v. Dep't of Revenue

2019 COA 29

• Court: Colorado Court of Appeals
• Decided: February 21, 2019
• Docket: 18CA1230, Neppl
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY February 21, 2019

2019COA29

No. 18CA1230, Neppl v. Dep’t of Revenue — Regulation of Vehicles and Traffic — Alcohol and Drug Offenses — Expressed Consent for the Taking of Blood, Breath, Urine, or Saliva

In this driver’s license revocation appeal, a division of the

court of appeals holds, as a matter of first impression, that the

express consent statute, section 42-4-1301.1(6), C.R.S. 2018, does

not require a paramedic who draws a blood sample to be directly

supervised by a doctor at the time of the draw. The division further

concludes, consistent with People v. Mari, 187 Colo. 85, 528 P.2d

917 (1979), that the words “under supervision” do not require on-

the-spot supervision. The revocation is affirmed. COLORADO COURT OF APPEALS 2019COA29

Court of Appeals No. 18CA1230 Weld County District Court No. 18CV30116 Honorable Marcelo A. Kopcow, Judge

Daniel Earl Neppl,

Plaintiff-Appellant,

v.

Colorado Department of Revenue,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division III Opinion by JUDGE FREYRE Webb and Román, JJ., concur

Announced February 21, 2019

Fife Luneau, P.C., Charles L. Fife, Daniel Luneau, Denver, Colorado, for Plaintiff-Appellant

Philip J. Weiser, Attorney General, Laurie Rottersman, Senior Assistant Attorney General, Denver, Colorado, for Defendant-Appellee ¶1 Plaintiff, Daniel Earl Neppl, appeals the district court’s

judgment affirming the revocation of his driver’s license by the

Colorado Department of Revenue (Department). The Department

revoked Neppl’s license based on a test result showing that he had

a legally excessive blood alcohol content (BAC).

¶2 Neppl contends that the test result was inadmissible because

the paramedic who drew his blood did not have a supervisor

physically present. He asks us to interpret the words “under the

supervision” in the express consent statute, section 42-4-1301.1(6),

C.R.S. 2018, to require on-the-spot supervision ― an issue of first

impression. We reject his contention for two reasons. First, we

hold that the plain language does not require a doctor’s supervision

of a paramedic. Second, even assuming it did, we conclude that,

consistent with our supreme court’s interpretation of the same

language in a prior version of Colorado’s driving under the

influence/implied consent statute, “under the supervision” is not

synonymous with “on-the-spot” supervision. For these reasons, we

affirm the judgment.

I. Background

1 ¶3 The hearing officer made the following record-supported

findings.

¶4 A police officer stopped Neppl’s vehicle after Neppl twice failed

to use his turn signal. On contacting Neppl, the officer noticed

several indicia of alcohol intoxication, and Neppl admitted to

drinking four beers. After Neppl failed to satisfactorily perform

voluntary roadside maneuvers, the officer advised him of his

options under the express consent law. Neppl chose a blood test.

That test showed that he had a BAC of .188 grams of alcohol per

100 milliliters of blood.

¶5 After receiving the test results, the officer issued Neppl a

notice of revocation. See § 42-2-126(3)(a), C.R.S. 2018 (requiring

the Department to revoke a person’s license for a BAC in excess of

0.08). Neppl requested a hearing. As pertinent here, Neppl argued

at the hearing that the paramedic who drew his blood was not

authorized to do so because the doctor who supervised the

paramedic was not present at the time of the blood draw. The

hearing officer rejected Neppl’s argument and concluded that the

person performing the blood draw was “either a paramedic or

emergency medical technician” and was therefore “qualified” to

2 withdraw the blood without any direct supervision by a doctor or

nurse. Consequently, the hearing officer sustained the revocation.

¶6 Neppl then commenced this review action in the district court.

He again argued, among other things, that the paramedic was not

authorized to perform the blood draw without direct doctor

supervision. The district court disagreed. It concluded that under

the applicable statute and regulations, paramedics need not be

supervised to perform blood draws and that, even if supervision was

necessary, nothing required direct supervision at the time of the

blood draw. The court also concluded that any technical

noncompliance associated with the blood draw would go to its

weight and not its admissibility. Accordingly, the court affirmed the

Department’s revocation of Neppl’s license.

