Opinion
No. 75-887
Decided January 20, 1977. Opinion modified and as modified petition for rehearing denied February 17, 1977. Certiorari granted April 25, 1977.
From district court order setting aside Department of Revenue's revocation of a driver's license under the implied consent law, Department of Revenue appealed.
Affirmed
1. DRIVING UNDER THE INFLUENCE — Revocation of Driver's License — Improper Where — Statutory Procedure Not Followed. Although appellate courts will not substitute their judgment for that of the fact finder, when an administrative body's judgment is arbitrary or capricious, that decision will be set aside; accordingly, where the evidence was undisputed that, although driver originally consented to take blood alcohol test, at the time the test was to be administered he was physically incapable of refusing to take the breath test, the district court properly set aside the Department's revocation of his driver license.
Appeal from the District Court of the County of Adams, Honorable Clifford J. Gobble, Judge.
Cecil A. Hartman, for plaintiff-appellee.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Arthur G. Staliwe, Special Assistant Attorney General, for defendants-appellants.
This is an appeal by the Department of Revenue from a district court order setting aside the Department's revocation of Harley Earl Rust's driver's license under the implied consent law, § 42-4-1202, C.R.S. 1973. We affirm the district court's judgment.
Sometime after 10:00 p.m. on June 13, 1975, a patrolman of the Colorado State Patrol noticed a vehicle with its lights on parked on the shoulder of I-70. The patrolman approached the vehicle and saw Mr. Rust sitting in the driver's seat slumped to the passenger side. The officer opened the car door and detected a very strong smell of alcohol in the vehicle and found two empty whiskey bottles on the front seat. At that time, Rust was incoherent and in response to questioning merely moaned.
The patrolman radioed for assistance and shortly thereafter another officer arrived. Rust was unable to walk or support himself and was "violently vomiting," requiring the officers to carry him to the patrol car. In the patrol car, Rust repeatedly said, "I'm drunk, I know I'm drunk." His speech was slurred and he had "an incoherent nature of talking." While in the patrol car, prior to arriving at the police station, one of the patrolmen read Rust the implied consent form, and in response to a question whether Rust had previously agreed to take a breath test, the patrolman testified as follows: "He told me he'd take it . . . . By the time we got down there [the police station] . . . he became more violently sick, says he couldn't take it, said he wouldn't take it and indicated that each time we moved him or tried to stand him up we were going to make him more sick, he just wanted to be left alone. "Rust, however, "continued to vomit violently in the patrol car [and] outside of the patrol car."
Upon arriving at the police station, the patrolmen had to carry Rust down to the test room. The officers then "determined there was no further use to try and test him," and Rust was then incarcerated for driving under the influence of alcohol.
On these facts, the hearing officer held that the police officer had reasonable grounds to believe that Rust had been driving under the influence of alcohol and that Rust had refused to take the breath test. He therefore revoked Rust's driver's license for a period of six months as required by § 42-4-1202(3)(e), C.R.S. 1973. On appeal, the district court set aside the hearing officer's judgment.
The issues raised by defendant on this appeal are: (1) Whether the arresting officer had reasonable grounds to believe Rust had been driving a motor vehicle while under the influence of alcohol; and (2) whether the hearing officer's finding that Rust refused the statutory test was binding on the district court.
Assuming without deciding that there was sufficient evidence to support the hearing officer's finding that the police officer had probable cause to believe that Rust had been driving under the influence of alcohol, see Bowlin v. State, 164 Ind. App. 693, 330 N.E.2d 353 (1975); and State v. Fuchs, 219 N.W.2d 842 (N.D. 1974) we nevertheless agree with the trial court that Rust was physically incapable of refusing to take the test.
Although it is a maxim of appellate law that reviewing courts will not substitute their judgment for that of the fact finder, when an administrative body's judgment is arbitrary or capricious that decision will be set aside. See County Commissioners v. Simmons, 177 Colo. 347, 494 P.2d 85 (1972). Accordingly, here the district court properly set aside the Department's decision.
[1] In light of Rust's condition as testified to by the arresting officer, we agree with the district court that, "this is not a case where a man wilfully refused to take the test . . . ," because here, the evidence is undisputed that Rust had originally consented to take the breathalyzer test but at the time the test was offered to him he was too sick to blow into the breathalyzer machine, and in the officer's words, they could not "hold and test him."
Section 42-4-1202(3)(d), C.R.S. 1973, provides the procedure to be followed when an officer arrests an individual who is "in a condition rendering him incapable of refusal," and that procedure should have been followed in this case.
Judgment affirmed.
JUDGE SMITH and JUDGE RULAND concur.