dissenting.
I respectfully dissent from Part II of the majority opinion.
The majority reverses the trial court’s judgment in large measure because the hearing officer found that there was “no reliable evidence” to indicate that plaintiff’s refusal to submit to a blood test “was *517caused by a medical condition other than intoxication.”
In fact, the record reveals considerable evidence from an expert witness nurse who testified, without contradiction, that plaintiff’s behavior was consistent with that exhibited by patients with closed head injuries and that plaintiff could not make any decisions concerning herself until about four hours after she had arrived at the hospital.
It has been held, and I agree, that, generally, any right to refuse to submit to chemical testing for purposes of the motor vehicle laws of this state must be found in statutory rather than constitutional law. Stanger v. Colorado Department of Revenue, 780 P.2d 64 (Colo.App.1989). See Brewer v. Motor Vehicle Division, 720 P.2d 564 (Colo.1986). However, that is not to say that there are no constitutional implications in the requesting and conducting of such searches.
The request to take the test provided in § 42-4-1202(3)(a)(II), C.R.S. (1991 Cum. Supp.) triggers a search and seizure under the Fourth Amendment and Colo. Const, art. II, § 7. Therefore, the request and all resultant activities must be conducted in an aura of reasonability. See Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).
The General Assembly, prior to July 1, 1989, recognized as much in requiring that tests administered must be done “with utmost respect for constitutional rights, dignity of person, and health of the person being tested.” Section 42-4-1202(3)(b), C.R.S. (1984 Repl.Vol. 17). Cf. § 42-4-1202(3)(b) (1991 Cum.Supp.). Even in the present version of the statute the General Assembly continues to express concern for the “health” of the person being tested.
Upon consideration of the record here, I would determine that the trial court properly concluded that the evidence is not sufficient to support the hearing officer’s findings.
I disagree with the trial court, however, that the evidence on whether plaintiff refused to take the test because of her closed head injury or because of intoxication ■ “would weigh evenly.” I conclude that the evidence preponderates in favor of plaintiff’s theory that the injury caused her refusal.
Such evidence, in addition to the expert witness’ testimony, includes testimony that plaintiff was in an accident, that her head and face struck the windshield, that she suffered internal injuries and injuries to her face and head, and that glass was in her hair. Additionally, uncontradicted testimony reveals that she could not recall the events after the accident, including her treatment by doctors and nurses or the conversation with the officer.
Finally, I also disagree with the trial court concerning the applicability of Higgins v. State Department of Motor Vehicles, 101 Nev. 531, 706 P.2d 506 (1985) to this case. This is, in part, because that opinion is based on a statute, Nev.Rev.Stat. § 484.383(3) (1983), which excepts from implied consent to take a test for intoxication those who are “otherwise in a condition [other than dead or unconscious] rendering [them] incapable of refusal.” Colorado requires the test for all as to whom there is probable cause, even if deceased or unconscious. See § 42-4-1202(3)(c), C.R.S. (1991 Cum.Supp.).
However, the Higgins case is useful here because it recommends corroborating medical evidence in evaluating whether a person has withdrawn consent. See Department of Transportation v. Michalec, 52 Pa. Commw. 89, 415 A.2d 921 (1980).
Additionally, the Higgins court, under factual circumstances similar to those here, rejected the officer’s subjective conclusions that the driver was capable of refusing to submit to the test and, instead, considered “the objective factors, namely, the circumstances of the accident, appellant’s multiple serious injuries, sedated condition, and general incoherency, along with uncontradicted medical testimony,” in concluding that the driver was incapable of refusing to submit to the required test. Higgins v. State Department of Motor Vehicles, supra. See State v. Morgan, 198 Mont. 391, 646 P.2d 1177 (1982); State v. Campbell, 189 Mont. *518107, 615 P.2d 190 (1980); Rossell v. City & County of Honolulu, 59 Haw. 178, 579 P.2d 663 (1978).
I believe the hearing officer, here, in considering plaintiffs apparent refusal to take the required test, ought to have applied an objective test and rejected the officer’s subjective conclusions. My view of the record is that, when the evidence is considered in light of objective factors and Fourth Amendment reasonability, the conclusion must be that plaintiff was not capable of refusing to take the test and should not be held accountable for the officer’s perception that she, in fact, refused.
Accordingly, I would affirm the judgment of the trial court and remand this matter for reinstatement of plaintiff’s driving privileges.