Frank v. Charnes, 79CA0488

Decision Date06 September 1979
Docket NumberNo. 79CA0488,79CA0488
Citation600 P.2d 124,43 Colo.App. 217
PartiesJoseph Peter FRANK, Plaintiff-Appellee, v. Alan CHARNES, as Director of the Department of Revenue and Motor Vehicle Division, State of Colorado, Defendant-Appellant. . II
CourtColorado Court of Appeals

Al R. Zinn, Denver, for plaintiff-appellee.

J. D. MacFarlane, Atty. Gen., Richard F. Hennessey, Deputy Atty. Gen., Edward G. Donovan, Sp. Asst. Atty. Gen., Susan P. Mele-Sernovitz, Asst. Atty. Gen., Denver, for defendant-appellant.

RULAND, Judge.

The Department of Revenue appeals from a judgment setting aside its order revoking the driver's license of plaintiff, Joseph Peter Frank, for his refusal to submit to a chemical test pursuant to the implied consent law. We reverse.

The revocation hearing originally scheduled in this case was continued at the request of Frank's attorney. On the date of the rescheduled hearing, the attorney failed to appear at the appointed time. No reason was given to the hearing examiner for his absence. The hearing examiner delayed the hearing for approximately 17 minutes and then proceeded. The trial court ruled that the Department acted arbitrarily in proceeding without Frank's attorney in attendance.

Insofar as pertinent here, § 42-4-1202(3)(e), C.R.S.1973 (1978 Cum.Supp.) provides that:

"The hearing . . . shall not be continued unless the arrested person . . . can establish to the hearing officer . . . that his attorney . . . is unable to appear . . .. Nothing in this paragraph (e) shall be construed to prohibit the department from rescheduling such hearing if good cause exists which prevents the hearing from being held at the time scheduled."

Where the language of the statute is plain, its meaning clear, and no absurdity is involved, it must be applied as written. See Harding v. Industrial Commission, 183 Colo. 52, 515 P.2d 95 (1973); Myers v. Woodall, Colo.App., 592 P.2d 1343 (1978). The language of the statute is unequivocal. Frank was required to establish that his attorney was unable to appear. However, failure to appear does not demonstrate in and of itself inability to appear. Rather, good cause must be shown. No reason for his attorney's absence having been offered by Frank, the hearing officer properly proceeded with the hearing.

The judgment of the district court is reversed and the cause remanded to it with directions to resolve the other contentions raised by Frank in his complaint.

PIERCE and BERMAN, JJ., concur.

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3 cases
  • Nieto v. State
    • United States
    • Colorado Court of Appeals
    • October 2, 1997
    ...is not only unnecessary, it is inappropriate. See Ackerman v. Power Equipment Co., 881 P.2d 451 (Colo.App.1994); Frank v. Charnes, 43 Colo.App. 217, 600 P.2d 124 (1979); see also Dove Valley Business Park Associates v. Board of County Commissioners, 923 P.2d 242, 248 (Colo.App.1995), aff'd,......
  • Martin v. Porak
    • United States
    • Colorado Court of Appeals
    • December 24, 1981
    ...1975. Colo.Sess.Laws 1975, ch. 151, at 569. Therefore, the language of the statute must be applied as written. See Frank v. Charnes, 43 Colo.App. 217, 600 P.2d 124 (1979). Hence, Martin is entitled to 9% interest from the date of The judgment is affirmed as to liability and damages, is reve......
  • Romero v. Rossmiller, 79CA0313
    • United States
    • Colorado Court of Appeals
    • September 6, 1979
1 books & journal articles
  • Criminal Law Newsletter
    • United States
    • Colorado Bar Association Colorado Lawyer No. 9-4, April 1980
    • Invalid date
    ...560 (1978) and see generally, C.R.S. 1973, § 24-4-106(7). 5. Johnson v. Industrial Commission, 328 P2d 384 (1958). 6. Frank v. Charnes, 600 P2d 124 (Colo App 1979). 7. Martinez v. Dolan, 591 P2d 588 (Colo App 1979). 8. Gillespie v. Dir of Dept of Revenue, 592 P2d 418 (Colo App 1979). 9. Rae......

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