Hancock v. State, Dept. of Revenue, Motor Vehicle Div.

• Decision Date: 18 July 1988
• Docket Number: No. 86SA207,86SA207
• Citation: 758 P.2d 1372
• Parties: Paul Scott HANCOCK, Plaintiff-Appellant, v. STATE of Colorado, DEPARTMENT OF REVENUE, MOTOR VEHICLE DIVISION; and Steve Altman, a Hearing Officer Thereof, Defendants-Appellees.
• Court: Colorado Supreme Court

Page 1372

758 P.2d 1372

Paul Scott HANCOCK, Plaintiff-Appellant, v. STATE of Colorado, DEPARTMENT OF REVENUE, MOTOR VEHICLE DIVISION; and Steve Altman, a Hearing Officer Thereof, Defendants-Appellees.

No. 86SA207.

Supreme Court of Colorado En Banc.

July 18, 1988.

French & Stone, P.C., David M. Haynes, Boulder, for plaintiff-appellant.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., David M. Kaye, Asst. Atty. Gen., Denver, for defendants-appellees.

KIRSHBAUM, Justice.

Paul Scott Hancock (Hancock) appeals a Boulder County District Court order affirming the decision of a Department of Revenue (Department) hearing officer to revoke Hancock's driver's license for a period of one year pursuant to section 42-2-122.1(1)(a)(I), 17 C.R.S. (1984). Hancock argues that the hearing officer committed numerous errors during the administrative hearing in ruling on the admissibility of evidence; that the revocation order is void because the hearing was not held at the proper location; that the revocation proceeding should have been dismissed because he was never arrested for violating section 42-4-1202(1.5), 17 C.R.S. (1984); and that section 42-2-122.1(1)(a)(I), 17 C.R.S. (1984), violates his rights to equal protection of the law and due process of law under the United States and Colorado constitutions. We affirm.

I

On September 20, 1984, Colorado State Patrol Officers Beckman and Torgeson, while sitting in a patrol car at a gasoline station in Boulder County, observed an automobile driven by Hancock come to an abrupt stop. Hancock left the vehicle and walked into the station. As he returned to his vehicle, he stumbled. Having witnessed this behavior, the patrolmen decided to follow Hancock.

After watching Hancock's car weave across the center line, make frequent lane changes and remain stopped at a four-way traffic stop for five seconds even though no other vehicles were in the area, the officers stopped Hancock's car. Upon contacting Hancock, Beckman detected an odor of alcoholic beverage on Hancock's breath and observed that his speech was slurred and that his eyes were bloodshot. Hancock lost his balance as he got out of his automobile and was unable to execute roadside sobriety tests satisfactorily. Beckman placed him under arrest pursuant to section 42-4-1202(1)(a), 17 C.R.S. (1984), for driving under the influence of alcohol. An analysis of blood drawn from Hancock thirty-one minutes after he was stopped revealed a blood alcohol content of 0.201 grams of alcohol per hundred milliliters of blood.

When he received a notice of revocation from the Department, Hancock requested an administrative hearing. The hearing was held on November 29, 1984, at the Department's Boulder office. The hearing officer found that Hancock had driven a motor vehicle with a blood alcohol content in excess of 0.15 grams of alcohol per hundred milliliters of blood and entered an order revoking his driver's license for one year, pursuant to section 42-2-122.1, 17 C.R.S. (1984).

Hancock sought timely judicial review of this decision, pursuant to section 42-2-122.1(9)(a), 17 C.R.S. (1984); section 42-2-127(1), 17 C.R.S. (1984); section 24-4-106, 10 C.R.S. (1982) and C.R.C.P. 106(a)(4). On August 30, 1985, the district court affirmed the order of revocation. Hancock then filed an appeal of the district court's order in the Court of Appeals. This court subsequently accepted jurisdiction over the appeal pursuant to section 13-4-110(1)(a), 6A C.R.S. (1987). ¹

II

Hancock contends that several evidentiary rulings of the hearing officer were erroneous. We find no reversible error.

A

At the revocation hearing, Hancock's attorney attempted by cross-examination of Officer Beckman to elicit testimony about Hancock's performance of the roadside sobriety tests. He argued that such evidence was relevant to contradict the results of the chemical test. When pressed by the hearing officer to explain his position, the attorney replied:

Obviously, if a person can substantially perform a significant number of the roadsides, then that would detract, that would render suspect the finding of the blood alcohol level, and the measure of the blood alcohol level.

