Schulte v. Colo. Dep't of Revenue

• Decision Date: 20 September 2018
• Docket Number: Court of Appeals No. 17CA0851
• Citation: 488 P.3d 419
• Court: Colorado Court of Appeals
• Parties: Matthew SCHULTE, Petitioner-Appellant, v. COLORADO DEPARTMENT OF REVENUE, DIVISION OF MOTOR VEHICLES, Respondent-Appellee.

488 P.3d 419

Matthew SCHULTE, Petitioner-Appellant,

v.COLORADO DEPARTMENT OF REVENUE, DIVISION OF MOTOR VEHICLES, Respondent-Appellee.

Court of Appeals No. 17CA0851

Colorado Court of Appeals, Division I.

Announced September 20, 2018

Cure & Bain, P.C., Joseph B. Bain, Jeffrey M. Cure, Burlington, Colorado, for Petitioner-Appellant

Cynthia H. Coffman, Attorney General, Jennifer Gilbert, Assistant Attorney General, Denver, Colorado, for Respondent-Appellee

Opinion by JUDGE BERNARD

¶ 1 A deputy sheriff contacted a driver, petitioner, Matthew Schulte, and asked him to submit to a chemical test under Colorado's express consent law. § 42-4-1301.1, C.R.S. 2018. The driver refused. The deputy later arrested him, drove him to jail, turned him over to booking officers, and drove back to the scene. When the deputy returned to the jail, he completed the license revocation paperwork and began to serve the driver with the notice of revocation. Before he could do so, the driver asked to take a test. The deputy told him that it was too late.

¶ 2 The issue in this appeal involves Gallion v. Colorado Department of Revenue , 171 P.3d 217, 218 (Colo. 2007), in which our supreme court held that a driver should be allowed to retract an initial refusal as long as "the officer with probable cause remains engaged in the process of requesting and directing the completion of the chemical test." Did Gallion establish a four-part test for hearing officers to apply in every relevant case to determine whether law enforcement officers had disengaged from the process of requesting or directing the completion of a chemical test under Colorado's express consent law before licensees attempted to retract their refusals of such tests? The driver thinks so. We do not.

¶ 3 In this appeal, the driver asks us to review a district court's judgment upholding the revocation of his driving privileges. We conclude that the driver's attempted retraction of his initial refusal was untimely as a matter of law. As a result, we affirm the judgment.

I. Background and Procedural History

¶ 4 Someone reported a car parked in the middle of a field to the police. When an officer arrived, he found the driver asleep in the car, and the car's engine was running. The officer thought that the driver was intoxicated because he could smell a strong odor of an alcoholic beverage.

¶ 5 The field was in an unincorporated part of the county, so a sheriff's deputy arrived a few minutes later to investigate the possible alcohol-related driving offense. The deputy also noticed the odor of an alcoholic beverage, so he asked the driver how much he had imbibed that night. The driver responded, "[N]ot much at all."

¶ 6 The deputy saw that the driver's eyes were bloodshot, and he heard the driver slur his words. He asked the driver to perform some voluntary roadside maneuvers. The driver did not perform them like a sober person would have performed them, so the deputy asked the driver to blow into a portable chemical testing device. The driver declined.

¶ 7 Based on his observations, the deputy arrested the driver for driving under the influence. The deputy handcuffed him and put him in the patrol car.

¶ 8 The deputy then advised the driver of Colorado's express consent law. The deputy asked him to choose between a chemical test of his breath or of his blood. The driver replied, "No test." The deputy then read him another statement "to give him another chance not to refuse [and] telling him the consequences of what would happen if he did refuse the test."

¶ 9 After the driver refused the deputy's offer of a chemical test, the deputy drove him to the jail. The deputy turned the driver over to the jail staff, and he began working on paperwork related to the case. About half an hour later, the deputy returned to the field, searched the driver's car, and arranged for a tow truck to pull the car from the field and impound it.

¶ 10 After returning to the sheriff's office, which shared the same building with the jail, the deputy finished writing his report. He then took the "Express Consent Affidavit and Notice of Revocation" to the driver to have him sign it. (When we discuss this form, we will refer to it simply as "the notice.") Before he signed the notice, the driver asked to take a blood test. The deputy told him that "it was too late" because "he had already refused."

¶ 11 Some days later, the driver asked the Division of Motor Vehicles for a hearing at which he could contest the revocation of his driving privileges.

¶ 12 The deputy and the driver testified at the hearing. Their testimony conflicted about how much time had elapsed between when the deputy left the jail to drive back to the field where the driver's car remained and when the driver tried to retract his refusal.

