Miles L. Kaufman v. John Halikowski, Director, Arizona Department of Transportation

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO

MILES L. KAUFMAN,
Plaintiff/Appellant,

v.

JOHN HALIKOWSKI, DIRECTOR, ARIZONA DEPARTMENT OF TRANSPORTATION,
Respondent/Appellee

No. 2 CA-CV 2023-0018
Filed July 25, 2023

Appeal from the Superior Court in Pima County
No. C20221733
The Honorable Richard E. Gordon, Judge

AFFIRMED

COUNSEL

Miles L. Kaufman, Tucson
In Propria Persona

Kristin K. Mayes, Arizona Attorney General
By Gwyndolynn D. Gentry, Assistant Attorney General, Phoenix
Counsel for Appellee
 KAUFMAN v. HALIKOWSKI
Opinion of the Court

OPINION

Judge O’Neil authored the opinion of the Court, in which Vice Chief
Judge Staring and Judge Sklar concurred.

O’ N E I L, Judge:

¶1 Miles Kaufman appeals from the superior court’s decision to
uphold the suspension of his driver license by the Arizona Department of
Transportation (ADOT), which an administrative law judge (ALJ) affirmed
after a hearing. We affirm the suspension.

BACKGROUND

¶2 Kaufman committed nine traffic violations in less than fifteen
months beginning on June 14, 2007. He committed the last of these
violations, a DUI, on August 27, 2008. Kaufman was arrested that day and
convicted of DUI on December 8, 2008. Based on that and other convictions,
he was imprisoned for the next thirteen years and released on August 31,
2021.

¶3 Three months after his conviction for DUI, Kaufman was
judged responsible for a speeding violation he had committed before his
arrest. By that time, he had been convicted or judged responsible for six
violations that counted for nineteen points against his license. The
remaining three violations, however, had not yet been adjudicated by the
time of his arrest. Kaufman was judged responsible for the remaining three
traffic violations on September 22, 2021, a little more than three weeks after
his release. These violations counted for an additional six points, bringing
the total points against his license to twenty-five.

¶4 Two days after these last adjudications, ADOT suspended
Kaufman’s driver license for twelve months. Kaufman requested a hearing
before an ALJ, who affirmed the suspension. The superior court upheld the
ALJ’s decision. This appeal followed. We have jurisdiction under A.R.S.
§§ 12-120.21(A)(1), 12-904, and 12-913. See Svendsen v. Ariz. Dep’t of Transp.,
Motor Vehicle Div., 234 Ariz. 528, ¶ 13 (App. 2014).

DISCUSSION

¶5 Kaufman maintains the suspension of his driver license is
contrary to law, barred by laches, and excessive. The superior court must

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Opinion of the Court

affirm an ALJ’s decision unless it “is contrary to law, is not supported by
substantial evidence, is arbitrary and capricious or is an abuse of
discretion.” A.R.S. § 12-910(F). We independently review the record to
determine whether it supports the administrative decision. See Parsons v.
Ariz. Dep’t of Health Servs., 242 Ariz. 320, ¶ 10 (App. 2017). We view the
facts in the light most favorable to upholding the agency’s decision, which
“may be set aside only if it is unsupported by competent evidence.”
Tornabene v. Bonine ex rel. Ariz. Highway Dep’t, 203 Ariz. 326, ¶ 2 (App. 2002)
(quoting Ontiveros v. Ariz. Dep’t of Transp., 151 Ariz. 542, 543 (App. 1986)).
We review questions of law de novo. Comm. for Just. & Fairness v. Ariz. Sec’y
of State’s Off., 235 Ariz. 347, ¶ 17 (App. 2014).

I. Legal Basis for Suspension

¶6 When a driver accumulates twenty-four or more points in a
period of thirty-six months, A.A.C. R17-4-404(E)(1)(d) calls for a
twelve- month suspension. Kaufman does not dispute the violations, their
dates, or that they ultimately counted for a total of twenty-five points. But
he asserts he should not have received a twelve-month suspension because,
even though his violations occurred within a period of thirty-six months,
the resulting convictions and adjudications did not. He argues that he only
accumulated points on the date when each violation resulted in conviction
or judgment.

¶7 Arizona law grants ADOT authority to suspend a driver
license for several enumerated reasons under A.R.S. § 28-3306(A). In
enacting this statutory grant, R17-4-404 has the force of law provided it is
consistent with the enabling legislation. See, e.g., Santorii v. MartinezRusso,
LLC, 240 Ariz. 454, ¶ 8 (App. 2016); Sharpe v. Ariz. Health Care Cost
Containment Sys., 220 Ariz. 488, ¶ 19 (App. 2009). Relevant here,
§ 28- 3306(A)(3) provides the following authority:

The department may suspend or revoke the
license of a driver . . . on a showing by
department records or other sufficient evidence
that the licensee . . . [h]as been convicted of or
adjudged to have violated traffic regulations
governing the movement of vehicles with such
a frequency that it indicates a disrespect for
traffic laws and a disregard for the safety of
other persons on the highways.

