LICENSE SUSPENSION LAW

42-2-126. Revocation of license based on administrative determination

(1) Legislative declaration. The purposes of this section are:

(a) To provide safety for all persons using the highways of this state by quickly revoking the driver’s license of any person who has shown himself or herself to be a safety hazard by driving with an excessive amount of alcohol in his or her body and any person who has refused to submit to an analysis as required by section 42-4-1301.1;

License Suspension(b) To guard against the potential for any erroneous deprivation of the driving privilege by providing an opportunity for a full hearing; and

(c) Following the revocation period, to prevent the relicensing of a person until the department is satisfied that the person’s alcohol problem is under control and that the person no longer constitutes a safety hazard to other highway users.

(2) Definitions. As used in this section, unless the context otherwise requires:

(a) “Excess BAC” means that a person had a BAC level sufficient to subject the person to a license revocation for excess BAC 0.08, excess BAC underage, excess BAC CDL, or excess BAC underage CDL.

(b) “Excess BAC 0.08” means that a person drove a vehicle in this state when the person’s BAC was 0.08 or more at the time of driving or within two hours after driving.

(c) “Excess BAC CDL” means that a person drove a commercial motor vehicle in this state when the person’s BAC was 0.04 or more at the time of driving or at any time thereafter.

(d) “Excess BAC underage” means that a person was under the age of twenty-one years and the person drove a vehicle in this state when the person’s BAC was in excess of 0.02 but less than 0.08 at the time of driving or within two hours after driving.

(e) “Excess BAC underage CDL” means that a person was under the age of twenty-one years and the person drove a commercial motor vehicle in this state when the person’s BAC was in excess of 0.02 but less than 0.04 at the time of driving or at any time thereafter.

(f) “Hearing officer” means the executive director of the department or an authorized representative designated by the executive director.

(g) “License” includes driving privilege.

(h) “Refusal” means refusing to take or complete, or to cooperate in the completing of, a test of the person’s blood, breath, saliva, or urine as required by section 18-3-106 (4) or 18-3-205 (4), C.R.S., or section 42-4-1301.1 (2).

(i) “Respondent” means a person who is the subject of a hearing under this section.

(3) Revocation of license. (a) Excess BAC 0.08. (I) The department shall revoke the license of a person for excess BAC 0.08 for:

(A) Nine months for a first violation committed on or after January 1, 2009; except that such a person may apply for a restricted license pursuant to the provisions of section 42-2-132.5;

(B) One year for a second violation; and

(C) Two years for a third or subsequent violation occurring on or after January 1, 2009, regardless of when the prior violations occurred; except that such a person may apply for a restricted license pursuant to the provisions of section 42-2-132.5.

(II) (Deleted by amendment, L. 2008, p. 833, § 3, effective January 1, 2009.)

(b) Excess BAC underage. (I) The department shall revoke the license of a person for excess BAC underage for three months for a first violation, for six months for a second violation, and for one year for a third or subsequent violation.

(II) (A) Notwithstanding the provisions of subparagraph (I) of this paragraph (b), a person whose license is revoked for a first offense under subparagraph (I) of this paragraph (b) and whose BAC was not more than 0.05 may request that, in lieu of the three-month revocation, the person’s license be revoked for a period of not less than thirty days, to be followed by a suspension period of such length that the total period of revocation and suspension equals three months. If the hearing officer approves the request, the hearing officer may grant the person a probationary license that may be used only for the reasons provided in section 42-2-127 (14) (a).

(B) The hearing to consider a request under this subparagraph (II) may be held at the same time as the hearing held under subsection (8) of this section; except that a probationary license may not become effective until at least thirty days have elapsed since the beginning of the revocation period.

(c) Refusal. (I) Except as provided in section 42-2-132.5 (4), the department shall revoke the license of a person for refusal for one year for a first violation, two years for a second violation, and three years for a third or subsequent violation; except that the period of revocation shall be at least three years if the person was driving a commercial motor vehicle that was transporting hazardous materials as defined in section 42-2-402 (7).

(II) Notwithstanding the provisions of subparagraph (I) of this paragraph (c), such a person whose license has been revoked for two years for a second violation or for three years for a third or subsequent violation may apply for a restricted license pursuant to the provisions of section 42-2-132.5.

(d) Excess BAC CDL. The department shall revoke for the disqualification period provided in 49 CFR 383.51 the commercial driving privilege of a person who was the holder of a commercial driver’s license or was driving a commercial motor vehicle for a violation of excess BAC 0.08, excess BAC CDL, or refusal.

(e) Excess BAC underage CDL. The department shall revoke the commercial driving privilege of a person for excess BAC underage CDL for three months for a first violation, six months for a second violation, and one year for a third or subsequent violation.

(4) Multiple restraints and conditions on driving privileges. (a) (I) Except as otherwise provided in this paragraph (a), a revocation imposed pursuant to this section for an offense committed before January 1, 2014, shall run consecutively and not concurrently with any other revocation imposed pursuant to this section.

(II) If a license is revoked for excess BAC and the person is also convicted on criminal charges arising out of the same occurrence for DUI, DUI per se, DWAI, or UDD, both the revocation under this section and any suspension, revocation, cancellation, or denial that results from the conviction shall be imposed, but the periods shall run concurrently, and the total period of revocation, suspension, cancellation, or denial shall not exceed the longer of the two periods.

(III) (A) If a license is revoked for refusal for an offense committed before January 1, 2014, the revocation shall not run concurrently, in whole or in part, with any previous or subsequent suspensions, revocations, or denials that may be provided for by law, including but not limited to any suspension, revocation, or denial that results from a conviction of criminal charges arising out of the same occurrence for a violation of section 42-4-1301.

(B) If a license is revoked for refusal for an offense committed on or after January 1, 2014, and the person is also convicted on criminal charges arising out of the same occurrence for DUI, DUI per se, DWAI, or UDD, both the revocation under this section and any suspension, revocation, cancellation, or denial that results from the conviction shall be imposed, but the periods shall run concurrently. The total period of revocation, suspension, cancellation, or denial shall not exceed the longer of the two periods.

(IV) The revocation of the commercial driving privilege under excess BAC CDL may run concurrently with another revocation pursuant to this section arising out of the same incident.

(V) Any revocation for refusal shall not preclude other action that the department is required to take in the administration of this title.

(b) (I) The periods of revocation specified in subsection (3) of this section are intended to be minimum periods of revocation for the described conduct. Except as described in section 42-2-132.5, a license shall not be restored under any circumstances, and a probationary license shall not be issued, during the revocation period.

(II) Notwithstanding the provisions of subparagraph (I) of this paragraph (b), a person whose privilege to drive a commercial motor vehicle has been revoked because of excess BAC CDL and who was twenty-one years of age or older at the time of the offense may apply for a driver’s license of another class or type as long as there is no other statutory reason to deny the person a license. The department may not issue the person a probationary license that would authorize the person to operate a commercial motor vehicle.

(c) Upon the expiration of the period of revocation under this section, if a person’s license is still suspended on other grounds, the person may seek a probationary license as authorized by section 42-2-127 (14) subject to the requirements of paragraph (d) of this subsection (4).

(d) (I) Following a license revocation, the department shall not issue a new license or otherwise restore the driving privilege unless the department is satisfied, after an investigation of the character, habits, and driving ability of the person, that it will be safe to grant the privilege of driving a motor vehicle on the highways to the person; except that the department may not require a person to undergo skills or knowledge testing prior to issuance of a new license or restoration of the person’s driving privilege if the person’s license was revoked for a first violation of excess BAC 0.08 or excess BAC underage.

