Opinion
No. 79CA0488
Decided September 6, 1979.
The Department of Revenue appealed from a judgment setting aside its order revoking driver's license for his refusal to submit to a chemical test pursuant to the implied consent law.
Reversed
1. DRIVING UNDER THE INFLUENCE — License Revocation Hearing — Rescheduling — Attorney Unable to Appear — Good Cause Required — No Showing — Hearing Properly Held. In order to reschedule a driver's license revocation hearing held pursuant to the implied consent statute on the grounds that the driver's attorney is unable to appear, good cause for the attorney's failure to appear must be shown, and mere failure to appear does not demonstrate in and of itself inability to appear; therefore, where no reason for the absence of the licensee's attorney was offered, the hearing officer properly proceeded with the hearing.
Appeal from the District Court of Adams County, Honorable Abraham Bowling, Judge.
Al R. Zinn, for plaintiff-appellee.
J. D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, Susan P. Mele-Sernovitz, Assistant Attorney General, for defendant-appellant.
The Department of Revenue appeals from a judgment setting aside its order revoking the driver's license of plaintiff, Joseph Peter Frank, for his refusal to submit to a chemical test pursuant to the implied consent law. We reverse.
The revocation hearing originally scheduled in this case was continued at the request of Frank's attorney. On the date of the rescheduled hearing, the attorney failed to appear at the appointed time. No reason was given to the hearing examiner for his absence. The hearing examiner delayed the hearing for approximately 17 minutes and then proceeded. The trial court ruled that the Department acted arbitrarily in proceeding without Frank's attorney in attendance.
Insofar as pertinent here, § 42-4-1202 (3)(e), C.R.S. 1973 (1978 Cum. Supp.) provides that:
"The hearing. . . shall not be continued unless the arrested person . . . can establish to the hearing officer . . . that his attorney . . . is unable to appear . . . . Nothing in this paragraph (e) shall be construed to prohibit the department from rescheduling such hearing if good cause exists which prevents the hearing from being held at the time scheduled."
[1] Where the language of the statute is plain, its meaning clear, and no absurdity is involved, it must be applied as written. See Harding v. Industrial Commission, 183 Colo. 52, 515 P.2d 95 (1973); Myers v. Woodall, 42 Colo. App. 44, 592 P.2d 1343 (1978). The language of the statute is unequivocal. Frank was required to establish that his attorney was unable to appear. However, failure to appear does not demonstrate in and of itself inability to appear. Rather, good cause must be shown. No reason for his attorney's absence having been offered by Frank, the hearing officer properly proceeded with the hearing.
The judgment of the district court is reversed and the cause remanded to it with directions to resolve the other contentions raised by Frank in his complaint.
JUDGE PIERCE and JUDGE BERMAN concur.