                             IN THE
             ARIZONA COURT OF APPEALS
                          DIVISION TWO


                     NICHOLAS A. SVENDSEN,
                        Plaintiff/Appellee,

                                  v.

            ARIZONA DEPARTMENT OF TRANSPORTATION,
                   MOTOR VEHICLE DIVISION,
                      Defendant/Appellant.

                      No. 2 CA-CV 2013-0143
                       Filed April 30, 2014

         Appeal from the Superior Court in Pima County
                         No. C20130044
            The Honorable Carmine Cornelio, Judge

                           REVERSED


                            COUNSEL

Nesci & St. Louis, PLLC, Tucson
By James Nesci
Counsel for Plaintiff/Appellee

Thomas C. Horne, Arizona Attorney General, Phoenix
By Misty D. Guille, Assistant Attorney General, Phoenix
Counsel for Defendants/Appellants


                            OPINION

Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Kelly and Judge Espinosa concurred.
                         SVENDSEN v. ADOT
                         Opinion of the Court

E C K E R S T R O M, Judge:

¶1           Appellant Arizona Department of Transportation (“the
department”) appeals from the superior court’s order reversing the
administrative suspension of appellee Nicholas Svendsen’s driver’s
license. For the following reasons, we reverse the superior court and
reinstate the suspension.

                    Factual and Procedural Background

¶2           We view the evidence in the administrative record in
the light most favorable to upholding the decision of the
administrative law judge (ALJ). Tornabene v. Bonine, 203 Ariz. 326,
¶ 2, 54 P.3d 355, 358 (App. 2002). In April 2012, Officer Bobby
Nielsen of the Tucson Police Department stopped Svendsen for
speeding. During the stop, the officer noticed several indications
that Svendsen might be intoxicated, including watery and bloodshot
eyes, a flushed face, a smell of intoxicants on his breath and person,
slurred speech, and difficulty standing and walking. After
performing field sobriety tests, Officer Nielsen arrested Svendsen
and advised him of his Miranda1 rights. He then read Svendsen an
Admin Per Se/Implied Consent Affidavit form. The officer asked if
Svendsen would submit to a breath test, and Svendsen did not
respond. Nielsen made several attempts to explain the form to
Svendsen and still received no verbal or physical response. Another
officer also attempted to solicit a response from Svendsen, but
likewise received no verbal or physical answer. The only physical
response Svendsen gave was to spit out his gum when asked.

¶3          Officer Nielsen told Svendsen that he was not entitled
to further delay and that such would be considered refusal, and
asked again if he would take the breath test. Svendsen still did not
respond. Svendsen’s license was suspended for refusing to consent




      1Miranda   v. Arizona, 384 U.S. 436 (1966).


                                    2
                       SVENDSEN v. ADOT
                       Opinion of the Court

to a breath test pursuant to Arizona’s implied consent statute, A.R.S.
§ 28-1321.2

¶4          Svendsen requested a hearing to review the order of
suspension. After that hearing, the ALJ affirmed the suspension.
Svendsen appealed to the superior court, which reversed the
suspension. This appeal followed.

                            Jurisdiction

¶5           The right of appeal exists only as provided by statute,
and this court has an independent duty to confirm whether we have
jurisdiction over a case. Meyer v. Campbell, 13 Ariz. App. 601, 601,
480 P.2d 22, 22 (1971) (per curiam). We accepted supplemental
briefs from the parties in this case addressing whether the
department has a statutory right of appeal to this court.

¶6           Section 28-1321(M) provides, in relevant part: “Within
thirty days after a suspension order is sustained, the affected person
may file a petition in the superior court to review the final order of
suspension or denial by the department in the same manner
provided in [A.R.S.] § 28-3317.” The latter statute provides, in
pertinent part:

            Unless the cancellation or revocation is
            mandatory under this chapter, a person
            who is denied a license or whose license is
            canceled, suspended or revoked by the
            department may seek judicial review
            pursuant to [the Administrative Review
            Act (ARA), A.R.S. §§ 12-901 through
            12-914], except that § 12-910, subsections A,
            B, D and E do not apply.

§ 28-3317(A).


      2Unless  otherwise indicated, we cite to the current version of
the statute, which has not changed in material part since Svendsen’s
license was suspended.


