Opinion
No. 78-1153
Decided July 19, 1979.
Finding driver had refused to submit to chemical sobriety test under implied consent statute, department of revenue revoked his license for period of three months. District court denied driver's petition to review that revocation, and driver appealed.
Affirmed
1. DRIVING UNDER THE INFLUENCE — Driver — Refuses Chemical Sobriety Test — Purpose of Implied Consent Law — Consent — Other Purpose — Immaterial. If a driver refuses to take a chemical test requested for the purpose underlying the implied consent law, that being to obtain evidence to aid in the prosecution of the drunk driver, then the driver's consent to such a test for some other purpose is immaterial and does not convert his refusal into an acceptance.
Appeal from the District Court of Larimer County, Honorable William F. Dressel, Judge.
G. William Beardslee, for plaintiff-appellant.
J. D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy, Edward G. Donovan, Special Assistant, Terre L. Rushton, Assistant, for defendants-appellees.
Plaintiff's driver's license was revoked for a period of three months by the defendant, Department of Revenue, for refusal to take the chemical sobriety test. Plaintiff appeals from the judgment of the district court, denying his petition for review. We affirm.
While driving his automobile in Fort Collins, plaintiff was stopped by a police officer for a traffic violation. The officer detected an odor of alcohol about the plaintiff and requested that he take a roadside sobriety test. Upon failing the test, plaintiff was placed under arrest and transported to the police station.
The officer read plaintiff the implied consent advisement form and then requested that he submit to a chemical sobriety test. The officer testified, and plaintiff does not dispute, that he refused to take any test at that time. A Sergeant Halls, who was acquainted with plaintiff, then explained to plaintiff that pursuant to an unofficial police department policy, he would have to remain in jail for eight hours unless he took a breath test solely to determine whether his blood alcohol level was low enough that the could be safely released from custody on his own recognizance and that the test results would not be used against him. At Sergeant Halls' urging, plaintiff submitted to such a test. Plaintiff was thereafter released on his own recognizance. The test results were destroyed in plaintiff's presence.
Plaintiff does not contend that the police officer lacked reasonable grounds to request a chemical test or that he was not properly advised of his rights. His sole contention is that he did not refuse to submit to a chemical sobriety test within the meaning of § 42-4-1202(3), C.R.S. 1973. We disagree.
In Dolan v. Rust, 195 Colo. 173, 576 P.2d 560 (1978), the Supreme Court indicated that to determine whether there was a refusal to take the test, "the trier of fact should consider the driver's words and other manifestations of willingness or unwillingness to take the test." It is thus "the driver's external manifestations . . . which are relevant, and not the driver's state of mind or his later recollection of events."
Here there is evidence in the record to support the hearing officer's finding that plaintiff stated that he would not take the test. That plaintiff sometime later agreed to take a breath test for some other purpose, the results of which he was informed would not be used against him, does not convert his refusal into an acceptance. Cf. Zahtila v. Department of Revenue, 39 Colo. App. 8, 560 P.2d 847 (1977); Baker v. Department of Revenue, 42 Colo. App. 133, 593 P.2d 1384 (1979).
[1] The purpose of the implied consent law is to obtain scientific evidence for use in the prosecution of the drunk driver. The license revocation sanction is imposed to "encourage" the giving of such evidence. Zahtila v. Department of Revenue, supra. If the driver refuses to take a chemical sobriety test requested for this purpose, then his consent to such test administered for some purpose other than that pertinent to the implied consent statute is immaterial.
There being evidence in the record to support the Department's findings, we are not at liberty to set aside the revocation order. See Dolan v. Rust, supra.
Judgment affirmed.
JUDGE COYTE and JUDGE STERNBERG concur.