(II) (A) If a person was determined to be driving with excess BAC and the person had a BAC that was 0.15 or more or if the person’s driving record otherwise indicates a designation as a persistent drunk driver as defined in section 42-1-102 (68.5), the department shall require the person to complete a level II alcohol and drug education and treatment program certified by the unit in the department of human services that administers behavioral health programs and services, including those related to mental health and substance abuse, pursuant to section 42-4-1301.3 as a condition to restoring driving privileges to the person and, upon the restoration of driving privileges, shall require the person to hold a restricted license requiring the use of an ignition interlock device pursuant to section 42-2-132.5 (1) (b).

(B) If a person seeking reinstatement is required to complete, but has not yet completed, a level II alcohol and drug education and treatment program, the person shall file with the department proof of current enrollment in a level II alcohol and drug education and treatment program certified by the unit in the department of human services that administers behavioral health programs and services, including those related to mental health and substance abuse, pursuant to section 42-4-1301.3, on a form approved by the department.

(5) Actions of law enforcement officer. (a) If a law enforcement officer has probable cause to believe that a person should be subject to license revocation for excess BAC or refusal, the law enforcement officer shall forward to the department an affidavit containing information relevant to the legal issues and facts that shall be considered by the department to determine whether the person’s license should be revoked as provided in subsection (3) of this section. The executive director of the department shall specify to law enforcement agencies the form of the affidavit to be used under this paragraph (a) and the types of information needed in the affidavit and may specify any additional documents or copies of documents needed by the department to make its determination in addition to the affidavit. The affidavit shall be dated, signed, and sworn to by the law enforcement officer under penalty of perjury, but need not be notarized or sworn to before any other person.

(b) (I) A law enforcement officer, on behalf of the department, shall personally serve a notice of revocation on a person who is still available to the law enforcement officer if the law enforcement officer determines that, based on a refusal or on test results available to the law enforcement officer, the person’s license is subject to revocation for excess BAC or refusal.

(II) When a law enforcement officer serves a notice of revocation, the law enforcement officer shall take possession of any driver’s license issued by this state or any other state that the person holds. When the law enforcement officer takes possession of a valid driver’s license issued by this state or any other state, the law enforcement officer, acting on behalf of the department, shall issue a temporary permit that is valid for seven days after the date of issuance.

(III) A copy of the completed notice of revocation form, a copy of any completed temporary permit form, and any driver’s, minor driver’s, or temporary driver’s license or any instruction permit taken into possession under this section shall be forwarded to the department by the law enforcement officer along with an affidavit as described in paragraph (a) of this subsection (5) and any additional documents or copies of documents as described in said paragraph (a).

(IV) The department shall provide to law enforcement agencies forms for notice of revocation and for temporary permits. The law enforcement agencies shall use the forms for the notice of revocation and for temporary permits and shall follow the form and provide the information for affidavits as provided by the department pursuant to paragraph (a) of this subsection (5).

(V) A law enforcement officer shall not issue a temporary permit to a person who is already driving with a temporary permit issued pursuant to subparagraph (II) of this paragraph (b).

(6) Initial determination and notice of revocation. (a) Upon receipt of an affidavit of a law enforcement officer and the relevant documents required by paragraph (a) of subsection (5) of this section, the department shall determine whether the person’s license should be revoked under subsection (3) of this section. The determination shall be based upon the information contained in the affidavit and the relevant documents submitted to the department, and the determination shall be final unless a hearing is requested and held as provided in subsection (8) of this section. The determination of these facts by the department is independent of the determination of a court of the same or similar facts in the adjudication of any criminal charges arising out of the same occurrence. The disposition of the criminal charges shall not affect any revocation under this section.

(b) (I) If the department determines that the person is subject to license revocation, the department shall issue a notice of revocation if a notice has not already been served upon the person by the law enforcement officer as provided in paragraph (b) of subsection (5) of this section. A notice of revocation shall clearly specify the reason and statutory grounds for the revocation, the effective date of the revocation, the right of the person to request a hearing, the procedure for requesting a hearing, and the date by which a request for a hearing must be made.

(II) In sending a notice of revocation, the department shall mail the notice in accordance with the provisions of section 42-2-119 (2) to the person at the last-known address shown on the department’s records, if any, and to any address provided in the law enforcement officer’s affidavit if that address differs from the address of record. The notice shall be deemed received three days after mailing.

(c) If the department determines that the person is not subject to license revocation, the department shall notify the person of its determination and shall rescind any order of revocation served upon the person by the law enforcement officer.

(d) A license revocation shall become effective seven days after the person has received the notice of revocation as provided in subsection (5) of this section or is deemed to have received the notice of revocation by mail as provided in paragraph (b) of this subsection (6). If the department receives a written request for a hearing pursuant to subsection (7) of this section within that same seven-day period and the department issues a temporary permit pursuant to paragraph (d) of subsection (7) of this section, the effective date of the revocation shall be stayed until a final order is issued following the hearing; except that any delay in the hearing that is caused or requested by the person or counsel representing the person shall not result in a stay of the revocation during the period of delay.

(7) Request for hearing. (a) A person who has received a notice of revocation may make a written request for a review of the department’s determination at a hearing. The request may be made on a form available at each office of the department.

(b) A person must request a hearing in writing within seven days after the day the person receives the notice of revocation as provided in subsection (5) of this section or is deemed to have received the notice by mail as provided in paragraph (b) of subsection (6) of this section. If the department does not receive the written request for a hearing within the seven-day period, the right to a hearing is waived, and the determination of the department that is based on the documents and affidavit required by subsection (5) of this section becomes final.

(c) If a person submits a written request for a hearing after expiration of the seven-day period and if the request is accompanied by the person’s verified statement explaining the failure to make a timely request for a hearing, the department shall receive and consider the request. If the department finds that the person was unable to make a timely request due to lack of actual notice of the revocation or due to factors of physical incapacity such as hospitalization or incarceration, the department shall waive the period of limitation, reopen the matter, and grant the hearing request. In such a case, the department shall not grant a stay of the revocation pending issuance of the final order following the hearing.

(d) At the time a person requests a hearing pursuant to this subsection (7), if it appears from the record that the person is the holder of a valid driver’s or minor driver’s license or of an instruction permit or of a temporary permit issued pursuant to paragraph (b) of subsection (5) of this section and that the license or permit has been surrendered, the department shall stay the effective date of the revocation and issue a temporary permit that shall be valid until the scheduled date for the hearing. If necessary, the department may later extend the temporary permit or issue an additional temporary permit in order to stay the effective date of the revocation until the final order is issued following the hearing, as required by subsection (8) of this section. If the person notifies the department in writing at the time that the hearing is requested that the person desires the law enforcement officer’s presence at the hearing, the department shall issue a written notice for the law enforcement officer to appear at the hearing. A law enforcement officer who is required to appear at a hearing may, at the discretion of the hearing officer, appear in real time by telephone or other electronic means in accordance with section 42-1-218.5.

(e) At the time that a person requests a hearing, the department shall provide to the person written notice advising the person:

(I) Of the right to subpoena the law enforcement officer for the hearing and that the subpoena must be served upon the law enforcement officer at least five calendar days prior to the hearing;

(II) Of the person’s right at that time to notify the department in writing that the person desires the law enforcement officer’s presence at the hearing and that, upon receiving the notification, the department shall issue a written notice for the law enforcement officer to appear at the hearing;

(III) That, if the law enforcement officer is not required to appear at the hearing, documents and an affidavit prepared and submitted by the law enforcement officer will be used at the hearing; and

(IV) That the affidavit and documents submitted by the law enforcement officer may be reviewed by the person prior to the hearing.

