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Augustino v. Colorado Department of Revenue6/6/1977
The appellant appeals the decision of the district court affirming the revocation of his driver's license under the Colorado implied consent law, section 42-4-1202, C.R.S. 1973. He bases his appeal on the grounds that: (1) he did not knowingly refuse to take an intoxication test and (2) section 42-4-1202(3)(e) violates his right to equal protection. We find his arguments to be without merit and thereform affirm.
The appellant was arrested in January 1975, for a traffic offense, and he refused to take an intoxication test. An administrative hearing was held to determine whether the appellant's license should be revoked.
The police officers testified that, because he smelled strongly of alcohol and had trouble controlling his gait and articulating, they advised the appellant of his Miranda rights and then took him to the police station. At the station, they again read the appellant his Miranda rights and informed him of his rights as required by section 42-4-1202(3)(b). The officers testified further that the appellant had been belligerent and had displayed a totally uncooperative attitude. He refused to listen to the recitation of his rights, to read or sign the implied consent form, and to take any intoxication test.
The appellant testified that he had refused to cooperate because he had asked for a lawyer before signing anything, and the police had denied the request. The appellant testified freely.
The hearing officer questioned the officers as to whether the appellant might have been confused between the Miranda rights and the implied consent rights. She found that a preponderance of the evidence showed that the police officers had reasonable grounds to request that the appellant submit to an intoxication test. She further found that the appellant had been informed of his rights pursuant to section 42-4-1202(3)(b), that he had refused to take any test, and that he had failed to provide any evidence that taking the test would have been medically inadvisable. Therefore, she ordered that the appellant's license be revoked, as required by section 42-4-1202(3)(e).
Augustino appealed this ruling to the District Court of Otero County. The court affirmed, finding that the record, when considered as a whole, showed that the hearing officer's decision was neither arbitrary nor capricious.
I.
The appellant argues that our decision in Calvert v. Motor Vehicle Div., 184 Colo. 214, 519 P.2d 341 (1974), controls the outcome of this case. We disagree; Calvert is distinguishable on its facts. Calvert clearly manifested his desire for an attorney. In the appellant's case, one of the officers testified that
". . . he [the appellant] said he absolutely didn't want to have anything to do with any of them [the tests], he didn't even want to talk to us and from then on whenever we asked him a question he refused to answer, he just wouldn't even answer, when reading the thing [the implied consent form] or anything else. . . ."
The other officer testified that, when they had given the appellant the implied consent form to sign, he just threw it on the table and refused to have anything to do with it. There was no evidence that the appellant had asked for an attorney or that the officers had denied such a request.
The circumstances surrounding the administrative hearing in this case also do not fall within the ambit of the Calvert decision. In Calvert, the hearing of
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