IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION TWO
DENNIS WAY, ) 2 CA-CV 2002-0131
) DEPARTMENT B
Plaintiff/Appellant/Cross-Appellee, )
) OPINION
v. )
)
STATE OF ARIZONA, a body politic; )
ARIZONA DEPARTMENT OF )
TRANSPORTATION, an agency of the )
STATE OF ARIZONA, )
)
Defendants/Appellees/Cross-Appellants. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. C20015270
Honorable Ted B. Borek, Judge
AFFIRMED IN PART; VACATED IN PART
Monroe & Associates, P.C.
By Karl MacOmber Tucson
Attorneys for Plaintiff/Appellant/
Cross-Appellee
Terry Goddard, Arizona Attorney General
By Peter C. Gulatto Phoenix
Attorneys for Defendants/Appellees/
Cross-Appellants
P E L A N D E R, Presiding Judge.
¶1 Appellant Dennis Way appeals from the Pima County Superior Court’s order that
modified but otherwise affirmed an administrative law judge’s (ALJ) order suspending Way’s
driver’s license pursuant to A.R.S. § 28-1321, Arizona’s implied consent statute. We affirm that
part of the superior court’s order upholding the ALJ’s one-year suspension of Way’s driver’s
license, but vacate the superior court’s starting date of July 13, 2001, and reinstate the ALJ’s
starting date of August 28, 2001.
BACKGROUND
¶2 Although the facts are largely undisputed, we view them in the light most favorable
to sustaining the ALJ’s decision. See Tornabene v. Bonine ex rel. Arizona Highway Dep’t, 203
Ariz. 326, ¶2, 54 P.3d 355, ¶2 (App. 2002). On July 13, 2001, a police officer stopped Way’s
car and, after taking his driver’s license and conducting a preliminary investigation, arrested him
for driving under the influence of intoxicants (DUI). After transporting Way to a police
substation, an officer read to him admonitions from an “Admin Per Se/Implied Consent Affidavit”
form (the form). The admonitions essentially informed Way that Arizona law required him to
successfully perform tests of the officer’s choice to determine the amount of alcohol or drugs in
his body; that failure of the tests would result in the suspension of his driver’s license for at least
ninety days; and that refusal to submit to the tests would result in the suspension of his driver’s
license for at least one year. Way refused to take a breath test, stating that such a test was “an
invasion.”
¶3 Despite Way’s refusal, police did not issue him a copy of the form on the night of
his arrest. That form includes and serves as an order of suspension that notifies a DUI arrestee
of the impending license suspension and of his or her right to request a hearing to contest the
2
propriety of that suspension. The form also serves as a temporary driver’s permit. The arresting
officer eventually served Way with a copy of the form six weeks later, on August 28, 2001.
¶4 Way then requested a hearing pursuant to § 28-1321(K) to contest the propriety of
his license suspension. At the hearing, Way did not testify but argued that § 28-1321(D)(2)(b)
required police to issue the form to him when he was arrested and his license was taken. The
officer’s failure to do so, Way further argued, divested the Department of Transportation (DOT)
of jurisdiction and voided its suspension of his driver’s license. The ALJ rejected those arguments
and affirmed the August 28 order of suspension, stating that the requirements of § 28-
1321(D)(2)(b) “were eventually complied with, albeit belatedly.” The ALJ further found that,
“[a]lthough Mr. Way had surrendered his license on July 13th, technically his driving privileges
were not suspended at that point. He could have obtained a duplicate license through the [DOT]
and lawfully driven.”
¶5 On review pursuant to § 28-1321(M), the superior court agreed with the ALJ that
the officer’s failure to serve the order of suspension on Way the night of his arrest did not divest
DOT of jurisdiction to suspend Way’s driver’s license. But the court adjusted the termination date
for the suspension, reasoning as follows:
[C]onsidering [§ 28-1321] as a whole, its purpose is best served by
considering the language [of § 28-1321(D)(2)(b)] as directory. As
the statute provides for the suspension to be effective fifteen days
after 1) service of the order of suspension and 2) surrender of a
license, this Court concludes that failure to provide immediately
notice of suspension limits the allowable suspension to account for
the period [Way] had surrendered his license and was without a
temporary permit. Thus, this Court concludes that the ALJ
properly imposed a suspension, except as a matter of law the
suspension must be adjusted to account for the 46-day delay (July
13, 2001, to August 28, 2001) in providing notice of the suspension
to [Way], the period [Way] was without a temporary permit.