(f) Any subpoena served upon a law enforcement officer for attendance at a hearing conducted pursuant to this section shall be served at least five calendar days before the day of the hearing.

(8) Hearing. (a) (I) The hearing shall be scheduled to be held as quickly as practicable but not more than sixty days after the date the department receives the request for a hearing; except that, if a hearing is rescheduled because of the unavailability of a law enforcement officer or the hearing officer in accordance with subparagraph (III) or (IV) of this paragraph (a), the hearing may be rescheduled more than sixty days after the date the department receives the request for the hearing, and the department shall continue any temporary driving privileges held by the person until the date to which the hearing is rescheduled. At least ten days prior to the scheduled or rescheduled hearing, the department shall provide in the manner specified in section 42-2-119 (2) a written notice of the time and place of the hearing to the respondent unless the parties agree to waive this requirement. Notwithstanding the provisions of section 42-2-119, the last-known address of the respondent for purposes of notice for any hearing pursuant to this section shall be the address stated on the hearing request form.

(II) A law enforcement officer who submits the documents and affidavit required by subsection (5) of this section need not be present at the hearing unless the hearing officer requires that the law enforcement officer be present and the hearing officer issues a written notice for the law enforcement officer’s appearance or unless the respondent or the respondent’s attorney determines that the law enforcement officer should be present and serves a timely subpoena upon the law enforcement officer in accordance with paragraph (f) of subsection (7) of this section.

(III) If a law enforcement officer, after receiving a notice or subpoena to appear from either the department or the respondent, is unable to appear at the original or rescheduled hearing date due to a reasonable conflict, including but not limited to training, vacation, or personal leave time, the law enforcement officer or the law enforcement officer’s supervisor shall contact the department not less than forty-eight hours prior to the hearing and reschedule the hearing to a time when the law enforcement officer will be available. If the law enforcement officer cannot appear at the original or rescheduled hearing because of medical reasons, a law enforcement emergency, another court or administrative hearing, or any other legitimate, just cause as determined by the department, and the law enforcement officer or the law enforcement officer’s supervisor gives notice of the law enforcement officer’s inability to appear to the department prior to the dismissal of the revocation proceeding, the department shall reschedule the hearing following consultation with the law enforcement officer or the law enforcement officer’s supervisor at the earliest possible time when the law enforcement officer and the hearing officer will be available.

(IV) If a hearing officer cannot appear at an original or rescheduled hearing because of medical reasons, a law enforcement emergency, another court or administrative hearing, or any other legitimate, just cause, the hearing officer or the department may reschedule the hearing at the earliest possible time when the law enforcement officer and the hearing officer will be available.

(b) The hearing shall be held in the district office nearest to where the violation occurred, unless the parties agree to a different location; except that, at the discretion of the department, all or part of the hearing may be conducted in real time, by telephone or other electronic means in accordance with section 42-1-218.5.

(c) The department shall consider all relevant evidence at the hearing, including the testimony of any law enforcement officer and the reports of any law enforcement officer that are submitted to the department. The report of a law enforcement officer shall not be required to be made under oath, but the report shall identify the law enforcement officer making the report. The department may consider evidence contained in affidavits from persons other than the respondent, so long as the affidavits include the affiant’s home or work address and phone number and are dated, signed, and sworn to by the affiant under penalty of perjury. The affidavit need not be notarized or sworn to before any other person.

(d) The hearing officer shall have authority to:

(I) Administer oaths and affirmations;

(II) Compel witnesses to testify or produce books, records, or other evidence;

(III) Examine witnesses and take testimony;

(IV) Receive and consider any relevant evidence necessary to properly perform the hearing officer’s duties as required by this section;

(V) Take judicial notice as defined by rule 201 of article II of the Colorado rules of evidence, subject to the provisions of section 24-4-105 (8), C.R.S., which shall include:

(A) Judicial notice of general, technical, or scientific facts within the hearing officer’s knowledge;

(B) Judicial notice of appropriate and reliable scientific and medical information contained in studies, articles, books, and treatises; and

(C) Judicial notice of charts prepared by the department of public health and environment pertaining to the maximum BAC levels that people can obtain through the consumption of alcohol when the charts are based upon the maximum absorption levels possible of determined amounts of alcohol consumed in relationship to the weight and gender of the person consuming the alcohol;

(VI) Issue subpoenas duces tecum to produce books, documents, records, or other evidence;

(VII) Issue subpoenas for the attendance of witnesses;

(VIII) Take depositions or cause depositions or interrogatories to be taken;

(IX) Regulate the course and conduct of the hearing; and

(X) Make a final ruling on the issues.

(e) When an analysis of the respondent’s BAC is considered at a hearing:

(I) If the respondent establishes, by a preponderance of the evidence, that the respondent consumed alcohol between the time that the respondent stopped driving and the time of testing, the preponderance of the evidence must also establish that the minimum required BAC was reached as a result of alcohol consumed before the respondent stopped driving; and

(II) If the evidence offered by the respondent shows a disparity between the results of the analysis done on behalf of the law enforcement agency and the results of an analysis done on behalf of the respondent, and a preponderance of the evidence establishes that the blood analysis conducted on behalf of the law enforcement agency was properly conducted by a qualified person associated with a laboratory certified by the department of public health and environment using properly working testing devices, there shall be a presumption favoring the accuracy of the analysis done on behalf of the law enforcement agency if the analysis showed the BAC to be 0.096 or more. If the respondent offers evidence of blood analysis, the respondent shall be required to state under oath the number of analyses done in addition to the one offered as evidence and the names of the laboratories that performed the analyses and the results of all analyses.

(f) The hearing shall be recorded. The hearing officer shall render a decision in writing, and the department shall provide a copy of the decision to the respondent.

(g) If the respondent fails to appear without just cause, the right to a hearing shall be waived, and the determination of the department which is based upon the documents and affidavit required in subsection (5) of this section shall become final.

(h) Pursuant to section 42-1-228, a driver may challenge the validity of the law enforcement officer’s initial contact with the driver and the driver’s subsequent arrest for DUI, DUI per se, or DWAI. The hearing officer shall consider such issues when a driver raises them as defenses.

(9) Appeal. (a) Within thirty days after the department issues its final determination under this section, a person aggrieved by the determination shall have the right to file a petition for judicial review in the district court in the county of the person’s residence.

(b) Judicial review of the department’s determination shall be on the record without taking additional testimony. If the court finds that the department exceeded its 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, the court may reverse the department’s determination.

(c) A filing of a petition for judicial review shall not result in an automatic stay of the revocation order. The court may grant a stay of the order only upon a motion and hearing and upon a finding that there is a reasonable probability that the person will prevail upon the merits.

(10) Notice to vehicle owner. If the department revokes a person’s license pursuant to paragraph (a), (c), or (d) of subsection (3) of this section, the department shall mail a notice to the owner of the motor vehicle used in the violation informing the owner that:

(a) The motor vehicle was driven in an alcohol-related driving violation; and

(b) Additional alcohol-related violations involving the motor vehicle by the same driver may result in a requirement that the owner file proof of financial responsibility under the provisions of section 42-7-406 (1.5).

(11) Applicability of “State Administrative Procedure Act”. The “State Administrative Procedure Act”, article 4 of title 24, C.R.S., shall apply to this section to the extent it is consistent with subsections (7), (8), and (9) of this section relating to administrative hearings and judicial review.

