Opinion
No. 95CA1229
June 13, 1996
Appeal from the District Court of Summit County Honorable Terry W. Ruckriegle, Judge No. 94CV171
JUDGMENT REVERSED AND CAUSE REMANDED WITH DIRECTIONS
Law Offices of Lawrence A. Wright, Jr., Lawrence A. Wright, Jr., Myka M. Landry, Joel C. Johnson, Kiowa, Colorado, for Plaintiff-Appellee.
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Mark W. Gerganoff, Assistant Attorney General, Denver, Colorado, for Defendants-Appellants.
The Department of Revenue (Department) appeals from the district court judgment reversing its revocation of the driver's license of plaintiff, Brian Timothy Stahl, for refusing to submit to testing as required by the express consent statute. We reverse and remand with directions to reinstate the order of revocation.
Following his arrest for driving under the influence of alcohol on September 20, 1994, plaintiff chose to take a blood test when advised of his testing options under the express consent statute. Plaintiff was then transported to a hospital for that purpose, where he was given a consent or release form by one of the arresting officers, and was told to sign it.
However, plaintiff failed to sign the form, and the blood test was not administered. According to the arresting officers, although given ample time and opportunity to sign the form, plaintiff indicated his refusal to do so by his uncooperative conduct at that point, which the arresting officers, following warnings to plaintiff, then deemed to be a refusal to submit to testing.
Following an evidentiary hearing, the hearing officer revoked plaintiff's driver's license upon ruling that he had refused to submit to testing as required by the express consent statute. On review, the district court reversed the revocation.
The Department contends that the district court erred in ruling that plaintiff did not refuse to sign a form that was required by the hospital, and that plaintiff therefore refused to submit to testing within the meaning of the express consent statute. We agree with the Department.
Under the current provisions of the express consent statute, as applicable here, any suspected drunk driver who is required to submit to alcohol testing is expressly required to cooperate in the taking and completing of the test elected, "including the signing of any release or consent forms required by any person, hospital, clinic, or association authorized to obtain such specimens." (emphasis added) The statute further expressly provides that a driver's failure to cooperate in the testing procedure, including the signing of any release or consent forms, shall be deemed to be a refusal to submit to testing. Section 42-4-1202(3)(a)(IV), C.R.S. (1993 Repl. Vol. 17) (now recodified as § 42-4-1301(7)(a)(IV), C.R.S. (1995 Cum. Supp.)); see also § 42-4-1202(3)(a)(II), C.R.S. (1993 Repl. Vol. 17) (now recodified as § 42-4-1301(7)(a)(II), C.R.S. (1995 Cum. Supp.)).
Here, crediting the testimony of the arresting officers on the refusal issues, the hearing officer found that plaintiff's uncooperative behavior in not signing the form constituted a refusal to submit to the blood test. In so ruling, the hearing officer also rejected plaintiff's arguments that his failure to sign the form did not constitute a refusal to submit to testing within the meaning of the express consent statute because it was not shown that it was a form he was required to sign under those statutory provisions.
As to the refusal issues, the court first rejected plaintiff's argument, which was based on Connolly v. Colorado Department of Revenue, 739 P.2d 927 (Colo.App. 1987) (reversal based on former version of statute), concerning the contents of the release form, ruling that the currently applicable version of the express consent statute no longer contains any requirements concerning the contents of such forms.
However, the court then noted that the express consent statute still contains provisions requiring that the signing of any release or consent forms must be required by a person or entity authorized to withdraw blood, and the court therefore ruled that only a refusal to sign such a form may be deemed to be a refusal to submit to testing. Finally, the court held that such a refusal had not occurred in this case, because, in its view, the form at issue here "was authored" by the police department and was not a form required by the person authorized to withdraw blood.
Consequently, the dispositive issue in this case is whether the release form that plaintiff refused to sign for the blood test to proceed was a form required by the hospital, rather than by the arresting officers alone. As to this factual issue, however, the evidence and the inferences therefrom were conflicting, and the district court improperly substituted its judgment for that of the hearing officer.
In ruling that plaintiff had refused to submit to testing here, the hearing officer specifically stated that plaintiff was told by the arresting officers that the form "was a form required to be signed by the hospital in drawing of blood." In particular, we note in this regard that one of the arresting officers specifically testified that he explained what the form was to plaintiff and that "the medical center required a signature on the release form" for the blood draw to be done.
Under these circumstances, we find no error in the hearing officer's ruling. Rather, because the hearing officer's finding as to plaintiff's unjustified refusal of testing was based on the application of the proper legal standards and the resolution of conflicting evidence and inferences therefrom, this finding is binding on judicial review. See Poe v. Department of Revenue, 859 P.2d 906 (Colo.App. 1993) (similarly upholding challenged refusal finding on conflicting evidence and inferences under applicable standard of review); Halter v. Department of Revenue, 857 P.2d 535 (Colo.App. 1993) (same).
Thus, as the revocation is supported by substantial evidence in the record as a whole, the district court erred in reversing it. See § 42-2-122.1(9)(b), C.R.S. (1993 Repl. Vol. 17) (now recodified as § 42-2-126(10)(b), C.R.S. (1995 Cum. Supp.)).
In light of this disposition of the issues, we need not address the remaining contentions of the parties.
Accordingly, the judgment is reversed, and the cause is remanded to the district court with directions to reinstate the order of revocation.
JUDGE PLANK and JUDGE NEY concur.