Harvey v. Charnes, 84CA1442
| Decision Date | 31 July 1986 |
| Docket Number | No. 84CA1442,84CA1442 |
| Citation | 728 P.2d 373 |
| Parties | Susan M. HARVEY, Plaintiff-Appellant, v. Alan N. CHARNES, Executive Director of the Department of Revenue and Motor Vehicle Division of the State of Colorado, Defendant-Appellee. . III |
| Court | Colorado Court of Appeals |
Jeffrey A. Springer, P.C., Jeffrey A. Springer, Denver, for plaintiff-appellant.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Steven M. Bush, Asst. Atty. Gen., Denver, for defendant-appellee.
The plaintiff, Susan Marie Harvey, appeals from the judgment of the district court affirming the order of the Department of Revenue revoking her driver's license for driving while under the influence of intoxicating liquor. She contends that the district court erred in failing to set aside the revocation because there was no evidence of the blood alcohol content of the plaintiff at the time of the commission of the offense. Further, she contends that, even if it is assumed that evidence of blood alcohol content within an hour of the offense provides a proper foundation for revocation, there was insufficient evidence of an excessive blood alcohol level during this requisite period. We affirm.
The plaintiff's first argument is grounded on the proposition that § 42-2-122.1(8)(c), C.R.S. (1984 Repl.Vol. 17) fixes the time for determination of the offender's blood alcohol content as the time of the commission of the alleged offense. Accordingly, she asserts that evidence of blood alcohol content within one hour after the offense, as provided in § 42-2-122.1(1)(a)(I), C.R.S. (1984 Repl.Vol. 17) is not sufficient to sustain the burden of proof. We reject this argument.
The two provisions of the statute are not inconsistent simply because one section does not include the language "within one hour" after the commission of the alleged offense. The standard for revocation is explicitly set forth in § 42-2-122.1(1)(a)(I), and requires the Department to revoke the driver's license if it determines that the person drove a vehicle with a blood alcohol level in excess of the statutory amount within one hour after the commission of the alleged offense. The statutory scheme makes clear the legislative intent to establish this standard for revocation. See, e.g., § 42-2-122.1(1)(b) and (3)(a), C.R.S. (1984 Repl.Vol. 17). It is not necessary that this standard be set forth in every...
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Hancock v. State, Dept. of Revenue, Motor Vehicle Div.
...on the faulty premise that section 42-2-122.1(8)(c) defines prohibited conduct. As the Court of Appeals recognized in Harvey v. Charnes, 728 P.2d 373 (Colo.App.1986), the standard for revocation is set forth in section 42-2-122.1(1)(a)(I), and requires the Department to revoke a driver's li......
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Charnes v. Robinson
...of the evidence. Therefore, the court ruled that the hearing officer erred in revoking the license. 2 Id. In Harvey v. Charnes, 728 P.2d 373 (Colo.Ct.App.1986), the court of appeals ruled that it was improper to measure the reliability of the intoxilyzer test performed by a police officer b......
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ARTICLE 2 DRIVERS' LICENSES
...alcohol concentration obtained pursuant to subsection (8)(c) was sufficient to sustain revocation of driver's license. Harvey v. Charnes, 728 P.2d 373 (Colo. App. 1986) (decided prior to 1987 amendments to subsections (1)(a) and (8)(c)). Margin of error may be considered in determining weig......