Allen v. Adot

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

ROBERT P. ALLEN,
Appellant,

v.

ARIZONA DEPARTMENT OF TRANSPORTATION,
Appellee.

No. 1 CA-CV 24-0182

FILED 10-24-2024

Appeal from the Superior Court in Maricopa County
No. LC2023-000156-001
The Honorable Joseph P. Mikitish, Judge

AFFIRMED

COUNSEL

Robert Allen, Phoenix
Appellant

Arizona Attorney General’s Office, Phoenix
By Gwyndolynn D. Gentry
Counsel for Appellee
 ALLEN v. ADOT
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Andrew M. Jacobs joined.

C R U Z, Judge:

¶1 Robert P. Allen appeals from the superior court’s decision
affirming the Arizona Department of Transportation’s (“ADOT’s”) decision
suspending his driver’s license for 90 days. For the following reasons, we
affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 In April 2022, a Safford Police Officer responded to a call to
check on a driver asleep in a vehicle at Circle K. The officer found Allen in
the driver’s seat of his vehicle with the engine running. The officer noticed
Allen had slurred speech and a slow demeanor. Allen agreed to do some
field sobriety tests and the officer observed six clues of impairment. The
officer also conducted a portable breath test on Allen, which showed he had
a blood alcohol content (“BAC”) of 0.151. Allen told the officer he had been
drinking. Allen was arrested and submitted to a blood draw, which
showed his BAC to be 0.211. Allen’s license was suspended for 90 days.

¶3 Allen requested a hearing at ADOT’s Executive Hearing
Office (“EHO”) to challenge the license suspension. Following a November
2022 hearing, the Administraive Law Judge (“ALJ”) issued a decision
affirming the license suspension. After Allen’s rehearing request was
denied, Allen filed a request for review and moved to set aside the ALJ’s
decision. The request for review was granted and a second hearing was
held in April 2023. After the second hearing, the ALJ issued a decision
affirming the suspension.

¶4 In the following days, Allen submitted additional rehearing
requests, which were denied. In May 2023, the ALJ issued supplemental
findings and an order affirming the denial of the rehearing requests. Allen
then appealed to the superior court, which affirmed the agency’s decision.

¶5 Allen timely appeals. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) section 12-120.21(A)(1).

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DISCUSSION

¶6 The superior court reviews an administrative decision to
determine if it is contrary to law, not supported by substantial evidence,
arbitrary and capricious, or an abuse of discretion. A.R.S. § 12-910(F). We
review the superior court’s decision to determine whether the record
contains substantial evidence to support it. Berenter v. Gallinger, 173 Ariz.
75, 77 (App. 1992). In doing so, we likewise consider whether the
administrative action was arbitrary, capricious, or an abuse of discretion.
Havasu Heights Ranch and Dev. Corp. v. Desert Valley Wood Products, Inc., 167
Ariz. 383, 386 (App. 1990). We review issues of law de novo. Potter v.
Arizona Dep’t of Transp., 204 Ariz. 73, 76, ¶ 8 (App. 2002).

¶7 Several issues concerning waiver frame our handling of this
appeal.

¶8 First, ADOT argues we should dismiss the appeal because
Allen’s opening brief does not comply with Arizona Rules of Civil
Appellate Procedure (“ARCAP”) Rule 13. Arguments must include
“contentions concerning each issue presented for review, with supporting
reasons for each contention, and with citations of legal authorities and
appropriate references to the . . . record.” ARCAP 13(a)(7)(A). “[W]e
consider waived those arguments not supported by adequate explanation,
citations to the record, or authority.” In re Aubuchon, 233 Ariz. 62, 64-65, ¶
6 (2013).

¶9 Second, Allen argues the ALJ withheld evidence and the
officer removed documents from the case file before submitting the file for
the hearing, which prejudiced Allen. But Allen does not support his
arguments with citations to the record or meaningful explanations.
Accordingly, Allen’s arguments regarding withholding evidence by either
the ALJ or the officer are waived. But we decline to dismiss Allen’s other
arguments for failure to comply with ARCAP 13. See Lederman v. Phelps
Dodge Corp., 19 Ariz. App. 107, 108 (1973); Clemens v. Clark, 101 Ariz. 413,
414 (1966).

¶10 Third, Allen raises two arguments for the first time on appeal:
(1) the blood test results sent to the EHO are inadmissible under A.R.S. §
28-1385(C); and (2) the law regarding actual physical control is too vague.
Failure to raise an issue at an administrative hearing that the administrative
tribunal is competent to hear, whether it is a constitutional or
nonconstitutional issue, waives that issue. Neal v. City of Kingman, 169 Ariz.
133, 136 (1991); see Estate of Bohn v. Waddell, 174 Ariz. 239, 249-50 (App.

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1992). Similarly, failure to raise such issues in superior court constitutes
waiver. See Harris v. Cochise Health Sys., 215 Ariz. 344, 349, ¶ 17 (App. 2007)
(“[A]n appellate court will not consider issues not raised in the trial court.”).
Therefore, we will not consider those two arguments, raised for the first
time on appeal.

¶11 We next explain why the three arguments Allen did not waive
establish no error.

I. EHO Jurisdiction

¶12 Allen argues that the EHO did not have jurisdiction to
conduct the license-suspension hearing because it did not set the date for
the hearing within 60 days of his request.

