This Opinion is subject to revision upon final publication.
Adams County District Court No. 13CV31931. Honorable Robert W. Kiesnowski, Judge.
Frechette Law Office, Franz P. Frechette, Nederland, Colorado, for Plaintiff-Appellee.
Cynthia H. Coffman, Attorney General, Michael J. Axelrad, Assistant Attorney General, Denver, Colorado, for Defendant-Appellant.
[¶1] Defendant, the Colorado Department of Revenue, Division of Motor Vehicles (Department), appeals the district court judgment reversing the Department's order revoking the driver's license of plaintiff, Patrick Haney. The Department contends that the record supports its determination that Haney refused to submit to the testing required by the express consent statute and that the district court erred in concluding otherwise. We reverse the district court's judgment and remand for reinstatement of the revocation order.
[¶2] Thornton police officer Kelly Wright stopped Haney's vehicle after she observed it weave and make a wide turn into a traffic lane that was not the lane closest to the curb, in violation of Colorado traffic laws. Upon contacting Haney, Officer Wright noticed he displayed indicia of possible intoxication including a strong odor of an alcoholic beverage, bloodshot watery eyes, slurred speech, and unsteady balance. Haney then failed to complete voluntary roadside maneuvers as a sober person would have.
[¶3] Officer Wright then advised Haney of the express consent law and gave him the choice of taking a blood test, a breath test, or refusing testing. Instead of choosing one of those options, Haney told the officer that he wanted to speak to an attorney before choosing any test. In response, Officer Wright stated " okay" and then transported Haney to the police department for processing.
[¶4] Officer Wright testified that Haney had access to a phone and that he was booked and processed within an hour after the stop. During this period, Officer Wright issued Haney an " Express Consent Affidavit and Notice of Revocation" which indicated that he had refused testing by stating that he " want[ed] to speak to a lawyer." That document also contained " Information Concerning
Colorado Law" which provided, in pertinent part, " You are not allowed to speak to an attorney prior to responding to the Officer's request for test(s)." Haney signed the document.
[¶5] Haney timely requested an administrative hearing. He did not appear or testify at the hearing but did appear through counsel, who cross-examined Officer Wright. Counsel argued that the revocation was improper because Haney's actions did not constitute a refusal of testing.
[¶6] The hearing officer rejected Haney's argument. Noting that Haney was given the choice of a blood test, a breath test, or refusal, the hearing officer found that Haney's response " was not, 'I will take a blood test,' and it wasn't, 'I will take a breath test.' His response was, 'I want to speak to an ...