HISTORY: Source: L. 94: (9)(b) and (9)(c)(II) amended, p. 2807, § 580, effective July 1; entire title amended with relocations, p. 2135, § 1, effective January 1, 1995.L. 95: (6)(b)(VI) and (6)(b)(VII) added and (7)(a) amended, p. 1303, § § 1, 2, effective July 1.L. 96: (7)(a)(I) amended, p. 272, § 1, effective April 8.L. 97: (2)(a)(I), (2)(a)(III), (3)(b), (5)(a), (6)(c)(I), (7)(a)(I), (9)(c)(I), and (9)(c)(III) amended and (2)(a)(I.5), (2)(a)(IV), (6)(b)(II.5), (6)(b)(VIII), and (6)(b)(IX) added, pp. 1461, 1464 § § 4, 5, effective July 1; (7)(c) amended, p. 334, § 1, effective August 6.L. 98: (6)(b)(IX)(A) amended, p. 174, § 3, effective April 6; (2.5) added, p. 1239, § 3, effective July 1.L. 99: (2)(a)(II), (8)(e)(II), (8)(e)(III), and (8)(e)(V) amended and (8)(e)(II.5) added, p. 90, § 1, effective July 1; (6)(c)(III) added, p. 1158, § 2, effective July 1.L. 2000: (2)(a)(I.5), (2)(a)(IV), (5)(a), (9)(c)(I), and (9)(c)(III) amended and (2)(a)(I.7) added, p. 512, § 1, effective May 12; (5)(c) and (8)(d) amended, p. 1354, § 25, effective July 1, 2001.L. 2001: (8)(e)(II), (8)(f), and (9)(a) amended, p. 553, § 4, effective May 23; (7)(c) amended, p. 787, § 4, effective June 1; (7)(a)(II) repealed, p. 1284, § 67, effective June 5.L. 2002: (1)(a), (2)(a)(I.7), (2)(a)(II), (2)(a)(IV), (3)(a), (5)(a), (7)(c)(II), (7)(c)(III), (9)(c)(I), and (9)(c)(III) amended, p. 1915, § 6, effective July 1.L. 2003: (6)(b)(I) and (6)(b)(IX)(B) amended and (6)(b)(IX)(A.5) added, p. 2429, § 1, effective July 1.L. 2004: (2)(a)(I), (2)(a)(I.5), (5)(a)(I), (7)(a)(I), (9)(c)(I), and (9)(c)(II) amended, p. 782, § 5, effective July 1.L. 2005: (3) amended, p. 647, § 16, effective May 27.L. 2006: (5)(a)(I), (5)(a)(II), (6)(b)(III), and (6)(b)(V) amended and (6)(b)(III.5) added, p. 260, § 1, effective March 31; (6)(b)(IX)(A.5) and (7)(c)(II) amended, p. 1366, § 2, effective January 1, 2007.L. 2007: (2)(a)(I.5), (2)(a)(I.7), (6)(b)(IX)(A.5), and (9)(c)(I) amended, p. 502, § 1, effective July 1.L. 2008: Entire section R&RE, p. 232, § 1, effective July 1; (3)(a) and (3)(c) amended, p. 833, § 3, effective January 1, 2009.L. 2011: (4)(d)(II) amended, (HB 11-1303), ch. 264, p. 1179, § 102, effective August 10.L. 2012: (4)(d)(II)(A) and (9)(c) amended, (HB 12-1168), ch. 278, p. 1482, § 4, effective August 8.L. 2013: (8)(h) added, (HB 13-1077), ch. 196, p. 798, § 1, effective May 11; (3)(c)(I), (4)(a)(I), (4)(a)(III), (4)(b) (I), and (4)(d)(II)(A) amended and (4)(a)(V) added, (HB 13-1240), ch. 361, pp. 2114, 2112, § § 5, 3, effective January 1, 2014.



Editor’s note: (1) This section is similar to former § 42-2-122.1 as it existed prior to 1994, and the former § 42-2-126 was relocated to § 42-2-134.(2) Subsections (9)(b) and (9)(c)(II) were originally numbered as § 42-2-122.1 (8)(b) and (8)(c)(III), and the amendments to them in House Bill 94-1029 were harmonized with Senate Bill 94-001.

Cross references: For the legislative declaration contained in the 1998 act enacting subsection (2.5), see section 1 of chapter 295, Session Laws of Colorado 1998. For the legislative declaration contained in the 2001 act amending subsection (7)(c), see section 1 of chapter 229, Session Laws of Colorado 2001. For the legislative declaration contained in the 2008 act amending subsections (3)(a) and (3)(c), see section 1 of chapter 221, Session Laws of Colorado 2008.
 
RECENT ANNOTATIONS

Legality of initial stop and arrest for DUI are proper issues in proceedings under this section. Although the validity of the initial stop and the subsequent DUI arrest may not be necessary elements to a revocation action, a driver may properly raise such issues as a defense in such proceedings. Peterson v. Tipton, 833 P.2d 830 (Colo. App. 1992). But see Francen v. Dept. of Rev., 2012 COA 110, — P.3d –, aff’d, 2014 CO 54, 328 P.3d 111, and Hanson v. Dept. of Rev., 2012 COA 143, — P.3d –, aff’d, 2014 CO 55, 328 P.3d 122 (both decided under law in effect prior to 2013 amendment), annotated below.

Legality of initial contact between driver and police not relevant in civil proceeding. A hearing officer or court is not required or allowed to determine in a revocation proceeding under this section the lawfulness of the initial contact. Francen v. Dept. of Rev., 2012 COA 110, — P.3d –, aff’d, 2014 CO 54, 328 P.3d 111 (declining to follow Peterson v. Tipton, 883 P.2d 830 (Colo. App. 1992)); Hanson v. Dept. of Rev., 2012 COA 143, — P.3d –, aff’d, 2014 CO 55, 328 P.3d 122 (both decided under law in effect prior to 2013 amendment).

“Probable cause” in the context of this section as it existed before the 2013 amendment refers to the quantum and quality of evidence necessary for a law enforcement officer to issue a notice of driver’s license revocation, not whether the officer’s initial contact with the driver was lawful. Francen v. Dept. of Rev., 2014 CO 54, 328 P.3d 111; Hanson v. Dept. of Rev., 2012 COA 143, — P.3d –, aff’d, 2014 CO 55, 328 P.3d 122 (both decided under law in effect prior to 2013 amendment).

The exclusionary rule does not apply to license revocation hearings because an administrative hearing is remedial not criminal in nature. Francen v. Dept. of Rev., 2012 COA 110, — P.3d –, aff’d, 2014 CO 54, 328 P.3d 111; Hanson v. Dept. of Rev., 2012 COA 143, — P.3d –, aff’d, 2014 CO 55, 328 P.3d 122 (both decided under law in effect prior to 2013 amendment).

But a court may elect to exclude evidence acquired through misconduct of a law enforcement officer if the misconduct is in bad faith or shocks the conscience of the court. Hanson v. Dept. of Rev., 2014 CO 55, 328 P.3d 122.

Officer is not authorized to request and to direct an arrested driver to submit to testing absent probable cause for the DUI arrest and, by implication, absent reasonable suspicion for the initial stop. Peterson v. Tipton, 833 P.2d 830 (Colo. App. 1992). But see Francen v. Dept. of Rev., 2012 COA 110, — P.3d –, aff’d, 2014 CO 54, 328 P.3d 111 (decided under law in effect prior to 2013 amendment), annotated above.

