¶1dissenting:
¶2I respectfully dissent and would affirm the court of appeals. I do not agree with the statement in the majority opinion:
“Under the court of appeals’ theory, a driver could refuse to take the test and then later testify that he does not recollect his refusal, effectively nullifying the statute.”
¶3If the respondent was as intoxicated as is indicated by the record, the court of appeals’ opinion and the majority opinion here, then it is quite conceivable that he could have been convicted under section 42-4-1202, C.R.S. 1973 of driving under the influence of intoxicating liquor. From such a conviction the Department of Revenue could suspend his license. See section 42-2-123, C.R.S. 1973.
¶4I agree with the following statement in the court of appeals’ opinion (Rust v. Dolan, 38 Colo. App. 529, 563 P.2d 28):
“In the light of Rust’s condition as testified to by the arresting officer, we agree with the district court that, ‘[t]his is not a case where a man wilfully refused to take the test. . . .’
“Section 42-4-1202(3)(d), C.R.S. 1973, provides the procedure to be followed when an officer arrests an individual who is ‘in a condition rendering him incapable of refusal,’ and that procedure should have been followed in this case.”