Gallion v. Colorado Dept. of Revenue

• Decision Date: 05 November 2007
• Docket Number: No. 06SC809.,06SC809.
• Citation: 171 P.3d 217
• Parties: Nancy GALLION, Petitioner v. COLORADO DEPARTMENT OF REVENUE, Motor Vehicle Division, Respondent.
• Court: Colorado Supreme Court

171 P.3d 217

Nancy GALLION, Petitioner v. COLORADO DEPARTMENT OF REVENUE, Motor Vehicle Division, Respondent.

No. 06SC809.

Supreme Court of Colorado, En Banc.

November 5, 2007.

Hammond Law Offices, Kristopher L. Hammond, Steamboat Springs, Colorado, Attorneys for Petitioner.

John W. Suthers, Attorney General, Ceri Williams, Assistant Attorney, General, Denver, Colorado, Attorneys for Respondent.

Justice MARTINEZ delivered the Opinion of the Court.

Petitioner Nancy Gallion ("Gallion") appeals the revocation of her driver's license under Colorado's express consent statute, which mandates that all drivers take and cooperate in the taking of a blood alcohol test when requested to do so by a law enforcement officer who has probable cause to believe the individual was driving under the influence.

Gallion initially refused to submit to a blood alcohol content ("BAC") test. However, after the arresting officer had booked her into the county detention center, issued her a notice of revocation for refusal to submit to a BAC test, and then left to resume duty, Gallion told a sheriff's deputy that she wished to take the test. She was informed that it was too late. After a hearing officer found that Gallion's license was properly revoked for refusal, Gallion appealed and the district court ordered reinstatement. In Gallion v. Colorado Department of Revenue, Motor Vehicle Division, 155 P.3d 539 (Colo. App.2006), the court of appeals reversed the district court's decision, and we granted certiorari.

After reviewing the statutory language, the relevant case law, and a 1999 legislative change, we find that Colorado's express consent statute requires us to focus on the overarching question of whether an individual cooperated with the officer who had probable cause to believe the individual was driving under the influence. Where a driver initially refuses and then subsequently expresses willingness to take the test, we hold that the driver will be deemed to have refused testing if he or she did not timely cooperate. To timely cooperate, the driver must cooperate while the officer with probable cause remains engaged in the process of requesting and directing the completion of the chemical test such that a blood or breath sample can be obtained within two hours of driving. Because the facts in the record clearly demonstrate a failure to timely cooperate, we hold that Gallion's behavior constituted a refusal to submit to testing. Therefore, we affirm the judgment of the court of appeals.

I. Factual and Procedural History

Gallion was pulled over by a Steamboat Springs police officer for erratic driving and was subsequently placed under arrest for driving under the influence. At the time of her arrest, the officer informed Gallion of Colorado's express consent statute and asked her to choose a chemical test of either her blood or her breath. Gallion responded that she did not understand the advisement.¹ The officer attempted several more times to explain the advisement and its consequences, but Gallion continued to respond that she did not understand and that she was scared. Ultimately, the officer concluded that Gallion was playing "dumb" to interfere with the investigation. He deemed her actions a refusal to take the test as he believed it clear that she did not intend to cooperate.

Gallion was transported to the Routt County Detention Center for processing. The detention center is a jail facility operated by the Routt County Sheriff's Department, a separate law enforcement agency from the Steamboat Springs Police Department. At the detention center, Gallion was presented with an Express Consent Affidavit and Notice of Revocation ("notice of revocation"), which the officer explained in detail. The document notified Gallion that on that date she had been asked to submit to a chemical test pursuant to Colorado's express consent statute, section 42-4-1301.1, C.R.S. (2007). Furthermore, the notice stated, "THIS IS YOUR OFFICIAL ORDER. . . . Because you refused to take or complete, or to cooperate with any testing or tests of your blood, breath, saliva, and/or urine, your driver license and/or driving privilege is hereby revoked." Gallion signed the affidavit, stated to the officer that she understood, and surrendered her license to the officer. With her paperwork complete, the officer left to resume duty.

