IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO WENDY LYN TORNABENE, Plaintiff/Appellee,

v. LARRY BONINE, ex rel . ARIZONA HIGHWAY DEPARTMENT, and MOTOR VEHICLE DIVISION a

ka ARIZONA DEPARTMENT OF TRANS PORTATION, Defendants/Appellants. ) ) ) ) ) ) ) ) ) ) ) ) ) 2 CA-CV 2001-0124

DEPARTMENT B O P I N I O N

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 Stephen Paul Barna

rd Phoenix Attorneys for Defendants/Appellants Tucson Attorney for Plaintiff/Appellee P E L A N D E R, Judge. ¶1 The Arizona Department of Tr ansportation, Motor Vehicle Division (MVD), appeals from a Pima County Sup erior Court order vacating

the suspension of ap

pellee Wendy Lyn1 In Pinedo v. Arizona Dep artment of Transport

ation , 200 Ariz. 95, 23 P .3d 90 (App. 2000), this court addressed a virtually identical issue under A.R.S. § 28-1385(I), which app lies when testing of a motoris

t’s blood alcohol

concentration produc

es a result that ex

ceeds the legal limit for driving. We concl

uded in Pinedo

that both the ALJ and superior court had exceededthe limitedscope of per tinent issue s under § 28-1385(I) “b y considering the con

stitutionality of

the stop.” Id. at ¶4. Our supreme cou rt later ordered the Pinedo

opinion depublished but otherwise denied review. 201 Ariz. 474 , 38 P.3d 12 (2002). That order, although depri

ving Pinedo

of any precedential force or effect, “was, at best, ambiguous” and does not control our resolution of this case. Martine

z v. Ind ustrial 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 Tornabene’s driv er ’s license by a MVD administrative law judge (ALJ). This case presents an iss ue of first impressi

on in Arizona: does th

e alleged unconsti

tutionality of a la

w enforcement officer’s stop of a vehicle invalidate the state’s subsequent suspension of the motoris t’s d river’s license, pursuant to A.R.S. § 28-1321, based on the motorist’s refusal to submit to a breath test afterhaving been arrested for driving under the influence of alcohol (DUI)? 1 The ALJ implicitly answered that question in the negative. On rev

iew, 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 disagr ee with that conclu

sion, we reverse th

e superior court’s o

rder and reinstate the ALJ ’s license suspe nsion order. BACKGROUND ¶2 We view the evidence i n the MVD administrat

ive record

in the light most favorable to sustaining the ALJ ’s decision, which “may be set aside

only if it is unsupport

ed by competent evidence.” Ontiveros v. Ariz ona Dep’t of Transp. , 151 Ariz. 542, 543, 729 P.2d 346, 347

(App. 1986). See also Owen v. Cre edon , 170 Ariz. 511, 512, 826 P.2d 808, 809 (App. 1992). On the eveningof September 4, 2000, Tucson Airport Authori ty Police (TAAP) r

eceived a telephon

e tip2 TAAP OfficerPrice testified

that he believed the

caller may have bee

n aSouthwest Airline employee. 3 from an anonymous caller 2 who reported having seen a woman, whom the cal ler bel ieved to be intoxicated, staggering around the terminal. The caller descri bed the woman’s hair and clo

thing andreported that she wa s boarding a shuttle

van run by one of two extended-stay park ing 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 belie ved that the woman TAAP was seeking was at their exit booth. ¶3 Ivanoff

arrived at Park N’ Sa

ve at 7:48 p.m. and positioned h is patrol car at the payment booth in front of the vehicle, blocking its exit. Ivanoff then walked toward the passenger sideof the vehicle and noted that the driver’s clothes and hairstyle were consistent with the caller’s description

and that the car’s e

nginewas running and in drive,although the vehicle was stopped at the booth. As Ivanoff

reached the driver-side window, he told t he driver he wi sh ed to speak wi th her and asked her to s

tep out of the car. He

then noticed a very s

tro ng odor of alcohol emanating

from her face and mouth, that she appeared confused, that her speech was slurred, and that her eyes were blood

shot and w atery. Because I vanoff recognized t

hose as signs of intoxication, he called TAAP Officer Price to perform field sobriety tests. ¶4 Price arrived shortly thereaf ter and spoke with the driver, who identified herself

as Tornabene and conse

nted to undergo some fi

eld sobriety tests . Price smelled a strong odor

of alcohol on her breath and observed that her speech was slurred, that her eye s were watery and bloodshot, and that she swayed a bit as she stood. Pr ice perfor med the Horizontal Gaze3 Price apparently was referring to A.R.S. § 28-1381(A)(2), which currently criminalizes operating a motor vehicle if a person “has an al cohol concentratio n of 0.08 or more within t wo hours of driving.” At the time of Tornabene’s arrest in September 2000, that statute required an alcohol concentration of 0.10 or more. See2000 Ariz. Sess. La ws, ch. 4, § 2.

4Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 4 Nystagmus

(H GN) test on Tornabene and noted all six cues of impairment under the test. Tornabene

to ld Price she would not take any additional tests until she had spoken with her attorney. Price then assis ted Tornabene in cont

acting her a

tt orney by cellular telephone. After speaking with Tornabene, the

attorney spoke

with Price, inquiri

ng about testing proce

dures and what would happen if Tornab

ene refused additional testing. Price informed him that TAAP would decide whether to arrest T

ornabene for DUI base

d on the information th

ey had a t that po int. When the attorney as k ed Price to wait until he arrived before conducting any more tests, Price informed him that they were working under a two-hour time limit 3 in which to “ obtain so me breath, blood or other bodily substance” e vidence. The attor ney stated that he w

ould come out to meet them, and Price said, “fine.” ¶5 Price then spoke with his s upervisor, TAAP Ser

geant Riley, about t

he attorney’s

re quest. Riley told Price th at because of the t

ime constraints in

volved in a DUI invest

igation, Price could not delay the de cision whether to ar

rest Tornabene

until her attorney arrived. Based upon his observations and the results of the field sobriety test, PricearrestedTornabene at 8:37 p.m., handcuffed her, and read her the Mir anda 4 w arnings. He then rea d her the following statements from a

n “Admin Per Se/Impl

ied Consent Affida

vit” form: Ari zon alaw 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 concentrati on or drug5 Tornabene does not raise as an issue the lack of confidentiality du

ring the second telephone consultation with her attorney. 5

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 commer cial veh icle, your Arizona driver license/permit or non res ident driving privile ge 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 nonresi dent driving privilege will be suspended for 12 months, or for 2 years if there is aprior implied consent refusal, within the last 60 months, on your reco rd

. 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 w ould not answer until t

he lawyer arrived. A

t that point, Price

read the following statement to Tornabene, as req ui red by the form if the person being questioned “unreaso nably delays the complet ion of test”: “You a

re not entitled to fu

rther delay taking t

he tests for anyreason. Further delay will be considered refusal to submit to the tests.” Riley then drove Tornabene to pretrial service s 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 spea k with Tornabene. Be cause Tornabene wa

s in the back seat be

hind 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 should6

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 sho uld go to pretrial services so that Tornabene could be released to him that night. ¶7 When

Riley and Tornabene arrived at the jail, Riley as ked Pima County Pretrial Services staff

to send Tornabene’s attorney back to the testing area when he arrived. Staff refused that request, however, e

xplaining that they d

id 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 arriv ed but had been refuse

d entry to the testin

g

area. Riley informed Tornabene that staff would not allow the at

torney into the test

ing 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 aft

er Ivanoff had stoppe

d Tornabene, Riley r

ead and served on Tornabene

the order of suspens

ion. About ten or fift

een minutes later,after placing T or nabene in a holding cell, Riley spoke with Torn abene’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 hear ing pursuant to § 28-1321 (G) and (K), at whi ch only the three TAAP officers

testified, the ALJ entered written findings of fact and suspended Tornabene’s license for twelve months. O n Tornabene’s petit

ion for review pursua

nt to § 28-1321(M), after briefing and oral argument by co unsel, the sup

erio r court concluded that the police had lacked “probable cause to stop” Torna bene and that she had

not refused to take t

he breathalyzer te

st. On those two grounds, the court vacated the ALJ’s decision, finding i t “arbitrary, capr

icious and not supported by the evide

nce.” This appeal

by MVD followed.6 Section 28-1321 was f ormerly numbered A.R. S. § 28-691.

