                                IN THE COURT OF APPEALS
                                    STATE OF ARIZONA
                                      DIVISION TWO


WENDY LYN TORNABENE,                             )         2 CA-CV 2001-0124
                                                 )         DEPARTMENT B
                           Plaintiff/Appellee,   )
                                                 )         OPINION
                    v.                           )
                                                 )
LARRY BONINE, ex rel. ARIZONA                    )
HIGHWAY DEPARTMENT, and MOTOR                    )
VEHICLE DIVISION aka ARIZONA                     )
DEPARTMENT OF TRANSPORTATION,                    )
                                                 )
                       Defendants/Appellants.    )
                                                 )


              APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                     Cause No. C20005504

                              Honorable Michael J. Brown, Judge

                                          REVERSED


Janet Napolitano, Arizona Attorney General
 By Richard L. Rice and Peter C. Gulatto                                            Phoenix
                                                         Attorneys for Defendants/Appellants

Stephen Paul Barnard                                                                  Tucson
                                                              Attorney for Plaintiff/Appellee


P E L A N D E R, Judge.


¶1            The Arizona Department of Transportation, Motor Vehicle Division (MVD),

appeals from a Pima County Superior Court order vacating the suspension of appellee Wendy Lyn
Tornabene’s driver’s license by a MVD administrative law judge (ALJ). This case presents an

issue of first impression in Arizona: does the alleged unconstitutionality of a law enforcement

officer’s stop of a vehicle invalidate the state’s subsequent suspension of the motorist’s driver’s

license, pursuant to A.R.S. § 28-1321, based on the motorist’s refusal to submit to a breath test

after having been arrested for driving under the influence of alcohol (DUI)?1 The ALJ implicitly

answered that question in the negative. On review, however, the superior court ruled otherwise,

concluding that MVD may not suspend a DUI arrestee’s driver’s license if the underlying stop was

illegal. Because we disagree with that conclusion, we reverse the superior court’s order and

reinstate the ALJ’s license suspension order.

                                        BACKGROUND

¶2             We view the evidence in the MVD administrative record in the light most favorable

to sustaining the ALJ’s decision, which “may be set aside only if it is unsupported by competent

evidence.” Ontiveros v. Arizona Dep’t of Transp., 151 Ariz. 542, 543, 729 P.2d 346, 347 (App.

1986). See also Owen v. Creedon, 170 Ariz. 511, 512, 826 P.2d 808, 809 (App. 1992). On the

evening of September 4, 2000, Tucson Airport Authority Police (TAAP) received a telephone tip



       1
         In Pinedo v. Arizona Department of Transportation, 200 Ariz. 95, 23 P.3d 90 (App.
2000), this court addressed a virtually identical issue under A.R.S. § 28-1385(I), which applies
when testing of a motorist’s blood alcohol concentration produces a result that exceeds the legal
limit for driving. We concluded in Pinedo that both the ALJ and superior court had exceeded the
limited scope of pertinent issues under § 28-1385(I) “by considering the constitutionality of the
stop.” Id. at ¶4. Our supreme court later ordered the Pinedo opinion depublished but otherwise
denied review. 201 Ariz. 474, 38 P.3d 12 (2002). That order, although depriving Pinedo of any
precedential force or effect, “was, at best, ambiguous” and does not control our resolution of this
case. Martinez v. Industrial Comm’n, 192 Ariz. 176, ¶15, 962 P.2d 903, ¶15 (1998)
(depublication order signified supreme court “disapproved of ‘something,’ . . . but it was not clear
what”).

                                                 2
from an anonymous caller2 who reported having seen a woman, whom the caller believed to be

intoxicated, staggering around the terminal. The caller described the woman’s hair and clothing

and reported that she was boarding a shuttle van run by one of two extended-stay parking lot

operators near the airport. TAAP Sergeant Ivanoff contacted the booth attendants of both lots and

asked them to watch for a person fitting that description. Moments later, booth attendants at

Park N’ Save notified TAAP that they believed that the woman TAAP was seeking was at their

exit booth.

¶3             Ivanoff arrived at Park N’ Save at 7:48 p.m. and positioned his patrol car at the

payment booth in front of the vehicle, blocking its exit. Ivanoff then walked toward the passenger

side of the vehicle and noted that the driver’s clothes and hairstyle were consistent with the caller’s

description and that the car’s engine was running and in drive, although the vehicle was stopped

at the booth. As Ivanoff reached the driver-side window, he told the driver he wished to speak

with her and asked her to step out of the car. He then noticed a very strong odor of alcohol

emanating from her face and mouth, that she appeared confused, that her speech was slurred, and

that her eyes were bloodshot and watery.           Because Ivanoff recognized those as signs of

intoxication, he called TAAP Officer Price to perform field sobriety tests.

¶4             Price arrived shortly thereafter and spoke with the driver, who identified herself

as Tornabene and consented to undergo some field sobriety tests. Price smelled a strong odor of

alcohol on her breath and observed that her speech was slurred, that her eyes were watery and

bloodshot, and that she swayed a bit as she stood. Price performed the Horizontal Gaze


       2
       TAAP Officer Price testified that he believed the caller may have been a Southwest Airline
employee.

                                                  3
Nystagmus (HGN) test on Tornabene and noted all six cues of impairment under the test.

Tornabene told Price she would not take any additional tests until she had spoken with her

attorney. Price then assisted Tornabene in contacting her attorney by cellular telephone. After

speaking with Tornabene, the attorney spoke with Price, inquiring about testing procedures and

what would happen if Tornabene refused additional testing. Price informed him that TAAP would

decide whether to arrest Tornabene for DUI based on the information they had at that point.

