Opinion
No. 77-856
Decided October 5, 1978. Rehearing denied October 26, 1978. Certiorari denied December 26, 1978.
District court reversed department of revenue's revocation of driver's license that had been imposed for driver's refusal to submit to chemical test under implied consent statute. Department appealed.
Reversed
1. DRIVING UNDER THE INFLUENCE — Implied Consent Statute — Excuse — Taking of Sobriety Test — Not Medically Advisable — Not — Sufficient Importance — Immunize Driver — Consequences of Test Refusal. The provision of the implied consent statute which excuses an individual from submitting to a sobriety test when it would be medically inadvisable for him to do so is not of sufficient importance that an arresting officer's failure to advise a driver of its substance immunizes the driver from the consequences of its refusal to submit to any chemical sobriety testing.
2. Ostensible Oral Consent — Blood Test — Determination — Driver — Refused Consent — Supported by Record — Binding on Review. Under circumstances where driver ostensibly gave oral consent to implied consent blood test, but, at the hospital, refused to remove any clothing to facilitate the administration of the test and would not allow blood to be taken from any exposed skin area, and, at one point hid in the ladies restroom of the hospital, hearing officer's determination that driver manifested an unwillingness to submit to a test is supported by the record, and thus that determination cannot be disturbed on review.
Appeal from the District Court of the City and County of Denver, Honorable Henry E. Santo, Judge.
Weltzer Worstell, Louis A. Weltzer, David L. Worstell, for plaintiff-appellee.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Linda Palmieri Rigsby, Assistant Attorney General, for defendant-appellant.
The Department of Revenue brings this appeal from an order of the district court which reversed a decision of the Department revoking plaintiff's driver's license for a period of six months for his refusal to submit to a chemical test as required by the implied consent statute, § 42-4-1202, C.R.S. 1973. We reverse the order of the district court and remand the cause with directions.
Although neither the plaintiff nor the Department raised the issue, the district court concluded that the advisement form given and read to plaintiff by the arresting officer failed to comply with the notice requirements of § 42-4-1202(3)(b), C.R.S. 1973, and deprived plaintiff of due process of law. The basis for this ruling lay in the fact that the form did not state that an individual may refuse to submit to a test if it would be medically inadvisable for him to do so or if the test to be given would not conform to the rules and regulations prescribed by the state board of health.
[1] In Shiarla v. Department of Revenue, 40 Colo. App. 320, 576 P.2d 193 (1978), this court held that "the provision of the implied consent statute limiting the withdrawal of blood to qualified medical personnel is not of sufficient importance that an arresting officer's failure to apprise a driver of its substance immunizes the driver from the consequences of his refusal to submit to any chemical sobriety testing." We conclude here that the rationale applied in Shiarla is also applicable to the provision of the statute which excuses an individual from submitting to a test when it would be medically inadvisable for him to do so. See also Vigil v. Motor Vehicle Division, 184 Colo. 142, 519 P.2d 332 (1974).
The district court further concluded that the evidence presented at the hearing before the Motor Vehicle Division did not support a finding that plaintiff refused to submit to a test. Again, we disagree.
[2] The record discloses that even though plaintiff demanded a blood test, the police initially concluded that plaintiff had refused to submit to a test because he would not sign a written consent form. Later, after being advised by the city attorney that an oral consent was adequate, plaintiff was taken to a hospital for the administration of the test. At the hospital plaintiff continued to demand a blood test, but refused to remove any clothing to facilitate the administration of the test and would not allow blood to be take from any exposed skin area. And, at one point, plaintiff hid in the ladies' restroom at the hospital. Given these circumstances, the hearing officer's determination that plaintiff manifested an unwillingness to submit to a test finds support in the record. See Woolman v. State, 15 Wash. App. 115, 547 P.2d 293 (1976); Finley v. Orr, 262 Cal. App. 2d 656, 69 Cal. Rptr. 137 (1968). Hence, such determination cannot be disturbed on judicial review. Dolan v. Rust, 195 Colo. 173, 576 P.2d 560 (1978).
The judgment of the district court is reversed and the cause remanded with directions to the district court to reinstate the order of the Department of Revenue.
JUDGE RULAND and JUDGE VAN CISE concur.