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Smale v. Mendez ex rel Arizona Highway Dep't and Motor Vehicle Divison3/30/2004
MEMORANDUM DECISION
Not for Publication Rule 28, Rules of C ivil Appellate Procedure
AFFIRMED
An administrative law judge (ALJ) suspended appellant Jane Smale's driver's license for one year in accordance with the implied consent law, A.R.S. § 28-1321, and the superior court affirmed the suspension. On appeal, Smale claims the implied consent law provision for suspending a driver's license when the driver refuses to submit to a test to determine the driver's alcohol concentration (AC) should not apply to her case and challenges the overall constitutionality of that law. We reject her arguments and affirm the superior court's judgment.
Facts and Procedural History
"We view the evidence in the [Motor Vehicle Division] administrative record in the light most favorable to sustaining the A LJ's decision." Tornabene v. Bonine ex rel. Ariz. Highway Dep't, 203 Ariz. 326, 2, 54 P.3d 355, 358 (App. 2002). In October 2002, Tucson Police Officer Eppley stopped Smale's vehicle for a traffic offense. Eppley noticed that Smale smelled of alcohol and was displaying visible signs of intoxication. Eppley conducted field sobriety tests and a horizontal gaze nystagmus test, all of which showed Smale was impaired. Eppley arrested Smale for driving under the influence of an intoxicant (DUI), read her the provisions on an implied consent form, and asked her to submit to a breath test to determine her AC. Smale refused to submit to the test and w as taken to a hospital where a sample of her blood was drawn pursuant to a search warrant Eppley had obtained.
After a hearing conducted in accordance with the implied consent law, the ALJ entered written findings of fact and suspended Smale's license for one year as a consequence of her refusal to submit to the breath test. Smale appealed to the superior court pursuant to the Arizona Administrative Review A ct (ARA), A.R.S. §§ 12-901 through 12-914, and the court affirmed the ALJ's ruling.
Discussion
"When reviewing an ALJ's decision under the implied consent law, the superior court is limited to determining whether the ALJ's decision was 'arbitrary, capricious, or an abuse of discretion.'" Caretto v. Ariz. Dep't of Transp., 192 Ariz. 297, 7, 965 P.2d 31, 34 (App. 1998), quoting Edwards v. Ariz. Dep't of Transp., 176 Ariz. 137, 140, 859 P.2d 760, 763 (App. 1993); see also § 12-910(E) (under ARA, reviewing court shall affirm agency action unless not supported by substantial evidence, contrary to law, arbitrary and capricious, or abuse of discretion). And, because the sufficiency of the evidence supporting a driver's license suspension order is a question of law, we review the superior court's judgment de novo. Potter v. Ariz. Dep't of Transp., 204 Ariz. 73, 59 P.3d 837 (App. 2002). We may set aside an ALJ's ruling on ly if it is not supported by competent evidence. Tornabene.
Smale first attacks the propriety of applying the implied consent law to her case. That law reads, in pertinent part, as follows:
A. A person who operates a motor vehicle in this state gives consent... to a test or tests of the person's blood, breath, urine or other bodily substance for the purpose of determining alcohol concentration or drug content.... The test or tests chosen by the law enforcement agency shall be administered at the direction of a law enforcement officer having reasonable grounds to believe that the person was driving or in actual physical control of a motor vehicle in this state either:
1. While under the influence of intoxicating liquor or drugs.
2. If the person is under twenty-one years of age, with spirituous liquor in t
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