Gallion v. Colorado Department of Revenue, Motor Vehicle Division

155 P.3d 539, 2006 Colo. App. LEXIS 1835, 2006 WL 3094056

• Court: Colorado Court of Appeals
• Decided: November 2, 2006
• Docket: 05CA1054
• Status: Published

Opinions

Opinion by

Judge VOGT.

The Colorado Department of Revenue, Motor Vehicle Division, appeals the district court judgment reversing its revocation of the driver's license of petitioner, Nancy Gal-lion, for refusing to submit to testing as required by the express consent statute. The issue on appeal is whether petitioner validly retracted her initial refusal to submit to such testing. Contrary to the district court's analysis, we agree with the Department that she did not. We therefore reverse and remand for reinstatement of the order of revocation.

I.

According to a police report introduced at the revocation hearing, a Steamboat Springs police officer stopped petitioner's vehicle at 11:46 p.m. on September 8, 2004, for weaving and failing to drive in a single lane. After observing that petitioner appeared intoxicated, he called a DUI (driving under the influence of alcohol) enforcement officer. That officer likewise observed indicia of intoxication, and, after petitioner could not satisfactorily perform voluntary roadside sobriety maneuvers, he arrested her for DUI. Based on petitioner's responses to his requests that she take a blood test or a breath test and his advisements concerning the consequences of refusing to do so, the officer "deemed [petitioner's] actions to be a refusal as it was clear that she did not intend to cooperate." He transported petitioner to the county jail, issued a summons and notice of revocation, and, upon completion of the paperwork, left to resume his patrol duties.

Petitioner testified at the revocation hearing that, after speaking with family members, she told the Routt County deputy sheriff at the jail that she wanted "to take the test." She testified that she made the request sometime between 1:00 and 1:10 a.m. The deputy refused because, according to testimony credited by the hearing officer, the arresting officer had left and the "paperwork [was] all finished."

The hearing officer found that there was reason to contact petitioner's vehicle; that there were sufficient indicia of intoxication for the arresting officer to believe she was driving impaired by alcohol; and that the officer had correctly explained the consequences of refusing a chemical test. He rejected petitioner's argument that, under Zahtila v. Motor Vehicle Division, 39 Colo. App. 8, 560 P.2d 847 (1977), she had validly retracted her initial refusal of testing because the arresting officer could have been contacted and come back to administer the test. Instead, the hearing officer concluded, petitioner could not retract her refusal after the arresting officer had left the detention facility and was no longer available. Resolving conflicts in the testimony based on his assessment of the witnesses' credibility, the hearing officer found that, at the time petitioner told the deputy she wanted to take the test,

[Tlhe officer was outside the facility. If you want to argue availability, he had left. And there's no-after all the attempts that the officer made to have Ms. Gallion take the test and went to that time and that length to 1:11 and she still would ... not choose a test with him, he left. He got back on the road to do his duty.

So I am holding that there was a refusal here....

The hearing officer accordingly ordered that petitioner's driver's license would be revoked for one year.

On review, the district court concluded that the hearing officer had erroneously interpreted the law. Specifically, the court ruled that the law does not require that the arresting officer administer the chemical test, and that another officer could request or administer the test, as long as the latter officer had the necessary information to determine that a valid arrest was made and had reasonable grounds, based on his or her own observation, to determine that the arrestee was under the influence of alcohol.

IL

The Department contends on appeal that petitioner's attempted recantation was invalid because it was not made to the arresting officer but to a custodial officer with another law enforcement ageney, who had no participation in the probable cause determination or responsibility for investigating and prosecuting the DUI charges, and it was made at a time when the arresting officer was no longer available to see that the test was administered or implemented. We agree.

The standard governing judicial review of express consent proceedings, § 42-2-126(10)(b), C.R.S.2006, permits a reviewing court to reverse a revocation order if, as found by the district court here, the Department has made an erroneous interpretation of the law. Erbe v. Colorado Department of Revenue, 51 P.3d 1096 (Colo.App.2002). However, the construction of statutes by agencies charged with their enforcement is entitled to deference, see Colorado Department of Revenue v. Woodmen of the World, 919 P.2d 806 (Colo.1996), and a court may not substitute its judgment for the hearing officer's resolution of factual issues based on conflicting evidence. Alford v. Tipton, 822 P.2d 513 (Colo.App.1991).

