Opinion
No. 77-763
Decided June 22, 1978. Rehearing denied July 27, 1978. Certiorari denied November 6, 1978.
From district court judgment which affirmed order of Department of Revenue revoking his driver's license pursuant to implied consent law, plaintiff appealed.
Affirmed
1. DRIVING UNDER THE INFLUENCE — Automobile Observed — Driven Erratically — — Officer Justified — Stopping Vehicle — Indication of Intoxication — Justified Arrest — Request for Chemical Test. Where police officer observed that automobile was being driven erratically, he was justified in stopping the vehicle, and where a strong odor of alcohol on the driver's breath, his slurred speech, staggered walk, and other indicia of intoxication thereupon became obvious to the officer, he was justified in arresting the driver and in requesting him to take an alcohol determination test.
2. Driver — Need Not Commit — Offense — Separate and Distinct — Alcohol Impaired Driving — Justify — Alcohol Determination Test. A driver need not have committed a misdemeanor offense relating to the operation of a motor vehicle separate and distinct from the offense of driving while under the influence of, or impaired by, alcohol before submission to a chemical test under the implied consent law may be required.
3. Revocation Hearing — Contradictions — Officer Testimony — Affect Credibility — Testimony Sufficient — Find Proper Advisement — Implied Consent Law. In hearing on revocation of driver's license for refusal of driver to submit to alcohol determination test, any contradictions in the requesting officer's testimony affects only his credibility, and where the officer testified unequivocally that he read the implied consent advisement form to the driver and offered him the opportunity to read it for himself but that driver refused to do so, the evidence was sufficient to support the hearing officer's finding that plaintiff was properly advised of his rights under the statute.
4. Revocation of License — Not Result — Criminal Proceedings — Administrative Sanction — Implied Consent Law — Acquittal — Criminal Charge — Not Mandate — Reinstatement of License. Where driver's license revocation was not a part of any criminal proceeding arising from a charge of driving while under the influence of alcohol, but rather was an administrative sanction to enforce the requirement of submission to an alcohol test and was done pursuant to the provisions of the implied consent law, the dismissal of the criminal charge of driving under the influence had no effect upon the revocation of that driver's license, and he is thus not entitled to reinstatement of his license under statute requiring such reinstatement upon a driver being acquitted of the charge of driving under the influence.
Appeal from the District Court of the City and County of Denver, Honorable Edward J. Byrne, Judge.
Bruce A. Matas, for plaintiff-appellant.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, Lynne F. Ford, Assistant Attorney General, for defendants-appellees.
Plaintiff appeals from a judgment of the district court which affirmed an order of the Department of Revenue revoking his driver's license for a period of six months pursuant to the provisions of the implied consent law. Section 42-4-1202(3), C.R.S. 1973. We affirm.
Plaintiff first contends that the arresting police officer's initial stop of his vehicle and his request to plaintiff to get out of the car were unlawful. This contention fails to consider that a driver's license revocation hearing is not governed by the rules of procedure applicable in a criminal action. Campbell v. Colorado, 176 Colo. 202, 491 P.2d 1385 (1971); Johnson v. Motor Vehicle Division, 38 Colo. App. 230, 566 P.2d 488 (1976). The arresting officer's observations as to the manner in which plaintiff was operating the vehicle were sufficient to justify the initial stop. See Stream v. Heckers, 184 Colo. 149, 519 P.2d 336 (1974).
[1] Plaintiff also asserts that the evidence failed to establish reasonable grounds to believe that he was driving while under the influence of alcohol and hence justification for the officer's request that he submit to a chemical test as required by Vigil v. Motor Vehicle Division, 184 Colo. 142, 519 P.2d 332 (1974). We disagree. Plaintiff's erratic driving coupled with the strong odor of alcohol on his breath, his slurred speech, staggered walk, and other indicia of intoxication which were obvious to the officer, were sufficient to justify his arrest and the subsequent request to take a chemical test. See Thorp v. Dep't of Motor Vehicles, 4 Ore. App. 552, 480 P.2d 716 (1971).
[2] Plaintiff's further contention that § 42-4-1202(3)(a), C.R.S. 1973, requires that a driver must have committed a misdemeanor offense relating to the operation of a motor vehicle separate and distinct from the offense of driving while under the influence of, or impaired by, alcohol before submission to a chemical test may be requested, was addressed and resolved against plaintiff's position in Johnson v. Motor Vehicle Division, supra. The holding of Johnson is dispositive here.
Plaintiff also contends that the evidence does not support a determination that the advisement procedures complied with the requirements of the statute and Cantrell v. Weed, 35 Colo. App. 180, 530 P.2d 986 (1974). He bases his assertion on alleged vagueness and contradictions in the testimony resulting from the arresting officer's inability to recollect precisely the manner in which, and place where, the advisement form was offered to plaintiff.
[3] Contradictions in the officer's testimony affect only his credibility. See Bein Farms, Inc. v. Dale, 137 Colo. 424, 326 P.2d 72 (1958). Where, as here, the officer testified unequivocally that he read the advisement form to plaintiff and offered him the opportunity to read it for himself but that plaintiff refused to do so, the evidence was sufficient to support the hearing examiner's finding that plaintiff was properly advised. See Cantrell v. Weed, supra. Hence, that determination may not be disturbed on judicial review. Dolan v. Rust, 195 Colo. 173, 576 P.2d 560. (1978).
Finally, plaintiff asserts that the charge of driving under the influence, filed as a result of the incident at issue here, was dismissed and that, therefore, pursuant to § 42-2-122(3), C.R.S. 1973, he is entitled to reinstatement of his license.
Section 42-2-122, C.R.S. 1973, provides for mandatory revocation of a driver's license in the event of conviction for various specified traffic offenses and also for refusal to submit to a chemical test pursuant to § 42-4-1202(3), C.R.S. 1973. Section 42-2-122(3), C.R.S. 1973, provides, insofar as pertinent:
"Should a driver who has had his license revoked under this section be subsequently acquitted of such charge by a court of record, the department shall forthwith . . . reinstate said license to the driver affected." (emphasis supplied)
Contrary to plaintiff's contention this provision is inapplicable here.
[4] Plaintiff's license was revoked as an administrative sanction to enforce the requirement of submission to a chemical test. Augustino v. Dep't of Revenue, 193 Colo. 273, 565 P.2d 933 (1977). The revocation was not a part of any criminal proceeding arising from a charge of driving while under the influence of alcohol, Augustino, supra; rather, it was done pursuant to the provisions of § 42-4-1202(3)(e), C.R.S. 1973. Dismissal of the criminal charge has, therefore, no effect upon the revocation of plaintiff's license. Vigil v. Motor Vehicle Division, supra. Hence, he is not entitled to reinstatement under the above-quoted statute.
Judgment affirmed.
JUDGE COYTE concurs.
JUDGE BERMAN dissents.