     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                 SUMMARY
                                                         September 20, 2018

                               2018COA140

No. 17CA0851, Schulte v. Colorado Department of Revenue —
Vehicles and Traffic — Regulation of Vehicles and Traffic —
Alcohol and Drug Offenses — Expressed Consent for the Taking
of Blood, Breath, Urine, or Saliva

        A division of the court of appeals considers whether the

Colorado Supreme Court’s holding in Gallion v. Colorado

Department of Revenue, 171 P.3d 217 (Colo. 2007), established a

four-part test for hearing officers to apply in every relevant case to

determine whether a law enforcement officer had disengaged from

the process of requesting or directing the completion of a chemical

test under Colorado’s express consent law before a driver attempted

to retract an earlier refusal of such test. § 42-4-1301.1, C.R.S.

2018. The division concludes that Gallion did not establish such a

test.
     Because the hearing officer properly applied Gallion in

concluding that the driver’s attempt to retract his initial refusal to

submit to a chemical test was untimely as a matter of law, the

division affirms the judgment of the district court.
COLORADO COURT OF APPEALS                                         2018COA140


Court of Appeals No. 17CA0851
Kit Carson County District Court No. 16CV30032
Honorable Kevin L. Hoyer, Judge


Matthew Schulte,

Petitioner-Appellant,

v.

Colorado Department of Revenue, Division of Motor Vehicles,

Respondent-Appellee.


                             JUDGMENT AFFIRMED

                                    Division I
                         Opinion by JUDGE BERNARD
                        Welling and Casebolt*, JJ., concur

                         Announced September 20, 2018


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


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶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.


                                   1
¶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


                                       2
  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


                                     3
  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 car remained and when the driver tried to retract his

  refusal.

¶ 13   The deputy testified that he

              drove back to the field at 5:35 a.m., which took

               approximately eight minutes;

              spent about twenty minutes there;

              drove directly back to the sheriff’s office; and




                                        4
           checked the driver’s driving record and worked on

             paperwork for about an hour and forty minutes before he

             gave the notice to the driver.

¶ 14   The driver testified that only about thirty minutes had elapsed

  between the time when the deputy left the jail to drive to the field

  and the time when the deputy served him with the notice.

¶ 15   The hearing officer revoked the driver’s driving privileges,

  deciding that (1) the driver drove a motor vehicle at 4:20 a.m.;

  (2) the deputy had probable cause to ask the driver to perform a

  test; (3) the deputy properly advised the driver of Colorado’s express

  consent law; (4) the driver refused to take a test; and (5) the driver

  did not “properly recant [his initial] refusal.”

¶ 16   But the hearing officer’s findings did not resolve the conflicting

  timelines or definitively establish whether the driver had asked to

  take the blood test “such that the sample . . . [could] be obtained

  within two hours of . . . driving.” § 42-4-1301.1(2)(a)(III). In his oral

  ruling, the hearing officer described the conflicting testimony, but

  he never made a credibility determination about whom he believed.

  See Long v. Colo. Dep’t of Revenue, 2012 COA 130, ¶ 7 (“The

  credibility of witnesses . . . and the resolution of conflicting evidence


                                      5
  are factual matters solely within the province of the hearing

  officer . . . .”). Likewise, the hearing officer’s written order only

  stated that “[w]hether [the driver retracted his refusal] within two

  hours of the time of driving is a point of dispute in the testimony.”

¶ 17   The driver petitioned for judicial review in the district court.

  The district court upheld the revocation, ruling that the driver’s

  attempted retraction of his initial refusal was untimely because the

  driver’s “offer to take the blood test occurred more than

  two . . . hours after his arrest.”

                          II.   Standard of Review

¶ 18   A reviewing court may reverse the hearing officer’s final

  judgment if the hearing officer “exceeded . . . constitutional or

  statutory authority, made an erroneous interpretation of the law,

  acted in an arbitrary and capricious manner, or made a

  determination that is unsupported by the evidence in the record.”

  § 42-2-126(9)(b), C.R.S. 2018. “A hearing officer’s finding of fact is

  arbitrary and capricious if the record as a whole shows there is no

  substantial evidence to support the decision.” Fallon v. Colo. Dep’t

  of Revenue, 250 P.3d 691, 693 (Colo. App. 2010). When reviewing

  the hearing officer’s decision, we are in the same position as a


                                       6
  district court. Gilbert v. Julian, 230 P.3d 1218, 1221 (Colo. App.

  2009). We review the officer’s and the district court’s conclusions of

  law de novo. Fallon, 250 P.3d at 693.

                              III.   Discussion

¶ 19   The driver offers two reasons why he thinks that the hearing

  officer and the district court erred when they decided that his

  retraction of his refusal was untimely.

¶ 20   First, he asserts that the hearing officer erroneously

  interpreted section 42-2-126(9)(b) when he decided that, as a

  matter of law, the driver’s retraction was untimely. We address this

  assertion below. After doing so, we affirm the district court’s

  judgment because we conclude that the facts in the record

  supported the hearing officer’s determination that the driver’s

  attempted retraction of his initial refusal was untimely as a matter

  of law. See Makeen v. Hailey, 2015 COA 181, ¶ 21 (an appellate

  court may affirm the district court’s decision on any grounds

  supported by the record).