When the attorney asked Price to wait until he arrived before conducting any more tests, Price

informed him that they were working under a two-hour time limit3 in which to “obtain some

breath, blood or other bodily substance” evidence. The attorney stated that he would come out

to meet them, and Price said, “fine.”

¶5               Price then spoke with his supervisor, TAAP Sergeant Riley, about the attorney’s

request. Riley told Price that because of the time constraints involved in a DUI investigation,

Price could not delay the decision whether to arrest Tornabene until her attorney arrived. Based

upon his observations and the results of the field sobriety test, Price arrested Tornabene at 8:37

p.m., handcuffed her, and read her the Miranda 4 warnings. He then read her the following

statements from an “Admin Per Se/Implied Consent Affidavit” form:

                 Arizona law requires you to submit to and successfully complete
                 tests of breath, blood or other bodily substance as chosen by the law
                 enforcement officer to determine alcohol concentration or drug


       3
        Price apparently was referring to A.R.S. § 28-1381(A)(2), which currently criminalizes
operating a motor vehicle if a person “has an alcohol concentration of 0.08 or more within two
hours of driving.” At the time of Tornabene’s arrest in September 2000, that statute required an
alcohol concentration of 0.10 or more. See 2000 Ariz. Sess. Laws, ch. 4, § 2.
       4
           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                                  4
               content. The law enforcement officer may require you to submit to
               two or more tests. You are required to successfully complete each
               of the tests.

               If the results of the tests indicate your alcohol concentration is .10
               or above or .04 or above in a commercial vehicle, your Arizona
               driver license/permit or nonresident driving privilege will be
               suspended for not less than 90 consecutive days.

               If you refuse to submit or do not successfully complete the specified
               tests, your Arizona driver license/permit or nonresident driving
               privilege will be suspended for 12 months, or for 2 years if there is
               a prior implied consent refusal, within the last 60 months, on your
               record. You are, therefore, required to submit to the specified
               tests.

When Price then asked the question on the form, “Will you submit to the specified tests?,”

Tornabene did not respond either yes or no. Instead, she told Price he should be reading this to

her lawyer and that she would not answer until the lawyer arrived. At that point, Price read the

following statement to Tornabene, as required by the form if the person being questioned

“unreasonably delays the completion of test”: “You are not entitled to further delay taking the

tests for any reason. Further delay will be considered refusal to submit to the tests.” Riley then

drove Tornabene to pretrial services at the Pima County Jail to process Tornabene’s arrest, with

the hope that Tornabene would submit to chemical breath testing there.

¶6             While en route to the jail, Tornabene’s attorney called Riley on her cellular

telephone and asked to speak with Tornabene. Because Tornabene was in the back seat behind

security screening, however, Riley informed the attorney that he would have to talk with her

unconfidentially by speaker telephone.5 Tornabene and her attorney discussed whether she should


       5
        Tornabene does not raise as an issue the lack of confidentiality during the second telephone
consultation with her attorney.

                                                 5
submit to a breathalyzer test. The attorney advised her to take the test, and Tornabene stated that

she would. Riley recommended, and the attorney agreed, that he should go to pretrial services

so that Tornabene could be released to him that night.

¶7             When Riley and Tornabene arrived at the jail, Riley asked Pima County Pretrial

Services staff to send Tornabene’s attorney back to the testing area when he arrived. Staff refused

that request, however, explaining that they did not permit any outside persons, including attorneys,

into the area where they kept arrested persons. At 9:28 p.m., as Riley prepared to administer the

breathalyzer test, Tornabene told Riley that she would not take the test without her attorney

present. By that time, the attorney apparently had arrived but had been refused entry to the testing

area. Riley informed Tornabene that staff would not allow the attorney into the testing area and

asked her again to take the test, but Tornabene repeated that she wanted her attorney present. At

9:36 p.m., just short of two hours after Ivanoff had stopped Tornabene, Riley read and served on

Tornabene the order of suspension. About ten or fifteen minutes later, after placing Tornabene

in a holding cell, Riley spoke with Tornabene’s attorney, who asked if he could once again try to

convince Tornabene to take the test. Riley told him it was too late.

¶8             After an evidentiary hearing pursuant to § 28-1321(G) and (K), at which only the

three TAAP officers testified, the ALJ entered written findings of fact and suspended Tornabene’s

license for twelve months. On Tornabene’s petition for review pursuant to § 28-1321(M), after

briefing and oral argument by counsel, the superior court concluded that the police had lacked

“probable cause to stop” Tornabene and that she had not refused to take the breathalyzer test. On

those two grounds, the court vacated the ALJ’s decision, finding it “arbitrary, capricious and not

supported by the evidence.” This appeal by MVD followed.

