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Davis v. Colorado Department of Revenue2/17/1981
!--/REF--> Sec. 25, by unconstitutionally delegating to law enforcement officers the unfettered discretion to initiate a revocation proceeding for refusal to consent to a chemical test. This argument lacks merit.
The appellant's reliance on People v. Vinnola, supra, is misplaced for several reasons. First, Vinnola dealt with delegation of authority to determine criminal responsibility to third party-private persons or corporations, as distinguished from governmental officers. Next, as we noted in Norsworthy v. Department of Revenue, 197 Colo. 527, 594 P.2d 1055 (1979), the enforcement of the implied consent law is not a criminal prosecution but, rather, is a civil administrative proceeding triggered by the licensee's refusal to submit to a chemical test. "It is the refusal which creates the liability, not the decision of the arresting officer to submit a report." Id. at 529, 594 P.2d at 1057. Third, the order of revocation cannot be entered unless there is a determination that the arresting officer's actions satisfy the statutory standards of section 42-4-1202(3)(e). Finally, the revocation order itself is subject to judicial review under section 42-4-1202(3)(f), C.R.S. 1973. Not only does the statutory scheme militate against a standardless discretion in enforcement, but also the record here is devoid of that type of unfettered discretion claimed by the appellant.
III.
The appellant's final argument is that the order of revocation violates due process of law, U.S. Const. Amend. XIV; Colo. Const. Art. II, Sec. 25, because there are no departmental rules or regulations for guiding the hearing officer in determining whether a basis for revocation has been established. Although the appellant relies on Elizondo v. Department of Revenue, 194 Colo. 113, 570 P.2d 518 (1977), as controlling authority, that case offers no support for his claim.
Elizondo dealt with the department's statutory discretion to issue a probationary license upon an order of suspension pursuant to section 42-2-123(11), C.R.S. 1973. We held that due process of law requires the department to promulgate rules or regulations to guide hearing officers in their discretionary decisions regarding requests for probationary licenses. In the case of a revocation under the implied consent statute, however, there is no statutory discretion in the hearing officer to authorize dispositional alternatives upon a determination of a driver's unjustified refusal to submit to a chemical test. E.g., Charnes v. Kiser, Colo. , 617 P.2d 1201 (1980); Heninger v. Charnes, 200 Colo. 194, 613 P.2d 884 (1980). When such a determination is made, the statutory standard is uniform, unambiguous, and virtually self-executing in its intendment.
Section 42-4-1202(3)(e), C.R.S. 1973 (1979 Supp.), requires the department to "forthwith revoke said person's license to operate a motor vehicle...." Here the findings of fact by the hearing officer precluded the exercise of any discretion in connection with the disposition of this matter. Administrative rules or regulations guiding the exercise of administrative discretion serve no purpose where the administrative agency has no discretion to exercise.
The judgment is affirmed.
Disposition
JUDGMENT AFFIRMED
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