Colorado Dept. of Revenue, Motor Vehicle Div. v. Kirke

Decision Date14 September 1987
Docket NumberNo. 86SC101,86SC101
Citation743 P.2d 16
PartiesCOLORADO DEPARTMENT OF REVENUE, MOTOR VEHICLE DIVISION, Petitioner, v. Thomas Wesley KIRKE, Respondent.
CourtColorado Supreme Court

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

No appearance on behalf of respondent.

VOLLACK, Justice.

The Motor Vehicle Division of the Colorado Department of Revenue [hereinafter DMV] appeals from the court of appeals' decision in Kirke v. Colorado Department of Revenue, Motor Vehicle Division, 724 P.2d 77 (Colo.App.1986) [hereinafter Kirke ], which held that the use of only hearsay evidence to prove one of the elements in a driver's license revocation hearing resulted in a denial of the licensee's due process rights. On the basis of the alleged due process violation, the court of appeals ordered reinstatement of Kirke's driver's license. We reverse the court of appeals and remand with instructions to reinstate the revocation order.

I.

In April 1983, respondent Thomas Wesley Kirke [hereinafter Kirke or licensee] was involved in a two-car traffic accident in Colorado Springs. A law enforcement officer arrived to investigate the accident. Because he suspected alcohol involvement, he called for assistance from an officer on the Driving Under the Influence [hereinafter DUI] enforcement team. When the DUI enforcement officer arrived, he was advised by the first officer that Kirke had been driving one of the vehicles involved in the accident and was seated in the patrol car. The DUI enforcement officer went to the patrol car and noted that Kirke had a heavy odor of alcohol, bloodshot eyes, and slurred speech. The DUI officer conducted a roadside sobriety test; Kirke failed the test and the DUI officer placed him under arrest. After the DUI officer advised him of his rights pursuant to the implied consent statute, 1 Kirke refused to submit to a blood or breath test. At Kirke's revocation hearing before a DMV hearing officer, his driver's license was revoked. The DUI enforcement officer testified at the revocation hearing, but the initial investigating officer did not appear. The DUI officer testified that he had been advised by the investigating officer "that Mr. Kirke was driving a motor vehicle that was involved in the accident he was investigating." Kirke objected to this testimony on hearsay grounds. The hearing officer overruled the hearsay objection and entered an order revoking Kirke's driver's license. On appeal, the district court affirmed the revocation order, finding that there was "nothing unreasonable about the hearing officer's accepting [the first officer's] simple factual declaration."

Kirke appealed to the court of appeals, arguing that the district court's affirmance was erroneous because there was no non-hearsay evidence presented at the revocation hearing to establish that he had been driving. The court of appeals agreed with this argument, concluding that the lack of non-hearsay evidence to support the finding that Kirke had been driving a motor vehicle violated Kirke's due process rights. Kirke, 724 P.2d at 78. Specifically, the court held that Kirke had been denied his right to confront and cross-examine witnesses. Id.

DMV appeals from the court of appeals' decision, and we granted certiorari on two issues: (1) whether revocation of a driver's license requires a finding that the licensee was in fact driving, or instead, a finding that the officer who requested that the driver submit to a chemical test had reasonable grounds to believe that the person was driving a motor vehicle while under the influence of, or impaired by, alcohol, and (2) 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.

II.

This case arises from an automobile accident which occurred before the effective dates of the express consent and so-called "per se" statutes. 2 Accordingly, our analysis of the first issue is governed by the implied consent statute, which was in effect at the time of this accident. § 42-4-1202, 17 C.R.S. (1973). As it applies to revocation hearings, the implied consent statute states in pertinent part:

At such hearing, it shall first be determined 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. If reasonable grounds are not established by a preponderance of the evidence, the hearing shall terminate, and no further action shall be taken. If reasonable grounds are established and said person is unable to submit evidence that his physical condition was such that, according to competent medical advice, such test would have been inadvisable or that the administration of the test would not have been in conformity with the rules and regulations of the state board of health or in conformity with the provisions of this section or if said person fails to attend without good cause shown, the department shall forthwith revoke said person's license to operate a motor vehicle....

