Glasmann v. State, Dep't of Revenue, Motor Veh. Div., 719 P.2d 1096 (Colo. Ct. App. 1986). · Go Syfert
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Glasmann v. State, Dep't of Revenue, Motor Veh. Div., 719 P.2d 1096 (Colo. Ct. App. 1986). Cases Citing This Book View Copy Cite
37 citation events (16 in the last 25 years) across 12 distinct courts.
Strongest positive: Notarmuzi v. CDOR (coloctapp, 2025-02-13)
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986 2006 2026
Top citers, strongest first. 17 distinct citers.
discussed Cited as authority (rule) Notarmuzi v. CDOR
Colo. Ct. App. · 2025 · confidence medium
If there is conflicting evidence, “the hearing officer’s finding is binding on appeal” and we “may not substitute [our] judgment for that of the fact finder.” Glasmann v. State, 719 P.2d 1096, 1097 (Colo. App. 1986).
discussed Cited as authority (rule) Patricia S. Reed, Comm., W. Va. DMV v. Jeffrey Hill (2×) also: Cited "see, e.g."
W. Va. · 2015 · confidence medium
Accordingly, we now hold that the requirement in West Virginia C.S.R. § 64­ 10-7.2(a) (2005) that a law enforcement officer shall keep the person being tested under constant observation for a period of twenty minutes before administering a secondary 20 See also Glasmann v. State, Dept. of Revenue, 719 P.2d 1096, 1097 (Colo. App. 1986) (finding that regulation requiring “close and continuous observation” does not require officer to stare fixedly at test subject, rather, compliance is question of fact); Webb- Buckingham v. Delaware, No. 0612020853 PLA., 2009 WL 147020 (Del.
discussed Cited as authority (rule) People v. Chiaravalle
Ill. App. Ct. · 2015 · confidence medium
App. Div. 1987) (stating “[a] constant vigil is not required”); Glasmann v. State of Colorado, Department of Revenue, Motor Vehicle Division, 719 P.2d 1096, 1097 (Colo. App. 1986) (stating the officer need not “stare fixedly at a test subject for twenty minutes”). ¶ 33 Interpreting the phrase “continuously observe” “to require exclusively unbroken visual observation is contrary to its ordinary meaning.” Mashek, 312 P.3d at 781 .
discussed Cited as authority (rule) People v. Chiaravalle
Ill. App. Ct. · 2014 · confidence medium
App. Div. 1987) (stating "[a] constant vigil is not required"); Glasmann v. State, Department of Revenue, Motor Vehicle Division, 719 P.2d 1096, 1097 (Colo. App. 1986) (stating the officer need not "stare fixedly at a test subject for twenty minutes"). ¶ 33 Interpreting the phrase "continuously observe" "to require exclusively unbroken visual observation is contrary to its ordinary meaning." Mashek, 312 P.3d at 781 .
discussed Cited as authority (rule) Hadaway v. Commonwealth
Ky. Ct. App. · 2011 · confidence medium
See Simpson v. State, 707 P.2d 43, 46 (Okla.Crim.App.1985); State v. Smith, 16 Conn. App. 156 , 547 A.2d 69, 73 (1988); State v. Remsburg, 126 Idaho 338 , 882 P.2d 993, 995 (Idaho App.1994); Glasmann v. State, 719 P.2d 1096, 1097 (Colo.App.1986).
discussed Cited as authority (rule) Peterson v. Wyoming Department of Transportation, Drivers' License Division
Wyo. · 2007 · confidence medium
In Glasmann v. State, Dept. of Revenue, Motor Vehicle Div., 719 P.2d 1096, 1097 (Colo.App.1986), the court interpreted a regulation requiring that an officer "closely and continuously observe the subject" for twenty minutes prior to the administration of a breath test.
discussed Cited as authority (rule) Meyer v. State, Department of Revenue, Motor Vehicle Division
Colo. Ct. App. · 2006 · confidence medium
When conflicting evidence is presented and the hearing officer applies the proper legal standards, that finding is binding on review, and “a reviewing court may not substitute its judgment for that of the fact finder.” Charnes v. Lobato, supra, 743 P.2d at 33 (quoting Glasmann v. State, 719 P.2d 1096, 1097 (Colo.App.1986)); see also Halter v. Dep’t of Revenue, supra. We review agency determinations regarding questions of law de novo.
