Dolan v. Rust

• Decision Date: 03 April 1978
• Docket Number: No. C-1197,C-1197
• Citation: 195 Colo. 173,576 P.2d 560
• Parties: Joseph F. DOLAN, Director of the Department of Revenue, State of Colorado and Steven J. Dawes, Hearings Officer, Department of Revenue, State of Colorado, Petitioners, v. Harley Earl RUST, Respondent.
• Court: Colorado Supreme Court

Page 560

576 P.2d 560

195 Colo. 173

Joseph F. DOLAN, Director of the Department of RevenueState of Colorado and Steven J. Dawes, HearingsOfficer, Department of Revenue, State of Colorado, Petitioners, v.Harley Earl RUST, Respondent.

No. C-1197.

Supreme Court of Colorado, En Banc.

April 3, 1978.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Solicitor Gen., Arthur G. Staliwe, John R. Rodman, Felipe V. Ponce, Asst. Attys.Gen., Denver, for petitioners.

Cecil A. Hartman, Denver, for respondent.

HODGES, Justice.

Pursuant to Colorado's implied consent law, section 42-4-1202(3), C.R.S.1973, respondent Rust's driving privileges were revoked for six months by the Department of Revenue.This action was taken after a hearing and based on findings that respondent Rust refused a chemical test after being taken into custody for driving a motor vehicle while under the influence of alcohol.This revocation was voided in the district court, and on appeal by the Department of Revenue, the court of appeals affirmed the district court in Rust v. Dolan, Colo.App., 563 P.2d 28(1977).We granted certiorari to review this decision.We reverse.

The pertinent facts before the Department of Revenue are as follows.Shortly after 10:00 p. m. on June 13, 1975, a Colorado state patrolman saw a vehicle with its lights on parked on the shoulder of Interstate Highway 70.As he approached the automobile, the patrolman observed the driver, Harley Earl Rust, slumped in the front seat of the vehicle where two empty whiskey bottles were observed.Upon opening the door, the patrolman detected the strong odor of intoxicating liquor coming from within the automobile.In response to questions from the patrolman, Rust moaned and began to vomit violently.

Since Rust was unable to walk, the patrolman and another officer had to remove him from the vehicle and carry him to the patrol car.In the patrol car, Rust became coherent enough to tell his name to the patrolman and produce his driver's license.The patrolman read an implied consent form to Rust who agreed to take a gas chromatograph test.Rust continued to vomit in the patrol car and repeatedly said "I'm drunk, I know I'm drunk."

Upon arrival at the Aurora police station, Rust was carried to the test room.Rust refused a request to blow into the breathalyzer machine, saying, "I'm too drunk, just throw me in jail."Rust continued to vomit and refused to stand up for the purpose of being tested.The arresting officer testified that "we determined that there was no further use to try and test him."He was incarcerated at the Arapahoe county jail, after being charged with driving while under the influence of alcohol.

An implied consent hearing was conducted by the Department of Revenue on July 22, 1975.The hearing officer found that testimony from the two police officers, who related the foregoing facts, constituted sufficient grounds to believe that Rust had been driving a motor vehicle while under the influence of alcohol.The hearing officer also found that Rust had been properly informed of the implied consent law and had refused the chemical test.Pursuant to section 42-2-122(1)(j), C.R.S.1973, Rust's driver's license was revoked for a six-month period.

The district court set aside the hearing officer's order, and in so doing, substituted its judgment for that of the hearing officer as to wilful refusal.The court of appeals affirmed the judgment of the district court, reasoning that Rust had not refused to take the test, since he was physically incapable of so refusing, and that therefore the hearing officer's order revoking Rust's license was arbitrary and capricious.

In pertinent part, section 42-4-1202(3)(d), C.R.S.1973, provides that:

"Any person who is dead, unconscious, or otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn his consent provided by paragraph (a) of this subsection (3), and the test may be administered subject to paragraph (b) of this subsection (3)."

In deciding whether there was a refusal to submit to a chemical test, the trier of fact should consider the driver's words and other manifestations of willingness or unwillingness to take the test.In Hoban v. Rice, 25 Ohio St.2d 111, 267 N.E.2d 311(1971), the Supreme Court of Ohio stated that:

"(t)he determination will be based on an objective standard, not a subjective standard, such as the...