Hendrickson v. State, Department of Revenue, Motor Vehicle Division

716 P.2d 489, 1986 Colo. App. LEXIS 854

• Court: Colorado Court of Appeals
• Decided: February 13, 1986
• Docket: No. 85CA0116
• Status: Published

Opinion

HODGES

*, Judge.

Harold Dean Hendrickson appeals from a district court judgment upholding the revocation of his driver’s license. We affirm.

Hendrickson was arrested for driving a vehicle when the level of alcohol in his breath exceeded 0.15 grams of alcohol per 210 liters of breath in violation of § 42-4-1202(1.5), C.R.S. (1984 Repl.Vol. 17). Using the notice of revocation form provided by the motor vehicle division, the arresting officer advised Hendrickson of his rights, including the right to a hearing before the motor vehicle division. Acting pursuant to § 42-2-122. 1(1)(b), C.R.S. (1984 Repl.Vol. 17), the Department of Revenue revoked Hendrickson’s driver’s license. Hendrick-son requested a hearing, after which the revocation was sustained. He then sought to have the revocation set aside in the district court.

Hendrickson contends that because the notice of revocation served by the arresting officer failed to comply with § 42-2-122.-1(3)(c), C.R.S. (1984 Repl.Vol. 17), the district court erred in not reinstating his driving privileges. He argues that the notice of revocation was fatally defective because it stated that the chemical test of his breath “disclosed an alcohol concentration of 0.15 or more” when § 42-2-122. 1(8)(c), C.R.S. (1984 Repl.Vol. 17) requires that a finding be made that the driver had “0.15 or more grams of alcohol per hundred milliliters of blood or 0.15 grams of alcohol per two hundred ten liters of breath at the time of the commission of the alleged offense.” We disagree.

Here, although the notice set forth a shortened description of the percentage of alcohol that must be found in Hendrick-son’s breath, it did cite him to the appropriate statutory section which describes specifically and fully the alcoholic content of the breath or blood which must be established at the motor vehicle division hearing before the revocation can be sustained. Hendrickson requested the hearing and appeared with counsel. There is no indication in the record of the hearing that the notice caused him any prejudice in the cross-examination of the state’s witnesses or presentation of his case. Furthermore, one who, in response to a notice, appears with counsel and fully participates in a hearing, should not later be heard to complain as to the sufficiency of the notice he received. Mattingly v. Charnes, 700 P.2d 927 (Colo.App.1985).

In an agency proceeding of the type provided here, due process requires notice reasonably calculated to apprise the person notified of the nature of the proceeding and an opportunity to present his objections. Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950). The notice here fully complies with this requirement.

We thus perceive no prejudice affecting Hendrickson’s substantial rights, and the Department of Revenue’s ruling and the district court’s judgment upholding the revocation must stand. See Mattingly v. Chames, supra.

Judgment affirmed.

ENOCH, C.J., and SILVERSTEIN *, J., concur.

Sitting by assignment of the Chief Justice under provisions of the Colo. Const., Art. VI, Sec. 5(3), and § 24-51-607(5), C.R.S. (1982 Repl.Vol. 10).