3
¶6 Way appeals from the superior court’s ruling, again arguing that DOT lacked
jurisdiction to suspend his license. 1 Way alternatively contends that the ALJ essentially suspended
his license for more than one year, which DOT may not do, and that the superior court lacked
authority to modify that ruling. The state cross-appeals, urging us to reinstate the ALJ’s order
because the superior court erred in concluding that suspension of Way’s license began on the date
he surrendered his driver’s license to police.
DISCUSSION
A. Interpretation of § 28-1321
¶7 “When reviewing an ALJ’s decision under the implied consent law, the superior
court is limited to determining whether the ALJ’s decision was ‘arbitrary, capricious, or an abuse
of discretion.’” Caretto v. Arizona Dep’t of Transp., 192 Ariz. 297, ¶7, 965 P.2d 31, ¶7 (App.
1998), quoting Edwards v. Arizona Dep’t of Transp./Motor Vehicle Div., 176 Ariz. 137, 140, 859
P.2d 760, 763 (App. 1993). “In turn, we review the superior court’s decision ‘to determine
whether the record contains evidence to support the judgment.’” Caretto, 192 Ariz. 297, ¶7, 965
P.2d 31, ¶7, quoting Havasu Heights Ranch & Dev. Corp. v. Desert Valley Wood Prods., Inc.,
167 Ariz. 383, 386, 807 P.2d 1119, 1122 (App. 1990). In cases such as this that involve statutory
interpretation, however, we are not bound by the conclusions of the ALJ or the superior court but,
1
Way does not challenge the ALJ’s findings that police had reasonable grounds to believe
that he had been driving while under the influence of intoxicating liquor or drugs; that police had
arrested him for DUI and requested that he submit to a breathalyzer test; that he had refused to
submit to that test; and that he had understood the consequences of his refusal to submit to breath
testing. See A.R.S. § 28-1321(K).
4
rather, our review is de novo. See Tornabene, 203 Ariz. 326, ¶12, 54 P.3d 355, ¶12; Forino v.
Arizona Dep’t of Transp., 191 Ariz. 77, 79, 952 P.2d 315, 317 (App. 1997).
¶8 Section 28-1321(A), A.R.S., provides that any person operating a motor vehicle
in this state and arrested for DUI impliedly consents “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.” Subsections (D) and (F) of the statute provide, in pertinent part:
D. If a person under arrest refuses to submit to the test designated
by the law enforcement agency as provided in subsection A of this
section:
....
2. The law enforcement officer directing the administration
of the test shall:
(a) File a certified report of the refusal with the
department.
(b) On behalf of the department, serve an order of
suspension on the person that is effective fifteen
days after the date the order is served.
(c) Require the immediate surrender of any license or
permit to drive that is issued by this state and that
is in the possession or control of the person.
....
(e) If a valid license or permit is surrendered, issue a
temporary driving permit that is valid for fifteen
days.
(f) Forward the certified report of refusal, a copy of
the completed notice of suspension, a copy of any
completed temporary permit and any driver
license or permit taken into possession under this
section to the department within five days after
the issuance of the notice of suspension.
5
....
F. On receipt of the certified report of refusal and a copy of the
order of suspension and on the effective date stated on the order, the
department shall enter the order of suspension on its records unless
a written request for a hearing as provided in this section has been
filed by the accused person. If the department receives only the
certified report of refusal, the department shall notify the person
named in the report in writing sent by mail that:
1. Fifteen days after the date of issuance of the notice the
department will suspend the person’s license or permit,
driving privilege or nonresident driving privilege.