                                                 6
                                              DISCUSSION

I.     Scope and Constitutionality of Administrative License Suspension Hearing

       A.         Interpretation of Implied Consent Statute

¶9                Section 28-1321(A), A.R.S., Arizona’s implied consent statute,6 provides in

pertinent part:

                           A person who operates a motor vehicle in this state gives
                  consent . . . to a test or tests of the person’s blood, breath, urine or
                  other bodily substance for the purpose of determining alcohol
                  concentration or drug content if the person is arrested for any
                  offense arising out of acts alleged to have been committed in
                  violation of this chapter . . . while the person was driving or in
                  actual physical control of a motor vehicle while under the influence
                  of intoxicating liquor or drugs. The test or tests chosen by the law
                  enforcement agency shall be administered at the direction of a law
                  enforcement officer having reasonable grounds to believe that the
                  person was driving or in actual physical control of a motor vehicle
                  in this state . . . [w]hile under the influence of intoxicating liquor or
                  drugs.

If a motorist who has been arrested for DUI refuses to submit to or unreasonably delays testing,

the law enforcement officer may serve an order of suspension on the motorist, who then can

request an administrative license suspension hearing to review that order. § 28-1321(D), (G), (K).

Section 28-1321(K) limits the scope of such hearing to “only the issues of whether:”

                  1. A law enforcement officer had reasonable grounds to believe
                  that the person was driving or was in actual physical control of a
                  motor vehicle in this state either:

                       (a)   While under the influence of intoxicating liquor or drugs.



       6
           Section 28-1321 was formerly numbered A.R.S. § 28-691.

                                                     7
                    (b) If the person is under twenty-one years of age, with
               spirituous liquor in the person’s body.

               2.   The person was placed under arrest.

               3.   The person refused to submit to the test.

               4.   The person was informed of the consequences of refusal.

§ 28-1321(K)(1) through (4). See also Sherrill v. Department of Transp., 165 Ariz. 495, 497-98,

799 P.2d 836, 838-39 (1990); Owen, 170 Ariz. at 513, 826 P.2d at 810.

¶10            After the administrative license suspension hearing in this case, the ALJ found that

TAAP had had reasonable grounds to believe that Tornabene had been driving while under the

influence of intoxicating liquor or drugs; that she had been arrested and had been requested to

submit to a breathalyzer test; that she had been warned that refusal to submit to or failure to

successfully complete the test would result in suspension of her driver’s license for twelve months;

and, that she had refused to submit to the test. Consequently, the ALJ suspended Tornabene’s

license for twelve months. § 28-1321(B).

¶11            On review, the superior court vacated the ALJ’s order. Citing State v. Altieri, 191

Ariz. 1, 951 P.2d 866 (1997), the court found that TAAP had “lacked sufficient probable cause

to stop [Tornabene] on suspicion of [DUI] pursuant to A.R.S. § 28-1381.” Therefore, the court

ruled, the police had “no legal basis to demand that she take the breathaly[z]er test.” The superior

court implicitly concluded that the determination of whether the “law enforcement officer had

reasonable grounds to believe that [a motorist] was driving or was in actual physical control of a

motor vehicle . . . [w]hile under the influence of intoxicating liquor,” as required under § 28-




                                                 8
1321(K)(1)(a), also requires a predicate finding that the investigatory stop that ultimately led to

those grounds for belief was lawful.

¶12            MVD contends the superior court erroneously considered whether TAAP’s stop of

Tornabene’s vehicle had been lawful, arguing that § 28-1321(K) expressly limits the scope of

issues for administrative review. Tornabene counters that the validity of the stop was necessarily

part of the superior court’s review, asserting that under the Fourth Amendment to the United

States Constitution, “reasonable grounds to believe a person was driving while under the influence

means reasonable suspicions [sic] for the stop and probable cause for the arrest.”7 Whether the

superior court erred in considering the legality of the stop as a basis for vacating the ALJ’s

suspension order is a question of law that involves statutory interpretation and constitutional issues

that are subject to our de novo review.         In re United States Currency in the Amount of

$315,900.00, 183 Ariz. 208, 211, 902 P.2d 351, 354 (App. 1995); see also Koller v. Arizona

Dep’t of Transp., 195 Ariz. 343, ¶8, 988 P.2d 128, ¶8 (App. 1999). “Because we decide cases

on nonconstitutional grounds if possible,” we first address the statutory issue of whether § 28-

1321(K) required the ALJ to determine whether TAAP had legally stopped Tornabene’s vehicle.

Ramirez v. Health Partners of Southern Arizona, 193 Ariz. 325, ¶10, 972 P.2d 658, ¶10 (App.

1998).



         7
         Although Tornabene’s counsel questioned the TAAP officers at the license suspension
hearing about the circumstances surrounding the stop, we note that Tornabene did not specifically
raise or argue any Fourth Amendment issues in the administrative proceedings before the ALJ.
Her failure to do so arguably waived those issues. Pavlik v. Chinle Unified Sch. Dist. No. 24, 195
Ariz. 148, ¶8, 985 P.2d 633, ¶8 (App. 1999). But by failing to object on that basis to
Tornabene’s Fourth Amendment arguments either in superior court or on appeal, MVD has
“waived [any] waiver argument” it otherwise could have made. Id. at ¶28.

                                                  9
¶13            “Our primary goal in interpreting statutes is to discern and give effect to legislative

intent.” Hobson v. Mid-Century Ins. Co., 199 Ariz. 525, ¶8, 19 P.3d 1241, ¶8 (App. 2001).