¶ 13 The deputy testified that he

• drove back to the field at 5:35 a.m., which took approximately eight minutes;

• spent about twenty minutes there;

• drove directly back to the sheriff's office; and

• checked the driver's driving record and worked on paperwork for about an hour and forty minutes before he gave the notice to the driver.

¶ 14 The driver testified that only about thirty minutes had elapsed between the time when the deputy left the jail to drive to the field and the time when the deputy served him with the notice.

¶ 15 The hearing officer revoked the driver's driving privileges, deciding that (1) the driver drove a motor vehicle at 4:20 a.m.; (2) the deputy had probable cause to ask the driver to perform a test; (3) the deputy properly advised the driver of Colorado's express consent law; (4) the driver refused to take a test; and (5) the driver did not "properly recant [his initial] refusal."

¶ 16 But the hearing officer's findings did not resolve the conflicting timelines or definitively establish whether the driver had asked to take the blood test "such that the sample ... [could] be obtained within two hours of ... driving." § 42-4-1301.1(2)(a)(III). In his oral ruling, the hearing officer described the conflicting testimony, but he never made a credibility determination about whom he believed. See Long v. Colo. Dep't of Revenue , 2012 COA 130, ¶ 7, 296 P.3d 329 ("The credibility of witnesses ... and the resolution of conflicting evidence are factual matters solely within the province of the hearing officer...."). Likewise, the hearing officer's written order only stated that "[w]hether [the driver retracted his refusal] within two hours of the time of driving is a point of dispute in the testimony."

¶ 17 The driver petitioned for judicial review in the district court. The district court upheld the revocation, ruling that the driver's attempted retraction of his initial refusal was untimely because the driver's "offer to take the blood test occurred more than two ... hours after his arrest."

II. Standard of Review

¶ 18 A reviewing court may reverse the hearing officer's final judgment if the hearing officer "exceeded ... constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination that is unsupported by the evidence in the record." § 42-2-126(9)(b), C.R.S. 2018. "A hearing officer's finding of fact is arbitrary and capricious if the record as a whole shows there is no substantial evidence to support the decision." Fallon v. Colo. Dep't of Revenue , 250 P.3d 691, 693 (Colo. App. 2010). When reviewing the hearing officer's decision, we are in the same position as a district court. Gilbert v. Julian , 230 P.3d 1218, 1221 (Colo. App. 2009). We review the officer's and the district court's conclusions of law de novo. Fallon , 250 P.3d at 693.

III. Discussion

¶ 19 The driver offers two reasons why he thinks that the hearing officer and the district court erred when they decided that his retraction of his refusal was untimely.

¶ 20 First, he asserts that the hearing officer erroneously interpreted section 42-2-126(9)(b) when he decided that, as a matter of law, the driver's retraction was untimely. We address this assertion below. After doing so, we affirm the district court's judgment because we conclude that the facts in the record supported the hearing officer's determination that the driver's attempted retraction of his initial refusal was untimely as a matter of law. See Makeen v. Hailey , 2015 COA 181, ¶ 21, 381 P.3d 337 (an appellate court may affirm the district court's decision on any grounds supported by the record).

¶ 21 The driver's second contention is that the district court erred when it decided that the driver's retraction occurred more than two hours after he had driven the car. See § 42-4-1301.1(2)(a)(III). We do not need to address this issue because our resolution of the first assertion provides a sufficient ground to uphold the revocation of the driver's driving privileges.

A. Law

¶ 22 Colorado's express consent law requires a driver to take a blood or a breath test if "so requested and directed by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle [while intoxicated]." § 42-4-1301.1(2)(a)(I). A person "must cooperate" with the request, "such that the sample of blood or breath can be obtained within two hours of the person's driving." § 42-4-1301.1(2)(a)(III).

¶ 23 Section 42-2-126, which we shall call "the revocation statute," allows the Department of Revenue to revoke a person's driver's license for refusing to complete a test. § 42-2-126(3)(c). If a law enforcement officer determines that a person has refused to submit to a test, the officer "shall personally serve a notice of revocation on" him or her. § 42-2-126(5)(b)(I). After serving notice, the officer must "take possession of any driver's license ... that the person holds." § 42-2-126(5)(b)(II).

¶ 24 Our supreme court interpreted the express consent law and the revocation statute in Gallion v. Colorado Department of Revenue , 171 P.3d 217 (Colo. 2007) ; see also Edwards v. Colo. Dep't of Revenue , 2016 COA 137...