Questions as to legality of initial motor vehicle stop and subsequent arrest of driver for driving under the influence may properly be raised as issues in driver’s license revocation proceedings. Peterson v. Tipton, 833 P.2d 830 (Colo. App. 1992). But see Francen v. Dept. of Rev., 2012 COA 110, — P.3d –, aff’d, 2014 CO 54, 328 P.3d 111, and Hanson v. Dept. of Rev., 2012 COA 143, — P.3d –, aff’d, 2014 CO 55, 328 P.3d 122 (both decided under law in effect prior to 2013 amendment), annotated above.
 
ANNOTATION

Law reviews. For article, “The New Colorado Per Se DUI Law”, see 12 Colo. Law. 1451 (1983). For article, “DUI Defense Under the Per Se Law”, see 14 Colo. Law. 2155 (1985). For article, “Drinking and Driving: An Update on the 1989 Legislation”, see Colo. Law. 1943 (1989). For article, “Driver’s License Considerations in DUI Cases-Part I”, see 28 Colo. Law. 85 (May 1999). For article, “Driver’s License Considerations in DUI Cases-Part II”, see 28 Colo. Law. 91 (July 1999).

Annotator’s note. Since § 42-2-126 is similar to § 42-2-122.1 as it existed prior to the 1994 amending of title 42 as enacted by SB 94-1, relevant cases construing that provision have been included in the annotations to this section.

Due process not violated. This section affords an opportunity to be heard consistent with the requirements of due process. Falbo v. Rev. Motor Veh. Div., 738 P.2d 43 (Colo. App. 1987).

This section does not violate constitutional guarantees of equal protection of the law, even though a person whose driver’s license was suspended administratively through § 42-2-122.1 could not receive a probationary license and a person whose license was suspended under § 42-2-123 as a result of a criminal conviction could receive a probationary license, because the court, after making a determination of whether persons allegedly subject to disparate treatment by these sections were in fact similarly situated, found that no classification of persons similarly situated exists since this section involved an administrative suspension as opposed to a suspension resulting from a criminal conviction. Bath v. State Dept. of Rev., 758 P.2d 1381 (Colo. 1988); Hancock v. State Dept. of Rev., 758 P.2d 1372 (Colo. 1988).

The phrase “without additional testimony” precludes a judgment on the grounds that the department of revenue failed to file a brief. In addition, the standard of review requires certain finding. Without such findings, a court may not overturn a driver’s license suspension on review on procedural grounds. Myers v. Dept. of Rev., 126 P.3d 328 (Colo. App. 2005).

Statute proscribing driving with a blood alcohol content in excess of set limit provides sufficient notice of proscribed conduct and is not unconstitutionally vague or violative of due process. The fact of having consumed a quantity of alcohol notifies a person he is in jeopardy of violating the law. Abundant available information tells amount of alcohol consumption necessary to reach specific blood alcohol content levels. Smith v. Charnes, 728 P.2d 1287 (Colo. 1986); Hancock v. State Dept. of Rev., 758 P.2d 1372 (Colo. 1988).

Notice given licensees through publication of express consent statute satisfies due process; licensee is presumed to know law regarding operation of motor vehicles, including consequences of refusing request for chemical testing. Dikeman v. Charnes, 739 P.2d 870 (Colo. App. 1987).

Driver was not entitled to advisement of consequences of refusing chemical test to determine blood alcohol level before he was requested by officer to submit to test. Dikeman v. Charnes, 739 P.2d 870 (Colo. App. 1987).

Department’s failure to instruct motorist to obtain duplicate license to surrender after revocation does not violate motorist’s equal protection rights. Haynes v. Charnes, 772 P.2d 670 (Colo. App. 1989).

The state does not violate the double jeopardy clause by subjecting individuals to criminal prosecution pursuant to the DUI or DUI per se statutes subsequent to subjecting them to an administrative license revocation proceeding. Deutschendorf v. People, 920 P.2d 53 (Colo. 1996).

Statute is remedial not punitive, and double jeopardy protection does not apply. Revocation occurred because defendant refused to take the test for blood alcohol and not because of the level of alcohol in his bloodstream. Consequently, defendant was arrested for conduct different from the conduct giving rise to the license revocation, that is, driving a motor vehicle while impaired by the consumption of alcohol, as opposed to a refusal to take the test. People v. Olson, 921 P.2d 51 (Colo. App. 1996).

This section is remedial in nature and is to be liberally construed in the public interest. Cordova v. Mansheim, 725 P.2d 1158 (Colo. App. 1986).

Legality of initial stop and arrest for DUI are proper issues in proceedings under this section. Although the validity of the initial stop and the subsequent DUI arrest may not be necessary elements to a revocation action, a driver may properly raise such issues as a defense in such proceedings. Peterson v. Tipton, 833 P.2d 830 (Colo. App. 1992). But see Francen v. Colo. Dept. of Rev., 2012 COA 110, — P.3d — and Hanson v. Colo. Dept. of Rev., 2012 COA 143, — P.3d –, annotated below.

Legality of initial contact between driver and police not relevant in civil proceeding. A hearing officer or court is not required or allowed to determine in a revocation proceeding under this section the lawfulness of the initial contact. Francen v. Colo. Dept. of Rev., 2012 COA 110, — P.3d — (declining to follow Peterson v. Tipton, 883 P.2d 830 (Colo. App. 1992)).

The exclusionary rule does not apply to license revocation hearing. The administrative hearing is remedial not criminal in nature. Therefore, evidence will not be excluded based upon a warrantless entry of a home by a peace officer. Hanson v. Colo. Dept. of Rev., 2012 COA 143, — P.3d –.

Officer is not authorized to request and to direct an arrested driver to submit to testing absent probable cause for the DUI arrest and, by implication, absent reasonable suspicion for the initial stop. Peterson v. Tipton, 833 P.2d 830 (Colo. App. 1992). But see Francen v. Colo. Dept. of Rev., 2012 COA 110, — P.3d –.

In determining validity of an investigatory stop, the first inquiry is whether there were specific and articulable facts known to the police officer which, taken together with rational inferences from these facts, created a reasonable suspicion of criminal activity. Peterson v. Tipton, 833 P.2d 830 (Colo. App. 1992).

Officer need not include reasons for driver’s erratic driving behavior in report but only that the driving was erratic and thus the officer had probable cause to stop the auto. Kollodge v. Charnes, 741 P.2d 1260 (Colo. App. 1987).

Jurisdiction is acquired in a license revocation proceeding under this section when affidavits and other documents forwarded by the arresting officer contain sufficient information of a reliable character to make a revocation determination. Duckett v. Tipton, 826 P.2d 873 (Colo. App. 1992).

Although arresting officer’s failure to swear to the affirmation on a revocation form under penalty of perjury violated statutory requirement, such violation does not prevent department of revenue from acquiring jurisdiction in license revocation proceeding and does not warrant reversal of revocation. Duckett v. Tipton, 826 P.2d 873 (Colo. App. 1992).

Where arresting officer swore to validity of documents submitted at revocation hearing, any error in the verification procedure before a notary public was not prejudicial to motorist. Duckett v. Tipton, 826 P.2d 873 (Colo. App. 1992).

Statute does not require arresting officer to have personal knowledge of every fact stated within verified report required by subsection (2)(a). Sheldon v. Dept. of Rev., 742 P.2d 968 (Colo. App. 1987).

Reasonable suspicion justifying initial stop was furnished by nonverbal signal of gas station clerk who had called to report intoxicated customer preparing to drive away. Peterson v. Tipton, 833 P.2d 830 (Colo. App. 1992).

Arresting officer had reasonable grounds for determining that driver was driving under the influence, even though he did not actually see the driver driving but relied on information provided to him by fellow officer and on his own observation of driver exiting the vehicle. Sheldon v. Dept. of Rev., 742 P.2d 968 (Colo. App. 1987).

