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Saenz v. Honorable Lina S. Rodriguez12/7/1989
ews, we held that " he information given in the affidavit complies with case law." 158 Ariz. at 501, 763 P.2d at 997. We rejected Matthews' claim that his due process rights were violated by the allegedly confusing language of the affidavit, relying on the supreme court's opinion in Hiveley v. Superior Court, 154 Ariz. 572, 744 P.2d 673 (1987). Matthews did not seek review of our decision by the supreme court.
State v. Juarez, supra, was decided after our decision in Matthews. In Juarez, following the defendants' arrests on DUI charges, each was advised concerning the mandatory breath test as set forth in the first paragraph quoted above. The advice then continued:
Unless you expressly agree to take the test, I will consider you are refusing. You will not be allowed to call an attorney before deciding if you will take this test. However, after you take the test, you may then telephone an attorney or friend if you choose.
If you decide not to take the test, you will still be allowed to telephone an attorney, but your refusal will still result in suspension of your license or permit to drive for twelve months.
161 Ariz. at 78, 775 P.2d at 1142 (emphasis in original). The supreme court held:
We agree with the trial court that the advisory given to petitioner was, at best, confusing. Petitioner was first advised that he had a right to speak to an attorney. Prior to the breath test, however, he was further advised that this right would "apply only to the criminal charge for which [he was] arrested -- and not to the civil requirement that take this test." While such advice may accurately summarize the legal principles involved, it can only have the practical effect of telling the arrestee that he may not consult with an attorney prior to taking the breath test. This is clearly contrary to State v. Juarez. The state's arguments that Juarez and Kunzler were incorrectly decided are best addressed to the supreme court.
The state has presented no evidence that to have permitted petitioner to telephone his attorney would have hindered the ongoing investigation. Kunzler, supra. We therefore vacate the order of the trial court and remand with directions to grant petitioner's motion to suppress.
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