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Saenz v. Honorable Lina S. Rodriguez12/7/1989
This special action requires us to revisit the issue of advising a DUI arrestee of his right to counsel and our prior decision in State v. Superior Court (Matthews), 158 Ariz. 500, 763 P.2d 996 (App.1988).
Petitioner was arrested on September 30, 1988, for driving under the influence , in violation of A.R.S. § 28-692(A), and it is apparently undisputed that he was given his Miranda warning. At the end of a 20-minute observation period, he was advised as follows:
Arizona law requires you to submit to and successfully complete a test to determine the alcohol or drug content of your blood. If you refuse to submit or do not successfully complete a test, your Arizona driver license/permit or nonresident driving privilege will be suspended for twelve (12) months. You are, therefore, required to submit to a test.
If the results of the test indicate your blood alcohol content is .10 or above, your Arizona driver license or permit or nonresident driving privilege will be suspended for ninety (90) consecutive days. Those rights of which you were previously advised, that is: the right to remain silent or to speak with an attorney, have
an attorney present during questioning or to have one appointed for you, apply only to the criminal charge for which you were arrested -- and not to the civil requirement that you take this test.
Petitioner took the test, often referred to as an intoxilyzer or breathalyzer, and was subsequently charged with driving with a blood alcohol content of .10 or more, in violation of A.R.S. § 28-692(B). At no time during these proceedings did petitioner request an opportunity to call an attorney.
Petitioner filed a motion to dismiss and a motion to suppress the intoxilyzer results, arguing that he was erroneously advised that he did not have the right to consult with an attorney before taking the test, and relying on the supreme court's decisions in Kunzler v. Superior Court, 154 Ariz. 568, 744 P.2d 669 (1987), and State v. Juarez, 161 Ariz. 76, 775 P.2d 1140 (1989). The trial court denied the motion, ruling as follows:
The Court, having read the above motions and the cases cited, believes that it is bound by State v. Matthews. . . wherein the facts and the advisory read to the defendant is identical to that read to Mr. Saenz herein. The Court notes that in Matthews, Superior Court Judge William Sherrill noted that the advisory was confusing. This Court could not agree more. In reading the advisory, this Court is of the opinion that, on the one hand the Police are advising the defendant of his right to an attorney, and then on the other, immediately advising him that he does not have the right to an attorney. The advisory, in this Court's opinion, does not clearly indicate that there is no right to an attorney in the limited context of the Civil Proceeding involving the suspension of the license for 12 months. The advisory, on the contrary, appears to simply say that no attorney is provided to advise on the taking of the breathalyzer test.
Nonetheless, the Court of Appeals has made its ruling on the identical facts herein. Furthermore, the Court is not clear that State v. Juarez. . . impliedly overrules Matthews. Absent an actual opinion overruling Matthews, this Court feels that it is bound by Matthews and must, therefore, deny the defendant's motion to suppress/dismiss.
As the trial court noted, Matthews involved similar facts and the same DUI affidavit. In Matth
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