“We first consider the language of the statute and, if it is unclear, turn to other factors, including

‘the statute’s context, subject matter, historical background, effects, consequences, spirit, and

purpose.’” Norgord v. State ex rel. Berning, 201 Ariz. 228, ¶7, 33 P.3d 1166, ¶7 (App. 2001),

quoting id.

¶14            Section 28-1321(K) expressly and clearly states that the scope of an administrative

license suspension hearing “shall include only the issues” set forth therein, which do not include

any issues relating to the validity of the law enforcement officer’s stop of the motorist’s vehicle.

As MVD points out, this court stated in Owen: “There is no requirement under the implied

consent statute that the arrest be a valid arrest or that [the arrestee] be convicted for the offense.”

170 Ariz. at 513, 826 P.2d at 810. Tornabene correctly observes, however, that the validity of

the arrest was not at issue in Owen, whereas the validity of the stop leading to Tornabene’s arrest

is at issue here.8 Nonetheless, to the extent the foregoing statement in Owen, although arguably

dicta, suggests that MVD is not statutorily required to establish reasonable suspicion for the stop,

we agree.

¶15            Even if § 28-1321(K) were not clear, other factors support MVD’s argument. “The

purpose of the implied consent law is to remove from Arizona highways those drivers who may



       8
        Tornabene does not contend TAAP lacked probable cause to arrest her for DUI. But
assuming the requisite showing of “reasonable grounds” under § 28-1321(K)(1) is equivalent to
a probable cause standard, see Pearson v. Motor Vehicle Division, 181 Ariz. 235, 237, 889 P.2d
28, 30 (App. 1995); Smith v. Arizona Dep’t of Transp., 146 Ariz. 430, 432, 706 P.2d 756, 758
(App. 1985), MVD made such a showing here. See ¶30, infra.

                                                  10
be a menace to themselves and others because of intoxication.” Sherrill, 165 Ariz. at 498, 799

P.2d at 839. “The sanction of administrative license suspension for refusal to submit to the test

was enacted to assure that licenses of dangerous drivers are revoked quickly, and to increase the

certainty that a drunk driver receives a penalty even if that driver provided no evidence of

intoxication.” Id., citing Minutes of the Committee on Judiciary, Arizona Senate, April 7, 1987,

H.B. 2273, at 14. See also Martin v. Superior Court, 135 Ariz. 258, 261, 660 P.2d 859, 862

(1983) (Arizona legislature determined that speedy method of handling drunk drivers was

imperative to combat highway carnage); cf. State v. Cabrera, 202 Ariz. 296 n.2, 44 P.3d 174 n.2

(App. 2002) (“[T]he goal of administrative [drivers’ license] suspension is to remove drunk drivers

from the streets.”); Marzolf v. Superior Court, 185 Ariz. 144, 150, 912 P.2d 1373, 1379 (App.

1995) (license suspension for DUI is meant to protect public by removing drunk drivers from the

road and is rationally related to remedial goal of increasing safety).

¶16            Thus, the unambiguous language of § 28-1321(K), which limits the scope of the

hearing to “only the [four] issues” prescribed therein, combined with the obvious spirit, purpose,

context, and effect of the implied consent statute, see Norgord, establish a clear legislative intent

to limit the issues for administrative review, not expand them to include consideration of the

constitutional validity of the investigatory stop leading to a criminal DUI arrest. As our supreme

court has stated, a civil license suspension proceeding for a DUI arrestee’s refusal of testing is

“separate from and unrelated to” a criminal prosecution for DUI, and the “outcome of one

proceeding usually will not have any effect on the outcome of the other.” Sherrill, 165 Ariz. at

498, 799 P.2d at 839. In sum, we find nothing in § 28-1321 or its underlying rationale to suggest

any legislative intent to incorporate all the procedural protections available to a DUI criminal

                                                 11
defendant into the civil license suspension process. Rather, the legislature apparently intended

such hearings to narrowly focus, inter alia, on whether the law enforcement officer “had

reasonable grounds to believe” that the motorist had been driving while under the influence of

alcohol or drugs, regardless of the circumstances of the underlying stop. § 28-1321(K).

¶17            Accordingly, we hold that the validity of an investigatory stop leading to a DUI

arrest is outside the proper scope of an administrative license suspension hearing under § 28-

1321(K). We find persuasive support for that conclusion in several out-of-state cases in which

similar statutes have been construed. See, e.g., Fishbein v. Kozlowski, 743 A.2d 1110, 1117

(Conn. 1999) (“[F]ailure to comply with the requirements for criminal prosecution as they apply

to investigatory stops should not prevent suspension of the license of a person arrested upon

probable cause to believe that he was operating under the influence of intoxicating liquor.”);

Powell v. Secretary of State, 614 A.2d 1303, 1305 (Me. 1992) (administrative hearing officer in

license suspension proceeding need not “determine the legality of the stop or whether there was

probable cause to stop the vehicle”); Riche v. Director of Revenue, 987 S.W.2d 331, 333, 336

(Mo. 1999) (refusing to impose on license suspension statute requirement of “‘probable or

reasonable cause to stop’ for drivers over twenty-one years of age”); Lopez v. Director, New

Hampshire Div. of Motor Vehicles, 761 A.2d 448, 450 (N.H. 2000) (“A valid arrest and traffic

stop, while vital to a criminal proceeding, is not a required predicate under the [license suspension]

statute.”); Commonwealth of Pennsylvania, Dep’t of Transp. v. Wysocki, 535 A.2d 77, 79 (Pa.

