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McCampbell v. Charnes3/26/1981
, to take the required test, notwithstanding his prior refusal. We do not agree.
The licensee in Zahtila, after conferring with his attorney, advised the officer that he would submit to any of the blood alcohol tests. In the instant case, accepting the offer of proof as evidence, the attorney told the arresting officer she wanted her client to take the test, but, even after talking to his attorney, licensee did not tell the officer that he had changed his mind and would consent to take the test. Therefore, the initial refusal remained unchanged.
II.
Licensee also contends that he was denied due process because of the variance between the written advisement (engine off) and the testimony of the arresting officer (engine on). He argues that whether licensee's car engine was turned off or was running at the time of the initial contact is vital to the question of "reasonable grounds to believe." Again, we disagree.
Whether, on the initial contact, licensee's car engine was on or off is of little consequence here. The facts stated in the form, all supported by the evidence, that licensee strongly smelled of alcohol, that he almost fell when walking to the curb, and that he had trouble opening his wallet for his license, indicated that he was under the influence. See Johnson v. Motor Vehicle Division, 38 Colo. App. 230, 556 P.2d 488 (1976). And when, as set forth in the advisement, licensee was observed driving and was stopped by the officer, driving under the influence was established for purposes of reasonable grounds.
The hearing officer was the judge of witness credibility. His findings, being supported by competent evidence, are binding on this court on appeal. Dolan v. Rust, 195 Colo. 173, 576 P.2d 560 (1978).
Judgment affirmed.
CHIEF JUDGE ENOCH and JUDGE PIERCE concur.
Disposition
JUDGMENT AFFIRMED
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