Dayhoff v. State, Motor Vehicle Division

• Decision Date: 11 January 1979
• Docket Number: Nos. 78-907,78-827,s. 78-907
• Citation: 42 Colo.App. 91,595 P.2d 1051
• Parties: Roger Edwin DAYHOFF, Plaintiff-Appellee, v. STATE of Colorado, MOTOR VEHICLE DIVISION, Defendant-Appellant. Michael Lee EMMER, Plaintiff-Appellee, v. STATE of Colorado, DEPARTMENT OF REVENUE, MOTOR VEHICLE DIVISION, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 1051

595 P.2d 1051

42 Colo.App. 91

Roger Edwin DAYHOFF, Plaintiff-Appellee, v. STATE of Colorado, MOTOR VEHICLE DIVISION, Defendant-Appellant.

Michael Lee EMMER, Plaintiff-Appellee, v. STATE of Colorado, DEPARTMENT OF REVENUE, MOTOR VEHICLE

DIVISION, Defendant-Appellant.

Nos. 78-907, 78-827.

Colorado Court of Appeals, Div. II.

Jan. 11, 1979.

Rehearing Denied Feb. 8, 1979.

Certiorari Granted May 29, 1979.

James J. Kissell, Boulder, for plaintiff-appellee Dayhoff.

J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Yvette P. Fossum, Asst. Atty. Gen., Denver, for defendant-appellant.

Sara J. Beery, Grand Junction, for plaintiff-appellee Emmer.

ENOCH, Judge.

We have consolidated these two driver's license revocation cases pursuant to C.A.R. 3(b), because they both raise the same issue of law: Do the driver's license revocation provisions of the implied consent law, § 42-4-1202(3), C.R.S.1973, apply to one who was not driving upon a public highway? We hold that they do not.

In No. 78-907, Dayhoff's driving privileges were suspended by the Department of Revenue for refusal to take a chemical sobriety test, after he was arrested for driving under the influence of alcohol in a parking lot located on private property. In Dayhoff's action for judicial review, the district court held that the department had exceeded its authority and ordered that the license be reinstated.

In No. 78-827, Emmer's driver's license was revoked for refusal to take a chemical sobriety test after being involved in a one-vehicle accident on the Grand Valley canal maintenance road located on private property. On appeal, the district court ordered that Emmer's license be reinstated.

The difficulty in these cases arises from the claimed conflict between two statutes. Section 42-4-103(2), C.R.S.1973 (1976 Cum.Supp.) provides:

"The provisions of this article relating to the operation of vehicles and the movement of pedestrians refer exclusively to the use of streets and highways except:

"(b) For provisions of § 42-4-1201 to 42-4-1204 and 42-4-1512 and part 14 of this article which shall apply upon streets and highways And elsewhere throughout the state." (emphasis added)

Section 42-4-1202(3)(a), C.R.S.1973, provides:

"Any person who drives any motor vehicle Upon a public highway in this state shall be deemed to have given his consent to a chemical test . . . ." (emphasis added)

In support of its contention that the implied consent law extends to licensees driving on non-public highways, the department argues that when the two statutes are construed in pari materia and in light of the "obvious statutory scheme," the implied consent statute must be given the same scope as driving under the influence and driving while impaired. Section 42-4-1202(1)(a) and (b), C.R.S.1973. Thus, it concludes that, because the purpose of implied consent is to aid in enforcement of the drunk driving laws, See Calvert v. Department of Revenue, 184 Colo. 214, 519 [42 Colo.App. 93] P.2d 341 (1974), the General Assembly intended implied consent to apply when and wherever the drunk driving statutes apply. We disagree.

The implied consent and drink driving provisions are not co-extensive in scope. The substantive offenses of driving under the influence and driving while impaired apply regardless of where the "driving" occurs. See Clark v. Bunnell, 172 Colo. 32, 470 P.2d 42 (1970); § 42-4-1202(1)(a) and (b); and § 42-4-103(2)(b), C.R.S.1973. The reach of the statutory implied consent scheme, however, is more limited. The General Assembly has provided in clear and unambiguous language that only those licensees who "drive" and who drive "upon a public highway" are deemed to have given their consent to a chemical test. When a licensee who has not driven or has not driven upon a public highway declines to take a chemical sobriety test, he is not withdrawing the prior consent upon which the driving privilege was conditioned. See Marin v. Department of Revenue, Colo.App., 591 P.2d 1336 (1978). For such a person, refusal to submit to the test is not "refusal" within the meaning of the statute, which would lead to commencement of revocation proceedings. See § 42-4-1202(3)(e), C.R.S.1973. Therefore we hold that one who has not driven upon a "public highway" may decline to take a chemical sobriety test without suffering the sanction of license revocation under the statute. See also State Department of Public Safety v. Halverson, 292 Minn. 468, 194 N.W.2d 573 (1972); Weber v. Orr, 274 Cal.App.2d 288, 79 Cal.Rptr. 297 (1969).

