Johnson v. State, Dept. of Revenue, Motor Vehicle Division

         May 6, 1975. Not Selected for Official Publicaion.

         Roger D. Witt, Lakewood, for plaintiff-appellant.

         John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Arthur G. Staliwe, Special Asst. Atty. Gen., Denver, for defendant-appellee.

         SILVERSTEIN, Chief Judge.

         Plaintiff's driver's license was revoked by the Department of Revenue, Motor Vehicle Division, for refusal to take a chemical test pursuant to s 42--4--1202, C.R.S.1973 (C.R.S. 1963, 13--5--30) following his arrest for driving under the influence of alcohol. On appeal to the district court, the revocation order was affirmed. We affirm the judgment of the trial court.

         In this court plaintiff asserts that the record does not establish that he refused to take any of the tests provided for by the above statute because he was never asked to take the tests. He claims first that there was no specific request for a specimen of either his blodd, breath, or urine, and second, that the reading of the advisement form without more did not constitute a request.

         Plaintiff does not question the sufficiency of the advisement form or assert that he was not sufficiently advised of his rights or the consequences if he refused to take any of the tests. On the issue of whether he was requested to take the test, the arresting officer testified, 'I asked him more than once if he would take a test and he refused in all cases.' He further testified that plaintiff refused to 'take any test.' This evidence was not disputed.

         The officer could not remember the exact words of his request or of plaintiff's refusal, but testified in some detail as to the conduct of the plaintiff. 'The provision of the statute is satisfied if the words of the request are such as to fully advise the offender that the arresting officer wants the chemical test made and is requesting that it be made.' Bolling v. Schaffner, 488 S.W.2d 212 (Mo.App.). Further, 'a refusal to submit to the test occurs where the conduct of the arrested motorist is such that a reasonable person in the officer's position would be justified in believing that such motorist was capable of refusal and manifested an unwillingness to submit to the test.' Campbell v. Superior Court, 106 Ariz. 542, 479 P.2d 685.

         The unrebutted testimony of the officer establishes that the tests were requested by the officer and refused by plaintiff. Therefore the second contention of the plaintiff becomes moot.

         Judgment affirmed.

         COYTE and PIERCE, JJ., concur.