A.

Under the express consent statute, a driver is required to cooperate in taking and completing a blood test or a breath test "when so requested and directed by a law enforcement officer having probable cause to believe" that the person was driving in violation of the prohibitions against DUI or similar offenses. Section 42-4-1301.1(2)(a)(I), C.R.S.2006. Pursuant to § 42-2-126(2)(a)(II), C.R.S.2006, the Department is required to revoke the driver's license of any person who refuses "to take or to complete, or to cooperate in the completing of, any test or tests of that person's blood, breath, saliva, or urine" as required by § 42-4-18301.1(2), C.R.S.2006. See Halter v. Department of Revenue, 857 P.2d 535 (Colo.App.1993) (under express consent statute, driver's failure to cooperate is deemed to be a refusal to submit to testing).

The statute does not expressly address the issue of whether an initial refusal to submit to testing may be retracted. However, Colorado cases, beginning with Zahtila v. Motor Vehicle Division, supra, have held that a refusal to submit to a test is not irrevocable and that a driver may in certain cireum-stances reconsider and retract his or her initial refusal. Based on these cases, Colorado is recognized as being among the minority of states that allow a motorist's subsequent consent to cure an initial refusal to submit to testing to determine blood alcohol levels. See Jonathan M. Purver, Annotation, Driving While Intoxicated: Subsequent Consent to Sobriety Test as Affecting Initial Refusal, 28 A.L.R.5th 459 (1995).

In Zahtilo, the division held that a driver who initially refused a blood aleohol test but advised the arresting officer twenty-five minutes later that he would take the test should not have been deemed to have refused testing without being given an opportunity to show that the delay would not have materially affected the test results. The principle that a refusal to submit to testing can be recanted was also recognized in McCampbell v. Charnes, 626 P.2d 762 (Colo.App.1981) (acknowledging Zahtila rule but holding it inapplicable where driver's attorney told officer she wanted her client to take test, but client did not so indicate), and Rogers v. Charnes, 656 P.2d 1322 (Colo.App.1982) (driver's attempted recantation of refusal was ineffective where she failed to show that one hour and fifteen minute delay would not have materially affected test result).

More recently, in Pierson v. Colorado Department of Revenue, 923 P.2d 371 (Colo.App.1996), a division of this court applied Zahtila and discussed in greater detail the cireumstances in which an initial refusal may be rectified by later consent. Reversing an order of revocation, the division disagreed with the hearing officer's ruling that, as a matter of law, a driver cannot validly retract a refusal more than two hours after the time of driving. It held that a driver's retraction and belated consent to testing need only occur within a reasonable time after driving, and it reiterated that the driver has the burden to prove that the delay in implementing testing would not have materially affected the test results.

Pierson was legislatively overruled in part by the General Assembly's 1999 addition of a provision that, if a law enforcement officer requests a blood or breath test, "the person must cooperate with the request such that the sample of blood or breath can be obtained within two hours of the person's driving." Section 42-4-1301.1(2)(a)(III), C.R.S. 2006; see Colo. Sess. Laws 1999, ch. 85, § 42-2-126(2)(a)(II) at 90.

B.

Neither the amended express consent statute nor the case law directly addresses the question presented here-namely, whether petitioner could validly retract her initial refusal after the arresting officer had left the jail to resume his duties. The Department argues that recantation to the arresting officer is a "requirement" under Zahtile and Pierson. However, although Pierson refers to communication of a retraction "to the arresting officer," Pierson, supra, 923 P.2d at 373, we agree with petitioner that Pierson's focus was on "when the recantation can occur, not to whom the recantation must be made," and that neither that case nor Zahti-la squarely holds that a recantation must be made to the arresting officer in order to be valid.

We nevertheless conclude, for the reasons set forth below, that (1) such recantation must be made to the arresting officer or other law enforcement officer with probable cause to believe the driver was violating laws prohibiting DUI or related offenses, and (2) the recantation must be made in sufficient time to obtain a blood or breath sample within two hours of the person's driving. While the district court correctly recognized that an officer other than the arresting officer may in appropriate circumstances direct the administration of a blood or breath test, the court nevertheless erred in reversing the revocation absent any evidence that such an officer was available here, and absent any evidence that the second requirement could have been satisfied.