§ 42-4-1202(3)(e), 17 C.R.S. (1973) (emphasis added).

"The terms 'reasonable grounds' and 'probable cause' are substantially the equivalent, and probable cause is held to exist where the facts and circumstances within the officer's knowledge and of which he has reasonably trustworthy information are sufficient to cause a reasonably cautious police officer to believe that an offense has been committed." People v. Nanes, 174 Colo. 294, 298-99, 483 P.2d 958, 961 (1971) (emphasis added). This probable cause approach has been adopted in the analysis of license revocation hearing issues, and requires case-by-case evaluation of the relevant facts and circumstances. Zamora v. Department of Rev., 616 P.2d 1003 (Colo.App.1980). To determine whether the hearing officer erred in revoking Kirke's driver's license, we must decide whether the hearing officer correctly concluded, based on the evidence, that the DUI enforcement officer had "reasonable grounds to believe" that Kirke was driving a motor vehicle. In Nanes, we held that "reasonably trustworthy information may be based upon hearsay and need not be evidence sufficiently competent for admission at the guilt finding process." 174 Colo. at 299, 483 P.2d at 961. The test is whether the reasonably trustworthy information "warrants a reasonably cautious and prudent police officer in believing, in light of his training and experience, that an offense has been committed and that the person arrested probably committed it." Id.

The fellow officer rule provides that "an arresting officer who does not personally possess sufficient information to constitute probable cause may still make a warrantless arrest if (1) he acts upon the direction or as a result of a communication from a fellow officer, and (2) the police, as a whole, possess sufficient information to constitute probable cause." People v. Baca, 198 Colo. 399, 401, 600 P.2d 770, 771 (1979). A combination of facts personally observed by the arresting officer, along with information relayed to him by fellow officers, is sufficient. People v. Saars, 196 Colo. 294, 584 P.2d 622 (Colo.1978). Because the DUI officer here was acting on communication received from another officer, we must determine whether the police department as a whole had reasonable grounds to believe Kirke was driving based on the facts and circumstances known at the time.

The record shows that the investigating officer arrived at the accident scene, suspected the involvement of alcohol, and requested the assistance of a DUI enforcement officer. When the DUI officer arrived, the investigating officer advised him that Kirke had been driving one of the vehicles and was seated in the back seat of the patrol car. The DUI officer did not know how the investigating officer had learned that Kirke was driving. The DUI officer contacted Kirke in the patrol car and observed that he had an odor of alcohol, slurred speech, and bloodshot eyes. Based on his own observations, the information received from the investigating officer, and the fact that Kirke did not deny the written allegation in the advisement form that he had been driving a motor vehicle, the DUI officer concluded that Kirke had been driving and requested that he submit to a chemical test.

The test is whether these facts and circumstances constituted "reasonable grounds" for the DUI officer to believe that Kirke had been driving. The arresting DUI officer "had the right to rely upon the information relayed to him by his fellow law enforcement officers." Nanes, 174 Colo. at 300, 483 P.2d at 962. The DUI officer testified that the investigating officer "did advise me that Mr. Kirke was the driver of a motor vehicle involved in the accident," but also testified that he had "no knowledge" as to whether the investigating officer had been a witness to the accident. Because the investigating officer was acting in his professional capacity, his statement to a fellow officer was reasonably trustworthy information. "Information gained by the observations of a police officer may be presumed to be credible and reliable." People v. Cook, 665 P.2d 640, 643 (Colo.App.1983). At the scene, the DUI officer observed the disabled vehicles that had been in the accident, and found the suspected drunk driver seated in the patrol car. An officer is expected to make the "reasonable grounds" determination "in light of his training and experience." Saars, 196 Colo. at 300, 584 P.2d at 626. Although the record does not reveal the source of the investigating officer's information, there is no suggestion or claim that his knowledge came from some other source that was unreliable. Information available to the police "must be viewed in a common sense and realistic fashion."...

