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State v. Nance5/24/1990
FACTS AND JURISDICTION
Respondent William Daniel Nance was arrested for driving while intoxicated. Approximately one hour after his arrest, respondent submitted to a breath test that resulted in a blood alcohol content (BAC) of .110. Pursuant to A.R.S. § 28-694, the arresting officer served respondent with an order of suspension of driving privileges. Respondent timely requested an administrative hearing under the statute. At the hearing, the BAC test result was received without objection. The hearing officer ordered respondent's license suspended. Respondent then moved for a rehearing, contending for the first time that the state was required to relate the BAC result back to the time of driving. The hearing officer disagreed.
On appeal, the superior court vacated the order of suspension, holding that this court's recent decision in Desmond v. Superior
Court, 161 Ariz. 522, 779 P.2d 1261 (1989) required relation back evidence in suspension proceedings under A.R.S. § 28-694.
Although the superior court's judgment is reviewable by appeal to the court of appeals, see A.R.S. § 12-913, the state, through the Motor Vehicles Division, filed a petition for special action directly in this court. Both parties urged us to accept jurisdiction to resolve the issue because several cases are pending in our appellate courts that present the same issue. The same issue is present in most, if not all, administrative suspension proceedings, of which more than 20,000 occur per year. Numerous administrative appeals to superior courts have produced conflicting results.
Because the issue is one of statewide significance involved in many cases, it is an appropriate case for special action. See Summerfield v. Superior Court, 144 Ariz. 467, 698 P.2d 712 (1985). Accordingly, we accept jurisdiction pursuant to Ariz. Const. art. 6, § 5(4), and Rule 1, Ariz.R.P.Sp.Act., 17B A.R.S. For the same reasons, we have allowed the filing of an amicus curiae brief.
ISSUE PRESENTED
Whether the BAC test result must be "related back" to the time of driving for purposes of an administrative license suspension proceeding under A.R.S. § 28-694.
Discussion
Both parties agree that the issue presented in this case is entirely one of statutory construction. In 1987, the Arizona legislature amended the driving while intoxicated and reckless driving laws. H.B. 2273, 1st Sess., 5 Ariz.Leg.Serv. 787-96 (1987). Title 28, chapter 6, article 5 of the Arizona Revised Statutes was amended by adding section 28-694, which provides for the administrative suspension of drivers' licenses. Laws 1987, ch. 262, § 4. A.R.S. § 28-694 provides in part:
§ 28-694 License suspension if blood or breath alcohol test results indicate a concentration of 0.10 or more; hearing; review of suspension order; appeal; definition
A. If a law enforcement officer arrests any person for a violation of § 28-692 and the person submits to a blood or breath alcohol test permitted by § 28-691, the results of which indicate 0.10 or more alcohol concentration in the person's blood or breath, as determined according to § 28-692, subsection F, the officer shall forward to the department a certified report, . . . stating information . . . including . . . a statement
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