Opinion
No. 76-311
Decided March 17, 1977. Rehearing denied April 7, 1977.
District court upheld the suspension of driver's license based upon his refusal to submit to chemical test under implied consent law, and driver appealed.
Affirmed
1. DRIVING UNDER THE INFLUENCE — Suspension of License — Implied Consent Violation — Explanation of Officer — Should Have Dispelled Confusion — Evidence Supports — Refusal to Take Test. Where, in proceedings relative to suspension of driver's license for violation of the implied consent law, record indicates that police officer who had stopped driver and requested that he take an alcohol determination test told the driver that the decision whether to take the test would have to be made without the advice of attorney, any continuing confusion in the driver's mind on the subject of his right to counsel should properly have been dispelled by that explanation, and thus there was a clear evidentiary basis for the hearing officer's conclusion that the driver had refused to take the test.
2. Implied Consent — Advisement Form — Read to Driver — Handcuffed — No Consequence — Officer — In Compliance. Where driver was handcuffed at the time implied consent advisement form was read to him and the form was not actually given to him until the handcuffs were removed later at the sheriff's office, the fact that the driver could not touch or feel that advisement form when it was read to him is of no consequence; it was placed in such a position that he could, if he so desired, read it, and therefore the officer's actions in connection with advising the driver of his rights under implied consent law were properly determined to be in compliance therewith.
Appeal from the District Court of Weld County, Honorable Hugh H. Arnold, Judge.
Southard Ashlock, Lawrence Ashlock, for plaintiff-appellant.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Arthur G. Staliwe, Assistant Attorney General, for defendant-appellee.
Contending that he was confused about his right to counsel, and that he was improperly advised of his rights, plaintiff Jim Dean Herren appeals the judgment of the district court which upheld the suspension of his driver's license for violation of the implied consent law, § 42-4-1202(3)(a), C.R.S. 1973. We affirm.
The following facts were established in the hearing before the Motor Vehicle Division: Having been stopped for driving in an erratic manner, and having failed a roadside sobriety test, Herren was asked if he would submit to a chemical test, but instead, he attempted to leave; whereupon he was restrained, handcuffed, and placed in the patrol car. There, the officer advised him of his Miranda rights, including the right to counsel, then told him of his rights under the implied consent law, and placed the implied consent advisement form on a clipboard in front of Herren in a position such that Herren could read it. Herren said that he wanted to talk with an attorney before deciding whether to agree to a chemical test, but the officer told him that, "He had to make his decision at that time. He did not have the right to have an attorney make the decision for him." The officer then stated, "I'm going to ask you again [and] if you refuse again I will take that refusal as a refusal to take the test." Herren again said that he wanted to talk to a lawyer first. The officer "broke down [the implied consent advisement] into common ordinary terms and terminology," but Herren reiterated that, "I don't understand nothing."
Relying on Calvert v. Department of Revenue, 184 Colo. 214, 519 P.2d 341 (1974), Herren asserts that his confusion between the right to counsel under Miranda and the lack of that right under the implied consent law requires reversal of his suspension. We do not agree. In Calvert, the court stated that:
"Calvert should have been advised that the right to remain silent does not include the right to refuse to submit to the test or the right to prior consultation with an attorney."
[1] The record indicates that the officer did just this. The officer told Herren that the decision of whether to take the chemical test would have to be made without advice of an attorney. Any continuing confusion in Herren's mind on the subject of his right to counsel should properly have been dispelled by that explanation; thus there was a clear evidentiary basis for the hearing officer's conclusion that Herren had refused to take the test. See Washington v. Dolan, 38 Colo. App. 414, 557 P.2d 1223 (1976).
[2] Because Herren was handcuffed at the time the implied consent advisement form was read to him and the form was not actually given to him until the handcuffs were removed later at the sheriff's office, Herren asserts that the advisement procedure was deficient. See Cantrell v. Weed, 35 Colo. App. 180, 530 P.2d 986 (1974). Again, we disagree. We do not read Cantrell as requiring the impossible. It simply cannot be argued cogently that a recalcitrant individual, apparently under the influence of alcohol, who attempts to flee and is handcuffed, must be handed a copy of the advisement form in order to comply with the mandates of Cantrell.
Herren was advised "orally and by written notice" of his "rights under the law and the probable consequences of a refusal to submit to a test." Section 42-4-1202(3)(b), C.R.S. 1973. See Vigil v. Motor Vehicle Division of Department of Revenue, 184 Colo. 142, 519 P.2d 332 (1974). The fact that Herren could neither touch nor feel the document when it was read to him is of no consequence. It was placed in such a position that he could, if he so desired, read it. He was given the form as soon as practicable when his handcuffs were removed. Thus, the officer's actions support the examiner's conclusion of compliance with the implied consent law.
Judgment affirmed.
JUDGE COYTE and JUDGE ENOCH concur.