Opinion
No. 78-907 No. 78-827
Decided January 11, 1979. Rehearing denied February 8, 1979. Certiorari granted May 29, 1979.
In consolidated appeal of two driver's license revocation proceedings the question presented was whether the driver's license revocation provisions of the implied consent law apply to one who was not driving upon a public highway.
Affirmed
1. DRIVING UNDER THE INFLUENCE — Not Drive — On "Public Highway" — May Decline — Chemical Sobriety Test — Without Sanction — Under Implied Consent Statute. One who has not driven upon "public highway" may decline to take a chemical sobriety test without suffering the sanction of license revocation under the Implied Consent Statute.
No. 78-907 Appeal from the District Court of Boulder County, Honorable William D. Neighbors, Judge. No. 78-827 Appeal from the District Court of Mesa County, Honorable William M. Ela, Judge.
James J. Kissell, for plaintiff-appellee for 78-907.
Sara J. Beery, for plaintiff-appellee for 78-827.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Yvette P. Fossum, Assistant Attorney General, for defendant-appellant.
We have consolidated these two driver's license revocation cases pursuant to C.A.R. 3(b), because they both raise the same issue of law: Do the driver's license revocation provisions of the implied consent law, § 42-4-1202(3), C.R.S. 1973, apply to one who was not driving upon a public highway? We hold that they do not.
In No. 78-907, Dayhoff's driving privileges were suspended by the Department of Revenue for refusal to take a chemical sobriety test, after he was arrested for driving under the influence of alcohol in a parking lot located on private property. In Dayhoff's action for judicial review, the district court held that the department had exceeded its authority and ordered that the license be reinstated.
In No. 78-827, Emmer's driver's license was revoked for refusal to take a chemical sobriety test after being involved in a one-vehicle accident on the Grand Valley canal maintenance road located on private property. On appeal, the district court ordered that Emmer's license be reinstated.
The difficulty in these cases arises from the claimed conflict between two statutes. Section 42-4-103(2), C.R.S. 1973 (1976 Cum. Supp.) provides:
"The provisions of this article relating to the operation of vehicles and the movement of pedestrians refer exclusively to the use of streets and highways except:
. . . .
"(b) For provisions of § 42-4-1201 to 42-4-1204 and 42-4-1512 and part 14 of this article which shall apply upon streets and highways and elsewhere throughout the state." (emphasis added)
Section 42-4-1202(3)(a), C.R.S. 1973, provides:
"Any person who drives any motor vehicle upon a public highway of this state shall be deemed to have given his consent to a chemical test . . . ." (emphasis added)
In support of its contention that the implied consent law extends to licensees driving on non-public highways, the department argues that when the two statutes are construed in pari materia and in light of the "obvious statutory scheme," the implied consent statute must be given the same scope as driving under the influence and driving while impaired. Section 42-4-1202(1)(a) and (b), C.R.S. 1973. Thus, it concludes that, because the purpose of implied consent is to aid in enforcement of the drunk driving laws, see Calvert v. Department of Revenue, 184 Colo. 214, 519 P.2d 341 (1974), the General Assembly intended implied consent to apply when and wherever the drunk driving statutes apply. We disagree.
[1] The implied consent and drunk driving provisions are not co-extensive in scope. The substantive offenses of driving under the influence and driving while impaired apply regardless of where the "driving" occurs. See Clark v. Bunnell, 172 Colo. 32, 470 P.2d 42 (1970); § 42-4-1202(1)(a) and (b); and § 42-4-103(2)(b), C.R.S. 1973. The reach of the statutory implied consent scheme, however, is more limited. The General Assembly has provided in clear and unambiguous language that only those licensees who "drive" and who drive "upon a public highway" are deemed to have given their consent to a chemical test. When a licensee who has not driven or has not driven upon a public highway declines to take a chemical sobriety test, he is not withdrawing the prior consent upon which the driving privilege was conditioned. See Marin v. Department of Revenue, 41 Colo. App. 557, 591 P.2d 1336. For such a person, refusal to submit to the test is not "refusal" within the meaning of the statute, which would lead to commencement of revocation proceedings. See § 42-4-1202(3)(e), C.R.S. 1973. Therefore we hold that one who has not driven upon a "public highway" may decline to take a chemical sobriety test without suffering the sanction of license revocation under the statute. See also State Department of Public Safety v. Halverson, 292 Minn. 468, 194 N.W.2d 573 (1972); Weber v. Orr, 274 Cal. App. 2d 288, 79 Cal. Rptr. 297 (1969).
There is another compelling reason for this conclusion. Section 42-4-103(2)(b), C.R.S. 1973, is a general statute, providing since its enactment in 1935 that the various traffic offenses, including driving under the influence, apply on streets and highways and elsewhere. See Colo. Sess. Laws 1935, ch. 164, § 43 at 770. By contrast, the implied consent statute, § 42-4-1202(3)(a), C.R.S. 1973, enacted 32 years after § 42-4-103(2)(b), provides that it applies only to those who drive upon public highways. See Colo. Sess. Laws 1967, ch. 356, §§ 1, 2, 4-6 at 753-55. See also State Department of Public Safety v. Halverson, supra.
If specific and general statutes conflict, it is well established that the specific statute prevails. See Kuckler v. Whisler, 191 Colo. 260, 552 P.2d 18 (1976); Shoenberg Farms, Inc. v. People ex rel. Swisher, 166 Colo. 199, 444 P.2d 277 (1968). Applying this rule of construction, we assume that the General Assembly intended the specific requirement that a licensee be driving on a public highway to be an exception to the general rule that § 42-4-1201 to § 42-4-1204 apply throughout the state. See § 2-4-205, C.R.S. 1973.
The department also contends that the language "any person who drives any motor vehicle upon a public highway" as used in the implied consent statute is merely an expansive way of saying any "licensed driver" and that therefore the implied consent statute is applicable to a driver on private property. We do not agree.
This argument is refuted by our holding in Marin v. Department of Revenue, supra. In Marin, we held that the implied consent statute does not apply to one who is not driving. By that decision, we gave effect to the statutory language "any person who drives." In the present case, as in Marin, we must give effect to the statutory language. Therefore the language "upon a public highway" is equally indispensable, and the "any person" language does not merely mean "any licensed driver."
The judgments are therefore affirmed.
JUDGE VAN CISE concurs.
JUDGE BERMAN dissents.