2. The department will provide an opportunity for a
hearing if the person requests a hearing in writing and
the request is received by the department within fifteen
days after the notice is sent.
¶9 As he did below, Way argues that § 28-1321(D)(2)(b) requires a police officer to
serve the order of suspension contemporaneously with a DUI arrestee’s surrender of his or her
driver’s license; that this requirement is mandatory; and that, therefore, an officer’s failure to
comply with that requirement renders void all subsequent proceedings to suspend the license. Way
is correct that if a statutory provision is deemed mandatory, failure to follow it renders all
subsequent proceedings relating to that provision illegal and void. See Department of Revenue v.
Southern Union Gas Co., 119 Ariz. 512, 513-14, 582 P.2d 158, 159-60 (1978); Forino, 191 Ariz.
at 80, 952 P.2d at 318. Conversely, if a statutory provision is interpreted as merely directory,
“the failure to follow it has no invalidating consequence.” Forino, 191 Ariz. at 80, 952 P.2d at
318; see also Department of Revenue.
¶10 Section 28-1321(D)(2)(b) states that an officer “shall . . . serve an order of
suspension” on a DUI arrestee who refuses to submit to a designated test. But “use of the word
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‘shall’ does not automatically render a statute mandatory.” Forino, 191 Ariz. at 81, 952 P.2d at
319. “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). “To discern
the legislature’s intent, we may consider the effect and consequences of alternative construction.”
Forino, 191 Ariz. at 80, 952 P.2d at 318. “Language that is mandatory in form may be deemed
directory when such construction best serves the legislative purpose.” Id.; see also HCZ Constr.,
Inc. v. First Franklin Financial Corp., 199 Ariz. 361, ¶11, 18 P.3d 155, ¶11 (App. 2001). 2
¶11 We find the issue presented here analogous to that in Forino. In that case, a DUI
arrestee had been issued an order of suspension and timely requested a hearing on his license
suspension. At that time, the pertinent statute provided that the license suspension hearing “shall”
be held no later than “thirty days after receipt of the request” for hearing. 1994 Ariz. Sess. Laws,
ch. 317, § 19. The DOT, however, failed to hold the hearing within thirty days of Forino’s
request. The court held that the statutory language was directory and, as such, the failure to hold
the license suspension hearing within the statutory time period did not divest DOT of jurisdiction
to conduct the hearing and ultimately suspend Forino’s driver’s license. Forino, 191 Ariz. at 81,
952 P.2d at 319.
2
In HCZ Construction, on which Way relies, the court emphasized that the legislature had
used “both ‘may’ and ‘shall’ in the same paragraph of [the] statute,” A.R.S. § 12-1191(A),
thereby supporting an inference that “the Legislature acknowledged the difference and intended
each word to carry its ordinary meaning.” 199 Ariz. 361, ¶15, 18 P.3d 155, ¶15. In contrast,
§ 28-1321(D) has no such dichotomy and, therefore, we do not infer that the legislature
necessarily intended to ascribe an ordinary meaning to the word “shall” in that statute. And,
unlike HCZ Construction, Way has not cited or furnished any legislative materials that support his
proffered interpretation of § 28-1321(D)(2)(b) as mandatory.
7
¶12 As in Forino, this case concerns the effect of a delay in the civil, administrative
license suspension hearing process that might result in an ALJ sustaining or reversing DOT’s
order of suspension. See § 28-1321(L) through (O). Specifically, at issue here is the effect of
failing to immediately provide written notice to a DUI arrestee, who has refused to submit to
testing, that his or her driver’s license will be suspended and that the arrestee has the right to
request a hearing to contest that suspension. Forino dealt with the effect of a failure to comply
with the statutorily imposed deadline for such a hearing. We fail to see why, as a matter of
statutory interpretation, a delay at the beginning of the suspension process mandates a different
result than that reached in Forino.
