Nefzger v. Colorado Dept. of Revenue, Motor Vehicle Div., 86SA2

• Decision Date: 15 June 1987
• Docket Number: No. 86SA2,86SA2
• Citation: 739 P.2d 224
• Parties: Vern T. NEFZGER, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF REVENUE, MOTOR VEHICLE DIVISION, Defendant-Appellee.
• Court: Colorado Supreme Court

Page 224

739 P.2d 224

Vern T. NEFZGER, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF REVENUE, MOTOR VEHICLE DIVISION Defendant-Appellee.

No. 86SA2.

Supreme Court of Colorado En Banc.

June 15, 1987.

William R. Dowhan, Aurora, for plaintiff-appellant.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Anthony S. Trumbly, Asst. Atty. Gen., Denver, for defendant-appellee.

QUINN, Chief Justice.

Vern T. Nefzger appeals from a district court judgment upholding the revocation of his driver's license, pursuant to section 42-2-122.1(1)(a)(I), 17 C.R.S. (1984), for operating a motor vehicle with a blood alcohol level of 0.15 or more grams of alcohol per 210 liters of breath. He challenges the constitutionality of section 42-2-122.1(1)(a)(I) and raises several claims relating to the applicability of the statute to him under the facts of this case. ¹ We affirm the judgment.

I.

On February 19, 1984, at approximately 12:10 a.m., Officer Gary Sullivan of the Aurora Police Department observed Nefzger driving an automobile south on South Peoria Street at a speed slightly faster than other traffic. The officer followed the vehicle for five blocks and saw it weave six times to the right side of the road, kicking up snow and ice in the gutter, and cross the lane divider lines to the left on four separate occasions. When the officer stopped the vehicle and approached Nefzger, he detected a strong odor of alcoholic beverage and observed that Nefzger's eyes were bloodshot, watery, and glassy. He asked Nefzger if he had drunk anything. Nefzger responded that he had drunk four drinks of scotch and water. Officer Sullivan asked Nefzger to perform five simple physical maneuvers. Nefzger agreed to execute the maneuvers but performed them very poorly. After the tests the officer arrested Nefzger for driving under the influence of intoxicating liquor.

Nefzger agreed to submit to a chemical test of his breath and was transported to the Aurora police station for that purpose. A breath test given at 12:57 a.m. yielded a result of .159 grams of alcohol per 210 liters of breath. Officer Sullivan charged Nefzger with failing to drive within a single lane in violation of section 42-4-907(1)(a), 17 C.R.S. (1984), and driving under the influence of intoxicating liquor in violation of section 42-4-1202(1)(a), 17 C.R.S. (1984), but did not charge him specifically with driving a vehicle with a blood alcohol content of 0.15 or more, as proscribed by section 42-4-1202(1.5)(a), 17 C.R.S. (1984).

At a revocation hearing conducted by the Department of Revenue (department), Nefzger's attorney urged the hearing officer not to consider the breath test results. The attorney told the hearing officer that after obtaining a sealed plastic envelope containing the breath sample from the Aurora Police Department he directed his secretary to mail it to an independent laboratory for analysis, and that he later received a letter from the laboratory stating that the sample was unacceptable for retesting because the sealed plastic envelope containing the sample had a small hole at the top. Nefzger's attorney, however, made no showing that Officer Sullivan or any other agent of the state failed to preserve the breath sample intact or was in any way responsible for the hole in the plastic envelope. The hearing officer denied Nefzger's request that the breath test results not be considered.

During the hearing Nefzger testified that he was not drunk on the evening in question and that his inability to perform roadside sobriety maneuvers was due to a physical disability that affected his walking. Nefzger's wife also testified that prior to his arrest Nefzger was not drunk and was swerving to avoid hitting potholes in the road. A friend of the Nefzgers, who had been with them at an Elks Club banquet earlier in the evening of the arrest, testified that Nefzger was not drunk when he left the club.

At the conclusion of the evidence, the hearing officer found that Officer Sullivan had reasonable grounds to stop Nefzger and ask him to submit to chemical testing, that the test had been given within one hour of the alleged offense and showed a blood alcohol content greater than 0.15 grams of alcohol per 210 liters of breath, and that Nefzger had operated his vehicle with a blood alcohol content warranting mandatory revocation of his license under section 42-2-122.1(1)(a)(I), 17 C.R.S. (1984). The hearing officer ordered Nefzger's driver's license revoked for one year. After unsuccessfully pursuing judicial review in the Arapahoe County District Court, Nefzger filed this appeal.

