Opinion
Rehearing Denied April 9, 1974.
Page 109
Law Offices of William E. Myrick, P.C. William E. Myrick, Robert O. Newton, Denver, for plaintiff-appellant.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., James K. Tarpey, Asst. Atty. Gen., Denver, for defendant-appellee.
COYTE, Judge.
Pursuant to the implied consent statute, 1971 Perm.Supp., C.R.S.1963, 13--5--30(3), the Department of Revenue, Motor Vehicle Division, revoked Harry Bath's operator's license for a period of six months. Bath sought review in the district court and, after a hearing, the court upheld the revocation of his operator's license. We affirm.
The record discloses that Bath was contacted by an officer of the Northglenn Department of Public Safety on May 25, 1972, at the approximate location of Interstate 25 and 104th Avenue, in the city of Northglenn, Colorado. The officer testified that he proceeded to that location in response to a call from his dispatcher. When he arrived at the scene, the officer observed that Bath's automobile had struck a guardrail. Two persons there told him that prior to the accident they had followed Bath from the Boulder exit on Interstate 25 north to the 104th Avenue exit on Interstate 25 and had observed him weaving from side to side and that he had run three of four cars off the road; and that they had taken the automobile keys from Bath because he was drunk. As the officer approached Bath's vehicle, he smelled a strong odor of alcohol on Bath's breath. Bath stumbled twice as the officer escorted him back to the patrol car. The officer asked Bath to perform a roadside sobriety test, which Bath refused to do. The officer testified that thereafter he placed Bath under arrest for driving while under the influence of intoxicating liquor, and advised him of his rights. The officer further testified that at the station house he filled out the form of advisement pursuant to the requirements of the implied consent statute and read it to Bath, who refused to sign it. Moreover, Bath refused to submit to any form of sobriety test, whereupon he was then transported to the Adams County jail.
Bath testified that he agreed with the substance of the officer's testimony. However, Bath testified that while he refused to take a chemical test he did agree to take a blood test. He was uncertain whether his acquiescence to a blood test took place at the station house or at the Adams County jail. Moreover, he did not know whether the arresting officer was present at the time he agreed to take a blood test.
The hearing officer found that the arresting officer had reasonable grounds to believe that Bath was driving a motor vehicle while under the influence of alcohol and that he had refused to submit to a test of the alcoholic content of his blood as required by the implied consent statute. Accordingly, he revoked Bath's operator's liense for six months as required by that statute.
The district court upheld the decision of the hearing officer. On appeal, Bath challenges the jurisdiction of the Department and the findings: (1) that the arresting officer had reasonable grounds to believe that Bath was driving a motor vehicle under the influence of alcohol, (2) that Bath had been properly advised of his rights under the implied consent statute, and (3) that Bath refused to submit to a test to determine the alcoholic content of his blood.
I.
Bath first contends that the Department lacked jurisdiction to revoke his operator's license. He maintains that the implied consent statute does not authorize a police officer to request that the operator of an automobile submit to a blood test until the operator is arrested for a misdemeanor offense incurred in the operation of a motor vehicle, separate and apart from the offense of driving motor vehicle while under the influence of, or impaired by, alcohol. We do not agree.
The applicable portion of the statute, 1971 Perm.Supp., C.R.S.1963, 13--5--30(3)(a), states:
'Any person who drives any motor vehicle upon a public highway in this state shall be deemed to have given his consent to a chemical test of his breath, blood, or urine for the purpose of determining the alcoholic content of his blood, If arrested for any misdemeanor offense arising out of acts alleged to have been committed while the person was driving a motor vehicle while under the influence of, or impaired by alcohol. . . .' (emphasis supplied)
The 1971 amendment to the implied consent statute broadens and enlarges the authority of the arresting officer to request that a person stopped for a traffic offense submit to a blood test. Under the 1971 amendment, an officer can make an arrest for a moving violation of a traffic law and then, if he has probable cause to believe that the person is driving under the influence, can request that the suspect take a blood test even though he is not arrested at the time for driving under the influence; or, as in the present case, the officer can in the first instance arrest the suspect for driving while under the influence and request the blood test to be taken. See Vigil v. Motor Vehicle Division of the Department of Revenue, Colo., 519 P.2d 332. (1974.)
