Noe v. Dolan
| Decision Date | 22 January 1979 |
| Docket Number | No. 28276,28276 |
| Citation | 197 Colo. 32,589 P.2d 483 |
| Parties | Wayne Richard NOE, Plaintiff-Appellant, v. Joe DOLAN, Director Department of Revenue, Division of Motor Vehicles, State of Colorado, Defendant-Appellee. |
| Court | Colorado Supreme Court |
Charles P. Miller, P. C., Aurora, for plaintiff-appellant.
J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Susan P. Mele-Sernovitz, Asst. Atty. Gen., Denver, for defendant-appellee.
Plaintiff appeals from a judgment of the district court, which affirmed an order of the department of revenue revoking his driver's license for a period of six months required under the provisions of the implied consent law. Section 42-4-1202(3), C.R.S.1973. We affirm the judgment.
At approximately 9:30 p. m. on October 14, 1976, plaintiff was arrested for driving while under the influence of intoxicating liquor. He was taken to the Aurora Police Department where he refused to submit to the statutorily authorized chemical tests for the purpose of determining the alcohol content of his blood. Pursuant to section 42-4-1202(3)(e), C.R.S.1973, plaintiff was given notice to appear before the department of revenue to show cause why his operator's license should not be revoked. After an evidentiary hearing, the hearing officer made findings adverse to plaintiff and ordered that his license be revoked for a period of six months.
Plaintiff sought review in the district court, which found that on the record the department did not act in excess of its jurisdiction or abuse its discretion. Accordingly, the order of revocation was affirmed.
Plaintiff contends that the findings of the hearing officer regarding the adequacy of the advisement of rights under the implied consent statute and plaintiff's unjustified refusal to take any test were arbitrary and capricious. In order for a reviewing court to set aside a decision by an administrative agency on the ground that it is arbitrary or capricious pursuant to section 24-4-106(7), C.R.S.1973, the court must find that there is no competent evidence in the record as a whole supporting the agency's decision.
Our review of the record of proceedings satisfies us that there is competent evidence supporting the hearing officer's determination that plaintiff was adequately advised and was unjustified in refusing to submit to a chemical sobriety test. The determination may not be disturbed on judicial review. Dolan v. Rust, Colo., 576 P.2d 560 (1978); Gilbert v. Dolan, Colo.App., 586 P.2d 233 (1978). We find no abuse of discretion by the department of revenue.
Plaintiff's principal contention for reversal is that he should receive the benefit of an amendment to the implied consent law which has reduced the length of time an operator's license may be revoked for refusal to submit to a chemical test to determine the alcohol content of his blood. At the time of his hearing, section 42-4-1202(3)(e), C.R.S.1973, provided for a six-month revocation of the driver's license of one who refused to submit to the test. During the pendency of this appeal, the penalty for refusal was reduced to a three-month revocation by Colo.Sess.Laws 1977, ch. 549, 42-4-1202(3)(e) at 1863.
In support of his contention, plaintiff relies on the principle enunciated in People v. Thomas, 185 Colo. 395, 525 P.2d 1136 (1974), and its progeny that a defendant is entitled to the benefits of amendatory legislation when relief is sought before finality has attached to the judgment of conviction.
We do not agree that the principle enunciated in People v. Thomas, supra, is applicable to a driver's license revocation proceeding before the department of revenue for refusal to comply with the implied consent law. The rule announced in Thomas is limited to criminal cases only. The revocation of one's driver's license because of refusal to submit to a chemical sobriety test clearly is a civil administrative proceeding. No crime is involved. It is separate and distinct from a criminal action on a charge of driving while under the influence of intoxicants. People v. Brown, 174 Colo. 513, 485 P.2d 500 (1971).
In People v. Thomas, supra, while defendant's appeal was pending, he sought postconviction review of his sentence because the crime had been reclassified and the penalty reduced. Postconviction review was authorized by the Colorado Criminal Code when a defendant in good faith alleged:
"That there has been a significant change in the law, applied to appellant's conviction or sentence, requiring in the interests of justice retroactive application of the changed legal standard." 1971 Perm.Supp., C.R.S.1963, 40-1-510(1)(f). 1
Based on this criminal statute, this court remanded for resentencing, finding a legislative intent to effectuate uniformity in criminal sentencing wherever possible by applying changed legal standards wherever constitutionally permissible. 2
The general rule in civil proceedings regarding amendatory legislation is that civil liability already incurred may not be changed by statute unless specifically so provided by the legislature. City of Westminster v. Hyland, etc., Metropolitan Park and Recreation District, 190 Colo. 558, 550 P.2d 337 (1976); People in Interest of M. K. A., 182 Colo. 172, 511 P.2d 477 (1973); State v. McMillan, 150 Colo. 23, 370 P.2d 435 (1962); Cavanaugh v. Patterson, 41 Colo. 158, 91 P. 1117 (1907); Eight Thousand West Corporation v. Stewart, 37 Colo.App. 372, 546 P.2d 1281 (1976); Monson v. Nelson, 145 N.W.2d 892 (N.D.1966).
The rule is enunciated in Colorado's "general saving" statute, section 2-4-303, C.R.S.1973:
3
In this case, where the legislature did not address the issue of retroactivity in amending the license revocation provision of the implied consent statute, the "general saving" statute is controlling. 4
At oral argument, plaintiff's counsel stressed that because this is a "penalty" case the principle announced in People v. Thomas, supra, and its progeny should apply. The point was raised that regardless whether driving on this state's highways is considered a right or a privilege the serious consequences of revocation of one's driver's license warrants extending the benefit of the amendatory legislation.
This line of reasoning disregards the genesis of the decisions of the criminal cases as discussed above the existence of the postconviction remedy statute providing for consideration of a significant change in the law upon review of a conviction of a crime. Here, such review is not afforded to one who fails to comply with the implied consent statute, section 42-4-1202(3)(e), C.R.S.1973, because no crime is involved.
Finally, plaintiff attacks the constitutionality of the implied...
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