C.

The first stated purpose of the express consent law is to "provide safety for all persons using the highways of this state by quickly revoking the driver's license of any person who has shown himself or herself to be a safety hazard by driving with an excessive amount of aleohol in his or her body and any person who has refused to submit to an analysis as required by section 42-4-1301.1." Section 42-2-126(1)(a), C.R.98.2006. The law is remedial in nature and is to be liberally construed in the public interest. See Cordova v. Mansheim, 725 P.2d 1158 (Colo.App.1986).

As set forth above, the express consent statute requires that a request for testing be made "by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle in violation of the prohibitions against DUI" and related offenses. Section 42-4-1801.1(2)(a)(). It further provides that the tests "shall be administered at the direction of a law enforcement officer having probable ecause to believe that the person had been driving a motor vehicle in violation of section 42-4-1801." Section 42-4-1301.1(5), C.R.8.2006.

Taken together, these provisions evidence a legislative intent that decisions regarding blood or breath testing be committed to the arresting officer or, at a minimum, to another law enforcement officer who possesses the statutorily required probable cause. See Lahey v. Department of Revenue, 881 P.2d 458 (Colo.App.1994) (recognizing duty imposed on arresting officers under express consent statute). Allowing a retraction to be communicated to a person other than such an officer-for example, to a detention facility official who was not shown to have probable cause to believe that the person in custody had been driving a motor vehicle while under the influence of aleohol-would be inconsistent with the language and intent of these provisions.

Further, the General Assembly's enactment of § 42-4-1801.1(2)(a)(III), requiring that the blood or breath sample be obtained "within two hours of the person's driving," evidences its intent to disallow belated consent to testing if the delay would potentially adversely affect the test results. As noted, the case law has similarly emphasized the requirement that delays in consenting must not materially affect the test results. See Pierson, supra; Zahtila, supra. Allowing a driver to communicate his or her belated consent to testing to a person lacking the requisite probable cause to direct testing is inconsistent with that intent and does not further the statutory purpose articulated in § 42-2-126(1)(a).

D.

Applying these standards to the facts presented at the revocation hearing, we conclude the record amply supports the hearing officer's determination that petitioner did not validly retract her initial refusal to consent to testing.

First, there is nothing in the record to suggest that the jail deputy to whom petitioner made her attempted recantation had probable cause to believe that she had been driving in violation of the prohibitions against DUI and related offenses. Nor does petitioner so argue. Rather, she contends that the deputy was required to attempt to contact the arresting officer, who, she speculates, could have returned to the jail to administer the test or directed a sheriffs deputy to do so. We disagree. We decline to require law enforcement personnel to attempt to recall an arresting officer who has left the detention facility to resume patrol duties. We likewise decline to hold that an arresting officer who has completed the nee-essary paperwork and turned the arrested driver over to the custody of others is required to remain with the driver in case the driver decides to recant his or her initial refusal. Such requirements would impose a burden on law enforcement without furthering the intent and purpose of the express consent law.

Second, having initially refused testing and thereby established grounds for revocation of her license, petitioner had the burden to establish that her belated consent to testing would not have materially affected the test results. See Pierson v. Colorado Department of Revenue, supra; Rogers v. Charnes, supra. Petitioner made no such showing. Further, the burden was on her to "cooperate ... such that the sample of blood or breath [could] be obtained within two hours" of her driving. Section 42-4-1301.1(2)(a)(III). She made no showing that the testing could have been completed by 1:46 a.m., when the two-hour period expired. On the contrary, given the timing of petitioner's request, the hearing officer's finding that the arresting officer had by then left the facility to resume his patrol duties, and a police activity report showing that the arresting officer made another traffic stop at 1:29 a.m., there is no basis for presuming that the testing could have been completed within that period.

In sum, we conclude that the district court erred in reversing the revocation of petitioner's license.

Therefore, the judgment is reversed, and the case is remanded to the district court with directions to reinstate the order of revocation.

Judge TERRY concurs. Judge TAUBMAN dissents.