Opinion
No. 73-308
Decided July 16, 1974.
In action for review of department of revenue's decision revoking plaintiff's driver's license pursuant to the implied consent law, district court affirmed the revocation, and plaintiff appealed.
Affirmed
1. PRACTICE AND PROCEDURE — Record — Tardily Presented — Defendant — Agency of State — Plaintiff — Entitled to Judgment — Only — Satisfactory Showing — On the Merits. Where record of hearing at which plaintiff's driver's license was revoked was tardily presented to trial court, plaintiff in action to review that revocation, would, in general, have been entitled to a default judgment; but since defendant was an agency of the state of Colorado, plaintiff would have been entitled to such a judgment only upon a satisfactory showing of his right to relief on the merits; and, since no such showing was made, it would have been reversible error by the district court to enter default against the defendant.
2. DRIVING UNDER THE INFLUENCE — Implied Consent Statute — Plaintiff Informed — Rights and Obligations — No Indication — Misconstrued — Misled — — Revocation — Driver's License — Proper. In situation where, pursuant to implied consent statute, plaintiff was informed of his rights and obligations under that statute and where there is an absence of facts indicating that plaintiff misconstrued the warnings given him or was misled by the police officer who informed him of his rights, it was proper for the department of revenue to revoke plaintiff's license for refusing to take the required chemical test for determination of blood alcohol.
Appeal from the District Court of the City and County of Denver, Honorable Saul Pinchick, Judge.
William H. Prendergast, for the plaintiff-appellant.
John P. Moore, Attorney General, John E. Bush, Deputy Attorney General, Dennis J. Sousa, Special Assistant Attorney General, Andrew A. Markus, Assistant Attorney General, for defendants-appellees.
Plaintiff appeals from an affirmance by the district court of a decision of the Department of Revenue (Department) revoking plaintiff's driver's license under the provisions of 1971 Perm. Supp., C.R.S. 1963, 13-5-30(3). We affirm.
At the administrative hearing which was held in accordance with 1971 Perm. Supp., C.R.S. 1963, 13-5-30(c), a police officer testified as follows: That he had observed the plaintiff driving a motor vehicle in an erratic manner; that he stopped the vehicle and, after noting that there was a strong odor of alcohol on plaintiff's breath, that plaintiff's eyes were dilated, that he could not stand without leaning on the car, and that plaintiff had trouble producing his driver's license and registration, he gave plaintiff the Miranda warnings and placed him under arrest. Thereafter, at the station house, plaintiff was again given the Miranda warnings and was advised of his rights under the implied consent law, whereupon he refused to take either a blood, breath, or urine test.
Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602.
The only testimony offered by plaintiff was his denial that he had ever received the Miranda warnings. Following his statements to this effect, his counsel moved that the proceedings be dismissed due to the lack of proper warnings. The motion was overruled. Plaintiff was given an opportunity to present further evidence on his behalf; instead, he and his counsel left the hearing.
The hearing officer found that the police officer had reasonable grounds to request plaintiff to submit to a chemical test and thereafter ordered that plaintiff's license be revoked.
Plaintiff then filed an action in the district court for review of the revocation order, pursuant to 1969 Perm. Supp., C.R.S. 1963, 3-16-5, and also filed a motion to show cause why the Department should not be permanently enjoined from revoking the license. In response to that motion, the trial court ordered its clerk to issue a citation to the Department requiring the Department to certify plaintiff's driving record and a transcript of the revocation hearing to the district court within 30 days following service of the citation. The order was signed on October 26, 1972. On November 16, 1972, the Department filed its answer which purported to have the requested documents attached to it. The documents were not in fact attached, and were not filed until January 3, 1973. The Department filed no motion for extension of time within which to file these documents either before or after the expiration of the 30 days from the date of the service of the order to show cause.
Following a continuance granted upon plaintiff's request, the matter came on for hearing on May 29, 1973, at which time plaintiff, in compliance with C.R.C.P. 7(b)(1), filed a motion for an order striking the Department's pleadings and the transcript of the record, and asked for a default on the ground that the record had not been timely filed. The trial court denied these motions, and at the close of the hearing, affirmed the order of revocation.
