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Caretto v. Arizona Department of Transportation2/17/1998
REVERSED AND REMANDED
Pursuant to the implied consent provisions of Arizona Revised Statutes Annotated ("A.R.S.") section 28-691(B) (Supp. 1997), an administrative law Judge ("ALJ") suspended the driver's license of John P. Caretto for one year for refusing to submit to the second of two breath tests administered during duplicate testing. On appeal to the superior court, the ALJ's order was vacated and the superior court granted judgment in Caretto's favor. The Arizona Department of Transportation ("ADOT") has appealed the decision of the superior court. For the following reasons, we reverse.
BACKGROUND
On November 11, 1995, Department of Public Safety Officer Sayers arrested Caretto for driving under the influence of alcohol. Sayers transported Caretto to the police station where Sayers intended to conduct duplicate breath testing. Sayers began, however, by conducting an "observation" period for approximately twenty minutes, and then requesting that Caretto submit to a breath test. Sayers also read Caretto several warnings, including a warning that a refusal to "submit to" or "successfully complete the specified test(s)" would result in a one-year suspension of his driver's license. Caretto submitted to the first breath test, which revealed that his blood alcohol concentration ("BAC") level was .145%, well above the legal limit in Arizona.
To complete the duplicate testing, Sayers waited approximately five minutes before attempting to administer the second breath test. However, Caretto would not submit to a second test and instead asked to speak to an attorney. Sayers responded that he needed a name and number to contact the attorney, but Caretto remained silent. Sayers then reread several warnings to Caretto, informing him that he was not entitled to any further delay in taking the tests "for any reason" and that further delay would be considered as a refusal to submit. The officer also explained that the worst that could happen if Caretto submitted to the test would be a three-month driver's license suspension for a BAC over the legal limit, while a refusal to submit would result in a one-year suspension. When Caretto steadfastly declined to be further tested, the officer found a refusal to submit.
Subsequently, Caretto was notified that his license would be suspended for one year, and he requested an administrative hearing. In the interim, a Justice of the peace found the BAC result admissible as evidence in a separate criminal DUI proceeding against Caretto. At the conclusion of the administrative hearing, the ALJ found a refusal to submit and ordered that Caretto's license be suspended for one year.
Caretto sought review by the Maricopa County Superior Court, which vacated the ALJ's order and granted judgment to Caretto for the following reasons:
1. Having submitted to one valid breath test, the results of which were used to convict in the criminal case, A.R.S. Section 28- 691 does not authorize license suspension for refusal to supply a breath sample for a subsequent breath test requested by the officer. See Sherrill v. ADOT, 165 Ariz. 495, 502, 799 P.2d 836, 843 (1990).
2. Having requested to contact an attorney between the first valid test and the second test he was deemed to have refused, the officers were required to clearly inform that he had no right to consult an attorney before submitting to the second test. Gaunt v. MVD, 136 Ariz. 424, 426, 666 P.2d 524, 526 (App. 1983). They failed to do so.
3. Fairness requires that the officer who insisted on the second breath sample advise that his license can and will be suspended for failure to take the second test notwithstandi
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