                                  3
                        SVENDSEN v. ADOT
                        Opinion of the Court

¶7             The department first asserts that we have jurisdiction
over its appeal from the superior court pursuant to A.R.S. § 12-
2101(A)(1). See Forino v. Ariz. Dep’t of Transp., 191 Ariz. 77, 79, 952
P.2d 315, 317 (App. 1997) (listing formerly numbered provision
among grounds for appellate jurisdiction); Ricard v. Ariz. Dep’t of
Transp., 187 Ariz. 633, 635, 931 P.2d 1143, 1145 (App. 1997) (same);
Diaz v. Ariz. Dep’t of Transp., 186 Ariz. 59, 61, 918 P.2d 1077, 1079
(App. 1996) (same); Braun v. Motor Vehicle Div., 161 Ariz. 487, 487,
779 P.2d 362, 362 (App. 1989) (same).3 That subsection, however,
grants a right of appeal in an action or special proceeding
“commenced in a superior court, or brought into a superior court
from any other court.”          § 12-2101(A)(1).     Section 28-3317(B)
designates the review proceeding in the superior court an
“appeal[].” As our supreme court aptly observed, “[t]he nature of
the appeal to the court . . . logically contemplates a prior proceeding
to be reviewed—an administrative hearing.” Campbell v. Chatwin,
102 Ariz. 251, 258, 428 P.2d 108, 115 (1967). Thus, an appeal to the
superior court does not originate or commence there. Stant v. City of
Maricopa Emp. Merit Bd., 234 Ariz. 196, ¶ 8, 319 P.3d 1002, 1005 (App.
2014). This is true regardless of the scope of review undertaken in
the superior court and regardless of whether the proceeding there
begins with the filing of a “complaint.” Anderson v. Valley Union
High Sch., Dist. No. 22, 229 Ariz. 52, ¶ 4, 270 P.3d 879, 882 (App.
2012). Even when an appeal involves a trial de novo, the superior
court is still functioning in an appellate capacity, meaning the action
does not originate or commence in that court for purposes of our
own appellate jurisdiction. Id.; State v. Eby, 226 Ariz. 179, ¶ 5, 244
P.3d 1177, 1179 (App. 2011); see Duncan v. Truman, 74 Ariz. 328, 331,
248 P.2d 879, 881-82 (1952); see also Ariz. Dep’t of Rev. v. Navopache
Elec. Co-op, Inc., 151 Ariz. 318, 321-22, 727 P.2d 813, 816-17 (App.
1986) (distinguishing superior court’s appellate and original
jurisdiction).




      3The  former § 12-2101(B) was renumbered § 12-2101(A)(1) in
2011. Anderson v. Valley Union High Sch., Dist. No. 22, 229 Ariz. 52,
n.1, 270 P.3d 879, 881 n.1 (App. 2012).


                                  4
                        SVENDSEN v. ADOT
                        Opinion of the Court

¶8           The department is correct, however, that an appeal lies
to this court under § 12-913 of the ARA. See State ex rel. Ross v.
Nance, 165 Ariz. 286, 287, 789 P.2d 1295, 1296 (1990). Although
Svendsen contends the department has no right of appeal, this
position is no longer correct in light of changes to our code. But
because we have discovered no precedent that expressly and clearly
establishes the existence of appellate jurisdiction under our current
implied consent law, see Anderson, 229 Ariz. 52, ¶ 6, 270 P.3d at 882,
we believe further discussion on the topic is warranted.

¶9            Our original implied consent statute was enacted in
1969 and codified in A.R.S. § 28-691. 1969 Ariz. Sess. Laws, ch. 41,
§ 1. It provided a right of appeal by referring to the former A.R.S.
§ 28-451, which granted a person whose license had been suspended
the right to “a hearing in the matter in the superior court.” 1973
Ariz. Sess. Laws, ch. 146, § 17, repealed by 1980 Ariz. Sess. Laws,
ch. 231, § 29; 1951 Ariz. Sess. Laws, ch. 115, § 29 (former Ariz. Code
Ann., § 66-283 (1939) (Supp. 1952)). Our supreme court determined
“the appeal provided for in this statute was adopted with the intent
of actually providing a trial de novo” in the superior court. Chatwin,
102 Ariz. at 257, 428 P.2d at 114.

