Brewer v. Motor Vehicle Div., Dept. of Revenue, 84SA252
| Decision Date | 09 June 1986 |
| Docket Number | No. 84SA252,84SA252 |
| Citation | 720 P.2d 564 |
| Parties | Hugh BREWER, Plaintiff-Appellant, v. MOTOR VEHICLE DIVISION, DEPARTMENT OF REVENUE, State of Colorado, Defendant-Appellee. |
| Court | Colorado Supreme Court |
David R. Juarez, Randall J. Davis, Westminster, for plaintiff-appellant.
Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Steven M. Bush, Asst. Atty. Gen., Denver, for defendant-appellee.
The plaintiff, Hugh Brewer, appeals from a judgment of the Jefferson County District Court affirming the revocation of his driver's license by the Department of Revenue, Motor Vehicles Division (department) under section 42-2-122.1, 17 C.R.S. (1984). 1 The plaintiff argues that insufficient evidence that he drove a vehicle within the meaning of section 42-2-122.1 was presented at the administrative hearing before the department, that the results of an intoxilyzer test were improperly admitted into evidence at the hearing, and that he was wrongfully denied the right to introduce evidence pertaining to the test results. We affirm the judgment of the district court.
On July 24, 1983, the Broomfield Police Department received a complaint from a citizen about a car parked, with lights on and the engine running, in a cul-de-sac near the citizen's house. A police officer dispatched to investigate the complaint found the plaintiff's car parked in the middle of the street. The car's lights were on and its motor was running. The plaintiff was behind the steering wheel, asleep. When the police officer attempted to rouse the plaintiff the officer detected the odor of an alcohol beverage on the plaintiff's breath. The officer testified that the plaintiff, after leaving the car, had trouble standing without assistance. The officer then arrested the plaintiff and took him to the Broomfield police station.
The plaintiff agreed to submit to a breath test to determine his blood alcohol content. The arresting officer performed the test on a machine located at the police station, following the procedures indicated in a standardized checklist. The test results indicated that the plaintiff's blood alcohol content was .178 grams of alcohol per 210 liters of breath. Upon receiving the test results, the arresting officer revoked the plaintiff's driver's license.
At an administrative hearing on the revocation held at the plaintiff's request, the arresting officer testified to the circumstances of the plaintiff's arrest and to the administration and results of the intoxilyzer test. The plaintiff presented no evidence. He rested his defense on his assertion that there was insufficient evidence that he had actually driven his vehicle or that the intoxilyzer test had been administered within one hour of the alleged offense as required by section 42-2-122.1. He also argued that an insufficient foundation had been laid for the introduction of the intoxilyzer test results.
The hearing officer decided that the plaintiff, when found by the police officer, was "in operation and control" of his vehicle and therefore that he "drove a vehicle" within the meaning of section 42-2-122.1. The hearing officer also found that there was sufficient evidence that the intoxilyzer test had been administered within an hour of the commission of the offense. Accordingly, the hearing officer revoked the plaintiff's license for one year.
The plaintiff filed a petition for judicial review of the revocation in the district court on September 16, 1983. On April 27, 1984, the district court affirmed the hearing officer's findings and the revocation of the plaintiff's license. This appeal followed.
The plaintiff's license was revoked under the authority of section 42-2-122.1, which provides in relevant part:
(1)(a) The department shall revoke the license of any person upon its determination that the person: (I) drove a vehicle in this state when the amount of alcohol in such person's blood was 0.15 or more grams of alcohol per hundred milliliters of blood or 0.15 or more grams of alcohol per 210 liters of breath at the time of the commission of the alleged offense or within one hour thereafter, as shown by chemical analysis of such person's blood or breath....
The plaintiff first contends that the district court erred in upholding the hearing officer's determination that he "drove a vehicle" within the meaning of the statutory language. As noted earlier, the hearing officer determined that at the time the plaintiff was found by the police officer he was "in operation and control" of his car and that by exercising such operation and control he "drove" the car within the meaning of section 42-2-122.1(1)(a)(I). The plaintiff contends that the statutory phrase "drove a vehicle" connotes only driving in the commonly understood sense of placing and controlling a vehicle in motion.