1987) (alleged illegality of vehicle stop does not prevent suspension of license for refusal to submit

to breathalyzer test).



                                                 12
¶18            In contrast, and we think unwisely, other courts have superimposed on their license

suspension statutes a requirement that the underlying stop be lawful, even when the statutes

contained no such condition. See, e.g., People v. Krueger, 567 N.E.2d 717, 722 (Ill. App. 1991)

(“[W]e are unwilling to conclude that the legislature intended to authorize the suspension of

drivers’ licenses based on the fruits of illegal arrests.”); Olson v. Commissioner of Pub. Safety,

371 N.W.2d 552, 556 (Minn. 1985) (investigatory DUI stops that result in license revocation

proceedings must comply with Fourth Amendment standards); State v. Lussier, 757 A.2d 1017,

1020 (Vt. 2000) (“[I]n permitting defendants in a civil suspension proceeding to dispute whether

the processing officer had reasonable grounds to believe that the motorist was driving while

intoxicated, the Legislature assumed that a constitutional stop would be a necessary predicate to

finding ‘reasonable grounds’ for suspicion of DUI.”). To the extent these cases suggest that the

legislature cannot limit the scope of issues in a civil license suspension proceeding, so as to

preclude consideration of the validity of the stop that otherwise would be relevant in the criminal

context, we disagree.

       B.      Fourth Amendment Considerations

¶19            Of course, a statute cannot circumvent a firmly established constitutional right. See

In re the Amount of $315,900.00, 183 Ariz. at 213, 902 P.2d at 356 (“A legislative body simply

cannot override a constitutional mandate.”). However, it is well established that driving in

Arizona is not a right, but a privilege, subject to legislative mandate. Benitez v. Dunevant, 198

Ariz. 90, ¶26, 7 P.3d 99, ¶26 (2000); Cabrera, 202 Ariz. 296, ¶13, 44 P.3d 174, ¶13. And “the

law does not give motorists charged with DUI the right to refuse the test; it only gives them the



                                                13
power to refuse and provides for certain consequences of such a refusal.” State v. Krantz, 174

Ariz. 211, 215, 848 P.2d 296, 300 (App. 1992).

¶20            Tornabene contends, however, that the Fourth Amendment precludes an

administrative license suspension absent “a showing of reasonable suspicion for the stop,” even

when the implied consent statute requires no such showing. We disagree. As noted above, § 28-

1321(K) does not expressly require “a showing of reasonable suspicion for the stop” as a

prerequisite for administrative suspension of a DUI arrestee’s license. To judicially engraft that

requirement into the statute, in our view, would be appropriate only if the Constitution compels

us to do so.

¶21            Tornabene correctly asserts that the Fourth Amendment applies to “all vehicle stop

situations,” whether ultimately leading to criminal or civil proceedings. “[T]he fourth amendment

applies to any governmental action, not just one arising out of possible criminal activity,”

including “[s]topping an automobile and detaining its driver to serve a traffic citation.” State v.

Boudette, 164 Ariz. 180, 184, 791 P.2d 1063, 1067 (App. 1990).

¶22            Violation of the Fourth Amendment, however, does not invariably preclude the use

of evidence derived from the unconstitutional conduct. Rather, the appropriate sanction, if any,

for a Fourth Amendment violation depends on the nature of the proceeding in which the illegally

obtained evidence will be used and the policy considerations that weigh in favor of or against

exclusion of that evidence in such proceeding. As the Missouri court in Riche observed, “[t]he

United States Supreme Court has repeatedly held that the use of evidence obtained in violation of

the fourth amendment does not violate the Constitution,” depending on the nature of the

proceedings. 987 S.W.2d at 334. See, e.g., United States v. Leon, 468 U.S. 897, 906, 104

                                                14
S. Ct. 3405, 3411-12, 82 L. Ed. 2d 677, 687-88 (1984) (exclusionary rule should not apply to bar

prosecution’s use of evidence obtained by officers acting in reasonable reliance on search warrant

issued by detached and neutral magistrate but ultimately found to be invalid); Stone v. Powell, 428

U.S. 465, 482, 486, 96 S. Ct. 3037, 3046, 3048-49, 49 L. Ed. 2d 1067, 1080-81, 1083 (1976)

(no federal habeas corpus relief available to state prisoner on ground that evidence obtained in

unconstitutional search or seizure was introduced at trial, when he or she previously had full and

fair opportunity at state level to litigate Fourth Amendment claim); United States v. Janis, 428

U.S. 433, 447, 96 S. Ct. 3021, 3028-29, 49 L. Ed. 2d 1046, 1056-57 (1976) (in federal civil tax

proceeding, exclusionary rule does not preclude evidence obtained by state officer in good faith

reliance on warrant later found defective).

