Opinion
Oct. 22, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
William Pehr, Perry W. Fox, Westminster, for plaintiff-appellant.
John. P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Dunnis J. Sousa, Special Asst. Atty. Gen., Denver, for defendants-appellees.
RULAND, Judge.
Pursuant to 1967 Perm.Supp., C.R.S.1963, 13--4--22(1)(k)(i), the Department of Revenue, Motor Vehicle Division, revoked Lowell K. Patterson's operator's license for a period of six months on the ground that Patterson refused to submit to a blood alcohol test as required by 1971 Perm.Supp., C.R.S.1963, 10--5--30(3). The district court affirmed the Department's order and Patterson appeals. We reverse and remand the case for further proceedings.
Patterson was apprehended by an officer of the Colorado State Patrol on June 16, 1973, while driving his automobile in an erratic manner. Having reasonable grounds to believe that Patterson was intoxicated, the officer requested that Patterson submit to a blood alcohol test and advised Patterson relative thereto pursuant to a form captioned 'Advisement Pursuant to Implied Consent Law of the State of Colorado.' The officer both read a copy of the advisement form to Patterson and gave him a copy.
Patterson first contends that the explanation provided by the advisementfrom is insufficient in several respects. However, these contentions have been resolved adversely to him by the decision in Vigil v. Motor Vehicle Division, Colo., 519 P.2d 332, and we need not discuss those contentions further here.
Patterson also contends that his refusal to submit to the blood alcohol test was not a knowing refusal because of confusion which resulted from statements by the officer relative to license revocation generally. Since the review of this case by the district court, our Supreme Court announced its decision in Calvert v. State of Colorado, Colo., 519 P.2d 341. The following rule was established therein:
'Where . . . law enforcement officers, even though inadvertently, either through an act of omission or commission, cause a suspect's misunderstanding of the state of the law, he cannot be held strictly accountable for his refusal to take implied consent tests.'
In the present case, Patterson testified that the officer advised him that if he took the test, he would lose his license for a year, and, if he did not, he would only lose his license for six months. Patterson then stated to the officer that on this basis, he was faced with a choice between 'the lesser of two evils,' and the officer confirmed that this was correct. The officer testified that he might have made the statements to which Patterson referred. However, because of the time interval he could not recall.
A licensee who submits to a blood alcohol test may or may not lose his license for any period depending upon the blood alcohol content in his blood and the outcome of proceedings based on charges filed by the officer. See 1969 Perm.Supp., C.R.S.1963, 13--5--30(2); 13--4--23(1)(a), (5); and C.R.S.1963, 13--4--24. Hence, under the circumstances of this case, if the officer advised Patterson that he would lose his license for one year if he took the test, this advice would, as a matter of law, have justified Patterson's refusal to take the test.
The hearing officer did not make specific findings of fact relative to the issue Patterson raises here. Therefore, pursuant to 1969 Perm.Supp., C.R.S.1963, 3--16--5(7), the case is remanded to the district court with directions to remand the case to the Department for further proceedings not inconsistent with the views expressed herein.
VanCISE and STERNBERG, JJ., concur.