*1 C-1197 Nо. Revenue, State F. Director of Joseph Officer, Dawes, Hearings Colorado, and Steven J. Colorado v. State of 560)
(576 P.2d Aрril 1978. Decided MacFarlane, Dubofsky, Ed- Attorney Deputy, J. D. Jean E. *2 Donovan, Staliwe, Assistant, G. Solicitor Arthur G. John ward Assistant, Ponce, Assistant, Rodmаn, V. petitioner. R. for Felipe Hartman, Cecil A. for respondent.
En Banc. MR. JUSTICE HODGES delivered the of the Court. law, implied 42-4-1202(3), Pursuant Colorado’s consent 1973, respondent driving C.R.S. privileges Rust’s were revoked for six This action was taken a Department months Revenue. аfter hearing findings and based on that Rust refused a chemical custody driving test after taken a being into motor vehicle while under сourt, the influence of alcohol. This revocation was voided in the district and on appeal Department the сourt of appeals af- firmed the district court in Rust v. Colo. App. 563 P.2d granted We certiorari to review this We decision. reverse. The facts before the pertinent Revenue are as follows. after June Shortly p.m. 10:00 on a Colorado patrolman state lights saw a vehicle with its parked High- the shoulder of Interstate automobile, way 70. As approached he observed patrolman driver, Rust, slumped the front seat of the vehicle where whiskey door, two empty Upon opening bottles were observed. pa- trolman detected the odor of strong coming from liquor within the response automobile. In from the quеstions patrolman, Rust began moaned and violently. vomit walk,
Since Rust was unable to and another patrolman officer had to carry remove him from the vehicle and him to patrol car. In the car, Rust became tell patrol enough cоherent his name to the patrolman produce his driver’s The patrolman license. read an implied consent agreed form to gas Rust who to take a chromatograph test. Rust contin- said, drunk, the patrol ued vomit in and repeatedly car “I’m I know I’m drunk.” station,
Upon arrival at the police Aurora Rust was carried to the test machine, room. Rust a request refused to blow into the breathalyzer say- drunk, ing, just jail.” “I’m too me in Rust throw continued to vomit and officer arresting being tested. up purpose tо stand for the refused try further use to “we that there was no that determined testified being jail, county after at Arapahoe He was incarcerated him.” of alcohol. while under influence charged hearing was consent conducted implied An tеstimony from hearing found July 1975. The officer Revenue on facts, officer, suffi- foregoing related the constituted who two driving a while mоtor vehicle to believe Rust had been grounds cient also that Rust hearing officer found under the influence alcohol. lаw implied and had had been informed properly 1973, Rust’s 42-2-122(l)(j), test. Pursuant to chemical a six-month period. license revoked for driver’s order, so do- hearing and in The district court set aside wilful re- ing, its for that as to substituted court, judgment of fusal. The court of affirmed the the district physi- refused to since he was reasoning that had not *3 the or- cally refusing, of so and that therefore officer’s incаpable arbitrary der revoking capricious. Rust’s license was and 1973, 42-4-1202(3)(d), C.R.S. pertinent part, In that: dead, unconscious, who is in a rеnder- or otherwise condition
“Any person ing of shall be not to have withdrawn his incapable him refusal deemed (3), (a) may of and the test provided by paragraph this subsection subject (b)of (3).” be administered to this subsection paragraph to a chеmi deciding In whether there was a refusal submit to words cal the trier of fact consider the driver’s and other man v. In Hoban the test. willingnеss unwillingness take ifestations of or to Rice, 111, (1971), St. 2d N.E.2d Court of Supreme 25 Ohio 267 311 that: Ohio stated standard, subjec- objective determinatiоn will be based not a
“[t]he standard, subjective tive such of mind the licensee. as the state state of mind of licensee cannot the outcome of the proceed- control ings, the state required and a officer is not to know of mind of and whether person arrested determine such understood he person would refusing require place to submit to the test. To an impossible on the arresting burden officer.”
Therefore, unwillingness external or his it is the driver’s minifestations relevant, which outright refusal to tаke the test are not the driver’s state mind or his recollection of events. of ap- later Under the court testify a driver refuse to test and peals’ theory, could take the then later refusal, nullifying not effectively he does recollect his the statute. In order to for a court set aside a decision an administrative agency ground that it is arbitrary or capricious pursuant 24-4-106(7), C.R.S. the court thát there must find is no competent evidence supporting decision. Board agency’s County Commissioners Simmons, v. 177 Colo. P.2d 85 After reviewing record, find we that the district court set improperly aside department’s action since there was evidence competent record supporting hear ing that Rust had finding submit the test. is court is reversed and this cause re- cоurt turned to that court remand to the district directions af- order. of Revenue’s revocation the Department firm Mr. JUSTICE GROVES dissents.
MR. JUSTICE ERICKSON and MR. JUSTICE CARRIGAN dо not participate. dissenting:
MR. JUSTICE GROVES I respectfully dissent and would affirm court I appeals. do not agree with the in majority opinion: statement “Under the court of appeals’ theory, a driver could refuse refusal, and then testify later that he does not his effectively recollect nul- lifying the statute.”
If the record, was as intoxicated as is indicated here, court aрpeals’ opinion majority then is quite it conceivable that he could 42-4-1202, have been convicted under section C.R.S. 1973 оf under influence of liquor. From such a conviction the of Revenue could suspend his license. 42-2-123, See section C.R.S. 1973.
I agree with the following statement in the court of appeals’ opinion (Rust v. Colo. 28): App. P.2d “In the light of Rust’s condition arresting officer, аs testified to we *4 that, agree with the district court is not a case where a man wilfully ‘[t]his refused to take the test. . . .’ 42-4-1202(3)(d),
“Section be procedure to fol- lowed an when arrests individual who is ‘in a condition rendering refusal,’ him incapable of and that been procedure have followed in this case.”