Charnes v. Lobato

• Citation: 743 P.2d 27
• Decision Date: 14 September 1987
• Docket Number: No. 86SC102,86SC102
• Parties: Alan CHARNES, As Director of the Department of Revenue, and the Motor Vehicle Division, Department of Revenue, State of Colorado, Petitioners, v. Pedro A. LOBATO, Respondent.
• Court: Supreme Court of Colorado

Page 27

743 P.2d 27

Alan CHARNES, As Director of the Department of Revenue, and the Motor Vehicle Division, Department of Revenue State of Colorado, Petitioners, v. Pedro A. LOBATO, Respondent.

No. 86SC102.

Supreme Court of Colorado En Banc.

Sept. 14, 1987.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Anthony S. Trumbly, Asst. Atty. Gen., Denver, for petitioners.

Constantine Anderson & Tobey, P.C., Thomas J. Constantine, Englewood, for respondent.

VOLLACK, Justice.

The Motor Vehicle Division of the Colorado Department of Revenue [hereinafter DMV] appeals from the court of appeals' unpublished decision in Lobato v. Charnes, No. 84CA1174 (Colo.App. Jan. 23, 1986) [hereinafter Lobato ], which reversed the district court's affirmance of DMV's revocation of Lobato's driver's license. We reverse the court of appeals and remand for reinstatement of the revocation order.

I.

In December 1983, respondent Pedro A. Lobato [hereinafter Lobato or licensee] was found in his vehicle by two police officers who were responding to a radio call. Lobato's vehicle was stopped in the roadway, with Lobato unconscious in the driver's seat, the car in gear, and the engine running. The two officers awakened Lobato and conducted roadside sobriety tests. Lobato failed the sobriety tests, so they requested the assistance of a DUI enforcement officer. When the DUI officer arrived, he was advised by the first two officers that they had found Lobato unconscious behind the steering wheel, with the car's engine running. He was also advised that Lobato had failed the roadside sobriety tests.

The DUI officer determined that Lobato had the odor of an alcoholic beverage on his breath and watery, bloodshot eyes. He arrested Lobato and transported him to the Denver Police Department "DUI room." While in the DUI room, Lobato consented to a breath test to determine his blood alcohol concentration, and the test result was a blood alcohol content [hereinafter BAC] ¹ of 0.170. Another detective in the DUI room actually conducted the breath test, but the arresting DUI officer watched the administration of the test and observed the test result that appeared on the machine. A second sample of his breath was preserved for Lobato, so that he could arrange for independent analysis. Based on the results of the test, the DUI officer completed a notice of revocation or denial of Lobato's driver's license.

Pursuant to his statutory rights, Lobato requested a DMV hearing to contest the revocation of his license. ² The DUI enforcement officer testified at the hearing; the first two officers who had originally found Lobato were not present. The DUI officer testified that when he arrived at the scene, he had been advised by the first two officers that they had found Lobato unconscious behind the wheel. Lobato objected to this testimony on hearsay grounds, but did not assert that he was not driving. The hearsay objection was overruled. No other evidence was presented at the hearing to establish that Lobato had been driving.

At the revocation hearing, Lobato called the toxicology expert whom he had retained to perform independent analysis of the second breath sample. This toxicologist testified that he had conducted his analysis in accordance with board of health regulations, with a test result of 0.129 BAC. At the conclusion of the hearing, the hearing officer entered a finding that Lobato had been driving a motor vehicle and had a BAC of 0.15 or more based on a test taken within one hour of the offense, and ordered his driver's license revoked. § 42-2-122.1, 17 C.R.S. (1984).

The district court affirmed the revocation order, and the court of appeals reversed. In alternative holdings, the court of appeals held (1) that Lobato was denied due process of law, based on its holding in Kirke v. Motor Vehicle Division, 724 P.2d 77 (Colo.App.1986), and (2) that the hearing officer improperly applied the burden of proof on the issue of the conflicting BAC test results.

We granted certiorari review on three issues: (1) whether the due process clauses of the United States and Colorado Constitutions require that every element of a driver's license revocation be supported by non-hearsay evidence at the administrative revocation hearing; (2) whether revocation of a driver's license under the "per se" statute, section 42-2-122.1, 17 C.R.S. (1984), requires a properly supported finding that the licensee was driving, or instead a finding that the officer who requested that the licensee submit to a chemical test had reasonable grounds to believe that the driver was operating a motor vehicle while under the influence of, or impaired by, alcohol; and (3) whether the court of appeals erred in its conclusion that the hearing officer had erroneously applied the burden of proof, in light of the conflicting test results.