Investigating officer’s hearsay report as to the time that the driver was behind the wheel of the motor vehicle could be used to establish timeliness of blood alcohol test without violating due process because such report was reliable, trustworthy, and possessed probative value. Colo. Div. of Rev. v. Lounsbury, 743 P.2d 23 (Colo. 1987); Charnes v. Olona, 743 P.2d 36 (Colo. 1987).

Revocation of driver’s license upheld where substantial evidence in record supported such revocation, even though the hearing officer erred by applying the so-called “20% rule” to resolve differences between two intoxilyzer test results. Charnes v. Robinson, 772 P.2d 62 (Colo. 1989).

Invalidity of “20% rule”. Use of rule which provides that a second intoxilyzer test result within 20% of the first test result supports and does not refute the first test result was invalid as a standard or guide in adjudicatory hearings under this article, since it had the effect of an agency rule or regulation, but was not promulgated according to the rule-making authority delegated to the director of the department of revenue. Charnes v. Robinson, 772 P.2d 62 (Colo. 1989).

Retest is not the only method of refuting intoxilyzer results. Where undisputed testimony showed the machine consistently read .005percnt; too high, and the margin by which driver allegedly exceeded the statutory limit was only .003percnt;, the department’s prima facie case was nullified, and retest could serve no valid purpose. Scherr v. Dept. of Rev., 49 P.3d 1217 (Colo. App. 2002).

Revocation of a driver’s license under the “per se” statute requires a properly supported finding that the licensee was driving, not a finding that the officer who requested that the licensee submit to a blood alcohol test had reasonable grounds to believe that the licensee was operating a motor vehicle while under the influence of, or impaired by, alcohol. Charnes v. Lobato, 743 P.2d 27 (Colo. 1987).

The term “drove a vehicle”, for the purposes of subsection (1)(a)(I), means a person has actual physical control of a motor vehicle upon a highway. Brewer v. Motor Vehicle Div., Dept. of Rev., 720 P.2d 564 (Colo. 1986); Smith v. Charnes, 728 P.2d 1287 (Colo. 1986); Nefzger v. Dept. of Rev., 739 P.2d 224 (Colo. 1987); Hancock v. State Dept. of Rev., 758 P.2d 1372 (Colo. 1988).

“Actual physical control” does not require that the vehicle be moving on its own power or that the vehicle travel a particular distance. Therefore, licensee was in actual physical control of the vehicle when he was seated behind the wheel, with the engine running and the car in gear, as the vehicle was towed out of a snowbank. Colo. Div. of Rev. v. Lounsbury, 743 P.2d 23 (Colo. 1987).

Person who was in the driver’s seat of an automobile which had its motor running and its parking lights on and which was located in a private lot was in actual physical control of the automobile and thus was driving a motor vehicle. Therefore, refusal to consent to testing violates “express consent” statute and justifies revocation of license under this section. Motor Vehicle Div. v. Warman, 763 P.2d 558 (Colo. 1988).

Specific criminal charge is not required for a valid administrative license revocation. Irey v. Nielson, 716 P.2d 486 (Colo. App. 1986).

The department’s determination of the facts with respect to administrative revocation is independent of the determination of the same or similar facts in the adjudication of any criminal charges arising out of the same occurrence. When the statutory text evidences a legislative intent to treat separately the administrative and criminal consequences of driving under the influence of intoxicating liquor, the statute should be interpreted in the manner that gives effect to the entire legislative scheme. Nefzger v. Dept. of Rev., 739 P.2d 224 (Colo. 1987).

Issue preclusion does not bar revocation despite different outcome in criminal case. In a revocation proceeding, the department of revenue may make findings “independent of the determination of the same or similar facts in the adjudication of any criminal charges arising out of the same occurrence”. Accordingly, given the substantial differences in the purposes and procedures in a revocation hearing and a criminal case, issue preclusion does not prevent the independent resolution of the same issue in each proceeding. Meyer v. Dept. of Rev., 143 P.3d 1181 (Colo. App. 2006) (decided prior to 2008 repeal and reenactment).

Hearsay evidence alone may be used to establish an element at a revocation hearing if such evidence is sufficiently reliable and trustworthy, and the evidence possesses probative value commonly accepted by reasonable and prudent persons in the conduct of their affairs. Colo. Dept. of Rev. v. Kirke, 743 P.2d 16 (Colo. 1987); Colo. Div. of Rev. v. Lounsbury, 743 P.2d 23 (Colo. 1987); Charnes v. Lobato, 743 P.2d 27 (Colo. 1987); Heller v. Velasquez, 743 P.2d 34 (Colo. 1987); Charnes v. Olona, 743 P.2d 36 (Colo. 1987).

Burden of proof. At a driver’s license revocation hearing, the state must establish by a preponderance of the evidence that the licensee drove a vehicle with an alcohol concentration of 0.15 or more grams of alcohol per 210 liters of breath. Schocke v. St. Dept. of Rev., 719 P.2d 361 (Colo. App. 1986).

State did not meet burden with regard to driver’s breath alcohol concentration where two different tests, each conducted by a certified operator on a certified machine which had been verified as operating properly prior to the test, gave different results as to whether the driver exceeded acceptable breath alcohol concentration level. Schocke v. St. Dept. of Rev., 719 P.2d 361 (Colo. App. 1986).

State did not meet its burden of proof where undisputed testimony showed the machine used to test driver’s breath consistently read .005percnt; too high, and the margin by which driver allegedly exceeded the statutory limit was only .003percnt;. Scherr v. Dept. of Rev., 49 P.3d 1217 (Colo. App. 2002).

Revocation of driver’s license is not reversible upon review based upon nonjurisdictional statutory violation unless substantial rights of licensee have been prejudiced. Alford v. Tipton, 822 P.2d 513 (Colo. App. 1991).

A field test on a portable breath testing device given to the suspect prior to arrest did not constitute a chemical test within the meaning of the express consent statute, and so a revocation for refusal to submit to additional testing is supported. Davis v. Carroll, 782 P.2d 884 (Colo. App. 1989).

Chemical test for alcohol relied upon for revocation of license requested more than one hour after the alleged driving offense but within a reasonable time of that offense will support the revocation of a driver’s license for refusal to submit to the test. Charnes v. Boom, 766 P.2d 665 (Colo. 1988).

“Within one hour thereafter” means up to and including the entire sixtieth minute after the commission of the alleged offense. Bath v. State Dept. of Rev., 762 P.2d 767 (Colo. App. 1988) (decided under law in effect prior to 1987 amendment changing the one hour to two hours).

Motorist’s expert witness showing test results conflicting with the state’s results must show that health department regulations were followed in performing the test and establish that the machine performing the test was operating correctly. Davis v. Charnes, 740 P.2d 534 (Colo. App. 1987).

Hearing officer cannot refuse to accept into evidence the result of an independently tested breath test sample because driver would be denied due process by being deprived of any chance to rebut results of the state’s test. Mameda v. Colo. Dept. of Rev., 698 P.2d 277 (Colo. App. 1985).

Subsections (1)(a) and (8)(c) indicate legislative intent that license revocation be based on the results of the chemical analysis at least to the extent that the test can be considered prima facie proof that blood alcohol concentration was in excess of the statutory standard. Swain v. State Dept. of Rev., 717 P.2d 507 (Colo. App. 1985).

Subsections (1)(a)(I) and (8)(c) are not inconsistent, and thus evidence of excessive blood alcohol concentration obtained pursuant to subsection (8)(c) was sufficient to sustain revocation of driver’s license. Harvey v. Charnes, 728 P.2d 373 (Colo. App. 1986) (decided prior to 1987 amendments to subsections (1)(a) and (8)(c)).