We apply the plain meaning of a statute whose text is clear and
unambiguous. In re Lindquist, 254 Ariz. 594, ¶ 16 (App. 2023). The basis for
suspension under § 28-3306(A)(3) is the frequency of violations, not
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Opinion of the Court

adjudications. A suspension is appropriate when a driver has “violated
traffic regulations . . . with such a frequency . . . .” § 28-3306(A)(3) (emphasis
added). But the statute permits ADOT to impose this suspension only after
a driver is “convicted of or adjudged” to have committed those violations.
Id.

¶8 We interpret regulations to further the statutory policy
contained in the enabling legislation. Marlar v. State, 136 Ariz. 404, 411
(App. 1983). Regulation R17-4-404(A) enacts ADOT’s statutory authority
by requiring ADOT to “assign points to a driver . . . for each violation
resulting in a conviction or judgment.” Consistent with § 28-3306(A)(3),
R17-4-404(A) directs ADOT to assign points for violations, not
adjudications, but only violations that result in convictions or judgments.
Regulation R17-4-404(E) then requires suspensions of various durations for
“a driver who accumulates an excessive amount of points.” Specifically,
subsection (E)(1)(d) imposes “[a] twelve-month suspension for
accumulation of 24 or more points in a thirty-six-month period.” A driver
“accumulates” points for suspension under R17-4-404(E) on the same basis
ADOT must “assign” them under R17-4-404(A). Points are assigned for
violations, and a driver therefore accumulates them on the date of each
violation. To read the regulation otherwise, so that a driver accumulates
points on the date of conviction or judgment, would be inconsistent with
§ 28-3306(A)(3)’s emphasis on the frequency of violations.

¶9 We therefore agree with the superior court that ADOT
correctly interpreted and applied the law to the facts of this case. Because
Kaufman committed a series of violations within a thirty-six-month period
that accounted for an accumulation of at least twenty-four points, the
record supports Kaufman’s twelve-month suspension.

II. Laches

¶10 Kaufman asserts that ADOT had grounds to issue a lesser,
six- month suspension under R17-4-404(E)(1)(c) based on points from
adjudications up to and including his DUI conviction in December 2008.
He argues that ADOT unreasonably failed to act on those points until after
his release from prison, and that ADOT is therefore barred from imposing
the suspension by the doctrine of laches.

¶11 Kaufman cites the general principle that laches will “bar a
claim when the delay is unreasonable and results in prejudice to the
opposing party.” Sotomayor v. Burns, 199 Ariz. 81, ¶ 6 (2000). Kaufman also
cites authority from another jurisdiction applying the doctrine of laches to
an administrative agency’s recovery of overpayments to a contracted
service provider, under a set of statutes and administrative codes not
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Opinion of the Court

applicable here. See Cedars-Sinai Med. Ctr. v. Shewry, 137 Cal. App. 4th 964
(2006). But he cites no authority applying the doctrine of laches to an
administrative action such as suspension of a driver license. Absent a
statute expressly allowing such a defense, the doctrine of laches generally
does not apply to the government in matters affecting the public interest.
State ex rel. Darwin v. Arnett, 235 Ariz. 239, ¶ 33 (App. 2014). Applying
laches here would adversely impact ADOT’s ability to regulate driver
behavior and harm the public interest in highway safety. See id. ¶ 35.

¶12 Regardless, Kaufman has demonstrated neither
unreasonableness nor prejudice. Section 28-3306(A)(3) authorizes a
suspension only when a driver “[h]as been convicted of or adjudged to have
violated traffic regulations” with sufficient frequency, which is what
happened here. Moreover, the applicable statutory scheme requires courts
to notify ADOT of violations when they result in convictions, not before.
See, e.g., A.R.S. §§ 28-1558, 28-1559, 28-3305(B). Whether ADOT could have
imposed a lesser suspension under R17-4-404(E)(1)(c) or any other
provision is irrelevant. Even assuming ADOT had grounds to pursue a
lesser alternative sanction, Kaufman has cited no authority to suggest that
ADOT’s election to pursue a harsher one instead constitutes prejudice in
the context of laches. See Ritchie v. Krasner, 221 Ariz. 288, ¶ 62 (App. 2009)
(arguments not developed on appeal deemed waived). Nor has Kaufman
developed an argument that a delay in serving his suspension, without
more, constitutes prejudice. See id. We agree with the superior court’s
conclusion that laches does not bar the suspension.

III. Excessive Penalty

¶13 Finally, Kaufman asserts the twelve-month suspension is
excessive because it “made his prison time much harsher,” noting that
“driving in prison makes prison much easier and offers many privileges.”
Kaufman cites no authority and does not develop his argument that a
twelve-month suspension is “excessive.” We deem the argument waived.
See id.

DISPOSITION

¶14 We affirm the twelve-month suspension.

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