¶ 21   The driver’s second contention is that the district court erred

  when it decided that the driver’s retraction occurred more than two

  hours after he had driven the car. See § 42-4-1301.1(2)(a)(III). We


                                       7
  do not need to address this issue because our resolution of the first

  assertion provides a sufficient ground to uphold the revocation of

  the driver’s driving privileges.

                                     A.       Law

¶ 22   Colorado’s express consent law requires a driver to take a

  blood or a breath test if “so requested and directed by a law

  enforcement officer having probable cause to believe that the person

  was driving a motor vehicle [while intoxicated].”

  § 42-4-1301.1(2)(a)(I). A person “must cooperate” with the request,

  “such that the sample of blood or breath can be obtained within two

  hours of the person’s driving.” § 42-4-1301.1(2)(a)(III).

¶ 23   Section 42-2-126, which we shall call “the revocation statute,”

  allows the Department of Revenue to revoke a person’s driver’s

  license for refusing to complete a test. § 42-2-126(3)(c). If a law

  enforcement officer determines that a person has refused to submit

  to a test, the officer “shall personally serve a notice of revocation on”

  him or her. § 42-2-126(5)(b)(I). After serving notice, the officer

  must “take possession of any driver’s license . . . that the person

  holds.” § 42-2-126(5)(b)(II).




                                          8
¶ 24   Our supreme court interpreted the express consent law and

  the revocation statute in Gallion v. Colorado Department of Revenue,

  171 P.3d 217 (Colo. 2007); see also Edwards v. Colo. Dep’t of

  Revenue, 2016 COA 137, ¶ 25 (the express consent law “provides

  the authority for an officer to” request a test, and “the revocation

  statute provides the consequences” for refusing). In Gallion, the

  licensee asserted that she had retracted her initial refusal in a

  timely fashion because she later said, within two hours of driving,

  that she would submit to a chemical test. 171 P.3d at 222.

¶ 25   In that case, a police officer stopped the licensee because she

  had been driving erratically. Id. at 218. The officer arrested her for

  driving under the influence, and he read her the express consent

  advisement. Id. She replied that “she did not understand the

  advisement,” so the officer repeatedly explained it. Id. The officer

  eventually decided that the licensee understood the advisement but

  that she was feigning a lack of comprehension “to interfere with the

  investigation.” Id. So “[h]e deemed her actions a refusal,” and he

  drove her to the jail. Id.

¶ 26   At the jail, the officer turned the licensee over to the jail staff

  for booking. Id. He gave her the notice of revocation, which she


                                      9
  signed, and she surrendered her driver’s license to him.

  Id. at 218-19. The deputy then “left [the jail] to resume duty.” Id.

  Later, but before the two-hour window had expired, the licensee

  asked a jail deputy if she could take the test. Id. The deputy

  denied the request. Id.

¶ 27   Our supreme court held that a retraction of an initial refusal is

  untimely, even if it occurs within the two-hour window, if a driver

  does not cooperate with testing “while the officer with probable

  cause remains engaged in the process of requesting and directing

  the completion of the chemical test.” Id. at 218.

¶ 28   Based on those facts, the supreme court decided that “the

  time period during which the driver must show cooperation” had

  ended because “the officer ha[d] requested the test, determined that

  the driver [wa]s refusing testing, completed his duties prescribed by

  statute to deal with a refusal, and left the presence of the driver.”

  Id. at 222.

                               B.    Analysis

¶ 29   The driver’s contention goes like this: (1) Gallion established a

  specific protocol with four steps (request, refusal, completion of

  officer’s duties, leaving the presence of the driver); (2) all four steps


                                      10
  must be satisfied before a retraction made within the two-hour

  window can be considered untimely as a matter of law; (3) the third

  step — completion of the officer’s duties — includes service of the

  notice; and (4) because the attempted retraction in this case

  occurred before the deputy had completed his duties, the hearing

  officer erred when he concluded that the attempted retraction was

  untimely as a matter of law.

¶ 30   Because we disagree with the driver’s characterization of

  Gallion’s holding, we conclude that the hearing officer did not make

  “an erroneous interpretation of the law.” § 42-2-126(9)(b).

¶ 31   In Gallion, the supreme court held that the express consent

  law requires licensees to “timely cooperat[e].” 171 P.3d at 222. To

  do so, the licensee must agree to submit to a test “while the officer

  remains engaged in requesting or directing the completion of the

  test.” Id. If a licensee does not offer to retract an initial refusal

  “while the officer remains engaged in requesting or directing the

  completion of the test,” then the attempted retraction is untimely as

  a matter of law. Id. at 222-23.




                                      11
¶ 32   But the supreme court did not set out a strict four-part test

  based on particular factors. The court was instead focused on

  resolving the appeal in light of the facts of the case.

