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Ayala v. Colorado Department of Revenue11/29/1979
ased upon § 42-4-1504(1)(c), C.R.S. 1973 (1978 Cum. Supp.), which provides, insofar as pertinent here, that, whenever a person is arrested for driving under the influence , that person "shall be taken without unnecessary delay before a county judge who has jurisdiction of such offense . . . ." The district court reasoned that, because of the failure of the officers to comply with this provision, Ayala had not been under arrest at the time of the test request. We do not agree with either the hearing officer or the district court.
Contrary to the Department's assertion, an arrest must precede any request that a driver submit to a blood alcohol test. People v. Brown, 174 Colo. 513, 485 P.2d 500 (1971). However, the requirement in § 42-4-1504 for an appearance before the county court is a post-arrest requirement relative to the criminal prosecution for driving under the influence . That appearance has no bearing upon a civil proceeding under the implied consent statute. Thus, the arrest referred to in § 42-4-1202 constitutes detention by an officer such that the driver is in custody and obviously not free to leave of his own volition. See People v. Apodaca, 38 Colo. App. 395, 561 P.2d 351 (1976), aff'd, 194 Colo. 324, 571 P.2d 1109 (1977).
The judgment is reversed and the cause remanded to the district court with directions to enter an order remanding the case to the Department for a hearing to determine when Ayala was placed under arrest and for further proceedings based thereon which are consistent with the views expressed in this opinion.
Disposition
Reversed.
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