Notarmuzi v. CDOR

• Court: Colorado Court of Appeals
• Decided: February 13, 2025
• Docket: 24CA0217
• Status: Unpublished

Opinion

24CA0217 Notarmuzi v CDOR 02-13-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0217 Douglas County District Court No. 23CV30479 Honorable Gary M. Kramer, Judge

Caron Notarmuzi,

Plaintiff-Appellant,

v.

Colorado Department of Revenue, Division of Motor Vehicles,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division II Opinion by JUDGE LUM Fox and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 13, 2025

OllomPrice Criminal Defense, Levi Price, Ross Ollom, Denver, Colorado, for Plaintiff-Appellant

Philip J. Weiser, Attorney General, Danny Rheiner, Assistant Solicitor General, Denver, Colorado, for Defendant-Appellee ¶1 Caron Notarmuzi appeals the district court’s judgment

affirming the revocation of her driver’s license based on her refusal

to take a breath or blood test. We affirm.

I. Background

¶2 At the license revocation hearing conducted by the Colorado

Department of Revenue’s Division of Motor Vehicles (the

Department), the hearing officer heard evidence that would support

the following findings.

¶3 Deputy Lindsey Queiser was on duty when she noticed

Notarmuzi, who appeared to be intoxicated, crossing the parking lot

of a bar while being supported by a friend. As Notarmuzi reached

her vehicle and got into the driver’s seat, Deputy Queiser

approached.

¶4 While Deputy Queiser spoke with the friend, Notarmuzi

started the engine. She stayed in the vehicle with the driver’s door

closed and the motor running for up to a minute. Deputy Queiser

then got her attention, and she stepped out of the vehicle.

¶5 Deputy Queiser expressed concerns about Notarmuzi driving

while intoxicated. Notarmuzi was agitated, yelling, and exhibiting

more signs of intoxication. She questioned the deputy and stated

1 that she intended to drive home. She eventually got back into the

driver’s seat. Deputy Queiser and a fellow officer immediately held

Notarmuzi’s arms until a third officer removed her keys from the

ignition. The officers then arrested her.

¶6 Deputy Queiser advised Notarmuzi about Colorado’s express

consent statute. See § 42-4-1301.1, C.R.S. 2024. In relevant part,

the express consent statute requires a person to take a breath or

blood test when law enforcement has probable cause to believe that

the person drove a motor vehicle while intoxicated. § 42-4-

1301.1(2)(a)(I). Notarmuzi twice refused to conduct any tests, but

she also said she didn’t understand the advisements even though

Deputy Queiser gave her multiple explanations. Eventually, Deputy

Queiser warned Notarmuzi that she would note Notarmuzi was

refusing testing, and after Notarmuzi acknowledged the warning,

Deputy Queiser recorded her refusal on a notice of revocation. See

§ 42-2-126(5)(b)(I), C.R.S. 2024 (“A law enforcement officer . . . shall

personally serve a notice of revocation on a person . . . based on a

refusal . . . .”).

¶7 Deputy Queiser transported Notarmuzi to a medical center

and obtained a search warrant to draw a blood sample. She then

2 told Notarmuzi that a blood sample would be taken as part of the

search warrant. According to Deputy Queiser’s incident report,1

Notarmuzi ultimately consented to the blood draw after Deputy

Queiser explained the authority of the warrant, warned of additional

criminal charges if Notarmuzi refused to comply with the warrant,

warned that the warrant authorized force, and called other officers

for assistance.

¶8 The Department was notified that Notarmuzi had refused to

submit to testing under the express consent statute, and it revoked

her driver’s license for one year pursuant to section 42-2-

126(3)(c)(I). See § 42-4-1301.1(2)(a.5)(III); § 42-2-126(2)(h), (5)(a)-

(b), (6)(a).

¶9 Notarmuzi requested a hearing before a hearing officer from

the Department to review the revocation determination. See § 42-2-

126(7)-(8); see also § 42-2-126(2)(f). After the hearing, the hearing

officer found, as relevant here, that (1) because Notarmuzi had been

in the vehicle’s driver’s seat with the door closed and the engine

1 The incident report was admitted into evidence as part of the

express consent packet submitted to the Department. See § 42-2- 126(5)(a), (8)(c), C.R.S. 2024.

3 running, she had driven the vehicle while intoxicated; and

(2) Notarmuzi had refused testing and never recanted her initial

refusal even though she eventually consented to having her blood

drawn under the warrant. The hearing officer therefore sustained

the revocation.

¶ 10 Notarmuzi sought judicial review of that determination under

section 42-2-126(9)(a), and the district court affirmed.

