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

2

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).
SVENDSEN v. ADOT

Opinion of the Court

3

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.
SVENDSEN v. ADOT

Opinion of the Court

4

¶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).
SVENDSEN v. ADOT

Opinion of the Court

5

¶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

 

4During this period the Arizona Supreme Court apparently 

took inconsistent positions on the question of appellate jurisdiction. 
SVENDSEN v. ADOT

Opinion of the Court

6

¶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.
SVENDSEN v. ADOT

Opinion of the Court

7

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:
SVENDSEN v. ADOT

Opinion of the Court

8

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 
SVENDSEN v. ADOT

Opinion of the Court

9

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 
SVENDSEN v. ADOT

Opinion of the Court

10

¶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.

7At 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.”
SVENDSEN v. ADOT

Opinion of the Court

11

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.