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Caretto v. Arizona Department of Transportation2/17/1998
eration and a lack of sufficient proof that the suspect caused the deficient sample, precluded a finding of refusal for a failure to successfully complete the test. Id. at 503, 799 P.2d at 844. However, Sherrill expressly rejected any notion that the admission of a test result in a criminal proceeding, standing alone, automatically precluded an implied consent suspension: In the absence of any other evidence of . . . resistance to the test, indicated by either verbal or nonverbal willful noncooperation, we believe the fact that the prosecution utilized a test result . . . to obtain a criminal DUI conviction, is a relevant factor in determining whether [the suspect] "refused" to take the test. Such a factor need not preclude a finding of refusal, however, if other evidence in the record satisfies the state's burden of proof.
Id. at 498-99, 799 P.2d at 839-40 (emphasis added).
In this case, there is "other evidence" which satisfies the state's burden. When Sayers requested that Caretto take the second test, Caretto instead asked to speak to his attorney. When the officer asked for the attorney's name and address, Caretto unaccountably remained silent. The officer then reread the implied consent admonitions and offered the intoxilyzer tube to Caretto, who declined to take it. Under these circumstances, the ALJ did not act arbitrarily or abuse her discretion in finding a refusal, and nothing in Sherrill precludes such a finding.
Caretto seeks alternatively to justify the superior court's finding (1) by arguing that administration of the second test was statutorily unauthorized and that a suspension cannot be based on a refusal of an unauthorized test, citing Ricard v. Department of Transp., 187 Ariz. 633, 931 P.2d 1143 (App. 1997). In support of this argument, Caretto first points out that A.R.S. section 28-695(A)(3) (Supp. 1997), which provides for admissibility of BAC results obtained either through duplicate breath tests or a single breath test preceded by a twenty- minute observation period, is phrased in the disjunctive. Caretto next observes that his first breath test had been preceded by a twenty-minute observation period and was therefore a valid single test. Caretto then argues that, in these circumstances, section 28-695(A)(3) should be construed to permit administration of only one of the breath testing methods described therein. Applying this interpretation to his case, Caretto concludes that since he gave one valid breath sample, no further testing was authorized pursuant to Ricard.
Ricard involved a suspect who attempted to skew breath results by belching and smacking his lips, notwithstanding an admonition by the testing officer not to do so. Id. at 634-35, 931 P.2d at 1144-45. The Ricard court found that the suspect's offending behavior could not have affected the test results and, therefore, prohibition of the behavior was not necessary to the testing process. Id. at 638, 931 P.2d at 1148. Consequently, the court found the prohibition was not authorized and a violation of the prohibition could not support a finding of refusal. Id. at 638-39, 931 P.2d at 1148-49.
Ricard essentially holds that procedures imposed by a testing officer that are not part of the established protocol for the test cannot form the basis for a refusal when the suspect does not comply with them. The Ricard principle would apply to this case only if administration of the second test was not authorized by the DUI statutes. Caretto not only asserts that the disjunctive phrasing of section 28-695(A)(3) impliedly precludes more than one breath test, he also argues that there is no other statute or regulation which would authorize use of both methods. This assertion requ
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