Margin of error may be considered in determining weight accorded to blood alcohol test, but hearing officer did not abuse discretion in finding blood alcohol in excess of statutory standard where there was no showing that the machine was inaccurate. Swain v. State Dept. of Rev., 717 P.2d 507 (Colo. App. 1985).

Hearing officer did not act arbitrarily or capriciously in revoking defendant’s license upon finding that he had blood alcohol content of .159, despite contention that there was a margin of error in the test so that blood alcohol content could have been less than .15. Nefzger v. Dept. of Rev., 739 P.2d 224 (Colo. 1987).

Presumption in subsection (8)(e)(II) does not apply to determination of whether a person is a “persistent drunk driver”, as that term is defined in § 42-1-102. Presumption that favors the accuracy of a blood alcohol content analysis done on behalf of a law enforcement agency when a driver submits conflicting test results applies only to revocation determinations. Garcia v. Huber, 252 P.3d 486 (Colo. App. 2010).

“Verified report” is not necessarily a notarized report. The department of revenue had jurisdiction to revoke commercial driver’s license for one year where police officer’s report contained all necessary information, was sworn to under penalty of perjury, and used form supplied by department. Dept. of Rev. v. Hibbs, 122 P.3d 999 (Colo. 2005) (decided under this section as it existed prior to 2005 amendment).

Although failure of arresting officer to date notice of revocation form violated requirements of this section, department of revenue acquired jurisdiction over revocation proceedings when submittal of affidavit and other documents forwarded by arresting officer contained sufficient information of a reliable character to permit department to make revocation determination. Alford v. Tipton, 822 P.2d 513 (Colo. App. 1991).

Objective standard of driver’s external manifestations of willingness or unwillingness to submit to testing for purposes of this section is sole basis for determination of whether driver refused to take test. Alford v. Tipton, 822 P.2d 513 (Colo. App. 1991).

The two-hour standard in § 42-4-1301.1 does not apply to a refusal to take a test. The refusal to take a blood alcohol test is an independent cause for revoking driver’s license. Therefore, so long as the request is within a reasonable time, a refusal to take the test may result in loss of a driver’s license. Stumpf v. Colo. Dept. of Rev., 231 P.3d 1 (Colo. App. 2009).

Arresting officer’s failure to serve driver personally with notice of revocation of his driver’s license does not affect department of revenue’s jurisdiction to serve the driver with such notice and to enter revocation order. Kenney v. Charnes, 717 P.2d 1020 (Colo. App. 1986); Potter v. Dept. of Rev., 739 P.2d 908 (Colo. App. 1987).

Driver could not be deemed to have received notice of revocation of his license where mailed notice was returned by postal authorities as unclaimed; return was evidence of fact that notice was not served, rebutting presumption indicated in subsection (3) (b) that service of notice would be effective three days after mailing. Potter v. Dept. of Rev., 739 P.2d 908 (Colo. App. 1987).

After mailed notice of revocation was returned by postal authorities as unclaimed, driver’s written request for hearing, together with affidavit setting forth reasons for late filing of request, were sufficient. Potter v. Dept. of Rev., 739 P.2d 908 (Colo. App. 1987).

Waiver of notice. Although motorist did not make an express waiver, the fact that he and his attorney appeared and argued the merits of his driver’s license revocation but did not object to the timeliness of notice demonstrated his willingness to forego receipt of timely notice and constituted a waiver. Mattingly v. Charnes, 700 P.2d 927 (Colo. App. 1985); Hendrickson v. State Dept. of Rev., M.V.D., 716 P.2d 489 (Colo. App. 1986).

Since the motorist failed to surrender his driver’s license as required by this section, such refusal gave the department of revenue grounds to deny his request for a revocation hearing. Haynes v. Charnes, 772 P.2d 670 (Colo. App. 1989).

This section provides that the Administrative Procedure Act applies to license revocation hearings. Nye v. State Dept. of Rev., 902 P.2d 959 (Colo. App. 1995).

License was not revoked when notice was never served on plaintiff pursuant to either of the prescribed statutory methods. Knaus v. Dept. of Rev., 844 P.2d 1318 (Colo. App. 1992).

Plaintiff not entitled to be given credit toward three-month revocation period for period he was under mistaken belief that his license had been revoked. He had not yet received notice of the revocation as required by statute, and the misunderstanding was not the fault or responsibility of the department. Knaus v. Dept. of Rev., 844 P.2d 1318 (Colo. App. 1992).

Sixty-day period for a license revocation hearing begins to run at the time the department receives the written request. Ellis v. Charnes, 722 P.2d 436 (Colo. App. 1986).

If the sixtieth day falls on a Saturday, Sunday, or legal holiday, the 60-day period is automatically extended to the end of the next business day. Perez v. Dept. of Rev., 778 P.2d 326 (Colo. App. 1989).

The date of filing of request for a hearing is not included for purposes of computing the 60-day period. Perez v. Dept. of Rev., 778 P.2d 326 (Colo. App. 1989).

Revocation hearing must not only be scheduled but held within 60 days. The time limit is jurisdictional and the department’s failure to hold the hearing requires dismissal of the action against plaintiff. Wilson v. Hill, 782 P.2d 874 (Colo. App. 1989) (decided under law in effect prior to 1989 amendment).

Unlike the time limit for hearings under § 42-2-122.1 (7)(e), the 60-day time limit in § 42-2-123 (12) is not mandatory. DiMarco v. Dept. of Rev., 857 P.2d 1349 (Colo. App. 1993) (decided under law in effect prior to the 1994 amendment).

Subsection (7)(c) provides the exclusive grounds on which an untimely request for a license revocation hearing may be granted. Baulsir v. Dept. of Rev., 702 P.2d 277 (Colo. App. 1985); Kelley v. Dept. of Rev., 780 P.2d 67 (Colo. App. 1989).

When the grounds for an untimely request for a license revocation hearing is attorney negligence in failing to request a hearing within the statutorily designated time period, the trial court erred in ordering the department to grant the request. Baulsir v. Dept. of Rev., 702 P.2d 277 (Colo. App. 1985).

Due process clause was not violated since adequate advance notice and an opportunity for an appropriate hearing before the license revocation became effective was given. Baulsir v. Dept. of Rev., 702 P.2d 277 (Colo. App. 1985).

Statutory notice provisions require driver to request hearing within seven days of time notice is deemed by statute to be received, not from time of actual notice. Kelley v. Dept. of Rev., 780 P.2d 67 (Colo. App. 1989).

Written notice of right to subpoena law enforcement officer is jurisdictional requirement. Where respondent never received such notice and department nevertheless held revocation hearing in absence of officer over respondent’s objection, order of revocation was invalid. Kress v. Dept. of Rev., 834 P.2d 268 (Colo. App. 1992).

If respondent requests that the law enforcement officer be present, the officer cannot fulfill this statutory requirement by appearing via two-way video conference. The term “presence” requires actual presence not video presence. Barnes v. Colo. Dept. of Rev., 23 P.3d 1235 (Colo. App. 2000).

Department’s policy of never granting a rescheduling request by a licensee or counsel for an alternative date within the 60-day limit is arbitrary, capricious, and inconsistent with the statutory obligation to provide a meaningful opportunity for a fair hearing. Such policy effectively violated licensee’s right to counsel of her own choosing when counsel made the request due to a scheduling conflict. However, the department is not required to accommodate every request for rescheduling; it must take the circumstances surrounding the request into consideration. Erbe v. Colo. Dept. of Rev., 51 P.3d 1096 (Colo. App. 2002).