¶10          The ARA “is not complementary to other statutory
review proceedings and if any independent statutory review is
provided, the Administrative Review Act is not applicable.” Sarwark
v. Thorneycroft, 123 Ariz. 1, 4, 596 P.2d 1173, 1176 (App. 1979),
approved per curiam, 123 Ariz. 23, 23, 597 P.2d 9, 9 (1979). Section
12-902(A)(1) still specifies that the ARA does not apply when a
statute that “confer[s] power on an agency . . . provides for judicial
review of the agency decisions and prescribes a definite procedure
for the review.” Based on this provision, we therefore found a right
of appeal exclusively to the superior court under these prior implied
consent and appeal laws, which made no reference to the ARA.
Sarwark, 123 Ariz. at 4, 596 P.2d at 1176; Campbell v. Superior Court, 18
Ariz. App. 216, 216-17, 501 P.2d 57, 57-58 (1972); Meyer, 13 Ariz.
App. at 602, 480 P.2d at 23.4


      4 During this period the Arizona Supreme Court apparently
took inconsistent positions on the question of appellate jurisdiction.

                                   5
                        SVENDSEN v. ADOT
                        Opinion of the Court

¶11          In 1980, however, the legislature amended a number of
laws     concerning     administrative     appeals,    including    the
aforementioned implied consent and appeal statutes.                The
legislature explained: “The purpose of this act is to regularize the
procedure whereby administrative decisions are judicially reviewed
by prescribing that appeals from certain administrative decisions are
to be governed by the administrative review act.” 1980 Ariz. Sess.
Laws, ch. 231, § 1. As amended, the statute governing implied
consent appeals, § 28-451, provided that a person whose license had
been suspended “shall have the right to seek judicial review of such
action pursuant to title 12, chapter 7, article 6,” or the ARA. 1980
Ariz. Sess. Laws, ch. 231, § 30. In light of this change, we expressly
acknowledged our appellate jurisdiction in a number of implied
consent cases. E.g., Forino, 191 Ariz. at 79, 952 P.2d at 317; Miernicki
v. Ariz. Dep’t of Transp., 183 Ariz. 542, 543, 905 P.2d 551, 552 (App.
1995); Braun, 161 Ariz. at 487, 779 P.2d at 362.

¶12          In 1996, the legislature deviated somewhat from this
policy of ARA regularization, but lawmakers did not expressly or
effectively eliminate the right of appeal to this court; that is, they
created no “definite procedure for . . . review” within the meaning of
§ 12-902(A)(1).5 That year, an amendment to § 28-451 changed some
language concerning implied consent appeals and exempted some
newly enacted procedural provisions of § 12-910 of the ARA,

Compare State v. Birmingham, 95 Ariz. 310, 311, 316, 390 P.2d 103, 103,
107 (1964) (characterizing appeal as special proceeding commenced
in superior court), modified on reh’g, 96 Ariz. 109, 113, 392 P.2d 775,
777-78 (1964), with Sarwark, 123 Ariz. at 3, 596 P.2d at 1175
(emphasizing administrative decisions not subject to review under
statute allowing appeals “in an action or special proceeding
commenced in a superior court”), and Him Poy Lim v. Duncan, 65
Ariz. 370, 371, 372-73, 181 P.2d 357, 358, 359 (1947) (finding statutory
appeal not commenced in superior court).
      5  The parties both contend that the newly amended
§ 12-902(A)(2) found in 2012 Ariz. Sess. Laws, ch. 322, § 2, does not
apply to this case. We need not address the meaning or applicability
of that subsection in this decision.


                                   6
                         SVENDSEN v. ADOT
                         Opinion of the Court

specifically subsections (A), (B), (D), and (E). See 1996 Ariz. Sess.
Laws, ch. 102, §§ 16, 23. In effect, this amendment made implied
consent appeals governed by the previous version of § 12-910. See
1996 Ariz. Sess. Laws, ch. 102, § 23; 1980 Ariz. Sess. Laws, ch. 72, § 1.
These changes to § 28-451 were then incorporated into the
renumbered A.R.S. § 28-3317, with some stylistic alterations. See
1997 Ariz. Sess. Laws, ch. 1, § 213; Koller v. Ariz. Dep’t of Transp., 195
Ariz. 343, n.3, 988 P.2d 128, 130 n.3 (App. 1999) (“[T]he two sections
are substantively identical.”). The general right of appeal found in
§ 12-913 of the ARA, therefore, remains in place under the terms of
the current § 28-3317(A).