discussed Cited as authority (rule) Manriquez v. Gourley
Cal. Ct. App. · 2003 · confidence medium
(See State v. Smith (1988) 16 Conn.App. 156 [ 547 A.2d 69, 73 ] [holding regulation requiring subject be under continuous observation did not require officer to “fix his unswerving gaze” on a subject during 15-minute interval before breath test; the fact officer operated police cruiser, prepared intoximeter for use and processed paperwork during the observation period did not require suppression of breath analysis tests]; Glasmann v. State, Dept. of Revenue, Motor Vehicle Div. (Colo.Ct.App. 1986) 719 P.2d 1096, 1097 [regulation requiring officer to closely and continuously observe the subj…
cited Cited as authority (rule) Aspen Wilderness Workshop, Inc. v. Colorado Water Conservation Board
Colo. · 1995 · confidence medium
Board of County Comm’rs v. Simmons, 177 Colo. 347 , 350, 494 P.2d 85, 87 (1972); Glasmann v. Department of Revenue, 719 P.2d 1096, 1097 (Colo.App.1986).
discussed Cited as authority (rule) State v. Remsburg
Idaho Ct. App. · 1994 · confidence medium
In Glasmann v. State, Dept. of Revenue, 719 P.2d 1096, 1097 (Colo.App.Ct.1986), the court interpreted a regulation requiring that an officer “[cjlosely and continuously observe the subject” for twenty minutes prior to the administration of a breath test.
cited Cited "see" Fallon v. Colorado Department of Revenue
Colo. Ct. App. · 2010 · signal: see · confidence high
See Glasmann v. State, 719 P.2d 1096, 1097 (Colo.App.1986).
discussed Cited "see" Bodaghi v. Department of Natural Resources (2×)
Colo. · 2000 · signal: see · confidence high
See Glasmann v. Department of Revenue, 719 P.2d 1096, 1097 (Colo.App.1986).
cited Cited "see" Kaiser v. State
Fla. Dist. Ct. App. · 1992 · signal: see · confidence high
See Barone v. State, 736 P.2d 432 (Col.1987) and Glassman v. State, 719 P.2d 1096 (Col.1986).
cited Cited "see" Western Slavonic Ass'n v. Property Tax Administrator
Colo. Ct. App. · 1992 · signal: see · confidence high
See Glasmann v. State, 719 P.2d 1096 (Colo. App.1986).
discussed Cited "see" Barone v. State, Department of Revenue, Motor Vehicle Division (2×)
Colo. Ct. App. · 1987 · signal: see · confidence high
See Glasmann v. State, supra. The evidence reveals that approximately 33 minutes elapsed between the police officer’s first contact with Barone and the time a breath test was conducted.
cited Cited "see" McClellan v. State, Department of Revenue, Motor Vehicle Division
Colo. Ct. App. · 1986 · signal: see · confidence high
See Glasmann v. Department of Revenue, 719 P.2d 1096 (Colo.App.1986); People v. Bowers, supra. V.
discussed Cited "see, e.g." State v. Gardner
N.M. Ct. App. · 1998 · signal: see, e.g. · confidence low
See, e.g., Glasmann v. State Dep’t of Revenue, 719 P.2d 1096 (Colo.Ct.App.1986); State v. Smith, 16 Conn.App. 156 , 547 A.2d 69 (Conn.App.Ct.1988); State v. Remsburg, 126 Idaho 338 , 882 P.2d 993 (Idaho Ct.App.1994); In re Ramos, 155 Ill.App.3d 374 , 108 Ill.Dec. 323 , 508 N.E.2d 484 (Ill.App.Ct.1987); State v. Balderson, 138 Or.App. 531 , 910 P.2d 1138 (Or.Ct.App.1996) (en banc).
Robert Gregory GLASMANN, Jr., Plaintiff-Appellee,
v.
STATE of Colorado, DEPARTMENT OF REVENUE, MOTOR VEHICLE DIVISION, Defendant-Appellant
85CA0136.
Colorado Court of Appeals.
Apr 17, 1986.
719 P.2d 1096
Marvin Dansky, P.C., C. James Mathis, Jack LeProwse, Westminster, for plaintiff-appellee., James F. Smith, Dist. Atty., Michael J. Milne, Deputy Dist. Atty., Brighton, Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. For-man, Sol. Gen., Steven M. Bush, Asst. Atty. Gen., Denver, for defendant-appellant.
Babcock, Smith, Sternberg.
Cited by 30 opinions  |  Published
BABCOCK, Judge.