To continue reading

Request your trial
34 cases
  • Deutschendorf v. People
    • United States
    • Colorado Supreme Court
    • July 1, 1996
    ...held that license revocation proceedings are administrative civil proceedings, and are not criminal in nature. Colorado Dep't of Revenue v. Kirke, 743 P.2d 16, 20 (Colo.1987) ("License revocation proceedings are civil in nature; the protections afforded criminal defendants do not apply."); ......
  • Hanson v. Colo. Dep't of Revenue, Motor Vehicle Div., 11CA1351.
    • United States
    • Colorado Court of Appeals
    • August 30, 2012
    ...circumstances is that the licensee have the opportunity to subpoena, confront, and cross-examine the officer. See Colo. Dep't of Revenue v. Kirke, 743 P.2d 16, 21 (Colo.1987) (noting that licensee had opportunity to confront and cross-examine "any of the officers involved" and had "right to......
  • Industrial Claims Appeals Office v. Flower Stop Marketing Corp.
    • United States
    • Colorado Supreme Court
    • October 30, 1989
    ...panel's order and remanded the case to the panel for further proceedings consistent with this court's opinion in Colorado Department of Revenue v. Kirke, 743 P.2d 16 (Colo.1987), which allowed the use of hearsay statements alone to establish an element of a case for revocation of a driver's......
  • Francen v. Colo. Dep't of Revenue
    • United States
    • Colorado Supreme Court
    • June 30, 2014
    ...are sufficient to cause a reasonably cautious police officer to believe that an offense has been committed.” Colo. Dep't of Rev. v. Kirke, 743 P.2d 16, 18 (Colo.1987) (emphasis in original) (quoting People v. Nanes, 174 Colo. 294, 483 P.2d 958, 961 (Colo.1971)). In fact, the court of appeal......
  • Request a trial to view additional results
9 books & journal articles
  • Hearsay Evidence and the Residuum Rule in Colorado
    • United States
    • Colorado Bar Association Colorado Lawyer No. 17-4, April 1988
    • Invalid date
    ...as to admissibility, weight, effect and ultimate outcome. NOTES _____________________ Footnotes: 1. Colorado Dept. of Revenue v. Kirke, 743 P.2d 16 (Colo. 1987); Colorado Division of Revenue v. Lounsbury, 743 P.2d 23 (Colo. 1987); Charnes v. Lobato, 743 P.2d 27 (Colo. 1987); Heller v. Velas......
  • The Modern Hearsay Rule Should Find Administrative Law Application
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 78, 2021
    • Invalid date
    ...Sch. Dist. No. 276 v. Department of Educ., 256 N.W.2d 619 (Minn. 1977). 28. See Colorado Dep't of Revenue, Motor Vehicle Div. v. Kirke, 743 P.2d 16, 22 (Colo. 1987) (noting hearsay evidence may support an administrative ruling "[a]s long as the hearsay is reliable and trustworthy and posses......
  • Horizontal Gaze Nystagmus Test Evidence in Colorado the Framework Under Campbell v. People
    • United States
    • Colorado Bar Association Colorado Lawyer No. 49-6, June 2020
    • Invalid date
    ...2009). [35] CRS § 42-2-126(8)(c). [36] Brinegar, 338 U.S. at 172. [37] CRS § 42-2-126(8)(d)(IV). [38] Colo. Dep't of Revenue v. Kirke, 743 P.2d 16, 21 (Colo. 1987). See also Partridge v. State, 895 P.2d 1183 (Colo.App. 1995); Colo. Div of Revenue v. Lounsbury, 743 P.2d 23 (Colo. 1987): Char......
  • The Effect of Criminal Guilty Pleas in Administrative Hearings
    • United States
    • Colorado Bar Association Colorado Lawyer No. 22-9, September 1993
    • Invalid date
    ...supra, note 9; Safeco, supra, note 9; Moore's Federal Practice, supra, note 4 at 558-59. 13. See Colorado Department of Revenue v. Kirke, 743 P.2d 16 (Colo. 1987); People v. McKnight, 617 P.2d 1178 (Colo. 1980); Bedell v. Colorado Department of Revenue, 655 P.2d 849 (Colo.App. 1982); CRS § ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT