Opinion
Aug. 13, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Philip E. Lowery, Elizabeth S. Taylor, Denver, for plaintiff-appellant.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Dennis J. Sousa, Sp. Asst. Atty. Gen., Denver, for defendants-appellees.
STERNBERG, Judge.
Appellant, Tillier, was arrested on suspicion of operating a motor vehicle while under the influence of alcohol. When requested to do so by the arresting officer, he refused to submit to any chemical test to determine his blood alcohol content. Following an administrative hearing, his driver's license was revoked.
The order of the department of revenue revoking Tillier's license was upheld by the district court. We affirm that judgment.
The portions of the implied consent statute, 1971 Perm.Supp., C.R.S. 1963, 13--5--30(3)(a), pertinent to this appeal are:
'Any person who drives any motor vehicle upon a public highway in this state shall be deemed to have given his consent to a chemical test of his breath, blood, or urine for the purpose of determining the alcoholic content of his blood . . ..'
and further:
'If such person requests that the said chemical test be a blood test, then the test shall be of his blood . . ..'
At the time the officer requests the test, subparagraph (b) of the statute requires that the officer:
'(O)rally, and by written notice . . . shall inform the person arrested of his rights under the law and the probable consequences of a refusal to submit to such a test.'
The arresting officer testified that he read the department of revenue form entitled 'Advisement Pursuant to Implied Consent Law of the State of Colorado' to Tillier. That form reads as follows:
'1. You are advised that a person who drives a motor vehicle upon a public highway in this state shall be deemed to have given his consent to a chemical test of his blood, breath, or urine for the purpose of determining the alcohol content of his blood, if a police officer has reasonable grounds to believe that a person has been driving a motor vehicle while under the influence of, or impaired by, alcohol.
'2. You are advised that:
A. The arresting officer has reasonable grounds to believe that you were driving a motor vehicle while under the influence of, or impaired by, alcohol.
(1) The reasonable grounds for my belief that you were driving a motor vehicle while under the influence of, or impaired by, alcohol are:
(Here, pursuant to instructions on the form, the officer inserted information regarding Tillier's operation of a vehicle on the date of his arrest.)
'B. Misdemeanor charges have been or will be filed against you.
'3. The results of the chemical test may be used in evidence against you in the misdemeanor proceedings of the charges which have been or will be filed against you.
'4. You may request that a specimen of your blood not be drawn, in which case a specimen of your breath or your urine shall be obtained and tested.
'5. You are advised that, if you choose to refuse to submit to a chemical test as requested by the arresting officer the test will not be given; provided further, that the Department of Revenue, upon receipt of a written report from the arresting officer stating your refusal, shall serve notice upon you to appear before the Department of Revenue and show cause why your license to operate a motor vehicle or your privilege to operate a motor vehicle within this state should not be revoked for a period of six months.
'6. You are further advised that refusal to submit to a chemical test of your blood, breath or urine for the purpose of determining the alcohol content of your blood can not be used in the prosecution of the misdemeanor charged.
'7. You are further advised that, upon the request of any person submitting to a chemical test pursuant to this act, or his attorney, the results of such test shall be made available to him forthwith.'
I
Tillier first contends that his driver's license cannot be revoked for refusal to take a chemical test because the advisement form did not tell him of his statutory right to insist that if a chemical test were to be given, that it be of his blood, rather than of his breath or urine.
In Vigil v. Motor Vehicle Division of the Department of Revenue, Colo., 519 P.2d 332, it is stated that:
'The requirements of due process in relation to the warnings are satisfied by the notice which is given licensees through publication of the statutes. A licensee to operate a motor vehicle on public highways is presumed to know the law regarding his use of the public highways.'
Vigil also points out that other jurisdictions have upheld implied consent statutes which provided for No warning. Thus, the need for an advisement derives from our statute, and is not a constitutional requirement.
Although the form did not state the priorities of the tests, nevertheless, the option of having a blood sample drawn was one of the alternative tests stated. It is not necessary that the advisement contain a separate and independent statement of each available test. See State v. Cornelius, 289 Minn. 521, 184 N.W.2d 779. Based upon our review of the requirements of the statute, and of the decision of our Supreme Court in Vigil, supra, we conclude that the enumeration of the types of chemical tests in the advisement form constitutes a minimally acceptable statement of a driver's rights in this respect.
II
Tillier also contends that his driver's license cannot be revoked for refusal to take a chemical test because he was not told, at the time of his arrest, of his right to judicial review of the actions of the department of revenue. This contention is based upon subparagraph (b) of the statute.
The record shows that Tillier was advised by the police officer that if he refused to take a chemical test, he would be cited to appear at a hearing, and that a possible result of that hearing would be revocation of his license for refusing to submit to a chemical test. Under the quoted language in Vigil, supra, this is an adequate statement of the 'probable consequences of a refusal to submit to such a test.'
It is neither practical nor necessary that the entire statute be included in the advisement form. The minimum essential warnings required by the statute with respect to the issues raised here were contained in the advisement form.
Judgment affirmed.
PIERCE and BERMAN, JJ., concur.