¶ 11 Notarmuzi now appeals the district court’s order. She

contends that the hearing officer had insufficient evidence to

determine that she drove her vehicle while intoxicated because she

was never in actual physical control of the car.2 She also contends

that there was insufficient evidence to support a finding that she

refused testing because she recanted her initial refusal by agreeing

to and cooperating with the blood draw.

II. Standard of Review

¶ 12 We may only reverse the Department’s determination if it (1)

“exceeded its constitutional or statutory authority”; (2) erroneously

interpreted the law; (3) “acted in an arbitrary and capricious

2 Notarmuzi doesn’t contend that there was insufficient evidence of

intoxication.

4 manner”; or (4) “made a determination that is unsupported by the

evidence in the record.” § 42-2-126(9)(b); see also Neppl v. Colo.

Dep’t of Revenue, 2019 COA 29, ¶ 8.

¶ 13 “In reviewing revocation proceedings, we stand in the same

position as the district court.” Jansma v. Colo. Dep’t of Revenue,

2023 COA 59, ¶ 18. We may not disturb the hearing officer’s

findings unless they are “clearly erroneous [based] on the whole

record.” Neppl, ¶ 9 (quoting section 24-4-106(7)(b)(VII), C.R.S.

2024, which is made applicable by section 42-2-126(11)). “The

credibility of witnesses, the weight to be afforded the evidence, and

the resolution of conflicting evidence are factual matters solely

within the hearing officer’s province as the trier of fact.” Id. If there

is conflicting evidence, “the hearing officer’s finding is binding on

appeal” and we “may not substitute [our] judgment for that of the

fact finder.” Glasmann v. State, 719 P.2d 1096, 1097 (Colo. App.

1986).

III. Driving

¶ 14 Driving a vehicle while intoxicated is a necessary condition for

revocation under the express consent law. See Motor Vehicle Div. v.

Warman, 763 P.2d 558, 560 (Colo. 1988). In the express consent

5 context, driving means having “actual physical control” of a vehicle.

People v. Swain, 959 P.2d 426, 431 (Colo. 1998). “Actual physical

control” requires that the vehicle is “reasonably capable of being

rendered operable.” People v. VanMatre, 190 P.3d 770, 773 (Colo.

App. 2008).

¶ 15 Notarmuzi argues that there was insufficient evidence to show

she had actual physical control of the vehicle because she did not

have “the chance to put the car in gear” when she first sat in the

driver’s seat. And the second time she sat in the vehicle, the

officers physically restrained her. She contends that her inability to

shift gears or move freely means that she couldn’t render the

vehicle operable. We aren’t persuaded.

¶ 16 Deputy Queiser testified that when Notarmuzi first entered her

car, she started the engine and remained in the driver’s seat with

the door closed for up to a minute with the engine running. This

evidence supports the hearing officer’s finding that she drove

because even if a person’s car is parked in a private lot, “[a] person

who places [themselves] behind the steering wheel of a motor

vehicle with its engine running is in actual physical control of the

vehicle, since the vehicle can be put in motion by minimal physical

6 activity, even if the activity might be unintentional.” Warman, 763

P.2d at 561-62.

¶ 17 We reject Notarmuzi’s contention that she didn’t make the

vehicle operable — and thus didn’t have actual physical control —

because she didn’t move the vehicle while intoxicated (to or from the

parking lot) or put the car into gear. Moving her vehicle or shifting

gears were not necessary to make the vehicle capable of being

rendered operable. See VanMatre, 190 P.3d at 772 (holding that the

express consent statute does not require “actual physical movement

of a vehicle” or for the “vehicle [to] travel any particular distance”).

Starting the engine while sitting in the driver’s seat was enough to

make the vehicle capable of being put into motion with minimal

effort. See Warman, 763 P.2d at 561-62; cf. Colo. Div. of Revenue v.

Lounsbury, 743 P.2d 23, 27 (Colo. 1987) (“The operation of a motor

vehicle, for purposes of drunk driving statutes, can be as minimal

as merely starting the motor, even though the vehicle is parked, or

starting the engine and leaving the car idling in neutral.”) (emphasis

added) (citations omitted).

¶ 18 We further reject Notarmuzi’s claim that the running engine

was not determinative of whether she had actual physical control.

7 The hearing officer did not view the running engine in a vacuum.

Rather, the hearing officer found the vehicle capable of being put

into motion because (1) the engine was running and (2) it was

running when Notarmuzi was “in the driver’s seat with the driver’s

door closed.”

¶ 19 Because the hearing officer’s finding that Notarmuzi had

actual physical control of her vehicle has record support, we discern

no error. See Neppl, ¶ 9. And because Notarmuzi needed to “drive”

only once for the express consent law to apply, we need not

consider whether she was in actual physical control of her car the

second time she entered it.

