*1 аre in being JUSTICE LEE favor of reversal. The court equally opinion, divided in stands affirmed pursuant 35(e). operation of law to C.A.R.
No. 26121 Oney Vigil v. Motor Vehicle Division of the Department
of Revenue of the State of Colorado
(519 332) P.2d February 11, Decided 1974.
Eugene Deikman, plaintiff-appellant. for Moore, Attorney General, Bush, Deputy, John P. John E. Tarpey, Assistant, defendant-appellee. James K. for En Banc.
MR. JUSTICE opinion HODGES delivered the of the Court. aspects
Several challenged consent law are *3 appeal. implied in this The consent law in brief states that any person who drives a public motor vehicle the highway given is dеemed to have his consent to a chemical test to determine the alcoholic content of his blood when he charge driving is arrested on the of while under the influence of test, department alcohol. If he refuses to take the the of notify revenue will him that he must at a to his driver’s license not should be revoked for period a of Supp., six months. 1971 1963, Perm. C.R.S. 13-5-30(3). Vigil
Appellant charge was arrested on the of a motor vehicle while the influence of alcohol. Pursuant implied law, orally to the consent he was advised and in writing provisions implied of the of the consent law and the consequences of his refusal to submit ato test. refused reported the test and this fact was department to the of revenue. He thereupon hearing, of notified a after/which period license was sought his revoked for a He six months. judicial review the order of revocation in the district court
145 judgment, affirming From this it. a entered which Vigil appeals. appellant by the advisement by appellant the is contendеd
It implied and that the arresting officer was insufficient proof burden of on unconstitutionally places the law consent agree hearing. We not with do the revocation the licensee judgment of the district and therefore the contentions these court is affirmed.
I. process argue not due does that constitutional requires the licensee that the advisement form must inform probable consequences of the failure to take the test. jurisdictions implied fact, upheld we other have In note thаt provided warning. See Ander for no consent statutes which MacDuff, 271, (1955); 143 son 208 Misc. N.Y.S.2d 257 v. 439, P.2d 551 Dept., v. Motor Vehicle 195 Kan. Hazlett (1965). requirements process due to the
The in relation by given warnings which is licensees are satisfied notice publication through of the statutes. A licensee highways presumed to know the public motor vehicle regarding public highways. See law his use v. Stauffer Weedlun, 105, (1972). See also 188 Neb. 195 N.W.2d 132 and 29 Jur. 2d Evidence C.J.S. Evidence Am. 31A § § 222. law, however, rights gives which by required process. greater specifically are due It than thosе test, request to provides that at the time of the take the orally writing and “of the licensee officer shall inform rights consequences probable under the and the оf refusal to such test.” submit pertinent portion of the form to the issue 5 as paragraph here is contained in follows: you that, if to submit “You are advised choose refuse requested officer the test chemical test *4 given; further, Department that provided not be of will Revenue, upon receipt report of from a written you stating your refusal, shall serve notice officer Department before the of Revenue and show cause your privilege a motor vehicle within this period state should not be revoked for of six months.” disputed orally is not that Tt was informed and in writing specifically of the matters referred to in the above quoted paragraph 5 of the advisement form. The narrow issue complies fully is whether this require- with the probable consequences ments that he be of “the advised refusal to submit to such a test.”
Vigil basically argues that advisement is insufficient gave because it him the hope hearing false that at the he prevent would be able to the revocation of his license showing (1) (for hаrdship, example, driving either is job); (2) past driving essential to record; an excellent or (3) charges driving dismissal under the influence.
The advisement form does not state that the liсensee may any present implied these defenses nor does the envisage may consent that such matters be shown to justifications only block revocation. The valid in refusing law for the test are it either that medically inadvisable for the licensee that the test would given compliance proper not be in with health standards. argues also very that since there are few licensees medically whose condition would make it inadvisable to take blood, either further, breath or test and urine since the tests normally given compliance are standards, with health there actually are no open issues left for hearing. debate at the Therefore, heаring merely pro forma, because the is the sole consequence refusing revocation, the test and it is misleading therefore given tell the licensee that he will be hearing. believe, however,
We that the serves least important First, two other grounds functions. reasonable believe that the licensee was while under the influencе of alcohol must be established. This tois insure that licensees indiscriminately Secondly, are not asked to take the tests. hearing provides opportunity an to determine whether a request to licensee, take the tests was in fact made of the *5 statute, provided by and request was made whether the See 1971 Perm. request was fact refused. the whether 13-5-30(3)(e). 1963, Supp., C.R.S. requires that implied consent law hold that the
We hearing and the of both the be the licensee informed the the revocation of license. The possibility of function, therefore performed and was this utilized here law. under the sufficient
II. the Defendant maintains that unconstitutionally upon the places prоof burden of the hearing. burden of the We hold that the licensee at revocation not proof placed upon the licensee and we thus do is not argument. rеach the constitutional report a Upon receipt a from the officer that tests, department the the of revenue is licensee has refused required uрon appear the before to serve notice licensee “to department operate to show cause the and license a motor vehicle .. . should not be revoked.” 1971 Perm. 13-5-30(3)(e). 1963, Supp., C.R.S. language argues that casts
Defendant the above hearing proof at We do the burden the the driver. agree. order to cause is an alternative method of not An show serving department the process on defendant. The sends hearing. The defendant is not notice to the licenseе a answer under the statute. required to submit written Rather, requested respond at and he is the allegation the he a he to contest that refused take if wishes complaint, requires order to the test. Similar judgment by However, response in order to default. avoid hearing, appears the order to show once the licensee by on has the burden of impact has no itself who cause proof. 1963, 13-5-30(3)(e) further Supp.,
1971 Perm. C.R.S. grounds reasonable believe that provides [to that “if driving a motor vehicle while defеndant of, by, and impaired are established alcohol] influence specified on person to submit evidence” certain said is unable issues, department then shall fоrthwith revoke said “the. person’s license to a motor vehicle.” statutory
We language hold that this does not shift proof burden of to the licensee the specifiеd issues. presumption statute creates a which shifts burden of producing presumed evidence to the licensee on those facts. required licensee to submit sufficient evidence which taken support position. itself could the licensee’s Once the produced degree evidence, licensee has it becomes tyрe proceeding incumbent in this for the motor vehicle *6 present division to proof. evidence sustain its burden of See McCormick (2nd 1972). on Evidence Ed. The § statutory presumрtion presentation avoids needless by the.department evidence revenue issues on which there dispute. is no serious is affirmed.
MR. JUSTICE GROVES dissents. MR. dissenting: JUSTICE GROVES respectfully
I dissent. that, upоn defendant was advised refusal to take the test, there would be might at which he why his license should not be revoked. From this he could logically conclude that he could show cause with situations such acquittal dismissal charge. influence To process assure due the advisement extremely should show the limited area may in which cause be shown.