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Brewer v. Motor Vehicle Division6/9/1986
JUSTICE DUBOFSKY delivered the Opinion of the Court.
The plaintiff, Hugh Brewer, appeals from a judgment of the Jefferson County District Court affirming the revocation of his driver's license by the Department of Revenue, Motor Vehicles Division (department) under section 42-2-122.1, 17 C.R.S. (1984). The plaintiff argues that insufficient evidence that he drove a vehicle within the meaning of section 42-2-122.1 was presented at the administrative hearing before the department, that the results of an intoxilyzer test were improperly admitted into evidence at the hearing, and that he was wrongfully denied the right to introduce evidence pertaining to the test results. We affirm the judgment of the district court.
On July 24, 1983, the Broomfield Police Department received a complaint from a citizen about a car parked, with lights on and the engine running, in a cul-de-sac near the citizen's house. A police officer dispatched to investigate the complaint found the plaintiff's car parked in the middle of the street. The car's lights were on and its motor was running. The plaintiff was behind the steering wheel, asleep. When the police officer attempted to rouse the plaintiff the officer detected the odor of an alcohol beverage on the plaintiff's breath. The officer testified that the plaintiff, after leaving the car, had trouble standing without assistance. The officer then arrested the plaintiff and took him to the Broomfield police station.
The plaintiff agreed to submit to a breath test to determine his blood alcohol content. The arresting officer performed the test on a machine located at the police station, following the procedures indicated in a standardized checklist. The test results indicated that the plaintiff's blood alcohol content was .178 grams of alcohol per 210 liters of breath. Upon receiving the test results, the arresting officer revoked the plaintiff's driver's license.
At an administrative hearing on the revocation held at the plaintiff's request, the arresting officer testified to the circumstances of the plaintiff's arrest and to the administration and results of the intoxilyzer test. The plaintiff presented no evidence. He rested his defense on his assertion that there was insufficient evidence that he had actually driven his vehicle or that the intoxilyzer test had been administered within one hour of the alleged offense as required by section 42-2-122.1. He also argued that an insufficient foundation had been laid for the introduction of the intoxilyzer test results.
The hearing officer decided that the plaintiff, when found by the police officer, was "in operation and control" of his vehicle and therefore that he "drove a vehicle" within the meaning of section 42-2-112..1. The hearing officer also found that there was sufficient evidence that the intoxilyzer test had been administered within an hour of the commission of the offense. Accordingly, the hearing officer revoked the plaintiff's license for one year.
The plaintiff filed a petition for judicial review of the revocation in the district court on September 16, 1983. On April 27, 1984, the district court affirmed the hearing officer's findings and the revocation of the plaintiff's license. This appeal followed.
I.
The plaintiff's license was revoked under the authority of section 42-2-122.1, which provides in relevant part:
(1)(a) The department shall revoke the license of any person upon its determination that the person: (I) drove a vehicle in this state when the amount of alcohol in such person's blood was 0.15 or more grams of alcohol per hundred milliliters of blood or 0.15 or more grams of alcohol per 210 lit
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