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

.

IN THE 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

KEITH LESLIE DRUNASKY
, Petitioner /Appell ant ,

v.

ARIZONA DEPARTMENT OF TRANSPORTATION
, Respondent /Appell ee

.
No. 1 CA

- CV 17

- 0725

Appeal from the Superior Court in Maricopa County

No. LC2017

- 000006

- 001 The Honorable Patricia A. Starr
, Judge

AFFIRMED

COUNSEL

Joe Saienni PC , Phoenix By Joe Saienni Counsel for Petitioner

/Appell ant

Arizona Attorney General ’ s Office
, Phoenix By Leslie A. Coulson C ounsel for Respondent

/Appell ee

MEMORANDUM DECISION
Judge Randall M. Howe delivered the decision of the Court, in which Presiding Judge Jon W. Thompson and Judge James B. Morse Jr. joined. FILED 9-11-2018DRUNASKY v. ADOT Decision of the Court

2 H O W E , Judge:

¶1 Keith Drunasky challenges the administrative suspension of his driver ’s license under A.R.S. § 28

– 1321(B) and the trial court’s decision affirming the suspension. For the following reasons , we affirm.

FACT S AND PROCEDURAL HISTORY

¶2 Drunasky was arrested on November 3, 2016
, on suspicion of operating a motor vehicle under the influence. Following the arrest, a law enforcement officer asked Drunasky to consent to testing. Drunasky refused, which resulted in a 12

- month administrative suspension of his driver ’s license under A.R.S. § 28

– 1321(B)

. ¶3 Drunasky requested a hearing under A.R.S. § 28

– 1321(G) to challenge the suspension. The investigating officer testified at the hearing that he informed Drunasky that refusal to submit to testing would result in his license’s suspension and also explained the information in “layman’s
terms

. ” Drunasky testified that he did not understand the officer’s
statements because of his partial hearing loss . He also testified, however, that he was not certain that he even told the officer about his hearing loss; he instead testified that he “may have said it once or

— what, what once or twice or told him, you know, I was hard of hearing but I wasn’t pushing the point or anything like that [

. ] ” Drunasky also admit ted that he had “three or four beers” that evening

. The administrative law judge (“ ALJ ”) found that the officer’s testimony was more credible than Drunasky’s testimony in light of Drunasky’s alcohol consumption. The ALJ found that Drunasky “was properly in formed of the consequence of [his] refusal” and affirmed the suspension.

¶4 The suspension commenced on January 20, 2017. Druna sky appealed to the trial court , which stayed the suspension pending its ruling

. The trial court affirmed the AL J’s ruling and lifte d the stay as of October 26, 2017. Drunask y timely appealed.

DISCUSSION

¶5 A motorist arrested for “driving

. . . under the influence of intoxicating liquor or drugs ” implicitly consents to testing “for the purpose of determining alcohol concentration or drug content [

. ] ” A.R.S. § 28

– 1321(A) ; Carrillo v. Houser , 224 Ariz. 463, 463

– 64 ¶ 2 (2010)

. Following an arrest, the motorist “shall be requested to submit to and successfully complete any test or t ests [

. ] ” A.R.S. § 28

– 1321(B)

. “A failure to expresslyDRUNASKY v. ADOT Decision of the Court

3 agree to the test . . . is deemed a refusal.” Id

. Refusal results in a 12

- month license suspension. Id

. ¶6 The motorist may req uest an administrative hearing to challenge the suspension. A.R.S. § 28

– 1321(D), (G), (K)

. In that hearing, t he ALJ must determin e whether (1) the law enforcement officer had reasonable grounds to believe that the motorist was driving or was in actual physical control of a motor vehicle in this state while under the influen ce of intoxicating liquor or drugs, (2) the motorist was placed under arrest, (3) the motorist refused to submit to the test, and (4) the motorist was informed of the consequences of refusal. A.R.S. § 28

– 1321(K) ; Tornabene v. Bonine ex rel. Arizona Highway Dep ’ t , 203 Ariz. 326, 331

– 32 ¶ 9 (App. 2002)

. ¶7 If the trial court hears no new evidence and bases its decision solely on the administrative record, as it did in this case, its review is limited to determining whether the ALJ ’ s determinations were illegal, arbitrary, capricious, or involved an abuse of discretion. Svendse n v. Ariz. Dep’t of Transp., Motor Vehicle Div. , 234 Ariz. 528, 533 ¶ 15 (App. 2014)

. W e conduct the same review o n appeal to this C ourt. Id

. We review the administrative record in the light most favorable to sustaining the ALJ ’ s rulings; we will only set those rulings aside if they are not supported by competent evidence. Tornabene , 203 Ariz. at 329 ¶ 2

. ¶8 Drunasky does not challenge the ALJ ’ s determinati ons concerning the first three issues. He instead argues under Miranda v. Arizona , 384 U.S. 436 (1966) an d related cases that , due to his partial hearing loss, he was not “adequately advised of his rights” or the consequenc es of refusing to consent to testing

. Miranda and it s progeny do not apply because license suspension s under A.R.S. § 28

– 1321 are civil matter s

. Campbell v. Superior Court , 106 Ariz. 542, 550 (1971) ; Svendsen , 234 Ariz. at 534 ¶ 19

. For the same reason, Drunasky ’ s arguments under United States v. Botello

Rosales , 728 F.3d 865 (9th Cir. 2013) , a Miranda warning case, are not persuasive.

¶9 B a sic due process , however, requires that a person understand what is being requested of him before he can be penalized for refusing a request. State v. Superior Court of Pima Cty

. , 155 Ariz. 403, 407 (App. 1986)
, aff’d
, 155 Ariz. 408 (1987)

. T he record supp orts the ALJ ’ s determinat ion that Drunasky was informed of the consequences of refusal. The investigating officer testified that he conveyed the information multiple times , and Drunasky was not certain that he had informed the officer about his hearing loss

. And no evidence suggest s that Drunasky requestedDRUNASKY v. ADOT Decision of the Court

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

¶10 Drunasky also admitted that he consumed multiple alcoholic beverages before his arrest, which led t he ALJ to credit the officer ’ s recollection s over his. We will not second guess the ALJ ’ s credibility determination s

. See Siler v. Ariz

. Dep ’ t of Real Estate , 193 Ariz. 374, 382 ¶ 41 (App. 1998) (“On questions of credibility, the [ALJ] is the proper judge

. ”); see also Paramo v. Indus. Comm’n of Ariz

. , 186 Ariz. 75, 79 (App. 1996) (“The ALJ is the sole judge of witness credibility and resolves all conflicts in the evidence.”). T hus , the trial court did not abuse its discretion.

CONCLUSION

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

.