¶23            Thus, assuming arguendo that TAAP lacked reasonable suspicion under the Fourth

Amendment to justify their stop of Tornabene’s vehicle based on an anonymous tip uncorroborated

by independent observations by the police, see Altieri,9 suspension of her license under § 28-

1321(K) would not necessarily be invalid on that basis unless the exclusionary rule were applied

to the civil license suspension proceeding. Neither the United States Supreme Court nor any

Arizona court has applied the exclusionary rule in a purely civil proceeding as a remedy for

violation of the Fourth Amendment. See Pennsylvania Bd. of Probation & Parole v. Scott, 524

U.S. 357, 363-64, 118 S. Ct. 2014, 2019-20, 141 L. Ed. 2d 344, 351-52 (1998) (parole boards



       9
         The parties disagree about whether TAAP had reasonable suspicion to stop Tornabene’s
vehicle under the principles set forth in Altieri. We do not address that issue, however, because
we have already determined it is outside the statutory scope of an administrative license suspension
hearing. And, as discussed below, resolution of that issue is not constitutionally required in this
context.

                                                15
not required by federal law to exclude evidence obtained in violation of Fourth Amendment);

Immigration & Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032, 1040-42, 104 S. Ct.

3479, 3484-85, 82 L. Ed. 2d 778, 787-88 (1984) (in civil immigration deportation hearing,

exclusionary rule does not preclude evidence derived from peaceful but allegedly unlawful arrest);

Nystrom v. Massachusetts Cas. Ins. Co., 148 Ariz. 208, 211, 713 P.2d 1266, 1269 (App. 1986)

(“[A]bsent evidence of egregious and repetitious abuse of state power, the exclusionary rule is

inapplicable to civil cases.”). We see no reason to do so here in the context of a purely civil

proceeding that does not implicate any constitutional rights.

¶24            “The exclusionary rule ‘is a judicially created remedy designed to safeguard Fourth

Amendment rights generally through its deterrent effect.’” State v. Fisher, 141 Ariz. 227, 240,

686 P.2d 750, 763 (1984), quoting United States v. Calandra, 414 U.S. 338, 348, 94 S. Ct. 613,

620, 38 L. Ed. 2d 561, 571 (1974). Whether to apply that rule to a particular fact situation

requires “weigh[ing] the benefits of vindicating a constitutional right through the deterrent effect

of the exclusionary rule against the possibility that other deterrents may exist which would

accomplish the same result at less cost to society.” State v. Bolt, 142 Ariz. 260, 267, 689 P.2d

519, 526 (1984); see also State v. Atwood, 171 Ariz. 576, 667, 832 P.2d 593, 684 (1992) (J.

Corcoran, specially concurring).

¶25            Evidence obtained in violation of the Fourth Amendment would be inadmissible in

criminal DUI proceedings. See Wysocki, 535 A.2d at 79; cf. State v. Richcreek, 187 Ariz. 501,

930 P.2d 1304 (1997). Consequently, application of the exclusionary rule in civil license

suspension proceedings would likely have only a marginal, if any, deterrent effect on police

misconduct. See Fishbein, 743 A.2d at 1118; Motor Vehicle Admin. v. Richards, 739 A.2d 58,

                                                16
69 (Md. 1999); Powell, 614 A.2d at 1307; Riche, 987 S.W.2d at 335. When a law enforcement

officer stops a motorist on suspicion of DUI, the officer’s “primary interest” is most likely

criminal prosecution, rather than the collateral consequence of license suspension. Fishbein, 743

A.2d at 1118-19. Because use in the license suspension hearing of evidence obtained through an

improper stop “‘falls outside the offending officer’s zone of primary interest,’” exclusion of such

evidence in that civil context would not significantly affect a police officer’s motivation in

conducting a vehicle stop. Id., quoting Janis, 428 U.S. at 458, 96 S. Ct. at 3034, 49 L. Ed. 2d

at 1063. The officer is “already ‘punished’ by the exclusion of the evidence in the state criminal

trial[, which] necessarily, is of substantial concern to him [or her].” Id. at 1119, quoting Janis,

428 U.S. at 448, 96 S. Ct. at 3029, 49 L. Ed. 2d at 1057.

¶26            Thus, exclusion of evidence from the license suspension hearing would have little

deterrent value as compared to the benefit of having otherwise reliable evidence that a motorist

has been driving while intoxicated available to the ALJ. Moreover, applying the exclusionary rule

in the administrative license suspension context would “unnecessarily complicate and burden” the

proceeding, which is designed primarily to focus on the issue of whether the motorist was

operating a vehicle under the influence of intoxicants. Powell, 614 A.2d at 1307; see also Riche,

987 S.W.2d at 334; Owen, 170 Ariz. at 513, 826 P.2d at 810. Based on our evaluation of the

relevant policies and our weighing of the relative benefits and detriments, we hold that the

exclusionary rule, although required to preserve and protect Fourth Amendment rights in the




                                                17
criminal context, should not be applied to civil license suspension hearings under § 28-1321(K).

