Opinion
June 4, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 168
Joseph E. Leigh, Denver, for petitioner-appellant.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Dennis J. Sousa, Special Asst. Atty. Gen., Denver, for respondents-appellees.
RULAND, Judge.
This is an appeal from a judgment of the district court which affirmed an order of the department of revenue revoking appellant's driver's license pursuant to the implied consent law, 1971 Perm.Supp., C.R.S.1963, 13--5--30. We affirm.
Appellant was arrested on suspicion of operating a motor vehicle while under the influence of alcohol. She refused to submit to a chemical test to determine her blood alcohol content when requested to do so by the arresting officer. Thereafter, pursuant to 1971 Perm.Supp., C.R.S.1963, 13--5--30(3)(e), appellant's driver's license was revoked following a hearing before the department of revenue.
Appellant first contends that she was not properly advised by the arresting officer of the probable consequences of her refusal to submit to a chemical test. As a result, appellant asserts she was incapable of intelligently assessing her need for counsel at the hearing and was therefore denied the opportunity to be properly represented. However, a licensee is adequately advised of the probable consequences of a refusal to take a chemical test if she is informed both as to the hearing which will take place and the possiblity that her license will be revoked for refusing to submit to a test. Vigil v. Motor Vehicle Division of Department of Revenue, Colo., 519 P.2d 332. Appellant alleges also that the written advisement given her was defective insofar as it purported to explain her rights with regard to a choice of tests. Appellant was informed that by driving a motor vehicle upon a public highway, she had given her consent to a chemical test of the blood, breath, or urine and that should she request that a specimen of blood not be drawn, a specimen of breath or urine would be obtained and tested. By such advisement, all options were made known and available to her and the statutory requirement of notice was fulfilled. 1971 Perm.Supp., C.R.S.1963, 13--5--30(3)(a). See Department of Highways v. Cornelius, 289 Minn. 521, 184 N.W.2d 779.
Appellant finally contends that the department of revenue failed to comply with 1971 Perm.Supp., C.R.S.1963, 13--5--30(3)(e), by placing upon appellant the burden of establishing that there were no reasonable grounds for the request that a test to taken. This contention is based upon the hearing examiner's explanation to appellant, Inter alia, that an affidavit of the arresting officer was on file with the department showing that the arresting officer, in his opinion, had reasonable grounds to request a chemical test from appellant, but that appellant would be granted full opportunity to present any testimony or evidence to show that reasonable grounds did not exist. Appellant was further advised that if it were proven by a preponderance of the evidence that the officer did not have reasonable grounds to request such a test, no action would be taken. We agree with appellant that this is an incorrect statement of the applicable law. Vigil v. Motor Vehicle Division, Supra.
However, appellant agreed that the arresting officer's affidavit could be accepted as evidence by the hearing examiner, the affidavit established reasonable grounds for requesting the chemical test, and a review of the record reveals that appellant's admissions before the hearing examiner corroborate the statements made in the affidavit. Hence, the incorrect statement of law by the hearing officer did not affect the outcome of the hearing and was thus not prejudicial error.
Judgment affirmed.
SILVERSTEIN, C.J., and ENOCH, J., concur.