¶13 Numerous Arizona cases support the conclusion that mandatory language relating
to the timeliness of a hearing generally should be construed as directory and that any delays in the
process will not invalidate all subsequent proceedings.3 See Department of Revenue (four-month
delay in tax appeal did not require dismissal); Lake Havasu City v. Arizona Dep’t of Health Servs.,
202 Ariz. 549, 48 P.3d 499 (App. 2002) (four-year delay by director of Department of Health
Services in issuing decision did not void subsequent proceedings); Francis v. Arizona Dep’t of
Transp., Motor Vehicle Div., 192 Ariz. 269, 963 P.2d 1092 (App. 1998) (reaffirming Forino);
Watahomigie v. Arizona Bd. of Water Quality Appeals, 181 Ariz. 20, 887 P.2d 550 (App. 1994)
3
Courts of other jurisdictions follow this approach as well. See Outdoor Resorts/Palm
Springs Owners’ Ass’n v. Alcoholic Beverage Control Appeals Bd., 273 Cal. Rptr. 748, 751 (Cal.
Ct. App. 1990) (thirty-day limitation directory, and statutes or rules establishing time within which
decision must be rendered directory “unless a consequence or penalty is provided for failure to
do the act within the time commanded”); Meyers v. Maul, 671 N.Y.S.2d 848, 849 (N.Y. App.
Div. 1998) (failure of state agency to issue determination within thirty days of hearing as required
by statute did not divest agency of jurisdiction because statute was directory).
8
(administrative regulations governing contents of notice of appeal not invalid despite failure to
adopt such regulations within statutorily prescribed period); Traylor v. Thorneycroft, 134 Ariz.
482, 657 P.2d 895 (App. 1982) (failure to hold implied consent hearing within twenty days of
petitioner’s request as required by agency rule did not invalidate license suspension proceedings).
We find those authorities persuasive in this context as well.
¶14 Interpreting § 28-1321(D)(2)(b) as directory also finds support in the “general rule”
that “if a statute ‘states the time for performance of an official duty, without any language denying
performance after a specified time, it is directory.’” Forino, 191 Ariz. at 81, 952 P.2d at 319,
quoting Watahomigie, 181 Ariz. at 32, 887 P.2d at 562; see also Department of Revenue, 119
Ariz. at 514, 582 P.2d at 160; Lake Havasu City, 202 Ariz. 549, ¶7, 48 P.3d 499, ¶7; cf. Lavidas
v. Smith, 195 Ariz. 250, ¶¶18, 21, 987 P.2d 212, ¶¶18, 21 (App. 1999) (statute specified that
“insubstantial failure to comply” did not affect subsequent proceedings). Indeed, unlike § 28-
1321(D)(2)(c), which “[r]equire[s] the immediate surrender” of the driver’s license of a DUI
arrestee who refuses to submit to testing, § 28-1321(D)(2)(b) does not specify when a law
enforcement officer must serve an order of suspension on that person. Nor does § 28-1321
express a legislative intent to require dismissal of all subsequent proceedings if an officer fails to
serve the order of suspension immediately upon a DUI arrestee’s surrender of his or her driver’s
license.4 In view of those omissions from the statute, an interpretation of § 28-1321(D)(2)(b) as
mandatory rather than directory would be inconsistent with prior case law and the aforementioned
4
Way does not contend that the officer’s failure to issue a temporary driving permit to him
when he was arrested and surrendered his driver’s license invalidated all further proceedings or
rendered DOT’s suspension void. See § 28-1321(D)(2)(e). In any event, the same reasoning that
leads us to construe § 28-1321(D)(2)(b) as directory would also apply to subsection (D)(2)(e).
9
general rule. We must interpret statutory language in a way that avoids such inconsistent or
untenable results. See State v. Estrada, 201 Ariz. 247, ¶16, 34 P.3d 356, ¶16 (2001).