Subsequently, at some point between one hour and fifteen minutes to one hour and twenty-five minutes after Gallion was initially stopped, Gallion informed a sheriff's deputy at the detention center that she wanted to take "the test." The deputy denied her request on the basis that the arresting officer had left the station and Gallion's paperwork was finished.²

At the subsequent license revocation hearing, Gallion argued that because she validly recanted her initial refusal to submit to chemical testing, her license should not have been revoked for refusal. She maintained that the statute only required that she "cooperate with the request such that the sample of blood or breath can be obtained within two hours of [her] driving." § 42-4-1301.1(2)(a)(III), C.R.S. (2007). However, the hearing officer held that Gallion could not validly retract her refusal because the arresting officer was no longer "available" when Gallion recanted. Consequently, the hearing officer ordered that Gallion's driver's license be revoked for one year.

On appeal, the district court reinstated Gallion's driver's license. The court found that the hearing officer incorrectly interpreted the law to require that the arresting officer be available to administer the chemical test at the time a driver recants an initial refusal. The court noted that although the statute requires that the test "shall be administered at the direction of a law enforcement officer having probable cause to believe that the person had been driving [under the influence]," that officer need not be the arresting officer. § 42-4-1301.1(5). Consequently, the district court found the hearing officer erred in holding that Gallion must recant her initial refusal to the arresting officer in order for it to be valid.

The state appealed, and the court of appeals reversed the district court and reinstated the order of revocation. The court of appeals held that (1) any recantation must be made to the arresting officer or other law enforcement officer with probable cause and (2) the recantation must be made in sufficient time to obtain a blood or breath sample within two hours of the person's driving. Gallion, 155 P.3d at 542. The court of appeals found no evidence that either the arresting officer or another officer with probable cause was available to administer the test when Gallion recanted. Id. Furthermore, the court found that Gallion made no showing that the testing could have been completed in time to satisfy her burden to cooperate such that a sample of blood or breath could be obtained within two hours of her driving. Id.

We granted certiorari to review the court of appeals' decision, and we now affirm.³

II. Review of Current and Prior Law

A. Statutes

Colorado's express consent statute provides that all drivers are required to take, and to cooperate in the taking and completing of, a BAC test when requested to do so by an officer with probable cause that the individual was driving under the influence. If the driver refuses to take or cooperate in the completion of the test, the Department of Revenue is required to revoke the driver's license for a period of one year. Specifically, the statute states:

A person who drives a motor vehicle upon the streets and highways and elsewhere throughout this state shall be required to take and complete, and to cooperate in the taking and completing of, any test or tests of the person's breath or blood for the purpose of determining the alcoholic content of the person's blood or breath when so requested and directed by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle in violation of the prohibitions against DUI, DUI per se, DWAI, habitual user, or UDD.

§ 42-4-1301.1(2)(a)(I)(emphasis added). Thus, when an officer with probable cause requests and directs a BAC test, the driver is required to take, complete, and cooperate in the completion of the test.

The purpose of the driver's obligation to cooperate is to ensure that the test is completed or a sample is obtained within a defined time frame. Section 42-4-1301.1(2)(a)(III) states:

If a law enforcement officer requests a test under this paragraph (a), the person must cooperate with the request such that the sample of blood or breath can be obtained within two hours of the person's driving.

(emphasis added). Thus, the driver's actions must allow a sample to be obtained within two hours.

Additionally, the statute outlines the duties of the officer with probable cause in dealing with a driver that refuses to cooperate. First, the officer must make a determination as to whether the person "refuses to take or to complete or to cooperate in the completing of such test or tests." § 42-2-126(5)(a)(I), C.R.S. (2007). Upon concluding that there has been a refusal, the officer "acting on behalf of the [D]epartment [of Revenue], shall serve the notice of revocation personally on [the driver]." Id. Finally, after serving the notice of revocation, "the officer shall take possession of any driver's license . . . held by the person." § 42-2-126(5)(b).

A failure to take, complete, or cooperate in the completion of the test results in license revocation for a period of one year. § 42-2-126(2)(a)(II), (6)(b)(3). Specifically, the license revocation provision of section 42-2-126 states that the department shall revoke the license of any driver who "[r]efused to take or to complete, or to cooperate in the completing of, any test or tests of the person's blood, breath, saliva, or urine." § 42-2-126(2)(a).

B. Case Law

In addition to the governing st...