¶13 By statute, “[o]n the receipt of the person’s request for a
hearing, the department shall set the hearing within sixty days.” A.R.S. §
28-3306(D). Allen requested the hearing on April 29, 2022, and the notice
of hearing was issued on October 14, 2022 for a hearing on November 21,
2022. It is undisputed that the EHO exceeded the 60 day hearing-setting
requirement. “As a general rule, 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 v. Arizona Dep’t of Transp., 191 Ariz.
77, 81 (App. 1997) (internal citation and quotation marks omitted). If a
requirement relating to time is directory, it is not jurisdictional, unless there
is a clearly expressed intent to the contrary. Id. Accordingly, ADOT’s
failure to conduct a suspension hearing within the 60 day time period did
not divest the agency of jurisdiction absent a showing of prejudice to Allen.
Id.; see also Francis v. Arizona Dep’t of Transp., 192 Ariz. 269, 271-72, ¶ 9 (App.
1998).

¶14 Allen argues the delayed hearing prejudiced his defense of
the case because it allowed the officer time to obtain “unreliable hearsay
from the 9-1-1 caller nearly 8 months after the incident took place.” Allen,
however, does not state how he was prejudiced by the presentation of this
additional evidence or why it was a surprise. Nor has he provided the
transcript of the hearing necessary to review this argument. See Baker v.
Baker, 183 Ariz. 70, 73 (App. 1995) (“A party is responsible for making
certain the record on appeal contains all transcripts or other documents
necessary for us to consider the issues raised on appeal.”). “[I]n the absence
of a transcript, we presume the evidence and arguments presented at the
hearing support the trial court’s ruling.” Blair v. Burgener, 226 Ariz. 213,
217, ¶ 9 (App. 2010).

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¶15 An independent review of the factual record, as well as the
ALJ’s decision after the second hearing, the ALJ’s supplemental findings of
fact, and the superior court’s judgment affirming the ALJ’s decision, does
not show the delayed hearing prejudiced Allen. Therefore, the EHO’s
failure to conduct the hearing within the 60 day timeframe did not divest it
of jurisdiction.

II. Validity of Blood Sample

¶16 Allen argues there is insufficient evidence that the blood
sample tested by the DPS crime lab was valid. Allen argues that he testified
he saw the phlebotomist fill two tubes with blood, but the lab technician
documented there was only 1mL of blood in the tube and photo evidence
shows one tube arrived at the lab with a much lighter color indicating much
less blood. Allen contends this shows the samples were not appropriately
obtained, not in the same condition as when the blood was drawn, and not
viable for testing.

¶17 We do not independently weigh evidence, but instead
determine whether there is substantial evidence to support the ALJ’s
decision. Phillip B. v. Arizona Dep’t of Child Safety, 253 Ariz. 295, 298, ¶ 8
(App. 2022). The evidence presented at both hearings establishes two vials
of blood were drawn from Allen. The evidence also shows the chain of
custody of those vials from the time they were drawn until the time they
were tested at the crime lab. Finally, the evidence shows the tests were
conducted in accordance with proper procedures and indicated Allen’s
BAC was 0.211. On this record, the superior court could correctly
determine that substantial evidence supports the ALJ’s determination that
the BAC results of the blood samples tested were valid.

III. Actual Physical Control of the Vehicle

¶18 Allen argues the ALJ should have considered whether the
officer correctly believed, as opposed to had reasonable grounds to believe,
that he was in actual physical control of the vehicle.

¶19 The scope of a license suspension hearing includes a
determination of “[w]hether the officer had reasonable grounds to believe
the person was driving or was in actual physical control of a motor vehicle
while under the influence of intoxicating liquor. . .” A.R.S. § 28-1385(M)(1).
ADOT was required to prove by a preponderance of evidence that the
officer had reasonable grounds to believe that Allen had driven or had
actual physical control of his vehicle while intoxicated. See Potter, 204 Ariz.
at 76, ¶ 9. Therefore, the ALJ correctly determined the inquiry was whether

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the officer had reasonable grounds to believe, instead of correctly believed,
Allen was in actual physical control of his vehicle while under the influence
of alcohol.

¶20 Allen further argues no substantial evidence supports the
finding that the officer had reasonable grounds to believe he was in actual
physical control of his vehicle while intoxicated. We consider the totality
of the circumstances when examining whether a driver was in actual
physical control of a vehicle. State v. Love, 182 Ariz. 324, 326 (1995). It is the
role of the ALJ, not an appellate court, to determine the credibility of
witnesses and evidence. Siler v. Arizona Dep’t of Real Estate, 193 Ariz. 374,
382, ¶ 41 (App. 1998).

¶21 In Potter, this court held an officer had reasonable grounds to
believe an impaired motorist was in actual physical control of a vehicle
when the officer found Potter asleep in the tilted-back driver’s seat with the
keys in the ignition and the headlights on. 204 Ariz. at 75, ¶ 3. Similar to
Potter, the evidence submitted in this case shows Allen was in the driver’s
seat, with the engine running, asleep, and smelling of alcohol. Allen argues
the driver’s seat was fully reclined, which showed he had relinquished
control of the vehicle. The officer, however, stated she could see Allen’s
head when she drove up. The ALJ found the officer’s testimony credible
and did not find Allen’s testimony credible when it contradicted the
officer’s testimony. Regardless, because an impaired driver behind the
wheel of a vehicle with the engine running can wake up and drive at any
point, an officer could still have reasonable grounds to believe an impaired
motorist in these circumstances was in actual physical control of a vehicle
even if the driver’s seat was tilted back. See Potter, 204 Ariz. at 76, ¶ 3.
Therefore, substantial evidence supports the determination that the officer
had reasonable grounds to believe Allen was in actual physical control of
the vehicle.

CONCLUSION

¶22 For the foregoing reasons, we affirm.

AMY M. WOOD • Clerk of the Court
FILED: AGFV

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