¶15 Additionally, to interpret § 28-1321(D)(2)(b) as mandatory would not give effect
to the legislative purpose behind the implied consent statute—removal of drunk drivers from the
roads. See Campbell v. Superior Court, 106 Ariz. 542, 546, 479 P.2d 685, 689 (1971);
Tornabene, 203 Ariz. 326, ¶15, 54 P.3d 355, ¶15. A mandatory interpretation would provide a
technical basis for avoiding an otherwise proper license suspension. See Traylor, 134 Ariz. at
483, 657 P.2d at 896. We thus agree with the superior court that the legislative purpose of the
implied consent law is best served by “considering the language [of § 28-1321(D)(2)(b)] as
directory.” Accordingly, we hold that the officer’s failure to serve an order of suspension on Way
contemporaneously with the surrender of his driver’s license did not invalidate all further
proceedings or otherwise divest DOT of jurisdiction to subsequently suspend his license. 5
B. Duration of License Suspension
¶16 In light of our holding, we next address the issue raised by both Way’s appeal and
the state’s cross-appeal: whether the one-year suspension of Way’s license started when he
surrendered his license on the date of his arrest or, rather, six weeks later when he actually
5
We acknowledge that the pertinent statutes, though directory, apparently contemplate that
if an officer takes the driver’s license of a DUI arrestee who has refused testing, the officer
generally should serve the order of suspension and issue the temporary driving permit at that time,
rather than needlessly delaying the suspension process. See Tornabene v. Bonine ex rel. Arizona
Highway Dep’t, 203 Ariz. 326, ¶15, 54 P.3d 355, ¶15 (App. 2002) (sanction of license suspension
for refusal to submit to test intended to quickly revoke licenses of dangerous drivers). But,
depending on the circumstances, such a simultaneous exchange might not be feasible or advisable
if, for example, the arrestee is substantially impaired, has been hospitalized, or is otherwise
incapacitated.
10
received the order of suspension.6 Because resolution of this issue also involves statutory
interpretation, our review is de novo. Tornabene; Forino.
¶17 Way contends that because a driver is required to physically possess a driver’s
license “at all times when operating a motor vehicle,” A.R.S. § 28-3169(A), and because failure
to do so constitutes a misdemeanor and may subject such a person to arrest, see A.R.S. § 28-
1595(B); State v. Bonillas, 197 Ariz. 96, ¶7, 3 P.3d 1016, ¶7 (App. 1999), his license was
effectively suspended when he surrendered it to police the night he was arrested. Consequently,
Way argues, the ALJ was without authority to order Way’s license suspended for one year from
the date he received the order of suspension because the maximum period DOT may suspend a
person’s driver’s license is one year. Although DOT generally may not suspend a license for more
than one year, see State v. Banicki, 188 Ariz. 114, 116, 933 P.2d 571, 573 (App. 1997), we
disagree with Way’s premise that his license was effectively suspended when he surrendered it
to the officer on July 13.
¶18 Section 28-3001(16), A.R.S., states that “‘[s]uspension’ means that the driver
license and driver’s privilege to drive a motor vehicle on the public highways of this state are
temporarily withdrawn during the period of the suspension and until application for reinstatement
is made.” (Emphasis added.) In the context of the implied consent statute, a person’s privilege
6
Although neither party raises the issue, it appears that both the ALJ and the superior court
incorrectly determined the effective date of suspension of Way’s driver’s license. As stated on the
order of suspension, pursuant to A.R.S. § 28-1321(D)(2)(b), the effective date of suspension is
fifteen days after service of the order of suspension. Therefore, at the earliest, Way’s license
would have been suspended either fifteen days after July 13, 2001, assuming the officer had served
the order of suspension on Way then, or fifteen days after August 28, 2001, the date Way actually
was served. This discrepancy, however, does not affect our analysis of the issues presented. And
we do not modify the ALJ’s order because the state does not seek that relief.
