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Zullo v. Charnes11/30/1978
The Department of Revenue's Division of Motor Vehicles suspended plaintiff's driver's license after it found that plaintiff had refused to submit to chemical tests in violation of § 42-4-1202(3)(e), C.R.S. 1973, of the implied consent law. Plaintiff appeals the district court's affirmance of that suspension, and we affirm.
Plaintiff admits that, at the time of his arrest, he refused to submit to both blood and breath tests. The sole issue on appeal is whether there were reasonable grounds to believe plaintiff was under the influence of or impaired by alcohol as required by § 42-4-1202(3)(b), C.R.S. 1973. Plaintiff contends that the only evidence of reasonable grounds was hearsay, and should have been excluded. We disagree.
The only witness at the hearing before the Division of Motor Vehicles was officer Mayoral. He testified, over continuing hearsay objections, that he received a radio call from Detective Foster indicating that Foster "had a D.U.I. suspect in custody." He responded to the call, and when he arrived at the scene, Foster explained to him the circumstances of the stop. Foster said he saw plaintiff's speeding vehicle fail to yield at a red light, and thereupon stopped the car, placed the plaintiff in the backseat of his police car, and issued the radio dispatch.
Mayoral further testified that when he arrived at the scene he smelled an odor of alcohol on plaintiff's breath, and noticed that plaintiff's speech was slurred and that his eyes were bloodshot and watery. Mayoral also testified that plaintiff was having trouble walking.
Mayoral's testimony as to what he observed when he arrived at the scene, even without the alleged hearsay, was sufficient to support the finding that he had reasonable grounds to believe plaintiff was under the influence of or impaired by alcohol. See Stream v. Heckers, 184 Colo. 149, 519 P.2d 336 (1974). And, contrary to plaintiff's contention, Mayoral's reasonable belief that plaintiff had been driving the vehicle was properly based on information he had received from Foster. People v. Hamilton, 188 Colo. 250, 533 P.2d 919 (1975). The introduction of that information was not hearsay. It was not offered to prove that plaintiff ran a red light, or even that plaintiff was driving under the influence . Rather, Foster's statements were introduced to show Mayoral's state of mind, and thus were properly admitted. See State v. District Court, 129 Vt. 212,
274 A.2d 685 (1971); McCormick on Evidence § 249 at 589-90 (E. Cleary 2d ed. 1972).
Judgment affirmed.
Disposition
Affirmed.
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