While the term "drove" is not statutorily defined, a definition of "driver" is provided by section 42-1-102(22), 17 C.R.S. (1984):
"Driver" means every person, including a minor driver under the age of eighteen years and a provisional driver under the age of twenty-one years, who drives or is in actual physical control of a motor vehicle upon a highway. 2
(emphasis added). It is logical to conclude that a person who "drove a vehicle" was at the time a "driver." While other constructions of the phrase "drove a vehicle" may be equally plausible, adopting the statutory language "actual physical control of a motor vehicle upon a highway" as the definition of the phrase is consistent with the purpose of preventing drunk driving and the remedial nature of section 42-2-122.1. Cf. State, Dept. of Public Safety v. Juncewski, 308 N.W.2d 316 (Minn.1981).
There are numerous cases in which persons in situations similar to the plaintiff's situation at the time he was found by the police officer were held to be in actual physical control of their vehicles upon a highway. See cases collected in 1 R. Erwin, Defense of Drunk Driving Cases § 1.01[c] (3d ed. 1986); Annot., 93 ALR 3d 7 § 15[a] (1979). In light of these cases and in consideration of the specific circumstances in which the plaintiff was found--asleep behind the wheel of a car parked in the middle of a street with the engine and lights on--we hold that the hearing officer properly determined that the plaintiff was in actual physical control of his car upon a highway when found by the police officer. Proof of such actual physical control was sufficient to establish that the plaintiff drove a vehicle upon a highway within the meaning of section 42-2-122.1. 3
The plaintiff next contends that the district court erred in determining that the results of the chemical analysis of his breath were properly considered by the hearing officer. Specifically, the plaintiff argues that the test results should not have been admitted because they lacked an adequate foundation in the form of proof that the test was conducted in conformity with applicable rules and regulations.
The plaintiff bases his argument on section 42-4-1202(3)(b), 17 C.R.S. (1984), which provides that blood or breath tests for blood alcohol content shall be administered "in accordance with rules and regulations prescribed by the state board of health...." The department responds that the directive of section 42-4-1202(3)(b) is inapplicable to administrative proceedings for challenging the automatic revocation of a driver's license under section 42-2-122.1. Subsection (I) of section 42-2-122.1(1)(a), set out on p. 566, supra, directs the department to revoke the license of a driver whose blood alcohol content is above a certain amount. Subsection (II) of section 42-2-122.1(1)(a) provides that the department shall revoke the license of any person who "[r]efused to submit to a chemical analysis of his blood, breath, saliva, or urine as required by section 42-4-1202(3)." The plaintiff's license was revoked under subsection (I). Although subsection (I) does not refer to section 42-4-1202(3), section 42-4-1202(3)(b) refers to blood or breath tests to be administered if the arresting officer has reasonable grounds to believe "that the person had been driving a motor vehicle in violation of subsection (1) or (1.5) of this section...." Subsection (1.5)(a) provides that "[i]t is a misdemeanor for any person to drive any vehicle in this state when the amount of alcohol in such person's blood is 0.15 or more grams of alcohol per hundred milliliters of blood or 0.15 or more grams of alcohol per two hundred ten liters of breath at the time of the commission of the alleged offense, as shown by chemical analysis of such person's blood or breath." Although we do not know whether the plaintiff in this case was charged with a misdemeanor under subsection (1.5), the basis for the misdemeanor is identical to the requirement in section 42-2-122.1(1)(a)(I) for automatic revocation of the plaintiff's license. Therefore, it makes sense to require the same blood or breath test under sections 42-4-1202 and 42-2-122.1 and to require that test to be administered in accordance with the health department rules and regulations. See Aultman v. Motor Vehicle Division, Dept. of Revenue, 706 P.2d 5 (Colo.App.1985).
Even if there was a deficiency in the evidence of compliance with board of health regulations, a question we do not decide, the intoxilyzer test results are not automatically inadmissible. In People v. Bowers, 716 P.2d 471, 475 (Colo.1986), we held:
even though chemical testing of a driver's breath has not been conducted in strict compliance with a Board of Health rule, the test results may nonetheless be admitted if the trial court is satisfied that the proponent of such evidence has adequately established that the breath test actually administered was scientifically valid and reliable and was conducted by a qualified person using properly working testing devices.
In this case evidence that the intoxilyzer machine was in proper working...
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