7 DISCUSSION I. Scope and Constituti onality of Administr

ative License Suspe

nsion Hearing A. Interpretation of Implied Consent Statute ¶9 Section

28-1 32 1(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 test

s of the person’s blo

od, breath, urine or other bodily substance fo r the purpose of deter

mining alcohol concentration

or drug content

if the person is arr

ested for any offense arising out of acts alleged to have been committed in violation of this c hapter . . . 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 tha t the person was driving or in actual physical control of a motor vehicle in this state . . . [w]hile under the i nfluence of intoxic

ating liquor

or drugs. If a motorist who has been arrested for DU I refuses to submit

to or unreasonably del

ays testing, the law enforcement of

ficer may serve an o

rder of suspen sion 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 reas o nable grounds to belie ve that the person was drivin

g or was in actual phy

sical cont rol of a motor vehicle in this

state either: (a) While under the influence of intoxicating liquor or drugs.8 (b) If the person is under twenty-one years of age, with spirituous liquor in t

he 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. Depart ment 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 gr

ounds to believe that

Tornabene had been dr

ivi ng whil e under the influence of intoxicating liquor or drugs; that she had been arrested and had been requested to submit to a breathalyzer te st; that s he had been warned that refusal to submit to or failure to successfully complete the test would result i

n suspension

of her driver’s license for twelve months; and, that she had ref

u sed to submit to the test. Consequently, the ALJ suspended Tornabene’s license for twelve months. § 28-1321(B). ¶11 On

review, the

superior court vaca

ted the ALJ’s order . Citing State v. Altieri , 191 Ariz. 1, 951 P.2d 866 (1997), t he court found that TA

AP had “lackedsufficient probable cause to stop [Tornabene] on suspicion of [DUI] pursuant to A.R.S. § 28-1381.” Therefore, the cou rt ruled, the police had “no legal basis to demand that she ta ke the breathaly[z

]er test.” The su

perior court implicitly c

oncluded t

hat 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 intoxica ting liquor,” as req uired under § 28-7 Although Tornab ene’ s counsel questione d the TAAP officers

at the license sus

pension hearingabout the circumsta nces surrounding the s

top, we note that Tornabene did not specifically raise or argue any Fourth Amen dment issues in the

administrative pro

ceedings b efore the ALJ. Her failure to do so arguably waived those issues. Pavlik v. Chinle Unified Sc

h. Dist. No. 24 , 195 Ariz. 148, ¶8, 985 P.2d 633, ¶8 ( App. 1999). But by

failing to obj ect on that basis to Tornabene’s Fourth Amendment argum ents either in supe

rior cour t or on appeal, MVD has “waived [any] waiver argument” it otherwise could have made. Id. at ¶28. 9 1321(K)(1)(a), als o requ ires 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 lim its the scope of issues for administrative review. Tornabene counters that the validity of

the stopwas necessarily part of the superior cou

rt ’s review, asserting that under the Fourth Amendment to the United States Constitution, “reasonable grounds to believe a person wa s driving while under t

he 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 subj ect to our de novo review. In re United States Currency in the Amoun t o f $315,900.00 , 183 Ariz. 208, 211, 902 P .2d 351, 3 54 (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 nonconsti tutional grounds if po ssible,” we firs

t address the stat

utory issue of whethe

r § 28- 1321(K) required the ALJ to de termine 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).8 Tornabene does not conten d TAA P lacked probable ca use to arrest her fo

r DUI. But assuming the requisite showing of “reasonable grounds” under § 28-1321(K)(1) is equivalent to aprobable cause standard, see Pearson v. Moto r 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 ¶13 “Our

primary goal in interpreting statutes is to discern and give eff ect to legislativ

e intent.” Hobson v. Mid-Centur y 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 ‘thestatute’s context, subject matter, historical back ground, effects, conseq

uences, spirit, a

nd 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 administ

rative license suspension hearing “shall include only

the issues” set f

orth therein, which do not include any issues relating to the validity of the law enforcement offic er’s stop of

the motorist’s vehicle. As MVD points out, this c ourt 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 correctl y observes, however, that the validity of the arrest was not at i

ssuein 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 establi sh reasonable susp

icion for the stop, we agree. ¶15 Even

if § 28-1321(K) were not c lear, other facto

rs support MVD’s argument. “Th

e purpose of the implied conse nt law is to remove

from Arizona highways those drivers who may11

be a menace to themselves a nd others bec ause of intoxication.” Sherrill , 165 Ariz. at 498, 799 P.2d at 839. “The sancti

on of administrative license suspension for refusal to submit to the test

was enacted to assure

that licenses of d

angerousdrivers are revoked q uickly, and

to increase the certainty that a drunk driver rec eives a penalty eve

n if that driver provi

de d n o evidence of intoxication.” Id ., citing Minutes of the Committee on Jud

iciary, Arizona Se

nate, 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 legislat ure determined that

