Opinion
No. 79CA0391
Decided November 29, 1979.
Department of revenue appealed district court judgment which set aside the department's order revoking driver's license under the implied consent statute.
Reversed
1. APPEAL AND ERROR — Written Trial Court Order — Reduced to Writing — Earlier Oral Order — Circumstances — Premature Filing — Notice of Appeal — Jurisdiction Not Defeated. Where, on review of driver's license revocation, trial court order entered on May 7 merely reduced to written form the court's oral order of April 10, where no motion for new trial was required, and where notice of appeal clearly apprised driver of the judgment challenged, the premature filing of notice of appeal on April 30 did not deprive Court of Appeals of jurisdiction of the matter.
2. DRIVING UNDER THE INFLUENCE — Implied Consent Statute — Arrest — Must Precede — Request for Test — Failure — Take Driver — Before Judge — Immaterial — Driver In Custody — Arrest Occurred — Revocation of License — Proper. Under the implied consent statute, an arrest must precede any request to submit to a blood alcohol test, but the failure of driver to be promptly taken before county court judge as required by statute concerning prosecution for offense of driving under the influence did not mean that driver was not under "arrest"; rather, the arrest referred to in the implied consent statute occurred in that the driver was in custody and was obviously not free to leave of his own volition; hence, the request to submit to a blood alcohol test properly followed an arrest, and his refusal justified revocation of his license.
Appeal from the District Court of Weld County, Honorable Jonathan W. Hays, Judge.
Zane M. Pic, Ellen J. Helberg, for petitioner-appellee.
J. D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, James R. Willis, Special Assistant Attorney General, for respondent-appellant.
The Department of Revenue appeals from a judgment of the district court which set aside the Department's order revoking the driver's license of Jose Alberto Ayala pursuant to the implied consent statute, § 42-4-1202(3), C.R.S. 1973. We reverse and remand the case for further proceedings.
The record reflects that Ayala was involved in a single car accident on October 8, 1977, which was investigated by officer Carolus of the Colorado State Patrol. Ayala was the only occupant of the vehicle, and, when the officer arrived at the scene, Ayala was suffering intense pain from a leg injury. Carolus extricated Ayala from the vehicle and called for an ambulance.
After the ambulance arrived, Carolus called for another patrolman to meet Ayala at the hospital in order to take a blood alcohol sample. Officer Swencki met the ambulance at the hospital, and, after medical treatment had been rendered, he provided Ayala with the written and oral advisements required by the statute, and then requested that Ayala submit to a test. Ayala declined, and Swencki then escorted Ayala to the sheriff's office where they met with Carolus. Ayala was then issued a summons and complaint for driving while under the influence of alcohol.
Following the hearing before a hearing officer of the Department at which an order revoking Ayala's license was entered, Ayala sought judicial review in the district court. The district court's ruling in favor of Ayala was made from the bench on April 10, 1979, and counsel for Ayala was directed to submit a written order for approval by the trial court. The Department's notice of appeal was filed on April 30, 1979. However, the written order was not signed by the trial court until May 7, 1979. See C.R.C.P. 58(a).
We must first address Ayala's contention that this court lacks jurisdiction to consider the Department's appeal because the notice of appeal was premature. We conclude that this court has jurisdiction.
[1] It is not disputed that the written order entered on May 7 merely reduces to written form the court's ruling made from the bench following oral argument on April 10, 1979. And, there is no requirement that a motion for new trial be filed in this case. See C.R.C.P. 59(h). Further, the notice of appeal clearly apprised Ayala of the judgment which was challenged by the Department. See Happy Canyon Investment Co. v. Title Insurance Co., 38 Colo. App. 385, 560 P.2d 839 (1976), and no prejudice accrues to Ayala because of the premature filing. Under these circumstances, we conclude that the premature notice of appeal does not divest this court of jurisdiction. See Morris v. Uhl Lopez Engineers, Inc., 442 F.2d 1247 (10th Cir. 1971); Firchau v. Diamond National Corp., 345 F.2d 269 (9th Cir. 1965).
The sole issue on this appeal is whether Ayala was arrested in compliance with § 42-4-1202(3)(a), C.R.S. 1973. The statute predicates a driver's implied consent for a test upon his arrest for "any misdemeanor offense arising out of acts alleged to have been committed while . . . [he] was driving a motor vehicle while under the influence . . . ." In response to Ayala's contention that he was not placed under arrest until after the officer requested that he submit to a test, the Department hearing officer ruled that the time of arrest was irrelevant and that, because Ayala was clearly under arrest at the sheriff's office, the requirement of the statute had been satisfied.
The district court reversed, based upon § 42-4-1504(1)(c), C.R.S. 1973 (1978 Cum. Supp.), which provides, insofar as pertinent here, that, whenever a person is arrested for driving under the influence, that person "shall be taken without unnecessary delay before a county judge who has jurisdiction of such offense . . . ." The district court reasoned that, because of the failure of the officers to comply with this provision, Ayala had not been under arrest at the time of the test request. We do not agree with either the hearing officer or the district court.
[2] Contrary to the Department's assertion, an arrest must precede any request that a driver submit to a blood alcohol test. People v. Brown, 174 Colo. 513, 485 P.2d 500 (1971). However, the requirement in § 42-4-1504 for an appearance before the county court is a post-arrest requirement relative to the criminal prosecution for driving under the influence. That appearance has no bearing upon a civil proceeding under the implied consent statute. Thus, the arrest referred to in § 42-4-1202 constitutes detention by an officer such that the driver is in custody and obviously not free to leave of his own volition. See People v. Apodaca, 38 Colo. App. 395, 561 P.2d 351 (1976), aff'd, 194 Colo. 324, 571 P.2d 1109 (1977).
The judgment is reversed and the cause remanded to the district court with directions to enter an order remanding the case to the Department for a hearing to determine when Ayala was placed under arrest and for further proceedings based thereon which are consistent with the views expressed in this opinion.
JUDGE PIERCE and JUDGE VAN CISE concur.