See Fishbein, 743 A.2d at 1118-19; Powell, 614 A.2d at 1306-07; Riche, 987 S.W.2d at 335.10

¶27            We disagree with the superior court’s statement that, “to hold [that probable cause

is not required to stop a motorist under the implied consent statute] would allow the State virtually

the unlimited right to stop citizens and force them to take a breathaly[z]er test for any reason or

for no reason at all.” First, law enforcement officers are only required to have a reasonable,

articulable suspicion of criminal activity, not the higher standard of probable cause, before making

an investigatory stop. See Altieri, 191 Ariz. 1, ¶8, 951 P.2d 866, ¶8. See also State v. O’Meara,

198 Ariz. 294, ¶10, 9 P.3d 325, ¶10 (2000); Richcreek, 187 Ariz. at 503-04, 930 P.2d at 1306-

07. Second, the statute plainly requires that law enforcement officers have “reasonable grounds

to believe” that a motorist was driving or in actual physical control of a motor vehicle while under

the influence of alcohol or drugs before requesting that the motorist submit to testing. § 28-

1321(A), (K). Finally, we find it unlikely that law enforcement officers, lacking any reasonable

suspicion of DUI, will assign scarce resources to randomly stop motorists on the chance that the

officers will develop reasonable grounds to permit them to request the motorist to submit to

testing. See Fishbein, 743 A.2d at 1119.

¶28            The record does not reflect, nor are we aware of, any cases or statistical studies that

suggest a pattern of police misconduct with respect to DUI stops. The prospect of officers

knowingly stopping vehicles, without reasonable suspicion of criminal activity, for the purpose


       10
        Although other jurisdictions have reached a different conclusion, in our view those courts
gave undue weight to the additional deterrent effect that they perceived application of the
exclusionary rule in this context would provide. See Olson v. Commissioner of Pub. Safety, 371
N.W.2d 552, 556 (Minn. 1985); State v. Lussier, 757 A.2d 1017, 1026 (Vt. 2000).

                                                 18
of seeking to suspend motorists’ driver’s licenses if they refuse to submit to BAC testing is remote

at best. Indeed, the United States Supreme Court has made it clear that random stops of vehicles

absent some articulable and reasonable suspicion of wrongdoing are unconstitutional.            See

Delaware v. Prouse, 440 U.S. 648, 663, 99 S. Ct. 1391, 1401, 59 L. Ed. 2d 660, 673 (1979);

accord Richcreek, 187 Ariz. at 503, 505, 930 P.2d at 1306, 1308; cf. City of Indianapolis v.

Edmond, 531 U.S. 32, 121 S. Ct. 447, 148 L. Ed. 2d 333 (2000) (city’s drug interdiction

checkpoints violated Fourth Amendment). Consequently, it strikes us as extremely unlikely that

officers would use such tactics merely with the hope of obtaining license suspensions, knowing

that evidence of intoxication obtained from such an encounter would be inadmissible in any

criminal DUI prosecution and that clearly impermissible police conduct could subject officers to

civil liability. See 42 U.S.C. § 1983.

¶29            Review of the ALJ’s decision, both on appeal and at the superior court level, is

limited to whether that decision was “arbitrary, capricious, or an abuse of discretion.” Edwards

v. Arizona Dep’t of Transp., 176 Ariz. 137, 140, 859 P.2d 760, 763 (App. 1993). See also

Caretto v. Arizona Dep’t of Transp., 192 Ariz. 297, ¶7, 965 P.2d 31, ¶7 (App. 1998). The

superior court erred in so characterizing the ALJ’s ruling based on the allegedly invalid stop of

Tornabene’s vehicle.

¶30            Competent evidence, including the officers’ observations after the stop and the

results of the HGN test, supported the ALJ’s finding that TAAP had reasonable grounds to believe

that Tornabene had been driving under the influence of intoxicants. See Pearson v. Motor Vehicle

Division, 181 Ariz. 235, 238, 889 P.2d 28, 31 (App. 1995). See also State v. Superior Court,

149 Ariz. 269, 280, 718 P.2d 171, 182 (1986) (HGN test sufficiently reliable to establish probable

                                                19
cause to arrest for DUI); Pharo v. Tucson City Court, 167 Ariz. 571, 572-73, 810 P.2d 569, 570-

71 (App. 1990); State v. Superior Court, 191 Ariz. 182, 186, 953 P.2d 926, 930 (App. 1997).

Tornabene does not argue otherwise on appeal, nor does she deny that TAAP properly warned her

of the consequences for refusing to submit to testing in accordance with § 28-1321(B). But

because Tornabene does dispute the ALJ’s finding that she refused to submit to testing, we next

address that issue.




II. Refusal to Submit to Testing

¶31            MVD bore the burden of establishing by a preponderance of the evidence that

Tornabene refused to undergo chemical breath testing. See Sherrill, 165 Ariz. at 498, 502, 799

P.2d at 839, 843. Under § 28-1321(B), “[a] failure to expressly agree to the test or successfully

complete the test is deemed a refusal.” The superior court found that Tornabene’s “request to see

and speak to her attorney, who was present at the Pre-Trial Services Office adjacent to the area

where the breathaly[z]er test was to be conducted, was not a refusal to take the test,” reasoning

that a DUI arrestee has a federal and state constitutional right to “seek the advice of counsel prior

to taking a definitive test.” Thus, the superior court overturned the ALJ’s decision on that ground

as well.