The hearing officer concluded that evidence of Hancock's performance of the sobriety tests was not relevant to the issue of whether he had operated a motor vehicle with a blood alcohol content in excess of the statutory limit. In his appeal to the district court, Hancock asserted two additional grounds in support of his argument that the evidence should have been admitted: (1) that the evidence was relevant to the question of whether Beckman had probable cause to believe Hancock was driving while under the influence of or while ability impaired by alcohol at the time Beckman requested Hancock to submit to a chemical test; and (2) that Beckman opened the door to the admission of the evidence by testifying that Hancock had not performed the tests well.

Evidence is relevant if it has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." CRE 401. Hancock points out that in criminal proceedings alleging a violation of section 42-4-1202(1.5)(a), 17 C.R.S. (1984) (prohibiting the driving of a vehicle when the person's blood is 0.15 or more grams of alcohol per hundred milliliters of blood or two hundred ten liters of breath as shown by chemical analysis), the General Assembly has provided defendants with the following right:

In any prosecution for a violation of this subsection (1.5), the defendant shall be entitled to offer direct and circumstantial evidence to show that there is a disparity between what the chemical test shows and other facts so that the trier of fact could infer that the test was in some way defective or inaccurate. Such evidence may include testimony of nonexpert witnesses relating to the absence of any or all of the common symptoms or signs of intoxication for the purpose of impeachment of the accuracy of the chemical analysis of the person's blood or breath.

§ 42-4-1202(1.5)(b), 17 C.R.S. (1984).

Relying on section 42-4-1202(1.5)(b), Hancock suggests that the hearing officer erred in ruling that testimony respecting Hancock's performance on the roadside sobriety tests was not relevant to the accuracy of his chemical test results. However, Hancock made no offer of proof contradicting the testimony of officer Beckman and the observations contained in an alcohol influence report submitted by the officer to the Department indicating that Hancock did not perform the roadside sobriety tests adequately. Thus, even assuming that evidence of Hancock's performance on the roadside sobriety tests was relevant to the question of the accuracy of the chemical test results, ² we conclude that any error in this ruling was harmless. See CRE 103(a); People v. Snook, 745 P.2d 647, 649 n. 5 (Colo.1987).

District court review of an agency decision is limited to the record before it. Stream v. Heckers, 184 Colo. 149, 519 P.2d 336 (1974). Error may not be predicated on a ruling which admits or excludes evidence unless a substantial right of the party asserting error is affected and a timely, specific objection was made below. CRE 103(a)(1); see Gray v. Lucas, 677 F.2d 1086 (5th Cir.1982) (hearsay claim not considered on appeal because it was not raised before the trial court), cert. denied, 461 U.S. 910, 103 S.Ct. 1886, 76 L.Ed.2d 815 (1983); People v. Watson, 668 P.2d 965 (Colo.App.1983) (failure to object in the trial court on the grounds asserted on appeal is deemed a waiver of the objection). Because Hancock failed at the hearing to assert his arguments that this evidence was relevant to the question of probable cause to arrest and that Beckman had opened the door to its admissibility, the district court correctly refused to consider those arguments on appeal. People v. Watson, 668 P.2d 965.

B

Hancock asserts that the hearing officer erroneously ruled that an adequate foundation had been laid for the admission into evidence of the results of the analysis of the blood sample drawn from Hancock on September 20, 1984. He concedes that the foundation was sufficient under the standard articulated in Miller v. Motor Vehicle Division, 706 P.2d 10 (Colo.App.1985). He argues, however, that Miller should be reexamined because it conflicts with Aultman v. Motor Vehicle Division, 706 P.2d 5 (Colo.App.1985). We disagree.

In Miller, the arresting officer testified during a revocation proceeding that he observed a registered nurse withdraw the driver's blood and that the police department sent that blood sample to a laboratory. The Court of Appeals held that this testimony, when coupled with the laboratory report and the arresting officer's police report, provided prima facie evidence that the chemical test was administered in compliance with the rules and regulations of the Department of Health and was sufficient to support the admission into evidence of the results of the analysis. In Aultman, the arresting officer testified that he personally administered a breath test to the driver on an intoxilyzer machine located in the police department, that he was certified by the Department of Health to operate the machine, and that he followed the Department of Health checklist in administering the breath test. The Court of Appeals held that this testimony, when coupled with the introduction of the checklist into evidence, provided prima facie evidence that the test satisfied the requirements of the rules and regulations of the Department of Health and that the breath test results were accurate, thus supporting the admission into evidence of those results. ³

Both Miller and Aultman found under specific facts that an adequate foundation had been laid to permit the admission into evidence of the tests there involved. Neither decision purported...