People v. Brown

• Decision Date: 17 May 1971
• Docket Number: No. 24685,24685
• Parties: The PEOPLE of the State of Colorado, Plaintiff in Error, v. Richard Oliver BROWN, Defendant in Error.
• Court: Colorado Supreme Court

Page 500

485 P.2d 500

174 Colo. 513

The PEOPLE of the State of Colorado, Plaintiff in Error, v. Richard Oliver BROWN, Defendant in Error.

No. 24685.

Supreme Court of Colorado, En Banc.

May 17, 1971.

Rehearing Denied June 14, 1971.

Duke W. Dunbar, Atty. Gen., Harold Neufeld, Asst. Atty. Gen., Denver, Floyd Marks, Dist. Atty. Adams County, Stanley B. Bender, Chief Deputy Dist. Atty. Adams County, Commerce City, for plaintiff in error.

Carroll & Bradley, P.C., John S. Carroll, Arvada, for defendant in error.

LEE, Justice.

This writ of error involves the constitutionality of the implied consent statute of the state of Colorado, 1967 Perm.Supp., C.R.S.1963, 13--5--30(3) Et seq. The district court of Adams County held this statute to be unconstitutional, and in doing so voided the Adams County Court conviction of defendant in error, Richard Oliver Brown, of driving a motor vehicle while under the influence of intoxicating liquor in violation of C.R.S.1963, 13--5--30(1). We hold the implied consent law to be constitutional and therefore reverse the judgment of the district court.

Richard Oliver Brown was stopped at approximately 11:40 p.m. on January 15, 1968, by a Colorado state patrolman for failing to dim the headlamps of his automobile as he approached oncoming traffic. The officer, upon talking to Brown, noticed a distinct odor of alcohol and, upon Brown's failure to satisfactorily perform certain sobriety tests, Brown was arrested and taken to the Adams County jail for further investigation. The evidence was in dispute as to whether Brown was advised of his rights as required by subsection 3(b) of the implied consent statute. However, Brown did consent in writing to submit to a blood test, when given his choice of submitting to a chemical test of his blood, breath or urine, for the purpose of determining the alcohol content of his blood. Blood was withdrawn from his body and the chemical analysis of the blood revealed an ethyl alcohol content of .202, which gave rise to the statutory presumption that Brown was under the influence of intoxicating liquor. C.R.S.1963, 13--5--30(2)(d). Thereupon, Brown was charged in the Adams County Court with the offense of operating a motor vehicle while under the influence of intoxicating liquor.

Trial was to the court. Prior to trial a motion was made to suppress evidence of the results of the blood test. It was Brown's contention that for a variety of reasons the implied consent statute was unconstitutional. The motion to suppress was denied and the results of the blood test were admitted into evidence. At the conclusion of the trial, the county court made a general finding of guilty. Brown's motion for a new trial was denied and appeal was taken to the district court.

We note that the district court did not direct that the case be tried de novo before the district court, as it might have done pursuant to 1965 Perm.Supp., C.R.S.1963, 37--15--10(2). The appeal was limited to review of the record on appeal and a consideration of the accompanying briefs and arguments. In spite of this method of review, the district court made a finding of fact on disputed evidence that Brown was not advised, either orally or in writing, of his rights as required by the implied consent statute. Such finding was contrary to the trial court's finding of advisement, implicit in its general finding on the issue of the defendant's guilt. Although the district court in conducting a trial de novo might find differently than the county court on an issue of fact, nevertheless, where, as here, the district court is reviewing the record on appeal from the county court, it is bound by the findings of the trial court which have been determined on disputed evidence. The record in the trial court supports the general finding on the issue of compliance with procedural requirements, as well as on the issue of defendant's guilt of the substantive charge.

Turning now to the problem of the constitutional validity of the implied consent law, the district court held the statute to be unconstitutional for reasons which we now discuss.

