Carson County District Court No. 16CV30032 Honorable Kevin L.
& Bain, P.C., Joseph B. Bain, Jeffrey M. Cure,
Burlington, Colorado, for Petitioner-Appellant
Cynthia H. Coffman, Attorney General, Jennifer Gilbert,
Assistant Attorney General, Denver, Colorado, for
1 A deputy sheriff contacted a driver, petitioner, Matthew
Schulte, and asked him to submit to a chemical test under
Colorado's express consent law. § 42-4-1301.1,
C.R.S. 2018. The driver refused. The deputy later arrested
him, drove him to jail, turned him over to booking officers,
and drove back to the scene. When the deputy returned to the
jail, he completed the license revocation paperwork and began
to serve the driver with the notice of revocation. Before he
could do so, the driver asked to take a test. The deputy told
him that it was too late.
2 The issue in this appeal involves Gallion v. Colorado
Department of Revenue, 171 P.3d 217, 218 (Colo. 2007),
in which our supreme court held that a driver should be
allowed to retract an initial refusal as long as "the
officer with probable cause remains engaged in the process of
requesting and directing the completion of the chemical
test." Did Gallion establish a four-part test
for hearing officers to apply in every relevant case to
determine whether law enforcement officers had disengaged
from the process of requesting or directing the completion of
a chemical test under Colorado's express consent law
before licensees attempted to retract their refusals of such
tests? The driver thinks so. We do not.
3 In this appeal, the driver asks us to review a district
court's judgment upholding the revocation of his driving
privileges. We conclude that the driver's attempted
retraction of his initial refusal was untimely as a matter of
law. As a result, we affirm the judgment.
Background and Procedural History
4 Someone reported a car parked in the middle of a field to
the police. When an officer arrived, he found the driver
asleep in the car, and the car's engine was running. The
officer thought that the driver was intoxicated because he
could smell a strong odor of an alcoholic beverage.
5 The field was in an unincorporated part of the county, so a
sheriff's deputy arrived a few minutes later to
investigate the possible alcohol-related driving offense. The
deputy also noticed the odor of an alcoholic beverage, so he
asked the driver how much he had imbibed that night. The
driver responded, "[N]ot much at all."
6 The deputy saw that the driver's eyes were bloodshot,
and he heard the driver slur his words. He asked the driver
to perform some voluntary roadside maneuvers. The driver did
not perform them like a sober person would have performed
them, so the deputy asked the driver to blow into a portable
chemical testing device. The driver declined.
7 Based on his observations, the deputy arrested the driver
for driving under the influence. The deputy handcuffed him
and put him in the patrol car.
8 The deputy then advised the driver of Colorado's
express consent law. The deputy asked him to choose between a
chemical test of his breath or of his blood. The driver
replied, "No test." The deputy then read him
another statement "to give him another chance not to
refuse [and] telling him the consequences of what would
happen if he did refuse the test."
9 After the driver refused the deputy's offer of a
chemical test, the deputy drove him to the jail. The deputy
turned the driver over to the jail staff, and he began
working on paperwork related to the case. About half an hour
later, the deputy returned to the field, searched the
driver's car, and arranged for a tow truck to pull the
car from the field and impound it.
10 After returning to the sheriff's office, which shared
the same building with the jail, the deputy finished writing
his report. He then took the "Express Consent Affidavit
and Notice of Revocation" to the driver to have him sign
it. (When we discuss this form, we will refer to it simply as
"the notice.") Before he signed the notice, the
driver asked to take a blood test. The deputy told him that
"it was too late" because "he had already
11 Some days later, the driver asked the Division of Motor
Vehicles for a hearing at which he could contest the
revocation of his driving privileges.
12 The deputy and the driver testified at the hearing. Their
testimony conflicted about how much time had elapsed between
when the deputy left the jail to drive back to the field
where the driver's ...