¶32            We first note that our supreme court has consistently rejected the proposition that

a motorist who faces civil license suspension is entitled to assistance of counsel in deciding

whether to submit to chemical breath testing. See State v. Juarez, 161 Ariz. 76, 80, 775 P.2d

                                                 20
1140, 1144 (1989); Kunzler v. Miller, 154 Ariz. 570, 571, 744 P.2d 671, 672 (1987); Campbell

v. Superior Court, 106 Ariz. 542, 549-50, 479 P.2d 685, 692-93 (1971). In criminal DUI

proceedings, however, a qualified right to counsel has been established. See Kunzler v. Superior

Court, 154 Ariz. 568, 570, 744 P.2d 669, 671 (1987) (“while the accused does not have the right

to interrupt a continuing investigation in order to consult with an attorney, if there is no disruption

of the investigation, the defendant may exercise the right to counsel”). See also Hively v. Superior

Court, 154 Ariz. 572, 574, 744 P.2d 673, 675 (1987); McNutt v. Superior Court, 133 Ariz. 7,

9, 648 P.2d 122, 124 (1982). As noted above, a license suspension hearing under § 28-1321(K)

is a civil proceeding and, as such, Tornabene had no constitutionally-protected right to consult

with her attorney about taking the test. Campbell.

¶33            Even so, the record reflects that TAAP gave Tornabene two opportunities to consult

with her attorney before requesting that she submit to the test at the jail. In addition, Tornabene

did not ask to “see and speak” with her attorney at the jail, as the superior court found, but rather

requested his presence during the test. As the ALJ correctly ruled, because Arizona motorists who

face civil license suspension proceedings have no right to consult with counsel about whether to

submit to breath testing, it follows that they have no right to the presence of counsel during

testing. Moreover, in view of the non-testimonial nature of chemical breath testing, even criminal

suspects are not entitled to presence of counsel during the test. See Campbell, 106 Ariz. at 552

n.8, 479 P.2d at 695 n.8; State v. Lee, 184 Ariz. 230, 233-34, 908 P.2d 44, 47-48 (App. 1995).

¶34            The record supports the ALJ’s finding that Tornabene refused to submit to testing.

Before arriving at the jail, TAAP had advised her that unreasonable delay in taking the test would

be deemed a refusal. Although Sergeant Riley did not oppose the presence of Tornabene’s

                                                  21
attorney during testing, jail regulations apparently prevented that. When told that it would not be

possible for her attorney to be present during her test, Tornabene again stated that she was

unwilling to undergo testing without him.

¶35              An arrested motorist is deemed to have refused to submit to testing when his or her

conduct “is such that a reasonable person in the officer’s position would be justified in believing

that such motorist was capable of refusal and manifested an unwillingness to submit to the test.”

Campbell, 106 Ariz. at 553, 479 P.2d at 696; see also Sherrill, 165 Ariz. at 499, 799 P.2d at 840

(refusal occurs “when a driver’s words or conduct evidence noncooperation with the test”). As

the two-hour period11 for establishing Tornabene’s blood alcohol concentration was rapidly nearing

an end, Tornabene told Riley she was unwilling to take the test unless her attorney was present,

knowing that jail regulations prohibited the attorney’s presence. Under these circumstances, Riley

was reasonably justified in believing that Tornabene was manifesting an unwillingness to submit

to the test. See Willis v. State, 145 Ariz. 302, 701 P.2d 10 (App. 1985). Because the record

contains competent evidence to support the ALJ’s finding that Tornabene had “refused to submit

to the test” after having been requested to do so and warned of the consequences of a refusal,

“[t]he superior court [was] not permitted to substitute its judgment” on that issue for that of the

ALJ. Owen, 170 Ariz. at 512, 826 P.2d at 809. See also Ontiveros.

¶36              We are unpersuaded by Tornabene’s further contention that she was confused about

her right to counsel relating to chemical breath testing in light of the Miranda warnings she had

received and her knowledge that her attorney was attempting to meet with her. She argues that,



       11
            See § 28-1381(A)(2).

                                                 22
under these circumstances, Caretto and Gaunt v. Motor Vehicle Division, 136 Ariz. 424, 666 P.2d

524 (App. 1983), required TAAP to further admonish her that requesting an attorney could not

delay her submission to testing. The record does not support this contention.

¶37            Although TAAP attempted to facilitate as much communication as possible between

Tornabene and her attorney, both at the arrest site and on the way to the jail, jail regulations

prevented the attorney’s presence at her testing. Tornabene was aware of that before Riley asked

her to submit to testing for the last time. Tornabene had already been warned that she was not

entitled to further delay testing “for any reason,” and that “[f]urther delay will be considered

refusal to submit to the tests,” yet she again stated that she would not take the test unless her

attorney was present.12 The record does not support Tornabene’s claim of confusion, and we find

Gaunt and Caretto inapposite.

                                         DISPOSITION

¶38            We reverse the superior court’s order and reinstate the ALJ’s order that suspended

Tornabene’s driver’s license.



                                                  _______________________________________
                                                  JOHN PELANDER, Judge

CONCURRING:




       12
         Unlike Ricard v. Arizona Department of Transportation, 187 Ariz. 633, 639, 931 P.2d
1143, 1149 (App. 1997), on which Tornabene also relies, this case does not involve a breathalyzer
operator who “impose[d] arbitrary restrictions upon an arrested motorist’s behavior during the
testing process . . . and then use[d] a violation of those restrictions as the basis for determining
that the motorist ha[d] refused the test.”

                                                23
_______________________________________
PHILIP G. ESPINOSA, Chief Judge



_______________________________________
WILLIAM E. DRUKE, Presiding Judge




                                     24