We would first of all note the summary discussion in 88 A.L.R.2d 1064(c), where the author succinctly poses the complexity of the problem with which all states are faced concerning drunken drivers. As various implied consent statutes were enacted in an effort to cope with this problem, almost invariably each in turn has been attacked as unconstitutional for one or more reasons. In most instances, such statutes have been upheld as a valid exercise by the state under the police power of the right to regulate conduct which by its very nature directly affects the lives, health and general welfare of its citizens. Such has been the case in California, Iowa, Kansas, Missouri, Nebraska, New Jersey, New York, North Dakota, Ohio, Oregon, South Dakota, Vermont and Virginia. See Annots., 88 A.L.R.2d 1064 and A.L.R.2d Later Case Service.

The district court, in reversing Brown's county court conviction, ruled that the implied consent statute violated the due process guarantees of the United States Constitution and the Colorado constitution. We do not direct our attention to each particular constitutional provision which the district court felt was offended by the implied consent statute, as some of them have no relevance to the problem at hand. An academic discussion, therefore, would be of no value in resolving this controversy. We do, however, find guidance in the briefs of the parties as to the fundamental constitutional questions considered by the court in arriving at its general finding of unconstitutionality.

I.

It is argued in support of the court's decision that there is an inalienable right to travel upon and use the highways of this state, which cannot, by reason of the Ninth Amendment to the United States Constitution and section 3 of article II of the Colorado constitution, be limited, circumscribed or denied. Cited as authority for this position is People v. Nothaus, 147 Colo. 210, 363 P.2d 180. On the contrary, this case clearly and explicitly recognizes that limitations may be placed upon an inalienable or inherent right based upon a proper exercise of the police power. This Court, in recognizing that the regulation and control of traffic upon the highways has a definite relationship to the public safety, expressly declared that the general assembly could establish standards of fitness and competence which a citizen must meet before he is entitled to exercise the right to drive upon the highways; and likewise, the general assembly may declare when by an abuse of that right or other just cause the right to drive may be curtailed and the license of a driver revoked. In other words, there is no constitutionally guaranteed illimitable right to drive upon highways. Mr. Justice Pringle, in Love v. Bell, Colo, 465 P.2d 118, disposes of this misconception in the following language:

'* * * While this Court has characterized an individual's right to use the public highways of this state as an adjunct of the constitutional right to acquire, possess, and protect property, yet this Court has clearly held that such a right might be limited by a proper exercise of the police power of the state based upon a reasonable relationship to the public health, safety, and welfare. People v. Nothaus, 147 Colo. 210, 363 P.2d 180.'

II.

It was further contended in the district court and is argued here that the implied consent law does not meet the constitutional requirements of due process.

Without setting out the statute verbatim, we note its basic provisions were as follows: 1. A driver on a highway of this state shall be deemed to have given his consent to a chemical test of his blood, breath, or urine to determine the alcohol content of his blood, if charged with driving while under the influence of intoxicating liquor. 2. Preliminary to the chemical test, there must be an arrest of the driver based upon reasonable grounds to believe the driver was driving while under the influence of intoxicating liquor. 3. At the time of the request for the test, the driver must be advised by the officer, orally, and by written notice in both English and Spanish, of the driver's rights under the statute and the probable consequences of a refusal to submit to such a test. 4. The choice is given the driver as to whether there shall be a blood test; if he chooses not to have a blood test, then the officer shall determine whether a breath test or urine test shall be administered. 5. If the driver refuses to submit to the test requested, then the test shall not be given; and the arresting officer shall then file with the motor vehicle department a written report of the refusal, signed by the officer under oath, stating reasonable grounds for his belief that the driver was driving while under the influence of intoxicating liuqor. 6. The department shall then issue a notice to the driver to show cause why his privilege to operate a motor vehicle should not be revoked at a hearing to be held. 7. If at the hearing reasonable grounds are not established by a preponderance of the evidence, the hearing shall terminate and no further administrative action shall be taken towards suspension of the license. 8. On the other hand, if reasonable grounds are established, the burden shifts to the driver to show on competent medical advice that his physical condition was such that a test would have been inadvisable, or that the administration of the test would not have been in conformity with the rules and regulations of the state board of health, or in conformity with the statute; and in default thereof, the department shall suspend the driver's license for six months. 9. The driver upon petition may have judicial review of the department's decision in the district court under C.R.S.1963, 13--4--27.

The district court held, first, that due process is denied by the statute for the reason that it compels a citizen to...