Opinion
No. 78-861
Decided January 18, 1979. Rehearing denied March 1, 1979. Certiorari denied April 30, 1979.
Department of Revenue revoked driver's license pursuant to implied consent law premised on his refusal to submit to chemical sobriety test. The district court affirmed the revocation, and driver appealed.
Affirmed
1. DRIVING UNDER THE INFLUENCE — Arrested Person — Not Refuse — Chemical Sobriety Test — At Officer's Request — Claim Compliance — Submission — Later Time. An arrested person may not refuse to take a chemical sobriety test at the request of the arresting officer and then claim compliance with the implied consent law by submitting to a test at a later time.
2. Statute — Right of Consultation With Attorney — Codification — Constitutional Right — Implied Consent — Not Entitled — Consult Attorney — Before Submitting — Chemical Sobriety Test. Statute concerning an arrested person's right to consult with an attorney contained in the Code of Criminal Procedure is a codification of the constitutional right to counsel in criminal cases; consequently, in implied consent law situation, driver is not entitled to consult with an attorney relative to submitting to chemical sobriety test, and advisement form given to driver which reflected that fact was not erroneous as a matter of law.
Appeal from the District Court of the City and County of Denver, Honorable Zita Weinshienk, Judge.
Thomas F. Dixon, for plaintiff-appellant.
J. D. MacFarlane, Colorado State Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Terre Lee Rushton, Assistant Attorney General, for defendants-appellees.
The Motor Vehicle Division of the Department of Revenue revoked the license of James E. Cooper to operate a motor vehicle pursuant to § 42-4-1202(3)(e), C.R.S. 1973, for refusal to submit to a chemical test of his blood, breath, or urine at the request of the arresting officer. Cooper appealed to the district court, which affirmed the revocation. Cooper asserts that the district court erred in failing to rule that he had complied with the legislative intent of § 42-4-1202, C.R.S. 1973, by submitting to a chemical test six hours after his arrest, and making the results of these tests available to the prosecution in criminal proceedings against him. He also argues that he has a statutory right under § 16-3-402, C.R.S. 1973, to consult with an attorney before deciding whether to submit to chemical testing, and that, therefore, the standard advisement form read to him was incorrect as a matter of law. We affirm the judgment of the trial court.
Section 42-4-1202, C.R.S. 1973, provides that any person driving a motor vehicle upon a public highway shall be deemed to have given his consent to a chemical test of his breath, blood, or urine if arrested for a traffic offense alleged to have been committed while the driver was impaired by or under the influence of alcohol. This test is to be administered at the direction of the arresting officer, § 42-4-1202(3)(b), and, if the person arrested refuses the test "when requested by the arresting officer," it shall not be given. Section 42-4-1202(3)(c), C.R.S. 1973. Moreover, the statute provides in subsection (3)(e) for those situations in which the test may be validly refused.
[1] It is uncontroverted that Cooper refused to submit to the test when requested by the arresting officer. Neither has he shown that his physical condition was such that the test would have been inadvisable or that its administration would not have been in conformity with the rules and regulations of the State Board of Health or the provisions of the law. Section 42-4-1202(3)(e), C.R.S. 1973. It is not within the contemplation of the statute that an arrested person may refuse to take the test at the request of the arresting officer and claim compliance by submission to a test at a later time. Cf. Zahtila v. Motor Vehicle Division, 39 Colo. App. 8, 560 P.2d 847 (1977).
Cooper concedes that he was advised of his rights in accordance with the mandate of Calvert v. Department of Revenue, 184 Colo. 214, 519 P.2d 341 (1974), but he asserts that in Calvert, the court was addressing only the constitutional right to counsel, not the purported statutory right afforded by § 16-3-402(1), C.R.S. 1973. He argues that this statute gives him a right to consult with an attorney independent of the constitutional right to counsel and that, therefore, the standard advisement form read to him was incorrect as a matter of law. We disagree.
[2] Section 16-3-402, C.R.S. 1973, was enacted in 1972 as a part of the Colorado Code of Criminal Procedure. As such, the statute was merely a codification of the constitutional right to counsel in criminal cases. Therefore, Calvert v. Department of Revenue, supra, is controlling.
Judgment affirmed.
JUDGE COYTE and JUDGE PIERCE concur.