speedy method of handl ing drunk dr ivers w as 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 toremove drunk drivers from the streets.”); Marzolf v. Superior Court , 185 Ariz. 144, 150, 912 P.2d 1373, 1379 (App. 1995) (license suspens

ion 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 langua ge of § 28-1321(K ), which limits the scope of the hearingto “only the [four] issues” prescribed therei n, combined with the o

bvious spirit, purpose, context, and effect

of the implied consent statute, see Norgord , establish a clea r legislative inte

nt to limit the iss ue s for administrati ve review, not expand

them to include cons

ideration of the constitutional validity of the investigatory stop leading to a criminal DUI arrest. As our supreme court has stated, a civi

l license suspens

ion proceeding for a DU I arre stee’s refusal of testing is “separate from and unrelated to ” a criminal prosec ution for DUI, and the “outcome of on e 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 § 28-1 321 or its underlying rationale to suggest any legislat ive intent to incorporate all the procedural protections available to a DUI criminal12

defendant into the civil lice

nse suspension proce

ss. Rather, the le

gi slatur e apparently intended such hearings to narrowly focus, inter alia, on whether the law enforcement offi cer “had reasonable grounds to believe” t hat the motorist had

been driving while un

der the influence of alcohol or drugs, regardless of the circumstances of the underlying stop. § 28-1321(K). ¶17 Accordingly, we hold that the va lidity o f an investigatory s top leading to a DUI arrest is outside the proper scope of an adm inistrative lice

nse suspension hear

ing under § 28- 1321(K). We find persuasive support for that conclusion in several out-of-state cases in which similarstatutes have been construed. See , e.g. , Fishbein v. Ko zlowski , 743 A.2d 1110, 1117 (Conn. 1999) (“[F]ailure to co mply with the require

ments for criminal

prosecution

as they apply to investigatory stops

should not pr event suspension of the license of a pe

rson arrested upon probable cause to believe that he was operating under the in fluence o f intoxicating liquor.”); Powell v. Secretary of State , 614 A.2d 1303, 1305 (Me. 1 992) (administrati ve hearing

officer in license suspensi

on proceeding need not

“determine the leg

ality of the stopor whether there was probable c ause to stop the vehicle”); Riche v. Director of Revenue , 987 S.W.2d 331, 333, 33 6 (Mo. 1999) (refusing to impose on license suspension sta tut e requirement of “‘ probable or reasonable cause to stop’ for dr ivers ov er twent

y-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 underthe [license suspension] statute.”); Commonwealth of Pennsy lvania, 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).13

¶18 In

contrast, and we thi

nk unwisely, other courts have superimposed on their license suspension

statutes a requirement th at the u nderlying 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 inte

nded to authorize the

suspension of driv ers’ 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 licen se revocati on 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 th e processing office

r had reasonable grou

nds to believe that t

he motorist was drivi

ng whil e intoxicated, the L

egislature assum

ed that a constitut

ional 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 proceed i ng, so as to preclude consideration of th

e validity of

the stop that otherw

ise would be relevan

t in the criminal context, we disagree. B. Fourth Amendment Cons iderations ¶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 withDUI the right to refuse t he test; it only give

s them the14

power to refuse and provide s for cert ain 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 disagre

e. As noted above, § 28- 1321(K) does not expressly require “a showing of reasonable susp icion for th e 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 assert

s that the Fourth Amendment appl ies to “all vehicl

e stop situations,” whether ultimatel y leading to crimina

l or civil proceedin

gs. “[T]he fourth a

mendment applies to any governmental actio n, not just one arisi

ng ou t 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 Amendmen t, however, does not invariably preclude the use of evidence derived fr

om the unconstitutiona

l conduct. Rather, t

he appropriate sanc

tion, if any, fora Fourth Amendment violation depends on the nature of the proceeding inwhich the illegally obtained evidence will be us ed and t he polic y considerations that weigh in favor of or against exclusion of that evid ence in such proceeding. As the Missouri court i

n Riche observed, “[t]he United States Supreme Cou rt has repeatedly he

ld that the use of evidence obtainedin violation of the fourth a

mendme nt does not violate t he Constitution,” de

pending on the nature of the proceedings. 987 S.W.2d at 334. See , e.g. , United States v. Le on , 468 U.S. 897, 906, 1049 The parties disagree about whetherTAAP 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 determine d it is outside the s

tatutory scope of

an administrative

license suspensi

on hearing. And, as discussedbelow, resolution of that issue is not constitutionally required in this context. 15 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 obtainedby officers acting in reasonabl