II. Discussion

¶7 Neppl’s contentions provide no basis for reversing the district

court’s judgment or the underlying revocation order.

A. Standard of Review

¶8 Section 42-2-126(9)(b) governs judicial review of the

Department’s driver’s license revocation orders. Under that statute,

a reviewing court may reverse the Department’s determination if it

3 (1) exceeded its constitutional or statutory authority; (2) erroneously

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

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

evidence in the record. See Hanson v. Colo. Dep’t of Revenue, 2012

COA 143, ¶ 13, aff’d, 2014 CO 55.

¶9 A reviewing court may not disturb a hearing officer’s factual

findings unless they are “clearly erroneous on the whole record.”

§ 24-4-106(7)(b)(VII), C.R.S. 2018 (made applicable through 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. Long v. Colo. Dep’t of Revenue, 2012 COA 130, ¶ 6.

However, courts review de novo agency determinations regarding

questions of law. Id. at ¶ 7.

¶ 10 We occupy the same position as the district court when

reviewing the Department’s actions. See Haney v. Colo. Dep’t of

Revenue, 2015 COA 125, ¶ 14.

B. The Paramedic’s Authority to Draw Blood

¶ 11 Neppl’s argument that the statute requires on-the-spot

supervision requires us to interpret section 42-4-1301.1(6). “Our

4 objective when interpreting a statute is to effectuate the intent and

purpose of the General Assembly.” Zelenoy v. Colo. Dep’t of

Revenue, 192 P.3d 538, 541 (Colo. App. 2008). To achieve this

objective, we begin with the statute’s express language, and if that

language is clear and unambiguous, we must apply its plain and

ordinary meaning. See id.

¶ 12 Section 42-4-1301.1(6) is part of the express consent statute.

It provides, in relevant part, as follows:

No person except a physician, a registered nurse, a paramedic, as certified in part 2 of article 3.5 of title 25, C.R.S., an emergency medical service provider, as defined in part 1 of article 3.5 of title 25, C.R.S., or a person whose normal duties include withdrawing blood samples under the supervision of a physician or registered nurse shall withdraw blood to determine the alcoholic or drug content of the blood for purposes of this section.

§ 42-4-1301.1(6)(a).

¶ 13 Neppl relies on a blood draw form that the paramedic

completed. In that form, the paramedic initialed the following

statement: “I draw blood samples regularly in the course of my

duties for Mountain View Fire Rescue. I am supervised by

Mountain View Fire Rescue Medical Director, Adam J. Rush, MD.”

5 He argues this statement means that the paramedic had to be

supervised by Dr. Rush while conducting any blood draw and that,

because Dr. Rush was not present and supervising the blood draw

here, section 42-4-1301.1(6)(a) was violated. We disagree with this

argument for two reasons.

¶ 14 First, under section 42-4-1301.1(6)(a)’s plain language, a

paramedic need not be supervised by a physician or nurse to

withdraw blood. The statute describes five categories of individuals

— (1) physicians; (2) registered nurses; (3) paramedics; (4)

emergency medical service providers; and (5) other persons “whose

normal duties include withdrawing blood samples.” Id. By the

statute’s plain terms, only the last category of individuals must be

under the supervision of a physician or registered nurse. As the

hearing officer noted, construing the statute to require paramedics

to be supervised would also require physicians and nurses to be

supervised, an absurd or unreasonable result. See People v.

Ramirez, 2018 COA 129, ¶ 52 (courts will not follow a statutory

construction that leads to an unreasonable or absurd result).

¶ 15 Neppl also argues that nothing in the record shows that the

paramedic was “certified” under Title 25. However, this factual

6 issue is not properly before us because Neppl failed to raise it in the

administrative proceedings. See Tate v. Colo. Dep’t of Revenue, 155

P.3d 643, 647 (Colo. App. 2007); see also Hancock v. State, 758

P.2d 1372, 1376 (Colo. 1988) (review of agency action is limited to

the record before the agency); Poe v. Dep’t of Revenue, 859 P.2d

906, 909 (Colo. App. 1993) (same).

