Opinion
No. 78-866
Decided January 18, 1979.
Driver's license was revoked by the Department of Revenue for his refusal to take a chemical sobriety test pursuant to the implied consent law, and he appealed judgment affirming that revocation.
Affirmed
1. DRIVING UNDER THE INFLUENCE — Implied Consent Law — Driver Requested — Take Sobriety Test — Told — License "Might" Be Revoked — Advised of Probable Consequences — Refusal. Driver requested to take chemical sobriety test pursuant to implied consent law is advised of the "probable consequences of refusal" to take such test if he is informed that his license "might" be revoked.
2. Person Convicted — May Apply — Probationary License — Person Refuses — Chemical Sobriety Test — May Not Apply — No Denial of Equal Protection. The fact that a person who has been convicted of driving under the influence may apply for a probationary license during the suspension period, while a person whose license has been revoked for refusal to take a chemical sobriety test may not apply for a probationary license during the period of revocation does not constitute a denial of equal protection to those persons in the latter group.
Appeal from the District Court of Jefferson County, Honorable Winston W. Wolvington, Judge.
Tinsley, Frantz, Fleming Davidson, P.C., John L. Livingston, for petitioner-appellant.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Yvette P. Fossum, Assistant Attorney General, for respondents-appellees.
Hall's driver's license was revoked by the Department of Revenue for refusal to take a chemical sobriety test pursuant to the implied consent law, § 42-4-1202(3), C.R.S. 1973. Hall appeals and we affirm.
Hall first contends that the hearing officer's finding that the arresting officer had reasonable grounds to request a sobriety test is not supported by the evidence. We disagree. There was evidence that Hall's automobile was weaving across traffic lanes and speeding, that there was an odor of alcohol on his breath, and that he did not satisfactorily perform the roadside sobriety tests. This evidence was sufficient to support the hearing officer's finding that there existed "reasonable grounds" to believe that Hall was driving under the influence of alcohol. See Gilbert v. Dolan, 41 Colo. App. 173, 586 P.2d 233 (1978).
[1] Hall next contends that he was advised only that his license "might" be revoked if he refused to submit to a chemical sobriety test, and that this was insufficient. Again, we disagree. At the time he is requested to take the test, the licensee must be advised orally and in writing, of his rights and "the probable consequences of refusal to submit to such test." Vigil v. Motor Vehicle Division, 184 Colo. 142, 519 P.2d 332 (1974). The advisement must be sufficient to apprise a person of normal intelligence, Calvert v. Department of Revenue, 184 Colo. 214, 519 P.2d 341 (1974), of the possibility that his license will be revoked. Vigil v. Motor Vehicle Division, supra. We find that the licensee here was properly advised of his rights, and hold that he is advised of the "probable consequences of refusal" if he is informed that his license "might" be revoked. See Vigil, supra.
[2] Finally, Hall contends that the statute as applied denies him equal protection of the laws. His argument is that the statutes create two classes of persons: (1) those convicted of driving under the influence, who may apply for a probationary license during the suspension period under § 42-2-123(11), and (2) those whose license has been revoked for refusal to take a chemical sobriety test, who may not apply for a probationary license during the period of revocation. We disagree.
Augustino v. Colorado Department of Revenue, 193 Colo. 273, 565 P.2d 933 (1977), dictates the result in this case. For the reasons therein expressed, we find no merit in the contention.
Hall's other assignments of error are without merit.
Judgment affirmed.
JUDGE ENOCH and JUDGE BERMAN concur.