e reliance on sear

ch warrant issuedby detached and neutral magistrate but ultimately found to be invalid); Stone v. Powell , 428 U.S. 465, 482, 486, 96 S. Ct. 3037, 3046, 304 8-49, 49 L. Ed. 2d 1067, 1080-8 1, 1083 (1976) (no fede ral 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 opp ortunity 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 104 6, 1056-57 (1976) (in federal civil tax proceeding, exclusionary rule do es 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 li cense under § 28- 1321(K) would not necessari ly be invalid on that b

asis unless the

exclusionary rule were applied to the civil license suspensi on proceeding. Neith er the United State

s Supreme Court nor any Arizona court has applied th

e exclusiona

ry rule i n a purely civil proce eding 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 boards16

not required by federal

law to exclude evide

nce obtained in violation of Fourth Amendment); Immigration

& Naturalization Service v. Lopez- Men doza , 468 U.S. 1032, 1040-42, 104 S. Ct. 3479, 3484-85, 82 L. Ed. 2d 778 , 787-88 (1984) (in ci vil immigration depor

tation hearing , exclusionary

rule does not preclud

e evidence derived f

rom 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 egregio

us and repetitious a

bu se of state power, the exclusionary rule is inappl icable 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 “Theexclusionary 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 (197 4). Whether to apply

that ru le to a part

icular fact situa

tion 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. 57 6, 6 67, 832 P.2d 593, 684 (1992) (J. Corcoran, specially concurring). ¶25 Evidence obtained in violati on 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 130 4 (1997). Consequently, application of the exclusionary rule in civil license suspension

proceedings would likely have only a marg inal, if any, deterrent effect on police misconduct. See Fishbein , 743 A.2d at 1118; Motor Vehicle Admin. v. Richards , 739 A.2d 58,17

69 (Md. 1999); Powell , 614 A.2d at 1307; Riche , 987 S.W.2d at 335. Whe n a law enforcement off icer s tops 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 t he offending office

r’s zone of

primary interest,’” exclusion of such evidence i n that c ivil 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 “a

lready ‘punished’ by

the exclusion of the

evidence in the state criminal trial[, which] necessarily, is of substantialconcern 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 eviden ce from the licens

e suspension hearin

g 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 complicateand 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; seealso Riche , 987 S.W.2d at 334; Owen , 170 Ariz. at 513, 826 P .2d at 810. Based on ou r evalua ti on of the relevant policies and our wei

ghing of the relative

benefits and detri

ments, we hold that t

he exclusionary

rule, although required to preserv e and protect Fourth A mendment rights in th

e10 Although other jurisdictions have reacheda different conclu sion, in our view those courts gave undue weight to the add itional de terrent effe ct that they percei ved application of t

he 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 criminal context, should not be applied to civil license s uspension 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 abreathaly[z]er t est for any reason or forno reason at all.” First, law enforcement offic ers are only required to have a reasonable, articulable suspicion of crimin al activity, not the higher standa rd 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 statut

e plainly requires t

hat law enforcemen

t officers have

“reasonable grounds to believe” that a mot

orist was driving or i

n actual physical c

ontrol of a motor

vehicle while under the influence of alcoh

ol or drugs before requ

esting that the moto

rist submit to test

ing. § 28- 1321(A), (K). Finally, we find it unlikely that law enforcement

officers, lacking any reasonable suspicion of DUI, will assign sc

arce resources to r

andomly stop motorist

s on the chance that the officers will develo p reas onable 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, n

or are we aware of, a

ny cases or

statistical studies that suggest a patt ern of police misconduc t with respect to DUI

stops. The prospec

t of officers knowingly stopping veh icles, wit hout reasonable suspicion of criminal activity, for the purpose19

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 clearthat random stops of vehicles absent some articulable a

nd reasonable suspi

cion of wrongdoing are u nconstitution

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

acco rd Ri chcreek , 187 Ariz. at 503, 505, 930 P.2d at 1306, 1308; cf. City of Indianapolis v. Edmond , 531 U.S. 32, 121 S. Ct. 4 47, 148 L. Ed. 2d 333 (2000) (c ity’s drug interdic

tion checkpoints violated Fourth Amendment). Consequently, it strikes us as extremely unlikely that officers would use such tactic s merely with the hope o f obtaining license

suspensions, knowin

g that evidence of intoxic

ation obtained fro

m such an e ncounter would be inad missible in any criminal DUI prosecution and that clearly impermissible police conduct could subject officers to civil liability. See42 U.S.C. § 1983. ¶29 Review of the ALJ’s decis ion, bo th on appeal and at the superior court level, is limitedto whether that deci sion was “arbitrar