11
to drive is withdrawn fifteen days after a law enforcement officer serves or the DOT issues the
written order of suspension. § 28-1321(D)(2)(b), (F)(1), (G)(3), (L).7 Such written notice is
consistent with both A.R.S. § 28-3306(C), which requires that, “[o]n suspending or revoking the
license of a person . . . the [DOT] shall notify the licensee in writing,” and with A.R.S. § 28-
3318(A)(1), which states DOT “shall provide written notice to a person possessing a driver license
. . . of . . .[a] suspension, revocation, cancellation or disqualification of the license or privilege
to operate a motor vehicle.” Thus, contrary to Way’s argument, the statutes are clear that the
surrender of one’s driver’s license, by itself, is not enough to constitute a “suspension”; there
must also be a withdrawal of the “privilege to drive a motor vehicle,” § 28-3001(16), which must
be preceded by a written notice.8
¶19 Moreover, we find no support in the record for Way’s contention that he “suffered
the prejudice of having his driving privileges effectively suspended for a period of 6 weeks before
the Order of Suspension was finally served upon him.” Cf. Forino, 191 Ariz. at 81, 952 P.2d at
319 (DUI arrestee “had the burden to show prejudice” from delayed license suspension hearing).
As the state points out, the record fails to show that Way did not drive during the interim between
7
In accordance with those applicable statutes, the form itself also informs a DUI arrestee
that, “[p]ursuant to ARS [§] 28-1321, your Arizona driver license/permit . . . is suspended
effective 15 days from Date Served.”
8
Way asserts that “[t]aking a driver’s license prevents a person from driving legally.”
From a practical, common sense standpoint, we agree that a reasonable person might so believe.
Our analysis of the pertinent statutes, however, leads us to conclude that surrender of a driver’s
license does not necessarily equate to a license suspension for purposes of § 28-1321. And, as
discussed in ¶19, the record does not reflect any prejudice to Way from his having surrendered
his driver’s license to the officer without also receiving a temporary driver permit until later.
Accordingly, we leave for another day the more difficult issue, not presented here, of what effect
any such showing of prejudice might have on the license suspension process or the starting date
of the suspension.
12
surrender of his license and his receipt of the suspension order. Nor does the record reflect that
Way drove without a license during that period or was cited or arrested for his failure to possess
a driver’s license. Way’s argument that he would have been subject to arrest during the forty-six
days in question merely presents a hypothetical, moot question that we decline to address. See
Contempo-Tempe Mobile Home Owners Ass’n v. Steinert, 144 Ariz. 227, 229, 696 P.2d 1376,
1378 (App. 1985) (“The court is not empowered to decide moot questions or abstract
propositions.”).
¶20 Finally, Way’s reliance on State ex rel. Collins v. Scott, 129 Ariz. 588, 589, 633
P.2d 397, 398 (1981), for the proposition that “the period of revocation [is] to run from the date
the license is surrendered,” is misplaced. In that case, a DUI arrestee had surrendered his license
on the same day he had acknowledged receipt of the order of revocation. Thus, the supreme court
did not need to reach the precise question raised here: whether the mere surrender of the driver’s
license constitutes a license suspension. Moreover, the statute at issue and analyzed in Scott,
former A.R.S. § 28-448, has since been renumbered and amended and, thus, was no longer in
effect when Way was arrested in July 2001. See A.R.S. § 28-3315; 1993 Ariz. Sess. Laws, ch.
178, § 21. In sum, absent any showing of prejudice, and because the statutes are clear that
surrender of a driver’s license, by itself, does not necessarily constitute or effectuate a withdrawal
of a driver’s privilege to operate a motor vehicle, § 28-3001(16), the superior court erred in
modifying the duration of Way’s license suspension.
DISPOSITION
¶21 For the foregoing reasons, we affirm the ALJ’s order suspending Way’s license for
one year commencing August 28, 2001, but vacate that part of the superior court’s ruling that
13
ordered Way’s one-year license suspension to begin on July 13, 2001. And, because Way has not
prevailed on appeal, we deny his request for an award of attorney’s fees pursuant to A.R.S. § 12-
348.
_______________________________________
JOHN PELANDER, Presiding Judge
CONCURRING:
_______________________________________
PHILIP G. ESPINOSA, Chief Judge
_______________________________________
WILLIAM E. DRUKE, Judge (Retired)
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