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Davis v. Colorado Department of Revenue2/17/1981
JUSTICE QUINN delivered the opinion of the Court.
Robert Lee Davis (appellant) appeals a judgment of the district court affirming an order of the Department of Revenue (department) revoking his driver's license for three months due to his failure to submit to a chemical sobriety test under section 42-4-1202(3), C.R.S. 1973 & 1979 Supp. He claims that the evidence at the departmental hearing was insufficient to establish the statutory prerequisites for revocation and that the order of revocation violates due process of law and equal protection of the laws. We affirm.
On June 17, 1978, a Colorado state patrolman saw an automobile weaving between lanes and otherwise being operated in an erratic manner on Colorado Highway 34 east of Fort Morgan. The patrolman stopped the vehicle and observed that the appellant, who was the driver, swayed somewhat in his walk and had an odor of alcoholic beverage on his breath. He directed the appellant to the patrol vehicle, checked his license and registration, and then conducted a roadside sobriety test. Believing the appellant was driving under the influence , section 42-4-1202(1)(a), C.R.S. 1973, the patrolman advised him of his Miranda rights, and also advised him orally and in writing of his rights and responsibilities under the implied consent law, section 42-4-1202(3), C.R.S. 1973 & 1979 Supp., and requested a chemical sobriety test. The appellant stated that he would submit to a urine test only. The lack of any local facility for the chemical testing of urine made that test unavailable and the patrolman so advised the appellant. The officer, not once but several times, explained to the appellant that he (appellant) had the right to insist on a blood test but, if he refused a blood test, the officer had the option of electing either a urine or a breath test; and that if the appellant refused the breath test his license to drive could be revoked for three months. The appellant again stated that he would take a urine test. The patrolman drove the appellant to the sheriff's office and reiterated that a urine test could not be administered. The appellant repeated his willingness to submit to a urine test. While the patrolman at the sheriff's office was preparing a report and a summons and complaint for driving under the influence , the appellant stated that he had not refused and would submit to a test. The patrolman interpreted this remark as a repetition of the appellant's prior request for a urine test. At no time did the appellant express any willingness to take a blood or breath test.
After having been duly served with notice of a revocation hearing pursuant to section 42-4-1202(3)(e), C.R.S. 1973 (1979 Supp.), the appellant appeared with counsel before the department on August 2, 1978. The hearing officer found by a preponderance of evidence that the patrolman had reasonable grounds to request the chemical sobriety test, that he fully advised appellant of his rights under the implied consent law and of the consequences of refusing a chemical test, that the appellant did refuse to submit to a chemical test, and that the refusal was unjustified. The department revoked the appellant's license to drive for three months. Section 42-4-1202 (3)(e), C.R.S. 1973 (1979 Supp.). In a proceeding for judicial review the district court concluded that there was sufficient evidence to support the factual determinations of the department and rejected the appellant's constitutional challenges to the order of revocation.
The appellant asserts three grounds for reversal on this appeal: (1) the advisement of rights was so confusing to him as
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