Opinion
Nov. 6, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Ralph B. Rhodes, Denver, for petitioner-appellant.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Dennis J. Sousa, Sp. Asst. Atty. Gen., Denver, for respondents-appellees.
COYTE, Judge.
Petitioner appeals from the trial court's decision upholding the revocation of his driver's license by the Department of Revenue, Motor Vehicle Division. He contends that the evidence was insufficient to find that he refused to submit to chemical tests for intoxication. We affirm.
After a hearing to show cause on July 13, 1973, before a hearing examiner of the Motor Vehicle Division of the Department of Revenue, petitioner Buenger's driving privileges were revoked for refusing to comply with the Colorado Implied Consent Law, 1971 Perm.Supp., C.R.S.1963, 13--5-- 30. Testimony at that hearing indicated that early in the morning of May 12, 1973, Buenger was arrested for careless driving and for operating a motor vehicle while under the influence of alcohol after he was observed erratically driving his car across lane markers. The arresting officer informed Buenger of his rights orally and in writing, using the standard form provided by the police department. The officer testified that Buenger told him that he understood the implied consent law and that Buenger had refused to take any of the three tests offered him. Buenger claims that he did not refuse to take the tests, but only refused to take the tests until his doctor could be present. Buenger was incarcerated from approximately 2 A.M. to 8 A.M. on May 12, 1973. No doctor arrived during this time.
The hearing examiner found that there were reasonable grounds established by sufficient evidence to justify the officer's requesting that Buenger take a chemical test and that Buenger had refused all three tests offered him. As a result, Buenger's driver's license was revoked. Buenger filed a petition for judicial review in the district court which, after hearings, affirmed the administrative action taken.
Petitioner claims that his request for his doctor to be present when the tests were given did not amount to a refusal to take the chemical tests. In contradiction to Buenger's testimony that he only wanted his doctor to be present, there was testimony that Buenger refused to take all tests. This case is governed by the Colorado Administrative Procedures Act, 1969 Perm.Supp., C.R.S.1963, 3--16--5(7), and thus the determination of the hearing examiner on questions of fact will not be disturbed unless the findings of fact of that agency are clearly erroneous, based on the whole record. Stream v. Heckers, Colo., 519 P.2d 336. The evidence adequately supports the determination of the hearing examiner that Buenger refused any test.
Judgment affirmed.
PIERCE and SMITH, JJ., concur.