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Schulte v. Colorado Department of Revenue

Court of Appeals of Colorado, First Division

September 20, 2018

Matthew Schulte, Petitioner-Appellant,
v.
Colorado Department of Revenue, Division of Motor Vehicles, Respondent-Appellee.

          Kit Carson County District Court No. 16CV30032 Honorable Kevin L. Hoyer, Judge

          Cure & 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 Respondent-Appellee

          OPINION

          BERNARD JUDGE

         ¶ 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.

         I. 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 refused."

         ¶ 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 ...


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