¶ 16 Second, even if we were to conclude that a paramedic needs to

be supervised by a physician, the record establishes that he was

supervised by Dr. Rush. Contrary to Neppl’s assertion, nothing in

section 42-4-1301.1(6)(a), or the blood draw form on which he

relies, required Dr. Rush to be physically present and supervising

each blood draw.

¶ 17 In People v. Mari, 187 Colo. 85, 528 P.2d 917 (1974), the

supreme court rejected a similar argument based on a prior version

of Colorado’s driving under the influence/implied consent statute.

That statute provided that “no person except a physician, registered

nurse, or a person whose normal duties include withdrawing blood

samples under the supervision of a physician or registered nurse

shall be entitled to withdraw blood.” § 13-5-30(3)(b), C.R.S. 1967.

The defendant argued that because the medical technologist who

7 performed the blood draw in that case “was not, at the moment she

withdrew defendant’s blood, acting under the supervision of a

doctor or registered nurse, she did not come within the class of

persons qualified by the statute to withdraw blood.” Mari, 187 Colo.

at 87, 528 P.2d at 919. The court disagreed:

We do not read the statute to require on-the- spot supervision; on the contrary, if [the person’s] normal duties as a medical technologist include withdrawing blood samples while she is under the supervision of a physician or registered nurse, she qualifies notwithstanding the fact that supervision was not present at this time. We read the ‘under supervision’ clause as referring to any ‘normal duties’ and not as a requirement that the supervision be present at the time the technician withdraws the blood.

Id.

¶ 18 Consistent with Mari’s reasoning, we conclude that the

paramedic was authorized to draw Neppl’s blood, and that the

statute does not require a supervisor to be physically present for a

blood draw. We further note that, even if the blood draw had not

strictly comported with the statutory or regulatory requirements,

such deficiency would have merely impacted the weight to be

afforded the test results, not its admissibility. See Dye v. Charnes,

8 757 P.2d 1162, 1163 (Colo. App. 1988) (failure to establish whether

nurse met criteria in regulations went to weight, rather than

admissibility, of blood test results in driver’s license revocation

proceeding); see also Siddall v. Dep’t of Revenue, 843 P.2d 85, 87

(Colo. App. 1992) (any deficiency in evidence as to whether blood

test kit complied with applicable regulatory requirements went to

weight given to results, not their admissibility).

¶ 19 Neppl also argues that the district court erred in applying both

section 42-4-1301(6)(f), C.R.S. 2018, which pertains to the

admissibility of chemical tests in driving under the influence

proceedings, and certain Colorado Department of Public Health and

Environment regulations describing the persons authorized to

collect blood specimens. He reasons that these provisions do not

apply here because he only challenged the blood draw under

section 42-4-1301.1(6)(a), which is “separate and apart” from any

regulatory requirements. We need not address this argument,

however, because (1) we have already concluded that the

paramedic’s blood draw was authorized under section 42-4-

1301.1(6)(a); and (2) the district court’s analysis is not necessarily

9 controlling or relevant since we occupy the same position as it when

reviewing the Department’s actions. See Haney, ¶ 14.

C. Neppl’s Consent

¶ 20 Neppl last contends that he did not voluntarily consent to the

blood draw because his consent “was premised on the belief that a

legally authorized person would be performing his blood draw.” But

at the administrative revocation hearing, Neppl never argued that

he did not voluntarily consent to the blood draw. Because he raised

this issue for the first time on appellate review, we decline to

address it. See Tate, 155 P.3d at 647. In any event, even if we were

to assume the record somehow showed that Neppl’s consent was

conditioned on the blood draw being performed by a legally

authorized person, we have upheld the hearing officer’s

determination that the paramedic was so authorized.

III. Conclusion

¶ 21 The district court’s judgment is affirmed.

JUDGE WEBB and JUDGE ROMÁN concur.