Charnes v. Robinson
| Decision Date | 10 April 1989 |
| Docket Number | No. 87SC320,87SC320 |
| Citation | 772 P.2d 62 |
| Parties | Alan N. CHARNES, Executive Director, Department of Revenue, Motor Vehicle Division, State of Colorado, Petitioner, v. Larry L. ROBINSON, Respondent. |
| Court | Colorado Supreme Court |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Bradly J. Holmes, Asst. Atty. Gen., Denver, for petitioner.
Wendell R. Young, Thomas C. Tooley, Stephen A. Jones, Lakewood, for respondent.
The Motor Vehicle Division of the Colorado Department of Revenue (DMV) appeals from the court of appeals' unpublished decision in Robinson v. Charnes, No. 85CA1542 (Colo.Ct.App. June 4, 1987) which reversed the district court's affirmance of DMV's revocation of Larry L. Robinson's driver's license. We accepted certiorari to determine whether the hearing officer properly relied on the so-called "20% rule" 1 to support his finding that Robinson had driven a motor vehicle with a blood alcohol content of .150 or higher. We agree with the court of appeals that the "20% rule" cannot be relied upon in revocation hearings. However, because we find that there was sufficient evidence in the record exclusive of the "20% rule" to support the hearing officer's determination to revoke Robinson's driving license, we reverse the judgment of the court of appeals and direct that the judgment of the trial court be reinstated.
On November 7, 1984, Robinson was stopped by Officer Clifford Thompson of the Columbine Valley Police Department for failing to stop at a stop sign. On approaching Robinson and requesting his driver's license and automobile registration, Officer Thompson detected a strong odor of an alcoholic beverage on Robinson's breath. When a backup officer summoned by Thompson arrived, Robinson was directed to perform roadside maneuvers which he was unable to complete satisfactorily.
Robinson was arrested for driving under the influence and transported to the Arapahoe County Sheriff's Department. Robinson submitted to an intoxilyzer breath test which was conducted at 10:24 p.m., within an hour of the traffic stop. The test result indicated Robinson's blood alcohol content (BAC) to be .181 grams of alcohol per 210 liters of breath. A second breath sample was taken and preserved for Robinson. Robinson then was issued a summons for driving under the influence and given a notice of revocation of his driver's license.
Robinson contested the revocation at a hearing held on January 7, 1985. At the hearing, Officer Thompson testified to the facts which occurred at the time of the arrest, including the .181 BAC result of the intoxilyzer test. Officer Thompson also identified a packet of documents labeled as Exhibit A which included the notice of revocation, the summons and complaint issued to Robinson, an offense report providing a brief summary as to what happened at the traffic stop, an evidence receipt for the silicone gel tube containing Robinson's preserved breath sample, the intoxilyzer printout showing the result of .181 BAC, an Alcohol Influence Report which briefly summarized the officer's observation of the roadside maneuvers, and a checklist completed by the intoxilyzer operator while administering the intoxilyzer test.
Dr. Lawrence Kier, recognized as an expert in the area of toxicology of blood and breath analysis, testified on behalf of Robinson that he had analyzed the second breath sample according to Colorado Department of Health regulations and obtained test results of .149 grams of alcohol per 210 liters of breath. In addition to his test result findings, Kier also testified about potential sources of error which might explain the discrepancy between the test results obtained at the time of the arrest and the test result which he had obtained from the sample preserved for Robinson.
After the testimony by Kier, Robinson's only witness, and the closing argument of Robinson's counsel, the hearing officer addressed the issues raised by counsel. With respect to the discrepancy between the two intoxilyzer test results, the hearing officer stated:
As to the matter of the second test result obtained, this office has been personally informed by a professional colleague of Dr. Kier's, a gentleman also equally recognized as an expert in the same field in this state, Dr. Dale C. Wingeleth, that a second test result within 20% of the first test result supports that first test result. It does not refute it. When the matter came up, I did a little quick arithmetic, gentlemen. A result 20% below .181 would be a .1448. The result obtained here, .149 is within that range, and as I consider it, as supporting the result obtained, not refuting it.
