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Caretto v. Arizona Department of Transportation2/17/1998
ng his cooperation in completing the first test. was not so advised and could well have believed that he had already discharged his implied consent duty, as well he had.
ADOT timely appealed.
ISSUES
When the state seeks to suspend a driver's license for a refusal to submit to testing, it must prove by a preponderance of the evidence that a law enforcement officer had reasonable grounds to believe the licensee was controlling an automobile while under the influence of alcohol, that the licensee was placed under arrest, that the licensee refused to submit to a test to determine his BAC, and that the licensee was informed of the consequences of refusing to submit to such a test. Sherrill v. Department of Transp., 165 Ariz. 495, 497-98, 799 P.2d 836, 838-39 (1990). In this case, the latter two elements are in dispute, with ADOT asserting that the ALJ was correct in finding that Caretto refused to submit to breath testing and received adequate notice of the consequences of his refusal, and that the superior court erred in finding to the contrary.
ANALYSIS I. Standard of Review
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." Edwards v. Department of Transp., 176 Ariz. 137, 140, 859 P.2d 760, 763 (App. 1993). The superior court must affirm administrative decisions that are supported by "competent evidence." Id. In turn, we review the superior court's decision "to determine whether the record contains evidence to support the judgment." Havasu Heights Ranch & Dev. Corp. v. Desert Valley Wood Products, Inc., 167 Ariz. 383, 386, 807 P.2d 1119, 1122 (App. 1990). Our review necessarily involves reaching the underlying issues of whether competent evidence supports the ALJ's decision and whether the ALJ's action was "illegal, arbitrary, capricious, or involved an abuse of discretion." Id. II. Refusal to Submit
In its findings (1) and (2), the superior court set forth separate bases for its Conclusion that Caretto did not refuse to submit to testing. In finding (1), the court decided that the state's use of the test result in a concurrent criminal proceeding for DUI precluded a finding of refusal. In finding (2), the court determined that the officer failed to clearly inform Caretto that he had no right to consult an attorney before deciding whether to take the second test. We address each finding in turn.
A. Use of Test Result in Criminal Proceedings
Caretto first argues that the superior court's finding (1) was mandated by Sherrill. Caretto asserts that Sherrill stands for the proposition that whenever the state successfully introduces a BAC test result in a companion criminal prosecution for DUI, the state is per se prohibited from seeking an implied consent suspension for a refusal related to that test. While the superior court apparently agreed with this proposition, we do not read Sherrill so broadly.
Sherrill involved a DUI suspect who attempted to cooperate and follow instructions in supplying a breath sample. 165 Ariz. at 496, 799 P.2d at 837. However, the suspect provided a "deficient sample" in her first attempt at breathing into the machine, and the result was a BAC reading of 0.0%. Id. The suspect again provided a deficient sample in her second attempt, but a BAC reading of .295% resulted. Id. The officer construed this effort as a failure to "successfully complete" the test. Id.
Sherrill held that the successful use of the deficient sample in a criminal proceeding against the suspect, combined with evidence of the suspect's coop
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