II.

Nefzger asserts that section 42-2-122.1(1)(a)(I), 17 C.R.S. (1984), which mandates the administrative revocation of a driver's license for driving when the amount of alcohol in the driver's blood is 0.15 or more grams of alcohol per 210 liters of breath, fails to provide adequate notice of the proscribed conduct because a driver cannot know what his precise blood alcohol is at a given moment and thus has no way to gauge whether he is driving in violation of the statute. Nefzger's constitutional challenge is devoid of merit.

We rejected the same argument raised here in Smith v. Charnes, 728 P.2d 1287 (Colo.1986). After noting that numerous courts in other jurisdictions have rejected similar challenges, we stated:

[T]here is an abundance of information available that illustrates the amount of different alcoholic beverages that an individual might consume before reaching a specific blood alcohol content level.... Considering the availability of such information and the fact that the consequences of statutes like section 42-2-122.1 can be avoided by the exercise of reasonable moderation, we conclude that section 42-2-122.1 provides sufficient notice of the conduct that has been determined to be unlawful to meet the requirements of due process.

728 P.2d at 1291 (Citation and footnote omitted.) We again hold that the mandatory license revocation authorized by section 42-2-122.1(1)(a)(I) is not unconstitutionally vague in violation of due process of law.

III.

Nefzger also contends that the department was without authority to revoke his license pursuant to section 42-2-122.1(1)(a)(I) because, in his view, before a driver's license can be administratively revoked the driver must be charged with violating the criminal proscriptions of section 42-4-1202(1.5)(a), 17 C.R.S. (1984), which makes it a misdemeanor to drive a vehicle with a blood alcohol of 0.15 or more grams of alcohol per 210 liters of breath. We are unpersuaded by Nefzger's argument.

Section 42-2-122.1, 17 C.R.S. (1984), provides in relevant part as follows:

(1)(a) The department shall revoke the license of any person upon its determination that the person:

(I) Drove a vehicle in this state when the amount of alcohol in such person's blood was 0.15 or more grams of alcohol per hundred milliliters of blood or 0.15 or more grams of alcohol per two hundred ten liters of breath at the time of the commission of the alleged offense or within one hour thereafter, as shown by chemical analysis of such person's blood or breath; or

(II) Refused to submit to a chemical analysis of his blood, breath, saliva or urine as required by section 42-4-1202(3).

(b) The department shall make a determination of these facts on the basis of the report of a law enforcement officer required in subsection (2) of this section, and this determination shall be final unless a hearing is requested and held. If a hearing is held, the department shall review the matter and make a final determination on the basis of evidence received at the hearing.

(c) The determination of these facts by the department is independent of the determination of the same or similar facts in the adjudication of any criminal charges arising out of the same occurrence. The disposition of those criminal charges shall not affect any revocation under this section.

(2)(a) A law enforcement officer who arrests any person for a violation of section 42-4-1202(1.5) shall forward to the department a verified report of all information relevant to the enforcement action, including information which adequately identifies the arrested person, a statement of the officer's grounds for belief that the person violated section 42-4-1202(1.5), a report of the results of any chemical tests which were conducted, and a copy of the citation and complaint filed with the court.

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(3)(a) Upon receipt of the report of the law enforcement officer, the department shall make the determination described in subsection (1) of this section. If the department determines that the person is subject to license revocation and if notice of revocation has not already been served upon the person by the enforcement officer as required in subsection (4) of this section, the department shall issue a notice of revocation.

(b) The notice of revocation shall be mailed to the person at the last-known address shown on the department's records and to the address provided by the enforcement officer's report if that address differs from the address of record. The notice is deemed received three days after mailing, unless returned by postal authorities.

(c) The notice of revocation shall clearly specify the reason and statutory grounds for the revocation, the effective date of the revocation, the right of the person to request a hearing, the procedure for requesting a hearing, and the date by which that request for a hearing must be made.

(4)(a) Whenever the chemical analysis results are available to the law enforcement officer while the arrested person is still in custody and where the results, if available, show an alcohol concentration of 0.15 or more grams of alcohol per one hundred milliliters of blood as shown by chemical analysis of such person's blood or 0.15 or more grams of alcohol per two hundred ten liters of breath as shown by chemical analysis of such person's...