I.
Relying on C.R.C.P. 6(b), plaintiff contends that he was entitled to have the documents stricken from the record and a default entered. C.R.C.P. 6(b) reads as follows:
Judicial review of the Department's action in implied consent cases is governed by the provisions of 1969 Perm. Supp., C.R.S. 1963, 3-16-5. See 1971 Perm. Supp., C.R.S. 1963, 13-5-30(f) and 13-4-27. The Colorado Rules of Civil Procedure apply to such proceedings in all matters following the filing of the complaint. 1969 Perm. Supp., C.R.S. 1963, 3-16-5(4).
"Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown, may at any time in its discretion (1) with or without motion or notice, order the period enlarged if request therefor is made before the expiration of the period originally prescribed or . . . (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect . . . . "
It is plaintiff's argument that failure of either the district court or the Department to comply with section (1) of the rule and the further failure of the Department to comply with section (2) of the rule, rendered the district court without any discretionary power to deny plaintiff's motions to strike the transcript and enter default.
[1] Were the other party involved in this action not an agency of the State of Colorado, plaintiff would be correct in his argument. See Smith v. Woodall, 129 Colo. 435, 270 P.2d 746; Continental Air Lines, Inc. v. City County of Denver, 129 Colo. 1, 266 P.2d 400; A A Construction Co. v. Gould, 28 Colo. App. 161, 470 P.2d 916. However, the relief requested by plaintiff is barred in this case by C.R.C.P. 55(e) which provides:
"No judgment by default shall be entered against an officer or agency of the State of Colorado unless the claimant establishes his claim or right to relief by evidence satisfactory to the court."
In this case the record before the Department was before the trial court, although tardily presented. Since C.R.C.P. 6 was not complied with, plaintiff would have been entitled to a default judgment, but only upon a satisfactory showing of his right to relief on the merits as required by C.R.C.P. 55(e). No such showing was made here. It would have been reversible error had the district court entered default against the Department under these circumstances. See Carroll v. Secretary, Department of Health, Education and Welfare, 470 F.2d 252 (5th Cir.); 10 C. Wright A. Miller, Federal Practice § 2702.
II.
Plaintiff next argues that the judgment should be reversed because the advisement form used to inform plaintiff of his rights and obligations under the implied consent statute failed to distinguish between his constitutional rights under Miranda in that he was not warned that under the statute he had no right to counsel. We do not agree.
We are aware that in Calvert v. State, 184 Colo. 214, 519 P.2d 341, our Supreme Court stated:
"Here Calvert was given the Miranda warnings and he manifested his desire to call his attorney before deciding whether or not to submit to the test. Calvert was not told that he had no such right. Under these circumstances, Calvert should have been advised that the right to remain silent does not include the right to refuse to submit to the test or the right to prior consultation with an attorney . . . . Where, as here, law enforcement officers, even though inadvertently, either through an act of omission or commission, cause a suspect's misunderstanding of the state of the law, he cannot be held strictly accountable for his refusal to take implied consent tests."
We are also cognizant of the fact that the advisement form given plaintiff under the implied consent statute did not distinguish between the rights under that statute and his Miranda rights.
[2] However, the only issue raised at the administrative hearing was whether he had received the Miranda warnings. This issue was resolved against him and no question as to any confusion regarding his rights was raised at the hearing before the Department. In the absence of facts indicating that plaintiff misconstrued the warnings given him or was misled by the police officer, and under all of the attendant facts in this case, it was proper for the Department to revoke his license for refusing to take the test. Johnson v. Department of Motor Vehicles, 5 Ore. App. 617, 485 P.2d 1258; Walker v. Department of Motor Vehicles, 79 Cal. Rptr. 433 (Dist.Ct.App.). We also find that all procedural requirements prerequisite to revocation were met in this case, and we therefore affirm the judgment. Vigil v. Motor Vehicle Division of the Department of Revenue, 184 Colo. 142, 519 P.2d 332.
CHIEF JUDGE SILVERSTEIN and JUDGE SMITH concur.