IV. Blood Draw

¶ 20 Notarmuzi next contends that there was insufficient evidence

to show that she refused testing. We disagree.

A. Legal Principles

¶ 21 Once directed by a law enforcement officer to take a breath or

blood test under the express consent statute, a person believed to

have committed an alcohol-related driving offense “must cooperate”

with the request so that “the sample of blood or breath can be

obtained within two hours of the person’s driving.” § 42-4-

8 1301.1(2)(a)(III). If a person initially refuses to submit to a blood

test or a breath test, the person may still reconsider their decision

and express a willingness to take a test. See Gallion v. Colo. Dep’t of

Revenue, 171 P.3d 217, 222 (Colo. 2007). However, unless the

person timely cooperates with the request for testing, their initial

refusal will remain in effect. See id. at 222-23.

¶ 22 In determining whether there was a refusal, a hearing officer

should apply an objective standard to “determine whether a driver’s

statements or behavior constituted an outright refusal or a refusal

by noncooperation.” Haney v. Colo. Dep’t of Revenue, 2015 COA

125, ¶ 16. A hearing officer must apply this same standard to a

recantation of a refusal, considering “the driver’s statements and

behavior indicating willingness or unwillingness to take the test.”

Gallion, 171 P.3d at 222 (citing Dolan v. Rust, 576 P.2d 560, 562

(Colo. 1978)).

¶ 23 “If a hearing officer’s finding on the refusal issue is based on

application of the proper objective legal standards and resolution of

conflicting inferences from the evidence, it is binding on review.”

Haney, ¶ 17.

9 B. Analysis

¶ 24 To the extent Notarmuzi suggests that she didn’t initially

refuse testing and simply misunderstood the advisements, we

conclude that the hearing officer’s findings about her refusal are

supported by the record. While Deputy Queiser testified that

Notarmuzi said she didn’t understand Deputy Queiser’s explanation

of the express consent law, she also testified that Notarmuzi

outright refused to conduct a test twice.3 See § 42-2-126(9)(b).

¶ 25 Notarmuzi next argues that, even if she initially refused

testing, her later consent to the blood draw amounted to a

recantation because it was an expression of her willingness to

cooperate. But Deputy Queiser’s testimony shows that Notarmuzi

agreed to allow the blood draw during a conversation about

executing the search warrant, not about the express consent law.

3 The hearing officer admitted into evidence Deputy Queiser’s body

camera video of her encounter with Notarmuzi. When Notarmuzi cross-examined Deputy Queiser, some of her questions suggested that the video might be inconsistent with Deputy Queiser’s testimony. However, the video was not included with the record on appeal, so we presume it supports the hearing officer’s findings. See In re Marriage of Tagen, 62 P.3d 1092, 1096 (Colo. App. 2002) (“It is the appellant’s responsibility to designate the record on appeal . . . . [A]nd we presume that material portions omitted from the record would support the judgment of the trial court.”).

10 And according to the deputy’s incident report, Notarmuzi initially

said she would not comply with the search warrant, even if it meant

facing additional criminal charges. Deputy Queiser then warned

Notarmuzi that the warrant authorized the use of a degree of force,

but Notarmuzi still said that Deputy Queiser “would need to get as

many people there as [she] would need [sic] for the blood draw to be

conducted.” Only after Deputy Queiser called for additional

deputies and a lieutenant came and spoke with Notarmuzi did

Notarmuzi finally relent and consent to the blood draw.

¶ 26 Given this context and Notarmuzi’s uncooperative conduct, it

was reasonable for the hearing officer to interpret Notarmuzi’s

consent as merely an agreement not to obstruct the execution of the

search warrant. An agreement to not physically resist testing that

has already been authorized by a search warrant is not a personal

expression of willingness to timely cooperate with a request to

obtain a blood sample. See Gallion, 171 P.3d at 222; cf.

McCampbell v. Charnes, 626 P.2d 762, 764 (Colo. App. 1981)

(upholding the hearing officer’s finding that the driver’s initial

refusal remained unchanged because, although the driver’s

11 attorney recanted on the driver’s behalf, the driver never personally

expressed a willingness to take a test).

¶ 27 Therefore, even if Notarmuzi’s consent was susceptible of

conflicting interpretations, it was within the hearing officer’s

purview to resolve the conflict by finding Notarmuzi had consented

only to the execution of the search warrant, not to cooperate with

testing in compliance with the express consent statute. See Neppl,

¶ 9. And because the record supports the court’s finding, we

cannot disturb it. See Haney, ¶ 17.

V. Disposition

¶ 28 We affirm the judgment of the district court.

JUDGE FOX and JUDGE GOMEZ concur.