Opinion
April 23, 1974
Editorial Note:
This case has been marked 'not for publication' by the court.
Albert G. DeRose, Denver, for plaintiff-appellant.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., James K. Tarpey, Asst. Atty. Gen., Denver, for defendant-appellee.
SILVERSTEIN, Chief Judge.
Plaintiff appeals from a judgment of the district court which affirmed defendant's order suspending plaintiff's driver's license and denying him a probationary or restricted driver's license. We affirm the judgment of the district court.
Plaintiff concedes that, because of the number of 'points' he had accumulated as a result of convictions for certain traffic violations, the defendant had the statutory authority under 1965 Perm.Supp., C.R.S.1963, 13--4--23(1), to suspend his driver's license. He also concedes that the granting or denial of a probationary or restricted driver's license under C.R.S.1963, 13--4--23(11) and C.R.S.1963, 13--4--14(1), respectively, is a matter within the sound discretion of the hearing officer. Nevertheless, plaintiff contends that the defendant acted arbitrarily and capriciously, and therefore abused its discretion, in denying him a probationary or restricted license.
In determining whether any administrative action is arbitrary, capricious, unreasonable, or an abuse of discretion, it is necessary to look at the functions of the agency involved and the totality of the factual background in which the agency was functioning at the time of the challenged act. Bennett v. Price, 167 Colo. 168, 446 P.2d 419. In evaluating that action, we must recognize that the primary responsibility for the function under review lies in the administrative agency and not in the courts. Bennett v. Price, Supra. A driver's license suspension hearing is an administrative hearing conducted to determine if, notwithstanding the violations, the licensee should be allowed the use of the public highways under certain conditions. See Campbell v. State, 176 Colo. 202, 491 P.2d 1385.
In making his determination, the hearing examiner reviewed plaintiff's driving record dating back to 1965. That record contains, Inter alia, seven violations for speeding, one for running a red light, and one for running a stop sign. The record also showed that plaintiff's license had been suspended in 1967 and that two traffic tickets were issued to plaintiff while he was driving thereafter under a restricted license. Plaintiff testified that his work required him to drive and that he had two children to support. The hearing officer, after reviewing plaintiff's driving record and considering plaintiff's testimony in mitigation, suspended plaintiff's driver's license for one year, and denied issuance of a restricted license, but authorized plaintiff to apply for enrollment in the department's driving school and, after eight months had elapsed, for reinstatement.
In order for a court to set aside a decision of an administrative body on the ground that it is arbitrary and capricious, the court must find that the decision is unsupported by any competent evidence. Board of County Commissioners v. Simmons, 177 Colo. 347, 494 P.2d 85. Here, the order of the hearing officer was amply supported by the plaintiff's driving record.
Judgment affirmed.
COYTE and SMITH, JJ., concur.