¶13           The language of § 12-913 provides: “The final decision,
order, judgment or decree of the superior court entered in an action
to review a decision of an administrative agency may be appealed to
the supreme court.” Despite this allowance of an appeal to the
“supreme court,” the statute has been construed as also allowing an
appeal to the court of appeals, which was created after § 12-913 was
enacted. See J.H. Welsh & Son Contracting Co. v. Ariz. State Tax
Comm’n, 4 Ariz. App. 398, 400-01, 420 P.2d 970, 972-73 (1966)
(finding appellate jurisdiction when no “clear intent to the contrary
appears” in statute); see also Ariz. Podiatry Ass’n v. Dir. of Ins., 101
Ariz. 544, 547-48, 422 P.2d 108, 111-12 (1966) (observing jurisdiction
of court of appeals generally concurrent with that of supreme court);
Curtis v. Richardson, 212 Ariz. 308, ¶ 7, 131 P.3d 480, 483 (App. 2006)
(finding appellate jurisdiction based partly on appeals transfer
statute, A.R.S. § 12-120.22(A)). We therefore conclude we have
jurisdiction over the present appeal under § 12-913 of the ARA, as
we implicitly assumed in Koller, 195 Ariz. 343, ¶¶ 5-7, 988 P.2d at
129-30. See A.R.S. § 12-120.21(A)(1) (providing appellate jurisdiction
for cases “permitted by law to be appealed from the superior
court”).

                          License Suspension

¶14        When determining whether a license should be
suspended under our implied consent statute, the ALJ considers
only whether:




                                    7
                          SVENDSEN v. ADOT
                          Opinion of the Court

                    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.

                   (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). On review, the superior court is limited to the same
issues. Madsen v. Fendler, 128 Ariz. 462, 466, 626 P.2d 1094, 1098
(1981); see Berry v. Ariz. State Land Dep’t, 133 Ariz. 325, 326, 651 P.2d
853, 854 (1982) (“If the administrative agency has no jurisdiction to
consider a question, the appellate court has none, even if the
question would have come within the court’s original jurisdiction.”).
The standard of review to be applied by the court depends upon the
nature of its record on review. That record may be (1) limited to the
existing administrative record and “all questions of law and fact
presented” by it, § 28-3317(C); (2) enlarged, in the court’s discretion,
to include additional evidence admitted in the interests of “justice,”
id.; or (3) established through a trial de novo, but only when
warranted by the circumstances, see §§ 12-910(C), 28-3317(A). See
generally Foote v. Gerber, 85 Ariz. 366, 372, 339 P.2d 727, 730 (1959)
(noting three ways review could be accomplished under former
ARA § 12-910).

¶15         Where, as here, the superior court’s review is based
solely on the administrative record, with no additional evidence

                                   8
                        SVENDSEN v. ADOT
                        Opinion of the Court

being presented, then “[t]he scope of the Superior Court’s review is
limited to deciding whether the administrative action was illegal,
arbitrary, capricious, or involved an abuse of discretion.” Schade v.
Ariz. State Ret. Sys., 109 Ariz. 396, 398, 510 P.2d 42, 44 (1973). On
appeal, we undertake the same legal determination. State ex rel.
Winkleman v. Ariz. Navigable Stream Adjudication Comm’n, 224 Ariz.
230, ¶ 13, 229 P.3d 242, 249 (App. 2010).

¶16           Svendsen claims the ALJ erred in finding that he
refused to consent to the breath test. We will not reverse an
agency’s decision unless it is unsupported by substantial evidence,
and if the evidence supports two inconsistent factual conclusions,
there is substantial evidence to support either. Smith v. Ariz. Dep’t of
Transp., 146 Ariz. 430, 432, 706 P.2d 756, 758 (App. 1985).
Specifically, Svendsen asserts that, although he remained silent, his
conduct was sufficient to show that he expressly consented to the
breath test. Svendsen further claims that his silence cannot be taken
as refusal to consent because he remained silent pursuant to his
Miranda rights.