¶ 33   For example, the court never said that, as the final act of

  disengaging from the process of requesting or directing a chemical

  test, an officer must serve the licensee with a notice. Rather, the

  court decided that, once the officer in that case had served the

  notice and resumed his patrol duties, he had no obligation to return

  to the jail facility so that the licensee could complete a test, even if

  time remained in the two-hour window.

¶ 34   Under those facts, the supreme court decided that the licensee

  had “failed to timely cooperate and thus refused testing as a matter

  of law.” Id. at 223. We therefore conclude that service of the notice

  can be sufficient for a law enforcement officer to disengage from

  requesting or directing a chemical test but that it is not a necessary

  predicate to disengaging.

¶ 35   We further conclude, for the following reasons, that the

  hearing officer’s determination that the driver did not cooperate

  with the deputy while the deputy was engaged in requesting or

  directing the chemical test was supported by substantial evidence.


                                     12
  See id. at 222; Fallon, 250 P.3d at 696. The driver’s retraction of

  his refusal was therefore untimely as a matter of law.

¶ 36   First, the record supports the hearing officer’s finding that the

  driver refused a chemical test before the deputy drove him to the

  jail. See Alford v. Tipton, 822 P.2d 513, 516 (Colo. App.

  1991)(noting that refusal is “based solely on the objective standard

  of the driver’s external manifestations of willingness or

  unwillingness to take a test”). The deputy testified that he read the

  express consent law, asked the driver to choose a test, and the

  driver replied, “No test.”

¶ 37   Second, the deputy provided the driver with more than one

  opportunity to take the test before he drove him to the jail. After

  the driver’s initial refusal, the deputy read him a second statement

  “to give him another chance” to comply with the express consent

  law. This statement told the driver of “the consequences of what

  would happen if he . . . refuse[d] the test.”

¶ 38   Third, the driver’s initial refusal was “an outright refusal,” not

  “a refusal by noncooperation.” Gallion, 171 P.3d at 220; see also

  Haney v. Colo. Dep’t of Revenue, 2015 COA 125, ¶ 18 (a driver’s

  request to speak to an attorney is considered a refusal by


                                     13
  noncooperation); Poe v. Dep’t of Revenue, 859 P.2d 906, 908 (Colo.

  App. 1993)(the driver’s silence constituted a refusal by

  noncooperation). If a licensee does not give a definitive answer

  about whether he would like to participate in a chemical test, it may

  be reasonable to assume that he did not know for certain that the

  officer had deemed some uncooperative statement or act to be a

  refusal. See Gallion, 171 P.3d at 218. In those potentially

  ambiguous circumstances, a licensee may only realize that he had

  refused when the officer delivers the notice. See id. at 218-19. But,

  in this case, the facts do not suggest any such ambiguity because

  the driver said “[n]o test” after the deputy offered him one.

¶ 39   Fourth, the record does not provide any evidence to suggest

  that the driver had tried to retract his initial refusal before the

  deputy drove him to the jail or that he had quickly become unsure

  of his initial refusal and promptly wanted to reconsider it. See id. at

  219; Zahtila v. Motor Vehicle Div., 39 Colo. App. 8, 9, 560 P.2d 847,

  848 (1977).

¶ 40   Fifth, although it may have been possible for the driver to

  retract his refusal before the deputy turned him over to the jail staff

  for booking, the record does not suggest that the driver tried to do


                                     14
  so. Gallion, 171 P.3d at 222. The driver does not provide any legal

  authority, and we have not found any, that places a burden on a

  law enforcement officer to repeatedly check with a licensee who has

  unequivocally refused a test, especially after the officer has turned

  the driver over to a jail’s booking staff. See Gallion v. Colo. Dep’t of

  Revenue, 155 P.3d 539, 544 (Colo. App. 2006)(the driver has the

  burden to cooperate with testing), aff’d, 171 P.3d 217 (Colo. 2007).

  In this case, from the deputy’s perspective, he “had no reason to

  speak to [the driver] until [his] report was done” because “[the

  driver] had already refused.”

¶ 41   Sixth, after the deputy turned the driver over to the booking

  staff, he left the driver’s presence to resume other duties. Gallion,

  171 P.3d at 222. The driver contends that the “deputy was still

  engaged in the investigation and related duties concerning” the

  driver’s license revocation. Not so. Rather, the vast majority of

  what the deputy did after turning the driver over to the jail dealt not

  with the revocation, but with the investigation of criminal charges

  against the driver. The deputy wrote a police report, inventoried the

  items in the vehicle, and took pictures of some of those items as

  part of the criminal investigation. He also had public safety matters


                                     15
  to attend to that were unrelated to the revocation, such as

  overseeing the tow truck that pulled the driver’s car out of the field.

¶ 42   Seventh, the deputy only reengaged the driver, for the final

  time, to have him sign the notice. At this point, the deputy had

  already asked the driver to submit to a chemical test, heard the

  driver’s refusal, left the driver’s presence for an appreciable length

  of time, and completed all the paperwork associated with the

  refusal and the revocation.

¶ 43   The judgment is affirmed.

       JUDGE WELLING and JUDGE CASEBOLT concur.




                                    16