II.

The first issue is whether the due process clauses of the United States and Colorado Constitutions require that every element of a driver's license revocation be supported by non-hearsay evidence at the administrative revocation hearing. The court of appeals reversed the revocation order based on Kirke v. Motor Vehicle Division, 724 P.2d 77 (Colo.App.1986) [hereinafter Kirke ], which held that the use of only hearsay evidence to establish one element of revocation resulted in a denial of the licensee's due process rights. We have reversed the court of appeals' decision in Kirke, 743 P.2d 16 (Colo.1987), where we held that a hearing officer's finding of a revocation element in the absence of non-hearsay evidence as to that element is not a denial of due process, as long as (1) the hearsay evidence is sufficiently reliable and trustworthy, and (2) the evidence possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs.

This case presents facts which are substantially similar to the facts in Kirke. Because the new statute makes only a general reference to receipt of "relevant evidence," and the APA otherwise controls, our analysis of the hearsay issue is governed by the APA, regardless of whether the particular offense was committed before or after the effective date of the new statute.

Two officers arrived at the scene and found Lobato unconscious behind the wheel of the car. The DUI enforcement officer testified that when he arrived at the scene, the first two officers advised him of this fact. Lobato had the statutory right to subpoena the officers involved, ³ but did not exercise that right. The officers were acting in their official capacity, and the statutorily required report containing the first officers' statements and observations was admitted into evidence at the hearing. For the reasons set forth in our opinion in Kirke, at 21, we conclude that Lobato was not denied due process, and reverse the court of appeals' holding on that issue.

III.

The second issue is whether revocation of a driver's license under the "per se" statute, section 42-2-122.1, 17 C.R.S. (1984), requires a properly supported finding that the licensee was driving, or instead a finding that the officer who requested that the licensee submit to a chemical test had reasonable grounds to believe that the driver was operating a motor vehicle while under the influence of, or impaired by, alcohol. Section 42-2-122.1 expressly governs revocation hearings arising from alcohol-related driving offenses, and was in effect at the time of this offense. The statute states in pertinent part:

The sole issue at the hearing shall be whether by a preponderance of the evidence the person drove a vehicle in this state when the amount of alcohol in such person's blood was 0.15 or more grams of alcohol....

§ 42-2-122.1(8)(c), 17 C.R.S. (1984) (emphasis added).

The implied consent statute which was the predecessor to the provision cited above, see Kirke, at 18, provided that the first issue at a revocation hearing was "whether the officer had reasonable grounds to believe that the said person was driving a motor vehicle while under the influence of, or impaired by, alcohol." § 42-4-1202(3)(e), 17 C.R.S. (1982 Supp.) (emphasis added). This "reasonable grounds" language was omitted from the new "per se" statute.

Statutory terms are to be given effect according to their plain and obvious meaning. Englebrecht v. Hartford Accident & Indemnity Co., 680 P.2d 231 (Colo.1984). The general rule is that when a statute is amended, it is presumed that the legislature intended to change the law. Bar 70 Enterprises, Inc. v. Tosco Corp., 703 P.2d 1297 (Colo.1985). Because the legislature omitted the "reasonable grounds" language and adopted section 42-2-122.1, and because the language of the "per se" statute is clear and unambiguous, we conclude that the "sole issue" at a revocation hearing under the "per se" statute is whether the person drove a vehicle, and whether the driver's BAC was 0.15 or more.

At Lobato's revocation hearing, the hearing officer found that "the Respondent being in the roadway in a car in gear, with the motor running, with his foot on the brake does constitute operating a motor vehicle." ⁴ The hearing officer found that the chemical test was given within one hour after the offense. Finally, he entered a lengthy finding as to the conflicting test results and concluded that Lobato had been operating a motor vehicle with a BAC of 0.15 or more. Because the hearing officer entered the requisite findings, applying the language of the "per se" statute which was effective at the time, we conclude that the hearing officer applied the appropriate test. See Miller v. Motor Vehicle Div., 706 P.2d 10 (Colo.App.1985) (at a revocation hearing "the sole issue is whether a preponderance of the evidence shows that the operator drove a vehicle when his blood alcohol level exceeded [0.15 grams of alcohol per 100 milliliters of blood]." Id. at 11).

IV.

A.

The court of appeals held in the alternative...