Opinion
No. 78-970
Decided March 15, 1979. Rehearing denied March 29, 1979. Certiorari granted May 29, 1979.
Defendant appealed a judgment affirming an order of the Department of Revenue revoking his license for failure to submit to a chemical test pursuant to the implied consent law.
Affirmed
1. DRIVING UNDER THE INFLUENCE — Implied Consent — Record Supports Conclusion — Inability — Complete Test — Medical Reasons — Not Established. Where no medical support was presented concerning testimony that medical condition precluded driver from being able to complete an implied consent chemical test, and such condition was not mentioned at the time the test was offered, the record supports hearing officer's conclusion that there was insufficient evidence to establish driver's inability to complete test for medical reasons.
2. Implied Consent Statute — Applicable — On Parking Lot. The implied consent statute is applicable upon streets, highways, and elsewhere throughout the state, including on a parking lot.
Appeal from the District Court of the County of Adams, Honorable Abraham Bowling, Judge.
Dana F. Strout, for plaintiff-appellant.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, Terre Lee Rushton, Assistant Attorney General, for defendant-appellee.
Plaintiff, Thomas Robert McCoy, appeals from a judgment of the district court which affirmed an order of the defendant Department of Revenue revoking plaintiff's license for failure to submit to a chemical test pursuant to the implied consent law, § 42-4-1202(3)(a), C.R.S. 1973. The judgment is affirmed.
The record reflects that, after being apprehended on a public parking lot adjacent to the Bonfire Lounge, plaintiff was taken to an office of the Lakewood Department of Public Safety where he was properly advised of his rights pursuant to the implied consent law. See § 42-4-1202(3)(b). He was first offered a blood alcohol test, but refused. He was then offered a breath test and agreed to submit to that test. A device was placed in plaintiff's mouth, and he was instructed to blow in order to produce a breath sample for the test. The officer noted that plaintiff was not blowing into the machine and terminated the test. The plaintiff offered no explanation to the officer at that time as to why he was unable to perform the test.
At a hearing before a Department of Revenue hearing officer, plaintiff testified that he had been advised by a doctor about a year previously that he had contracted emphysema. In effect, he stated that he was unable to complete the test because of this condition. At the conclusion of the initial hearing, the hearing officer offered a continuance to the plaintiff for a period of ten days so that he could obtain either the testimony of a physician, or, a physician's affidavit, to the effect that plaintiff was in fact afflicted with emphysema and that his condition was such that he could not actuate a breath testing machine. Plaintiff failed to do either.
[1] Relying solely upon his own testimony, plaintiff now contends that the hearing officer erred in concluding that there was insufficient evidence to establish that plaintiff was unable to complete the test for medical reasons. See § 42-4-1202(3)(e), C.R.S. 1973. However, because plaintiff failed to produce any medical support for his testimony, and especially considering the fact that plaintiff did not advise the officer of his condition at the time the test was offered, the record fully supports the hearing officer's decision.
Plaintiff also contends that the hearing officer and district court erred in concluding that the implied consent statute was applicable even though he was apprehended on a public parking lot and not on a public street or highway. In support of this contention, plaintiff relies upon the decision of this court in the consolidated cases of Emmer v. State of Colorado and Dayhoff v. State of Colorado, 42 Colo. App. 91, 595 P.2d 1051 (1979). For the reasons stated by the dissenting judge in that case, the majority on this panel is persuaded that the implied consent statute does apply to a driver on a public parking lot.
[2] The implied consent law is within those statutes specifically enumerated in § 42-4-103(2)(b) as being applicable "upon streets and highways and elsewhere throughout the state." (emphasis added). A statute should be given the construction and interpretation which will render it effective in accomplishing the purpose for which it was enacted. Zaba v. Motor Vehicle Division, 183 Colo. 335, 516 P.2d 634 (1973). And, in determining the General Assembly's intent relative to that purpose, it is presumed that the public interest is favored over any private interest. Section 2-4-201(1)(e), C.R.S. 1973.
The General Assembly was advised that "a driver under the influence of alcohol is a hazard to other drivers on the road in a much greater proportion than he is represented in the whole population." Colorado Legislative Council Research Publ. #123, Highway Safety in Colorado 39 (1966). The implied consent law was enacted to reduce this hazard, and its purpose was to curb drunk driving by assisting law enforcement officers in prosecutions therefor. Augustino v. Colorado Dept. of Revenue, 193 Colo. 273, 565 P.2d 933 (1977). The statutory scheme was to provide a swift license revocation procedure for those who refused to submit to chemical tests.
Driving under the influence of, or impaired by, alcohol is illegal regardless of where the driving occurs. See § 42-4-1202(1)(a) and (b), C.R.S. 1973. Thus, it is anomalous to interpret the statutory scheme so that, on the one hand, the offense of drunk driving may take place on a public parking lot, but, on the other hand, the "easily administered, reliable method of proving intoxication" does not so apply. People v. Culp, 189 Colo. 76, 537 P.2d 746 (1975).
Judgment affirmed.
JUDGE STERNBERG concurs.
JUDGE VAN CISE dissents.