¶17           Section 28-1321(B) requires that a person “expressly
agree” to submit to a test. Although express agreement may be
given by “words or conduct,” “[f]ailing to actively resist or vocally
object to a test does not itself constitute express agreement.” Carrillo
v. Houser, 224 Ariz. 463, ¶ 19, 232 P.3d 1245, 1248-49 (2010). The ALJ
found, and the superior court agreed, “there are not sufficient facts
upon which [a] finding [of express non-verbal agreement] could be
made.”6


      6The  superior court, although agreeing that Svendsen had not
given express consent, nonetheless reversed the suspension of his
license, finding the combination of Miranda and admin per se
warnings was inadequate because it failed to inform Svendsen that
his right to remain silent did not apply to the “implied
consent/breath law.” Although the trial court’s thorough minute
entry raises a non-trivial concern, the adequacy of the two warnings
was not raised to the ALJ and therefore was not properly before the
superior court on appeal. See Madsen, 128 Ariz. at 466, 626 P.2d at
1098 (superior court limited to questions properly raised before

                                   9
                        SVENDSEN v. ADOT
                        Opinion of the Court

¶18          As evidence that he expressly consented to the test,
Svendsen relies on his own uncontroverted testimony that if he had
been ordered to begin the breath test, he would have done so. 7 But
had the officers ordered Svendsen to begin the test, he would have
been placed in the position of having to “actively resist or vocally
object” to avoid compliance. Id. Svendsen argues that § 28-1321
“imposes consent on him” and therefore requires a defendant “to
take affirmative steps to vitiate that consent.” This argument is in
direct contrast with the statutory language requiring “express”
agreement and our supreme court’s language in Carrillo. “[T]o
satisfy the statutory requirement, the arrestee must unequivocally
manifest assent to the testing,” Carrillo, 224 Ariz. 463, ¶ 19, 232 P.3d
at 1249, and “‘[a]nything substantially short of an unqualified,
unequivocal assent to an officer’s request . . . [to] take the test
constitutes a refusal to do so.’” Smith, 146 Ariz. at 432, 706 P.2d at
758, quoting State v. Pandoli, 262 A.2d 41, 42 (N.J. Super. Ct. App. Div.
1970). Accordingly, Svendsen’s testimony that he would have
complied with an order to begin the test does not show that he
expressly consented.

¶19           Svendsen also argues his silence cannot be taken as a
refusal to submit to the breath test because such silence was his right
under the Fifth Amendment. But the Fifth Amendment does not
apply to non-testimonial evidence, State v. Thornton, 187 Ariz. 325,
331, 929 P.2d 676, 682 (1996), and “refusal to take a chemical breath
test is not testimonial evidence.” State v. Superior Court, 154 Ariz.
574, 578, 744 P.2d 675, 679 (1987).           Furthermore, the Fifth

administrative hearing). Moreover, in his answering brief to this
court, Svendsen expressly disavowed this reasoning as a basis for
affirming the superior court’s ruling.
      7 At the administrative hearing and in the superior court,
Svendsen argued that his act of spitting out the gum showed that
“he physically complied with the requirements for a breath test.”
Both the ALJ and the court properly rejected this claim, with the
court noting “[t]he facts are not that he did so after being told that
this was the start of the test and its ‘deprivation’ period. The facts
are he was asked to remove the gum and he did.”


                                   10
                        SVENDSEN v. ADOT
                        Opinion of the Court

Amendment’s protection against self-incrimination is limited to
criminal consequences, United States v. Ward, 448 U.S. 242, 248
(1980), but a license suspension pursuant to our implied consent law
is a civil proceeding. Campbell v. Superior Court, 106 Ariz. 542, 550,
479 P.2d 685, 693 (1971). Thus, Svendsen’s Fifth Amendment right
to remain silent did not apply when he was asked to consent to the
test.

¶20          Given that Svendsen was asked several times whether
he would submit to the breath test and never gave any answer,
either by word or conduct, substantial evidence supported the ALJ’s
finding that Svendsen did not “expressly agree” to the test.
§ 28-1321(B). Accordingly, we must uphold the agency’s decision.8

                             Disposition

¶21         For the foregoing reasons, the judgment of the superior
court is reversed, the judgment of the ALJ is affirmed, and the
suspension of Svendsen’s license is reinstated.




      8In  his answering brief, Svendsen requests oral argument in
this matter. However, a request for argument must be filed in a
“separate instrument” within “ten (10) days after the date the reply
brief is due or filed,” whichever is earlier. Ariz. R. Civ. App. P. 18.
Svendsen failed to use a separate instrument, and we therefore deny
the request. See Stant, 234 Ariz. 196, n.7, 319 P.3d at 1008 n.7.


                                  11
