Opinion
No. 77-219
Decided January 12, 1978. Rehearing denied February 2, 1978. Certiorari denied March 27, 1978.
Driver's license was revoked for his refusal to consent to alcohol determination test under implied consent law, and driver appealed district court judgment affirming that revocation.
Affirmed
1. DRIVING UNDER THE INFLUENCE — Implied Consent Statute — Withdrawal of Blood — Limited — Qualified Medical Personnel — Failure to Inform — Not — Immunize Driver — Consequences — Test Refusal. The provision of the implied consent statute limiting the withdrawal of blood to qualified medical personnel is not of sufficient importance that an arresting officer's failure to apprise a driver of its substance immunizes the driver from the consequences of his refusal to submit to any chemical sobriety testing.
Appeal from the District Court of Adams County, Honorable Abraham Bowling, Judge.
Carroll Bradley, P.C., John S. Carroll, Karen W. Gangle, for plaintiff-appellant.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Arthur G. Staliwe, Special Assistant Attorney General, Karen Hoffman Seymour, Assistant Attorney General, for defendants-appellees.
Plaintiff, Walter Earl Shiarla, appeals from a district court judgment affirming an order of the Department of Revenue, Division of Motor Vehicles, (Department), which revoked his driver's license pursuant to the provisions of Colorado's implied consent law. He argues that his duty to consent to any alcohol determination test was obviated by the arresting officer's failure to advise him that if he submitted to a blood test it would be administered by qualified medical personnel. We disagree, and therefore affirm.
Upon plaintiff's arrest for driving under the influence of intoxicating liquor, the arresting officer read to him the Department's implied consent advisement form, including the following provision relative to blood tests:
"You may request that the chemical test be a blood test, in which case it shall be a blood test; you may request that a specimen of your blood not be drawn, in which case a specimen of your breath or urine shall be obtained and tested, the election to be made by the arresting officer."
After the officer reread and paraphrased several of the sections, and after plaintiff unsuccessfully attempted to contact his attorney, plaintiff refused to submit to any chemical sobriety test.
At the hearing before the Department, plaintiff explained that he was "thoroughly confused" during the incident. In addition to other reasons for his refusal, he stated:
"I was definitely afraid of taking any of the tests because someone [had made to] me some complaints about it and I was in fear of it. I didn't think — I've always understood the officer did it and I don't think they are qualified physicians, I believe I told you [the arresting officer] at the time."
Colorado's implied consent law requires that an arresting officer requesting a chemical test "orally and by written notice . . . inform the person arrest of his rights under the law . . . ." Section 42-4-1202(3)(b), C.R.S. 1973. That subsection further provides:
"No person except a physician, a registered nurse, or a person whose normal duties include withdrawing blood samples under the supervision of a physician or registered nurse shall be entitled to withdraw blood for the purpose of determining the alcoholic content herein."
Urging that the latter provision confers "rights under the law," plaintiff contends that the advisement given him concerning blood testing was deficient in its failure to specifically apprise him that qualified medical personnel would administer the test. He concludes that the officer's omission caused his misunderstanding of the law, and that accordingly, he cannot be penalized for his refusal to submit to the implied consent tests. See Calvert v. Department of Revenue, 184 Colo. 214, 519 P.2d 341 (1974).
[1] Even if we assume the reasonableness of plaintiff's apprehensions, the alternative guaranteed him by statute, of which he was advise, i.e., that he could submit to a breath or urine test instead of a blood test, see § 42-4-1202(3)(a), C.R.S. 1973, minimizes the significance of his misunderstanding as to who would administer a blood test. In view of such test options, we conclude that the provision of the implied consent statute limiting the withdrawal of blood to qualified medical personnel is not of sufficient importance that an arresting officer's failure to apprise a driver of its substance immunizes the driver from the consequences of his refusal to submit to any chemical sobriety testing.
Judgment affirmed.
JUDGE ENOCH and JUDGE STERNBERG concur.