There is another compelling reason for this conclusion. Section 42-4-103(2) (b), C.R.S.1973, is a general statute, providing since its enactment in 1935 that the various traffic offenses, including driving under the influence, apply on streets and highways and elsewhere. See Colo. Sess.Laws 1935, ch. 164, § 43 at 770. By contrast, the implied consent statute, § 42-4-1202(3)(a), C.R.S.1973, enacted 32 years after § 42-4-103(2)(b), provides that it applies only to those who drive upon public highways. See Colo. Sess.Laws 1967, ch. 356, §§ 1, 2, 4-6 at 753-55. See also State Department of Public Safety v. Halverson, supra.

If specific and general statutes conflict, it is well established that the specific statute prevails. See Kuckler v. Whisler, Colo., 552 P.2d 18 (1976); Shoenberg Farms, Inc. v. People ex rel. Swisher, 166 Colo. 199, 444 P.2d 277 (1968). Applying this rule of construction, we assume that the General Assembly intended the specific requirement that a licensee be driving on a public highway to be an exception to the general rule that § 42-4-1201 to § 42-4-1204 apply throughout the state. See § 2-4-205, C.R.S.1973.

The department also contends that the language "(a)ny person who drives any motor vehicle upon a public highway" as used in the implied consent statute is merely an expansive way of saying any "licensed driver" and that therefore the implied consent statute is applicable to a driver on private property. We do not agree.

This argument is refuted by our holding in Marin v. Department of Revenue, supra. In Marin, we held that the implied consent statute does not apply to one who is not driving. By that decision, we gave effect to the statutory language "any person who drives." In the present case, as in Marin, we must give effect to the statutory language. Therefore the language "upon a public highway" is equally indispensable, and the "any person" language does not merely mean "any licensed driver."

The judgments are therefore affirmed.

VanCISE, J., concurs.

BERMAN, J., dissents.

BERMAN, Judge, dissenting:

I respectfully dissent.

The implied consent law, § 42-4-1202(3), C.R.S.1973, is within those specifically enumerated in § 42-4-103(2)(b), as being applicable "upon streets and highways And elsewhere throughout the state." (emphasis added).

"A statute should be given the construction and interpretation which will render it effective in accomplishing the purpose for which it was enacted." Zaba v. Motor Vehicle Division, 183 Colo. 335, 516 P.2d 634 (1973). And, in determining the intent of the General Assembly in the enactment of a statute, it is presumed that the public interest is favored over any private interest. Section 2-4-201, C.R.S.1973. Furthermore, if the consequences of a literal interpretation of a statute "would be contrary to its obvious and manifest purposes, the intention of the framers will prevail over such a literal interpretation." People v. Silvola, 190 Colo. 363, 547 P.2d 1283, Cert. denied, 429 U.S. 886, 97 S.Ct. 238, 50 L.Ed.2d 167 (1976).

The General Assembly was aware that "(a) driver under the influence of alcohol is a hazard to other drivers on the road in a much greater proportion than he is represented in the whole population." Colorado Legislative Council Research Publication No. 123, Highway Safety in Colorado 39 (1966). The implied consent law was enacted to reduce this hazard, and its purpose is to curb drunk driving by assisting law enforcement officers in prosecuting those who drink and drive, Augustino v. Colorado Department of Revenue, Colo., 565 P.2d 933 (1977); Calvert v. Motor Vehicle Division, 184 Colo. 214, 519 P.2d 341 (1974); Zahtila v. Motor Vehicle Division, Colo.App., 560 P.2d 847 (1977), and by providing for the swift revocation of the licenses of those who refuse to submit to chemical tests. See § 42-4-1202(3)(e), C.R.S.1973. This purpose is enhanced by § 42-4-103(2)(b), which excepts the alcohol related provisions of the traffic code from the general provision that restricts the application of the code to "streets and highways" only.

It is not contested that driving under the influence of, or while impaired by, alcohol is illegal regardless of where the driving occurs. See § 42-4-1202(1) (a) and (b), C.R.S.1973. And § 42-2-1202(3)(h), C.R.S.1973, which provides that the refusal to submit to a chemical test is inadmissible in a criminal prosecution under § 42-4-1202(1), emphasizes that the General Assembly's principal concern is to keep those who drink from driving. It is anomalous to interpret the statutory scheme so that the offenses exist throughout the state, but the "easily administered, reliable method of proving intoxication . . . (and the) simple administrative remedy for revoking the driver's license of an arrested person who refuses to submit to a test," People v. Culp, 189 Colo. 76, 537 P.2d 746 (1975), only apply in certain cases.

Section 2-4-203(1)(e), C.R.S.1973, provides that, in determining the intention of the General Assembly, the court may consider the consequences of a particular construction. The consequences of the majority's interpretation here is that one who drives in the parking lot of a large shopping center while...