Bath contends that his warrantless arrest for driving under the influence was invalid because the officer did not see him driving and did not know for a fact that he had been driving. He relies upon C.R.S.1963, 39--2--20, for the proposition that an officer's reasonable belief that a misdemeanor has been committed is insufficient to support an arrest for such misdemeanor when the officer does not know for a fact that such offense has been committed. Bath's argument is without merit. In Beyer v. Young, Colo.App., 513 P.2d 1086, we held that under C.R.S.1963, 39--2--20, an officer may make an arrest for the commission of a misdemeanor without a warrant if the officer has probable cause to believe that an offense has been committed and probable cause to believe that a certain individual committed that offense.
In light of the officer's conversations with the witnesses to the accident and his observations at the scene of the accident, we are satisfied that the officer had probable cause to believe that the offense of driving while under the influence had been committed by Bath. Therefore it was proper to place Bath under arrest and request that he submit to a blood test.
II.
Bath next contends that the hearing examiner erred in finding that the arresting officer had reasonable grounds to believe that Bath was driving a motor vehicle while under the influence of alcohol. At the hearing, the arresting officer was allowed to testify over Bath's objections with respect to statements made by persons at the scene of the arrest. Bath maintains that such statements were hearsay and thus inadmissible. We disagree.
Inadmissible hearsay testimony is a witness' report of an out-of-court statement which statement is being offered to show the truth of the matter asserted. See Stone v. Union Fire Insurance Co., 106 Colo. 522, 107 P.2d 241. Here, the statements of persons at the scene of the accident were not introduced to prove that Bath was driving under the influence of alcohol; but, rather, they were introduced to demonstrate that the officer had reasonable grounds to request that Bath submit to tests under the implied consent statute. Since the statements were introduced to show the state of mind of the arresting officer (I.e., his reasonable belief), they did not constitute inadmissible hearsay. State v. District Court, 129 Vt. 212, 274 A.2d 685; C. McCormick, Evidence s 249 (Cleary 2d ed.).
III.
Bath next contends he was not properly advised of his rights under the implied consent statute as required by 1971 Perm.Supp., C.R.S.1963, 13--5--30(3)(b). He maintains that the advisement procedure was defective because he was not specifically advised that he could elect or reject a blood test. The arresting officer testified that he read the Department of Revenue form entitled 'Advisement Pursuant To Implied Consent Law' to Bath, which form advised Bath that by driving his automobile on a public highway he had consented to a chemical test of his blood, breath, or urine to determine the alcohol content of his blood. The form also stated that if Bath chose not to have a blood sample drawn, then the officer could require that a specimen of his breath or urine be taken. Thus, the option of having a blood sample drawn was one of the alternative tests stated. Furthermore, the form states the consequences which may result if the party chooses to reject a blood test. It is not necessary that the advisement contain a separate and independent statement of each available test. See Department of Highways v. Cornelius, 289 Minn. 521, 184 N.W.2d 779. Thus, we conclude that the advisement procedure complied with the statutory requirement.
Bath also contends that the hearing examiner and the district court erred in determining that he had 'refused' to submit to the test required by the implied consent statute. This contention is without merit. The arresting officer testified that after he read the advisement form, Bath refused to submit to any of the tests. Bath testified that he did agree to take a blood test but he was uncertain as to when his acquiescence occurred. The determination of factual questions and the weight and credibility to be given to the evidence and the testimony is a matter within the purview of the hearing examiner. Since there was sufficient evidence in the record to support the finding of the hearing examiner, that finding will not be disturbed on review. Goldy v. Henry, 166 Colo. 401, 443 P.2d 994.
The judgment is affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.