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Neppl v. Colorado Department of Revenue

Court of Appeals of Colorado, Third Division

February 21, 2019

Daniel Earl Neppl, Plaintiff-Appellant,
v.
Colorado Department of Revenue, Defendant-Appellee.

          Weld County District Court No. 18CV30116 Honorable Marcelo A. Kopcow, Judge

          Announced February 21, 2019 Fife Luneau, P.C., Charles L. Fife, Daniel Luneau, Denver, Colorado, for Plaintiff-Appellant

          Philip J. Weiser, Attorney General, Laurie Rottersman, Senior Assistant Attorney General, Denver, Colorado, for Defendant-Appellee

          OPINION

          FREYRE, JUDGE

         ¶ 1 Plaintiff, Daniel Earl Neppl, appeals the district court's judgment affirming the revocation of his driver's license by the Colorado Department of Revenue (Department). The Department revoked Neppl's license based on a test result showing that he had a legally excessive blood alcohol content (BAC).

         ¶ 2 Neppl contends that the test result was inadmissible because the paramedic who drew his blood did not have a supervisor physically present. He asks us to interpret the words "under the supervision" in the express consent statute, section 42-4-1301.1(6), C.R.S. 2018, to require on-the-spot supervision ― an issue of first impression. We reject his contention for two reasons. First, we hold that the plain language does not require a doctor's supervision of a paramedic. Second, even assuming it did, we conclude that, consistent with our supreme court's interpretation of the same language in a prior version of Colorado's driving under the influence/implied consent statute, "under the supervision" is not synonymous with "on-the-spot" supervision. For these reasons, we affirm the judgment.

         I. Background

         ¶ 3 The hearing officer made the following record-supported findings.

         ¶ 4 A police officer stopped Neppl's vehicle after Neppl twice failed to use his turn signal. On contacting Neppl, the officer noticed several indicia of alcohol intoxication, and Neppl admitted to drinking four beers. After Neppl failed to satisfactorily perform voluntary roadside maneuvers, the officer advised him of his options under the express consent law. Neppl chose a blood test. That test showed that he had a BAC of .188 grams of alcohol per 100 milliliters of blood.

         ¶ 5 After receiving the test results, the officer issued Neppl a notice of revocation. See § 42-2-126(3)(a), C.R.S. 2018 (requiring the Department to revoke a person's license for a BAC in excess of 0.08). Neppl requested a hearing. As pertinent here, Neppl argued at the hearing that the paramedic who drew his blood was not authorized to do so because the doctor who supervised the paramedic was not present at the time of the blood draw. The hearing officer rejected Neppl's argument and concluded that the person performing the blood draw was "either a paramedic or emergency medical technician" and was therefore "qualified" to withdraw the blood without any direct supervision by a doctor or nurse. Consequently, the hearing officer sustained the revocation.

         ¶ 6 Neppl then commenced this review action in the district court. He again argued, among other things, that the paramedic was not authorized to perform the blood draw without direct doctor supervision. The district court disagreed. It concluded that under the applicable statute and regulations, paramedics need not be supervised to perform blood draws and that, even if supervision was necessary, nothing required direct supervision at the time of the blood draw. The court also concluded that any technical noncompliance associated with the blood draw would go to its weight and not its admissibility. Accordingly, the court affirmed the Department's revocation of Neppl's license.

         II. Discussion

         ¶ 7 Neppl's contentions provide no basis for reversing the district court's judgment or ...


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