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Braun v. Motor Vehicle Division9/12/1989
This case is on appeal from a review of a decision of the Arizona Department of Transportation, Motor Vehicle Division, by the Superior Court of Navajo County. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 12-913 and 12-2101(B).
The principal issue raised is whether A.R.S. § 28-691, Arizona's "Implied Consent Statute," grants an arresting officer discretion to determine which chemical sobriety test to offer an operator of a motor vehicle arrested for driving while under the influence of intoxicating liquor or whether the statute obligates the officer to follow
the internal policy of his or her law enforcement agency. Specifically, we must decide whether a refusal by an operator of a motor vehicle to submit to a blood test is a refusal within the meaning of the statute when the internal policy of the arresting officer's agency provides that a breath test is to be offered first and no such test was offered. We find that it is a refusal within the meaning of the statute, and reverse the decision of the superior court.
The events leading up to this appeal began on February 6, 1987 when appellee was stopped by Officer Davis of the Department of Public Safety for exceeding the posted speed limit. Appellee, a resident of Garden City, Kansas, was enroute from Garden City to Phoenix, Arizona, with his wife when he was stopped. Because of appellee's appearance and his poor performance on several field sobriety tests, Officer Davis arrested appellee for driving while under the influence of intoxicating liquor. While transporting appellee to the Holbrook Police Station for a Breathalyzer test, Officer Davis inquired by radio concerning the operating condition of the intoxilyzer machine. Officer Stanton responded that he (Stanton) had difficulty with the machine the night before, but he did not specify the precise nature of the problem.
Based upon Officer Stanton's response, Officer Davis transported appellee to the Holbrook Hospital for a blood test. When they arrived at the hospital, Officer Davis read four paragraphs of A.R.S. § 28-691 to appellee. He then requested appellee to submit to a blood test. Appellee refused. Based upon the refusal the Arizona Department of Transportation, Motor Vehicle Division (department), suspended appellee's driver's license for twelve months as required by A.R.S. § 28-691.
Appellee requested and was granted an administrative hearing pursuant to A.R.S. § 28-691(E). The hearing officer concluded that the evidence supported the department's decision, finding that:
1. The Officer had reasonable grounds to believe that Petitioner had been driving while under the influence of intoxicating liquor.
2. Petitioner was placed under arrest.
3. Petitioner was requested by the Officer to submit to a [blood] test to determine the alcoholic content of his blood.
4. Petitioner was warned by the Officer that a refusal to submit to the designated test will result in the suspension of his driver's license or driving rights.
5. Petitioner refused to take the test.
Dissatisfied with the hearing officer's decision, appellee filed a petition for review in the Superior Court of Navajo County pursuant to A.R.S. § 28-691(F). In his petition, appellee contended that the decision of the department was in error and contrary to law. The trial court agreed and reversed the department's decision, reinstating appellee's driver's license. The appellant
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