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Smale v. Mendez ex rel Arizona Highway Dep't and Motor Vehicle Divison3/30/2004
DUI suspect refuses to submit to an AC test, see 1990 Ariz. Sess. Laws, ch. 375, § 7, Division One of this court has found the law to be reasonably related to the legislature's goal. State v. Clary, 196 Ariz. 610, 2 P.3d 1255 (App. 2000) (legislature engaging in heightened effort to remove impaired drivers from highways found revocation of license insufficient sanction for failure to submit to AC test and approved use of reasonable force to execute warrant to obtain blood sample); see Koller v. Ariz. Dep't of Transp., 195 Ariz. 343, 988 P.2d 128 (App. 1999) (intent of 1990 amendment was to increase criminal DUI penalties and facilitate criminal prosecution of impaired drivers). Because other courts have already resolved this issue, we decline to address Smale's arguments about the constitutionality of the implied consent law.
We now turn to the question of whether the ALJ abused his discretion in suspending Smale's driver's license. At the administrative hearing, Eppley testified that he had stopped Smale's vehicle and conducted a DUI investigation; that he had arrested Smale for DUI; that he had advised her of the requirements of the implied consent law; that he had asked her to submit to a breath test; and that she had responded by saying, "f - - - no, I won't." Eppley further testified that, when he had "asked [Smale] if she understood her license would be suspended for 12 months," Smale had responded, "oh yeah, I'll take it," and that when he had read Smale the order of suspension and asked if she understood it, Smale had responded, "you bet."
Smale also testified and confirmed that she had refused to submit to the breath test, claiming she had done so because she perceived it to be inaccurate. She also emphasized that she had voluntarily submitted to the blood test and asserted that, at the time of her arrest, she had believed she could select the type of test.
This evidence supports the ALJ's order suspending Smale's license, and we find no abuse of discretion in that order. The implied consent law expressly provides that the law enforcement agency may determine the test to be used, and that the statutory penalties "shall" apply when an arrestee refuses to submit to the test designated. § 28-1321(A) and (D); see also Schade v. Dep't of Transp., 175 Ariz. 460, 857 P.2d 1314 (A pp. 1993). Despite Smale's emphatic claim that she "was willing to comply with the spirit[,] though not the precise letter[,] of the Implied Consent law" by agreeing to submit to a blood test, she violated the implied consent law by refusing to submit to the breath test when Eppley asked her to. See Ricard. Smale's eventual submission to the blood test did not absolve her of the consequences of that refusal, particularly considering Eppley was required to obtain a warrant to have her blood drawn. See Koller (driver may not prevent driver's license suspension by recanting refusal after search warrant for blood sample issued); see also Martinez. Moreover, even if Smale acted under a good faith belief that she was permitted to select the test when she refused the breath test, she was not immunized from the consequences of her conduct by this belief. Cf. State v. Olvera, 191 Ariz. 75, 952 P.2d 313 (App. 1997) (mistake or ignorance of law does not excuse conduct violating law).
The superior court's judgment is affirmed.
CONCURRING:
M. JAN FLOREZ, Judge
JOSEPH W. HOWARD, Judge
Page 1 2 3 Arizona DUI Attorneys
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