Opinion
No. 75-785
Decided December 2, 1976.
In action to review driver's license suspension for failure to submit to alcohol determination test, trial court affirmed the suspension, and driver appealed.
Affirmed
1. DRIVING UNDER THE INFLUENCE — Implied Consent Law — Confusion of Driver — Immaterial — Driver Refused — Opportunity to Telephone. When law enforcement officers cause a driver to misunderstand his rights vis a vis the implied consent law, that driver cannot be held strictly accountable for his refusal to take an alcohol determination test; but where a driver refused to take such a test, and later asserted that at the time of his arrest he had been confused between his Fifth Amendment rights to counsel and his rights under the implied consent law, the fact of the driver's additional refusal of an opportunity to make a telephone call to his attorney after having been advised of his rights under the implied consent law demonstrates that any alleged confusion of the driver was immaterial, and thus the district court properly upheld suspension of his driver's license.
Appeal from the District Court of Arapahoe County, Honorable M. O. Shivers, Jr., Judge.
William H. Lewis, for plaintiff-appellant.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Arthur G. Staliwe, Assistant Attorney General, for defendant-appellee.
Plaintiff Leroy Washington's driver's license was suspended for violation of the implied consent law, § 42-4-1202(3)(a), C.R.S. 1973. The suspension was upheld by the district court and he appeals. We affirm.
Washington's sole contention is that, under the facts surrounding his arrest, the police officer had a duty to advise him that he had no right to counsel prior to deciding whether to permit a chemical test of his blood. He asserts that since he was under arrest, he was justifiably confused between his Fifth Amendment rights to counsel and his rights under the implied consent law. See Calvert v. Department of Revenue, 184 Colo. 214, 519 P.2d 341 (1974).
The relevant facts as established in the hearing before the Motor Vehicle Division are these: A police officer observed Washington's vehicle traveling at a speed of 25 miles per hour over the posted limit. The officer stopped the vehicle and, after detecting an odor of alcohol on Washington's breath, gave him a roadside sobriety test. When he failed to perform several balancing tests properly, the officer placed him under arrest and advised him of his so-called Miranda rights, including the right to counsel.
The officer then took Washington to the police station and advised him of his rights under the implied consent law. After he was certain that Washington understood this advisement, he asked whether he wished to take a blood test or breath test. According to the officer, Washington said he would take no test whatsoever. The officer then asked Washington if he would like to make a phone call and Washington refused.
Washington testified that when he was informed about the implied consent law, he responded, "Well if I'm being charged already then its no need of me going into that until I get my lawyer." On appeal Washington asserts that this statement created a duty on the part of the officer to tell him that he had no right to counsel before determining whether to allow a chemical test of his blood.
In Calvert v. Department of Revenue, supra, the Supreme Court stated:
"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."
There, the driver, after having been given the Miranda warnings, requested an opportunity to call his attorney before deciding whether to submit to a chemical test of his blood. The court stated that:
"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."
[1] We deem it significant here that the officer testified that he gave Washington a chance to make a telephone call after the implied consent advisement had been given. Thus, even assuming Washington was confused between his right to counsel under Miranda and his lack of that right under the implied consent law, his refusal of the opportunity to make a telephone call demonstrates that such confusion was immaterial. He could have made a call attempting to procure counsel, and perhaps have talked with an attorney on the telephone at the time the police officer gave him the opportunity so to do.
The fact that Washington was given an opportunity to make a telephone call after having been advised of his rights under the implied consent law makes the rule of Calvert inapplicable.
Judgment affirmed.
JUDGE ENOCH concurs.
JUDGE COYTE concurs specially.