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Caretto v. Arizona Department of Transportation2/17/1998
nce neither the accuracy nor the admissibility of BAC results in court. In fact, an officer would be placed in the position of guessing at his peril which of the two methods would likely be more accurate and less subject to attack from a defense expert, as well as which method would more likely be accepted in evidence by a Judge. Such a result would tend to frustrate the legislature's goals and could hardly have been intended by that body.
We therefore conclude that the officer here had the authority to request that Caretto submit to the second breath test. We further conclude that Caretto's refusal to perform the test justifies an implied consent suspension. Because the second test was authorized, we find Ricard's condemnation of non-authorized procedures irrelevant and Caretto's reliance on Ricard misplaced.
B. Clarification of Caretto's Right to an Attorney
The state also disputes the superior court's finding (2) that, pursuant to Gaunt v. Motor Vehicle Div., 136 Ariz. 424, 666 P.2d 524 (App. 1983), Caretto's refusal to submit to testing was excused because the officer did not clarify Caretto's apparent confusion as to whether he had a right to consult with an attorney before submitting to the second breath test. Gaunt held that when a DUI suspect shows confusion regarding his right to an attorney, the police must adequately warn the suspect such that a reasonable person under the circumstances would understand that the request for an attorney cannot delay submission to testing. 136 Ariz. at 426, 666 P.2d at 526.
Here, the ALJ found that when Caretto refused to submit to the second test and requested an attorney, Sayers warned him that he was "not entitled to further delay in taking the test(s) for any reason" (emphasis added). The ALJ further found that Sayers warned Caretto that "urther delay will be considered refusal to submit to the test(s)" and that a one-year suspension would result. We are of the opinion that a reasonable person in Caretto's circumstances would have understood from the officer's warning that delay "for any reason" would encompass delay to await consultation with a lawyer. The ALJ's implied finding to this effect is supported by competent evidence in the record, and the superior court erred in finding to the contrary.
III. Notice of Consequences
In finding (3), the superior court found the suspension invalid because the officer failed to warn Caretto prior to the second test request that a refusal would result in his license being suspended for one year. ADOT argues that neither the law nor the record supports the court's finding.
Caretto has failed to respond to this contention. When an appellee fails to address a debatable issue in its answering brief, such failure constitutes a confession of error. Reeb v. Interchange Resources, Inc., 13 Ariz. App 16, 19, 473 P.2d 818, 821, vacated on other grounds, 106 Ariz. 458, 478 P.2d 82 (1970). Because it is debatable whether a law officer has a duty to re-advise DUI suspects of the consequences of refusing a second breath test after a warning prior to a first test, Caretto's failure to address this argument in his response constitutes confession of error.
Notwithstanding, we agree with ADOT that the superior court's finding is not supported by the record. Sayers testified, and the ALJ specifically found, that after Caretto refused to submit to the second test, Sayers warned Caretto again that his license would be suspended for one year if he did not submit to the second breath test. Because the ALJ's Conclusion was supported by competent evidence in the record, the superior court's rejection of that finding was error. IV. Transcr
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