Johnson v. Motor Vehicle Division, Dept. of Revenue, 76--023

• Decision Date: 26 August 1976
• Docket Number: No. 76--023,76--023
• Parties: Ted John JOHNSON, Jr., Plaintiff-Appellant, v. MOTOR VEHICLE DIVISION, DEPARTMENT OF REVENUE, State of Colorado, Defendant-Appellee. . III
• Court: Colorado Court of Appeals

Page 488

556 P.2d 488

38 Colo.App. 230

Ted John JOHNSON, Jr., Plaintiff-Appellant, v. MOTOR VEHICLE DIVISION, DEPARTMENT OF REVENUE, State of

Colorado, Defendant-Appellee.

No. 76--023.

Colorado Court of Appeals, Div. III.

Aug. 26, 1976.

Rehearing Denied Sept. 16, 1976.

Certiorari Denied Nov. 22, 1976.

Richard H. Duke, Denver, for plaintiff-appellant.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Arthur G. Staliwe, Sp. Asst. Atty. Gen., Denver, for defendant-appellee.

STERNBERG, Judge.

Pursuant to the implied consent statute, now § 42--4--1202(3), C.R.S.1973, the defendant Department revoked plaintiff Johnson's drivers license for a period of six months. He sought review in the district court which upheld the revocation. On appeal to this court, we affirm.

Shortly after midnight on January 29, 1975, an agent of the Lakewood Department of Public Safety noticed a vehicle stopped 'dead center in the eastbound through lane' of West Jewell Avenue. The officer approached the vehicle and saw Johnson behind the wheel attempting to start it. Upon noticing a strong odor of alcohol, the officer gave Johnson a field sobriety test which he failed. The officer then advised Johnson of his rights under the implied consent law pursuant to the statute and requested that he take a chemical test. Johnson refused and suspension proceedings ensued.

On appeal, Johnson's first contention is that the Department did not have jurisdiction to revoke his license under the implied consent statute. He argues that before a police officer may request a driver to submit to a test, the driver must first have committed an offense relating to the operation of a motor vehicle, separate and distinct from the offense of driving while under the influence of or impaired by alcohol. We find no merit in this contention.

The applicable portion of § 42--4--1202(3)(a), C.R.S.1973, provides that:

'Any person who drives any motor vehicle upon a public highway in this state shall be deemed to have given his consent to a chemical test . . ., if arrested for any misdemeanor offense arising out of acts alleged to have been committed while the person was driving a motor vehicle while under the influence of, or impaired by, alcohol. . . .'

We read no requirement into the statute that there be both a driving violation and evidence of operating a vehicle while under the influence of or impaired by alcohol. Rather, under this statute, an officer may make an arrest of one who commits a moving violation and then, if he has probable cause to believe that the person is driving under the influence of alcohol can request that the driver take a chemical test, even though he is not under arrest at the time for driving under the influence. On the other hand, as here, the officer may, in the first instance, arrest the suspect for driving while under the influence and then request a test be taken. Cf. Vigil v. Motor Vehicle Division of Dep't of Revenue, 184 Colo. 142, 519 P.2d 332 (1974).

Moreover, the presence of Johnson's vehicle stopped in the traveled portion of a public street constituted as appropriate a ground to require the officer's attention to Johnson, as would have Johnson's commission of a moving traffic violation.

Johnson next contends that because citations of...