                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


              KEITH LESLIE DRUNASKY, Petitioner/Appellant,

                                         v.

ARIZONA DEPARTMENT OF TRANSPORTATION, Respondent/Appellee.

                              No. 1 CA-CV 17-0725
                                FILED 9-11-2018


            Appeal from the Superior Court in Maricopa County
                         No. LC2017-000006-001
                  The Honorable Patricia A. Starr, Judge

                                   AFFIRMED


                                    COUNSEL

Joe Saienni PC, Phoenix
By Joe Saienni
Counsel for Petitioner/Appellant

Arizona Attorney General’s Office, Phoenix
By Leslie A. Coulson
Counsel for Respondent/Appellee



                        MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Jon W. Thompson and Judge James B. Morse Jr. joined.
                           DRUNASKY v. ADOT
                           Decision of the Court

H O W E, Judge:

¶1             Keith Drunasky challenges the administrative suspension of
his driver’s license under A.R.S. § 28–1321(B) and the trial court’s decision
affirming the suspension. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             Drunasky was arrested on November 3, 2016, on suspicion of
operating a motor vehicle under the influence. Following the arrest, a law
enforcement officer asked Drunasky to consent to testing. Drunasky
refused, which resulted in a 12-month administrative suspension of his
driver’s license under A.R.S. § 28–1321(B).

¶3             Drunasky requested a hearing under A.R.S. § 28–1321(G) to
challenge the suspension. The investigating officer testified at the hearing
that he informed Drunasky that refusal to submit to testing would result in
his license’s suspension and also explained the information in “layman’s
terms.” Drunasky testified that he did not understand the officer’s
statements because of his partial hearing loss. He also testified, however,
that he was not certain that he even told the officer about his hearing loss;
he instead testified that he “may have said it once or—what, what once or
twice or told him, you know, I was hard of hearing but I wasn’t pushing the
point or anything like that[.]” Drunasky also admitted that he had “three or
four beers” that evening. The administrative law judge (“ALJ”) found that
the officer’s testimony was more credible than Drunasky’s testimony in
light of Drunasky’s alcohol consumption. The ALJ found that Drunasky
“was properly informed of the consequence of [his] refusal” and affirmed
the suspension.

¶4            The suspension commenced on January 20, 2017. Drunasky
appealed to the trial court, which stayed the suspension pending its ruling.
The trial court affirmed the ALJ’s ruling and lifted the stay as of October 26,
2017. Drunasky timely appealed.

                               DISCUSSION

¶5             A motorist arrested for “driving . . . under the influence of
intoxicating liquor or drugs” implicitly consents to testing “for the purpose
of determining alcohol concentration or drug content[.]” A.R.S. § 28–
1321(A); Carrillo v. Houser, 224 Ariz. 463, 463–64 ¶ 2 (2010). Following an
arrest, the motorist “shall be requested to submit to and successfully
complete any test or tests[.]” A.R.S. § 28–1321(B). “A failure to expressly



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                            DRUNASKY v. ADOT
                            Decision of the Court

agree to the test . . . is deemed a refusal.” Id. Refusal results in a 12-month
license suspension. Id.

¶6             The motorist may request an administrative hearing to
challenge the suspension. A.R.S. § 28–1321(D), (G), (K). In that hearing, the
ALJ must determine whether (1) the law enforcement officer had
reasonable grounds to believe that the motorist was driving or was in actual
physical control of a motor vehicle in this state while under the influence of
intoxicating liquor or drugs, (2) the motorist was placed under arrest, (3)
the motorist refused to submit to the test, and (4) the motorist was informed
of the consequences of refusal. A.R.S. § 28–1321(K); Tornabene v. Bonine ex
rel. Arizona Highway Dep’t, 203 Ariz. 326, 331–32 ¶ 9 (App. 2002).

¶7             If the trial court hears no new evidence and bases its decision
solely on the administrative record, as it did in this case, its review is limited
to determining whether the ALJ’s determinations were illegal, arbitrary,
capricious, or involved an abuse of discretion. Svendsen v. Ariz. Dep’t of
Transp., Motor Vehicle Div., 234 Ariz. 528, 533 ¶ 15 (App. 2014). We conduct
the same review on appeal to this Court. Id. We review the administrative
record in the light most favorable to sustaining the ALJ’s rulings; we will
only set those rulings aside if they are not supported by competent
evidence. Tornabene, 203 Ariz. at 329 ¶ 2.

¶8            Drunasky does not challenge the ALJ’s determinations
concerning the first three issues. He instead argues under Miranda v.
Arizona, 384 U.S. 436 (1966) and related cases that, due to his partial hearing
loss, he was not “adequately advised of his rights” or the consequences of
refusing to consent to testing. Miranda and its progeny do not apply because
license suspensions under A.R.S. § 28–1321 are civil matters. Campbell v.
Superior Court, 106 Ariz. 542, 550 (1971); Svendsen, 234 Ariz. at 534 ¶ 19. For
the same reason, Drunasky’s arguments under United States v. Botello-
Rosales, 728 F.3d 865 (9th Cir. 2013), a Miranda warning case, are not
persuasive.

¶9           Basic due process, however, requires that a person
understand what is being requested of him before he can be penalized for
refusing a request. State v. Superior Court of Pima Cty., 155 Ariz. 403, 407
(App. 1986), aff’d, 155 Ariz. 408 (1987). The record supports the ALJ’s
determination that Drunasky was informed of the consequences of refusal.
The investigating officer testified that he conveyed the information multiple
times, and Drunasky was not certain that he had informed the officer about
his hearing loss. And no evidence suggests that Drunasky requested




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                           Decision of the Court

assistance, via sign language or otherwise, to understand the information
presented to him.

¶10           Drunasky also admitted that he consumed multiple alcoholic
beverages before his arrest, which led the ALJ to credit the officer’s
recollections over his. We will not second guess the ALJ’s credibility
determinations. See Siler v. Ariz. Dep’t of Real Estate, 193 Ariz. 374, 382 ¶ 41
(App. 1998) (“On questions of credibility, the [ALJ] is the proper judge.”);
see also Paramo v. Indus. Comm’n of Ariz., 186 Ariz. 75, 79 (App. 1996) (“The
ALJ is the sole judge of witness credibility and resolves all conflicts in the
evidence.”). Thus, the trial court did not abuse its discretion.

                               CONCLUSION

¶11           For the foregoing reasons, we affirm. We award costs to
Arizona Department of Transportation upon compliance with Arizona
Rule of Civil Appellate Procedure 21.




                          AMY M. WOOD • Clerk of the Court
                           FILED: AA




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