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State v. Superior Court of Pima County6/2/1986
-promulgated rules. When a conflict arises, the statutory rule will not be recognized. State ex rel. Collins v. Seidel, 142 Ariz. 587, 691 P.2d 678 (1984). We do not hold this section to be unconstitutional, but rather find that it is compatible and supplemental to the court's procedural rules. We strive to uphold statutes as constitutional, if possible. State v. Arnett, 119 Ariz. 38, 579 P.2d 542 (1978). Initial preliminary questions concerning the admissibility of evidence shall be determined by the court. Rule 104(A), Rules of
Evidence, 17A A.R.S. Section 28-692(K) does not bar such a preliminary determination by the court, but only limits it. We hold that the court can hold a preliminary hearing under this statute to determine whether there is an issue of refusal. It cannot determine, however, whether the refusal was voluntary because that question has been reserved by statute for the jury. This is analogous to Art. 18, § 5 of the Arizona Constitution, which provides that the issue of contributory negligence is an issue of fact to be determined at all times by the jury. Nevertheless, courts may determine preliminarily whether there is an issue of contributory negligence. See Jernigan v. Southern Pacific Company, 222 F.2d 245 (9th Cir.1955); Vickers v. Gercke, 86 Ariz. 75, 340 P.2d 987 (1959). And so it is with refusal. However, such a hearing is unnecessary in the instant case, inasmuch as defendant does not deny that she refused the test, but rather says it was not voluntary.
Appellee also argues that a preliminary hearing is required, pursuant to the United States Supreme Court's ruling in Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). In Jackson, the court held that a criminal defendant is entitled to a preliminary hearing to determine the voluntariness of a confession. We find Jackson inapposite. The decision in Jackson was predicated on the 5th Amendment right against self-incrimination. There is, however, no constitutionally protected liberty to refuse to take an intoxilyzer test. See, e.g., South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). The right to refuse the test has been granted by statute, A.R.S. § 28-691(D). That refusal, however, carries with it consequences, including the introduction of the evidence in trial. Neither the constitution nor the statute requires that a preliminary hearing be given on the voluntariness of the refusal. We hold that the trial court was correct in determining that a preliminary hearing on refusal is permissible, despite the statute; however, the scope of that hearing is limited to whether there is an issue of refusal, and the court is not permitted to delve into the voluntariness of the refusal. In this case, there is no issue of refusal since Hays admits she refused to take the intoxilyzer test. Accordingly, the trial court erred in ordering that a preliminary hearing be held.
Reversed and remanded.
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