The hearing officer discussed the other issues raised and concluded: "Having therefore heard the testimony and evidence that has come forward at this hearing and the arguments raised by Counsel regarding the matter ... I would in preponderance find that the evidence would sustain revocation of the respondent's license and driving privilege...."
Robinson sought judicial review in the district court which affirmed the hearing officer's decision. The court of appeals reversed the revocation order and remanded the case with instructions to reinstate Robinson's driver's license.
The court of appeals ruled that the use of the "20% rule" to bolster the reliability of the first test was impermissible and, for that reason, the hearing officer's ruling was arbitrary and capricious. The court of appeals further ruled that, because the test results were of equal weight, the DMV failed to meet its burden of proof and therefore the revocation could not stand.
We granted certiorari to review this case because there appear to be inconsistent rulings by the court of appeals concerning application of the "20% rule." In Schocke v. Department of Revenue, 719 P.2d 361 (Colo.Ct.App.1986), the hearing officer applied the "20% rule." Finding that the variance between the two test results was less than 20%, the hearing officer refused to consider the results of the second test and revoked the driver's license. Id. at 362-363. The court of appeals reversed. It found that both tests were presumed correct because both had been conducted in accordance with the Colorado State Department of Health rules and regulations. Id. at 363. Because no evidence other than the test results was introduced and because the evidence weighed evenly, the court of appeals held that the department failed to meet its burden of proof by the preponderance of the evidence. Therefore, the court ruled that the hearing officer erred in revoking the license. 2 Id. In Harvey v. Charnes, 728 P.2d 373 (Colo.Ct.App.1986), the court of appeals ruled that it was improper to measure the reliability of the intoxilyzer test performed by a police officer by a "20% rule" because the rule was based on evidence outside the record. However, the error was held to be harmless since there was sufficient evidence of excessive blood alcohol level during the requisite period, i.e., one BAC test exceeded .15, the driver was driving in an erratic manner, she had the odor of an alcoholic beverage on her breath, she slurred her speech, and she failed the roadside sobriety test. Id. at 374. In the present case, the court of appeals found application of the "20% rule" to be arbitrary and capricious but did not apply a harmless error analysis as it did in Harvey. We will consider both the validity of the application of the "20% rule" in driver's license revocation hearings and the application of harmless error in this context.
The origins of the "20% rule" are uncertain at best. In Schocke, 719 P.2d at 362, the hearing officer referred to the "20% rule" as a department policy. Here, the hearing officer indicated only that he was personally informed by an "expert" as to the rule. We have been directed to no professional literature supporting this rule and how this methodology came into existence for resolving differences between intoxilyzer test results is not readily apparent. Other than the brief mention in Schocke, Harvey, and the present case, we have found no reference to the "20% rule" or similar statistical methodologies that direct how different test results will be interpreted when considered as evidence in a revocation hearing.
It is clear, however, that the "20% rule" has been applied by hearing officers as having the force and effect of law. In order to be so applied, the "20% rule" must be authorized by a statute, rule or decision. The governing statutes, however, contain no such principle. Administrative proceedings involving the revocation of drivers' licenses are subject to the State Administrative Procedure Act (APA). See § 42-2-122.1(10), 17 C.R.S. (1984). Under section 24-4-104(2), 10A C.R.S. (1988) of the APA, any agency making a determination as to the revocation of a license shall do so "based solely upon stated criteria, terms, and purposes of the statute, or regulations promulgated thereunder, and case law interpreting such statutes and regulations pursuant to which the license is issued or required."
Section 42-2-122.1(8)(c), 17 C.R.S. (1984) which provides the statutory criteria for mandatory revocation of a license pursuant to section 42-2-122.1(1)(a)(I), 17 C.R.S. (1984) states only that:
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 per 100 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 as shown by chemical analysis of such person's blood or breath.... 3
Since no "20% rule" or similar statistical procedure has been adopted by statute, the rule can be valid only if properly adopted through the agency's rulemaking or adjudicative powers.
No regulation embodying the "20% rule" has been...
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