The Department of Revenue (department) appeals the trial court judgment reversing its revocation of the driver’s license of plaintiff, Robert Gregory Glasmann, Jr., for operating a motor vehicle when the alcohol level of his breath was in excess of .15 grams per 210 liters of breath. The department argues that there is substantial evidence, when the record is considered as a whole, to support the hearing officer’s determination that the arresting officer “[cjlosely and continuously observe[d] the subject for twenty (20) minutes prior to testing to detect any belching, regurgitation or intake of any foreign material by nose or mouth” as provided in Colorado Department of Health Rules and Regulations Relating to Chemical Tests for Blood Alcohol, 5 Code Colo.Reg. 1005-2 (Append[*1097] ed operational checklist and procedure) (the regulation). See 5 Code Colo.Reg. 1005-2. We agree, and therefore, reverse.

At Glasmann’s license revocation hearing the arresting officer testified to the following events. After the arrest for driving under the influence, the officer observed Glasmann for a twenty-three minute period which began with a one minute drive to the station. Glasmann was seated handcuffed in the backseat of the police car. The officer then observed Glassman in his presence for twenty-two minutes at the police station. During this time the officer completed the top portion of a custody report, and completed a summons and a notice of revocation. These forms were filled out in front of Glasmann, and the officer testified that he occasionally took his eyes off Glas-mann for a “second” to look at the forms. The officer also testified that Glasmann twice attempted to remove a cigarette from a package, but Glasmann was told he could not smoke.

The checklist used by the arresting officer provided only that the subject be observed for twenty minutes prior to testing to prevent oral intake of any material. It did not include the language of the regulation that the subject be observed “closely and continuously.”

Glasmann’s counsel introduced the applicable health regulations through the Department of Health chemist responsible for supervising the intoxilyzer breath testing program in Colorado. The chemist testified that the purpose of the close and continuous observation rule was to prevent the test subject from placing anything in his mouth or from burping, regurgitating, or engaging in any other type of activity which could have a deleterious effect upon the accuracy of the breath test. He also stated that the reason for the rule was to insure that the testing officer remain in the presence of the test subject at all times. In the chemist’s opinion, the arresting officer here complied with the regulation. Glasmann testified that, despite being continuously in the arresting officer’s presence, he smoked a cigarette during the twenty minute period.

At the conclusion of the hearing, the hearing officer resolved the conflicts in the evidence in favor of the department and ruled that the defective language of the checklist was irrelevant because, as a matter of fact, the arresting officer closely and continuously observed Glasmann for the requisite twenty minute period in compliance with the regulation.

Where, as here, there is evidence that a breath testing device is operated by one certified to use it and that the test is administered in accordance with the Department of Health regulations, the breath test results are admissible. People v. Bowers, 716 P.2d 471 (Colo.1986). Thus, we do not agree with Glasmann’s contention that the defective operational checklist resulted in an insufficient demonstration by the department of the accuracy of the test.

To set aside a decision by a hearing officer on the ground that it is arbitrary or capricious pursuant to § 24-4-106(7), C.R.S. (1985 Cum.Supp.), a reviewing court must be convinced from the record as a whole that there is no substantial evidence to support the hearing officer’s decision. DeScala v. Motor Vehicle Division, 667 P.2d 1360 (Colo.1983); Marek v. State, 709 P.2d 978 (Colo.App.1985). Where, as here, the evidence is conflicting, the hearing officer’s finding is binding on appeal and a reviewing court may not substitute its judgment for that of the fact finder. See Marek v. State, supra.

We do not read the regulation as requiring in all cases that the officer stare fixedly at a test subject for twenty minutes; rather, compliance with the regulation is a question of fact to be decided under the circumstances of each case, and in this case, the arresting officer’s testimony made a prima facie showing of compliance with the regulation. See Williford v. State, 683 S.W.2d 228 (Ark.1985); see also People v. Bowers, supra.

The judgment is reversed and the cause is remanded to the trial court with direction[*1098] to reinstate the order of the department revoking Glasmann’s driver’s license.

SMITH and STERNBERG, JJ., concur.