seeks to overturn that part of the trial court's order requiring a preliminary hearing on the voluntariness of Hays' refusal. We therefore need not address appellee's arguments.
III. MOTION TO SUPPRESS HEARING
The state argues that the motion to suppress hearing ordered by the trial court is barred by the statute. Section 28-692(K) provides that the issue of refusal shall be an issue of fact to be determined by the trier of fact in all cases. Hays argues that this provision, as was § 28-692(G), is unconstitutional pursuant to Art. 6, § 5(5) of the Arizona Constitution which states the supreme court shall have " ower to make rules relative to all procedural matters in any court." The court, therefore, will only recognize reasonable and workable statutory arrangements which supplement court
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