y, capricious, or

an abuse of discretion.” Edwards

v. Arizona Dep’t of T

ransp. , 176 Ar iz. 137, 140, 859 P.2d 760, 763 (App. 1993). See also Caretto v. Arizona Dep’t of Transp ., 192 Ariz. 297, ¶7, 9 65 P.2d 31, ¶7 (App. 1998) . The superio r court erred in so characterizing the ALJ’s ruling based on the allegedly invalid st op o f Tornabene’s vehicle. ¶30 Competent evidenc e, including the off icers’ observati

ons after the stop a

nd the results of the HGN test, supported the ALJ’s finding that TAAP hadreasonable grounds to believe that Tornabene had been dr

iving 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.2 d 171, 182 (1986)(HGN test sufficiently reliableto establish probable20

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, 9 30 (App. 1997). Tornabene

does not argue otherwi

se on appeal, nor does she

deny that TAAP

properly warned her of the consequences for refu sing 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 Submi

t to Testing ¶31 MVD bore the burden of establishing by a p re ponderance 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 andspeak to h

er attorney, who was present at the Pre-Trial Services Office adjacent to the area wh ere the breathaly[z]er test was to be conducted, was not a refusal to take the test,” reas onin g that a DUI arrestee has a federal and state constitutional right to “seek the adviceof counsel prior to taking a definitive

test.” Thus, the s

uperior court

overturned the ALJ’ s decision on that gr ound as well. ¶32 We first

note that our supreme court has consistently rejected the proposition that

amotorist who faces civil license suspension is entitled to assis tan ce of counsel in dec iding whether to submit to chemical breath testing. See State v. Juarez , 161 Ariz . 76, 80, 775 P.2d21

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, 692-9 3 (1971). In criminal

DUI proceedings, however, a qualifie d 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 consultwith an attorney, if there is no disrupti

on of the investigation, the defendant may exercise the right to counsel”). See also Hively v. Superior Court , 154 A ri z. 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 civi l 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, Tornabe ne did not ask to “see and s

peak” with her attor

ney at the jail, as the superior court found, but rather requestedhis presence

during the test. As the ALJ correctly ruled, becauseArizona motorists w ho face civil licensesuspension proceedi ngs have no right to consult with counsel about whether to submit to breath

testing, it follows that the y have no right to the pre sence of counsel dur

ing testing. Moreover, in view of the non-testimonial nature of chemical breath testing, even criminal suspects are not e

ntitled to presenc

e 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’s11 See§ 28-1381(A)(2). 22

attorney during testing, jail regulations apparently prevented that. When told that it would not be possible for her attorney to be pres ent duringher test, Tornabene again stated that she was unwilling to undergo te

sting 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 office r’s position would be

justified in belie

ving 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 co

nduct evidence nonco

operation with the test”). A

s the two-hour period 11 for establishing T ornabene’s blood alc

oh ol 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). Beca use the re cord 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 th at of th e 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 confus

ed about her right to counsel relating to chemical breath testing in light of the Miranda warnings she had receivedand her knowledge that her attorney was attempting to meet with her. She argues that,12 Unlike Ricard v. Arizona De partment 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] arbitra

ry restrictions upon

an arrested motoris

t’s behavior during t

he testing process . . . and then use[d] a violation of those restrictions as the b asis for determini ng that the motorist ha[d] refused the test.” 23 under these circumstances, Caretto and Gaunt v. Motor Vehicl e Division , 136 Ariz. 424, 666 P.2 d 524 (App. 1983), required TAAP to fu rt her admonish her that

requesting an attor

ney could not delay her submission to testing. The record does not support this contention. ¶37 Although

TAAP attemptedto facilitate as much communication as possible between Tornab ene and her attorney, bot h at the arrest sit

e and on the way to the j ail, jail regulat ions prevented the attorney’s pres ence at her testin

g. Tornabene

was aware of that

before Riley asked her to submit to testing

for the last time. Tornabene ha d al ready been warned tha t she was not entitl ed to further delay testing “for any reason,” and that “[f]urther delay will be considered refusal to submit to the tests ,” yet she ag ain stated that she would not take the test unless her attorney was present. 12 The record does not s upport Tornabene’s clai

m 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:24

____________________________ ___________ PHILIP G. ESPINOS

A, Chief Judge

____________________________ ___________ WILLIAM E. DRUKE, Presiding Judge