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Marin v. Colorado Department of Revenue12/7/1978
Plaintiff Albert Marin's driving privileges were revoked by the defendant Department of Revenue pursuant to the implied consent law, § 42-4-1202(3), C.R.S. 1973, for refusal to take a chemical sobriety test. Contending that he had not been driving and that, therefore, the implied consent law did not apply, Marin petitioned for judicial review as authorized by §§ 42-2-127 and 24-4-106, C.R.S. 1973. The district court affirmed the revocation. Marin appeals, and we reverse.
An implied consent hearing was conducted by the Department. The only witnesses were Marin, his sister, and the arresting officer, Edward P. Carey.
Marin and his sister both testified that he had been drinking at a downtown restaurant, that at his request she came to the restaurant and drove him in his car to the alley behind his brother-in-law's house. The sister left him in his car with the motor running, got into her own car which was following with her daughter at the wheel, and went home. Marin stated that he then moved over to the driver's side of the car and began honking the horn to awaken his brother-in-law. He said that he had not driven the car after he was picked up by his sister.
Officer Carey testified that other police officers had told him that they discovered Marin behind the wheel in a car parked in the alley with the motor running, and that they had moved the car out of the alley into the street. Thereafter Carey arrived, noted the odor of alcohol, Marin's slurred and thick tongued speech, unstable walk, and watery and bloodshot eyes, and gave him a sidewalk sobriety test. Concluding that Marin might be under the influence of alcohol, Carey arrested him for investigation of driving under the influence . Enroute to and at the police station, Carey advised Marin of his Miranda rights and gave him the implied consent advisement. On being requested to take a blood, breath or urine test, Marin refused, saying he had not been driving.
The hearing officer made no finding as to whether Marin had in fact been driving. He found that the implied consent advisement had been properly given, and that Marin had refused the test. He then determined that the evidence "would have Officer Carey to believe that Mr. Marin was in fact driving . . . [and that Carey] did have reasonable grounds to require a test." Marin's license was then revoked.
No issue is raised on this appeal as to the sufficiency of the arresting officer's reasonable grounds to believe that Marin had been driving while under the influence, the propriety of the implied consent advisement, or
the fact that Marin refused to take the test. Marin contended at the revocation hearing and still contends that the sobriety test and license revocation provisions of the implied consent law are applicable only to one who was driving, and that, since he was not driving, the revocation of his license must be set aside.
The implied consent statute is consistent in specifying that its provisions apply to " ny person who drives any motor vehicle." As set forth in People v. Brown, 174 Colo. 513, 485 P.2d 500 (1971), the basic provisions of that law are:
"1. A driver on a highway of this state shall be deemed to have given his consent to a chemical test of his blood, breath, or urine to determine the alcohol content of his blood, if charged with driving while under the influence of intoxicating liquor. 2. Preliminary to the chemical test, there must be an arrest of the driver based upon reasonable grounds to believe the
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