Subsection (9)(c) provides the grounds for reversing a DMV revocation order. Where analysis of licensee’s blood alcohol content was conflicting, it was the hearing officer’s role, not the role of the reviewing court, to determine which test result was more reliable and deserved greater weight. Therefore, the hearing officer’s decision to rely on one of two conflicting test results did not constitute grounds for reversal under the statute. Charnes v. Lobato, 743 P.2d 27 (Colo. 1987).

The presumption of accuracy described in subsection (9)(c)(II) applies only to revocation hearings and not to “persistent drunk driver” determinations. Given the clear statutory language, it is apparent that the general assembly intended the presumption of accuracy in blood alcohol content to apply to the limit required for license revocation. Conversely, there is no indication that it intended the presumption of accuracy in blood alcohol content to apply to the “persistent drunk driver” section of the statute. Wiesner v. Huber, 228 P.3d 973 (Colo. App. 2010) (decided under law in effect prior to 2008 amendment).

Statute vests authority to review administrative revocations exclusively in district court in county of driver’s residence, and a petition filed by a nonresident of the county must be dismissed. Dept. of Rev. v. Borquez, 751 P.2d 639 (Colo. 1988).

Absence of transcript. Under this section the record does not include the transcript. Destruction of transcript due to administrative practice, standing alone, does not require reversal of department’s decision. Cop v. Charnes, 738 P.2d 1200 (Colo. App. 1987).

Nor does absence of transcript due to accidental erasure of the tape, standing alone, require reversal of the department’s decision. Guynn v. Dept. of Rev., 939 P.2d 526 (Colo. App. 1997).

District court erred in substituting its judgment for hearing officer’s determination as to plaintiff’s unjustified refusal to submit to testing when hearing officer’s finding was based upon resolution of conflicting evidence. Alford v. Tipton, 822 P.2d 513 (Colo. App. 1991).

Department of revenue is not bound in administrative revocation under the collateral estoppel doctrine by the resolution of the same issues in criminal proceedings arising out of the same occurrence. Wallace v. Dept. of Rev., 787 P. 2d 181 (Colo. App. 1989).

A request for extraordinary relief in the form of mandamus under C.R.C.P. 106 was improper to challenge arbitrary action by the department of revenue in revoking a person’s driver’s license, even though petition was filed on the basis that the department refused to conduct a revocation hearing. The State Administrative Procedure Act provides the proper mechanism for seeking relief based on arbitrary action by an executive agency. Dept. of Rev. v. District Court, 802 P.2d 473 (Colo. 1990).

Questions as to legality of initial motor vehicle stop and subsequent arrest of driver for driving under the influence may properly be raised as issues in driver’s license revocation proceedings. Peterson v. Tipton, 833 P.2d 830 (Colo. App. 1992). But see Francen v. Colo. Dept. of Rev., 2012 COA 110, — P.3d –.

The department’s authority is limited by pertinent statutory provisions in a driver’s license revocation proceeding and, absent any statutory authorization for a “reopening”, the asserted right thereto was a nullity and plaintiff was not required to “exhaust” such an invalid administrative “remedy” as a condition precedent to his statutory right to seek judicial review of the department’s final order of revocation. Foos v. State, 888 P.2d 321 (Colo. App. 1994).

Under the applicable statutory scheme, the final agency action of the department that is subject to judicial review in express consent revocation proceedings is the issuance of the final order of revocation by the hearing officer at the conclusion of the revocation hearing. Foos v. State, 888 P.2d 321 (Colo. App. 1994).

Judicial review is only available from a final agency determination. District court lacks jurisdiction to interfere with agency’s setting of hearing date. State Dept. of Rev. v. District Court, 908 P.2d 518 (Colo. 1995).

On remand, the district court’s disposition of the judicial review proceedings must be governed solely by the standards of the applicable provisions of this section and the Administrative Procedure Act. Foos v. State, 888 P.2d 321 (Colo. App. 1994).

Court has no subject matter jurisdiction to review the suspension or revocation of a driver’s license when the driver-defendant has failed to exhaust his administrative remedies before seeking judicial review. Kriz v. Colo. Dept. of Rev., 916 P.2d 659 (Colo. App. 1996).

Failure to file a petition for judicial review within 30 days after issuance of a revocation order is a jurisdictional defect that mandates dismissal of the action where, as here, the statute does not mandate the filing of a petition for reconsideration; therefore, it was error for the district court to affirm the revocation order. Jeffries v. Fisher, 66 P.3d 218 (Colo. App. 2003).

Remedy for driver who has had his driver’s license revoked or suspended may be available pursuant to § 24-4-105(10) where the Colorado department of revenue does not hold an administrative hearing prior to the expiration of 60 days as the department is under statutory obligation to hold an administrative hearing within 60 days under either this section or § 42-2-125. Kriz v. Colo. Dept. of Rev., 916 P.2d 659 (Colo. App. 1996).

Prior to enactment of § 42-2-122.1 (7)(e)(II), police officers did not have authority to absent themselves from revocation hearings. People v. Attorney A., 861 P.2d 705 (Colo. 1993) (decided under law in effect prior to the 1994 amendment).

The failure to notify a licensee of the correct location of a revocation hearing is not a jurisdictional defect. Wunder v. Dept. of Rev., Motor Veh. Div., 867 P.2d 178 (Colo. App. 1993).

The statutory grounds for delay of the license revocation hearing must be strictly construed. The exception that arises when a police officer is unavailable must be limited to situations involving the same degree of urgency as covered by the other enumerated exceptions. A bare notation that the officer had to teach school is insufficient to establish the applicability of the statutory exception. Rule v. Dept. of Rev., 868 P.2d 1166 (Colo. App. 1994).

Officer who submitted the documentation for a DUI arrest was the proper officer to appear at the driver’s license revocation hearing even though the officer was not the arresting officer. Herman v. Dept. of Rev., 870 P.2d 628 (Colo. App. 1994).

Driver’s license revocation based on refusal to submit to alcohol testing is supported by substantial evidence. Probable cause existed for DUI arrest based on evidence of speeding, alcohol odor, bloodshot eyes, blank stare, slurred speech, and staggered walk. Herman v. Dept. of Rev., 870 P.2d 628 (Colo. App. 1994).

Reversal of a driver’s license revocation is warranted where the agency failed to comply with written request to issue a subpoena and this failure caused prejudice to the driver’s substantial right to engage in cross-examination of witnesses. Nye v. State Dept. of Rev., 902 P.2d 959 (Colo. App. 1995).

Nevertheless, the department has discretion over whether to issue a subpoena. The issuance of a subpoena is not merely a ministerial duty. The department may issue rules to establish criteria for the issuance, such as relevance. Fallon v. Colo. Dept. of Rev., 250 P.3d 691 (Colo. App. 2010).

Revocation of license may not be reversed based on nonjurisdictional statutory violation unless substantial rights of licensee are prejudiced by the error. Mitchek v. Dept. of Rev., 911 P.2d 715 (Colo. App. 1996).

Applied in Miller v. Motor Vehicle Div., Dept. of Rev., 706 P.2d 10 (Colo. App. 1985); Kelln v. Colo. Dept. of Rev., 719 P.2d 358 (Colo. App. 1986); Franklin v. Dept. of Rev., 728 P.2d 391 (Colo. App. 1986); McClellan v. State Dept. of Rev., 731 P.2d 769 (Colo. App. 1986); Shafron v. Cooke, 190 P.3d 812 (Colo. App. 2008).