Baldwin v. Huber

223 P.3d 150, 2009 Colo. App. LEXIS 1907, 2009 WL 4070879
CourtColorado Court of Appeals
DecidedNovember 25, 2009
Docket08CA2492
StatusPublished
Cited by19 cases

This text of 223 P.3d 150 (Baldwin v. Huber) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Baldwin v. Huber, 223 P.3d 150, 2009 Colo. App. LEXIS 1907, 2009 WL 4070879 (Colo. Ct. App. 2009).

Opinions

Opinion by

Judge MILLER.

Petitioner, Stacey M. Baldwin (licensee), appeals from the district court judgment affirming the revocation of her driver's license by the Department of Revenue (Department) for driving with an excessive breath alcohol content (BAC). Contrary to licensee's arguments on appeal, we conclude that the evidence at the revocation hearing was sufficient to support the hearing officer's conclusions that there was reasonable suspi-clon to justify the initial traffic stop and probable cause to justify her later arrest in this incident. Accordingly, we affirm.

I. Factual and Procedural Background

After licensee was arrested for driving under the influence of alcohol (DUI) on November 80, 2007, she took a breath test at the police station within two hours of the time of driving. The breath test showed licensee's BAC to be .178 grams of alcohol per two hundred ten liters of breath, more than twice the statutory limit for revocation, and she was served with a notice of revocation on that basis. See § 42-2-126(2)(b), C.R.S.2009; see also § 42-1-102(8.5)(b), C.R.8.2009.

At the revocation hearing, licensee challenged the basis of both the initial stop of her vehicle and the DUI arrest that followed. Because licensee did not subpoena or otherwise request the presence of any of the police officers involved, none of them appeared for the hearing. Nevertheless, the documents submitted to the Department by the arresting officer were admitted into evidence without objection at the outset of the hearing.

In the affidavit form, the arresting officer stated that licensee was "stopped for a traffic violation." He further stated that, upon contact with her, she had an odor of an alcoholic beverage on her breath, had red and watery eyes, and stated that she had "had two beers." In signing this form, the arresting officer also swore, under penalty of perjury, that these facts were true to the best of his knowledge and belief.

In the criminal summons, the arresting officer identified the initial traffic violation as weaving. He further specified the time and place of this violation, indicating that it occurred over a particular eight-block distance as licensee was driving westbound on 120th Avenue. The arresting officer also signed an affirmation on this document that he had probable cause to believe that licensee committed the weaving violation, as well as the DUI offense.

After the hearing officer denied licensee's motion to dismiss based on the alleged insufficiency of this documentary evidence, licensee testified concerning this incident. In particular, she testified that the arresting officer arrived at the scene several minutes after other police officers had stopped her, and she specifically denied any weaving and testified that she had driven for only two blocks.

Following the hearing, the hearing officer ordered the revocation, ruling that the totality of the evidence established a reasonable basis for the initial police contact, sufficient probable cause for her arrest and testing, and ultimately that she had driven with a BAC of .08 or higher. As to the initial stop, the hearing officer found by a preponderance [152]*152of the evidence that licensee was indeed weaving, crediting the factual assertions made by the arresting officer in the doeu-mentary evidence. The hearing officer also credited lHcensee's testimony that she may not have had both hands on the wheel because she was smoking a cigarette and that she was upset and erying after a fight with her husband, but he did not find her testimony denying weaving to be persuasive, noting the high degree of alcohol impairment shown by the breath test results.

On review, the district court rejected licensee's arguments and upheld the revocation, and this appeal followed.

IL Standard of Review

Under section 42-2-126(9)(b), C.R.S.2009, a reviewing court may reverse the Department's revocation action only if the court determines that the Department exceeded its constitutional or statutory authority, erroneously interpreted the law, acted in an arbitrary and capricious manner, or made a determination that is unsupported by the evidence in the record. See also §§ 24-4-106(7), 42-2-126(11), C©.R.8.2009.

To determine that a hearing officer's decision was arbitrary and capricious under this statutory standard, a reviewing court must be convinced from the record as a whole that there was not substantial evidence to support the hearing officer's decision. Charnes v. Robinson, 772 P.2d 62, 68 (Colo.1989). Moreover, the determinations concerning the credibility of the witnesses, the weight to be given to the evidence, and the resolution of any evidentiary conflicts are factual matters solely within the province of the hearing officer to decide as the trier of fact. See Charnes v. Lobato, 743 P.2d 27, 32-38 (Colo.1987); Brodak v. Visconti, 165 P.3d 896, 898 (Colo.App.2007).

We are in the same position as the district court in reviewing the Department's action in the revocation proceedings under the administrative record. We review conclusions of law de novo. Meyer v. State, 143 P.3d 1181, 1184, 1187 (Colo.App.2006).

III. Challenges to Stop and Arrest

Licensee contends that the revocation must be reversed because there was "no reliable trustworthy evidence" in the administrative record to support the hearing officer's conclusion that there was reasonable suspicion for the initial contact and ultimately probable cause for her DUI arrest. To the contrary, in our view there was sufficient evidence to sustain both of these conclusions.

A licensee may properly raise issues concerning the legality of the initial investigatory stop and the subsequent DUI arrest in driver's license revocation proceedings under section 42-2-126. See Peterson v. Tipton, 833 P.2d 830, 831 (Colo.App.1992); Wallace v. Dep't of Revenue, 787 P.2d 181, 182 (Colo.App.1989); see also Meyer, 143 P.3d at 1185-86.

A. Reasonable Suspicion for Stop

An investigatory stop of a motor vehicle is permissible when a police officer has a reasonable suspicion that the driver has committed a traffic violation, such as weaving. Nefzger v. Colo. Dep't of Revenue, 739 P.2d 224, 229 (Colo.1987); Wallace, 787 P.2d at 183. Thus, if Hcensee was seen actually committing the traffic violation of weaving, the initial stop would be justified under the reasonable suspicion standard on that basis. See Shafron v. Cooke, 190 P.3d 812, 814 (Colo.App.2008).

Here, in weighing the evidence presented, the hearing officer found that licensee did in fact commit the traffic violation of weaving. Although licensee denied any weaving, the hearing officer did not find her testimony to be credible in this regard. We have no basis on review for disturbing the hearing officer's finding of credibility, which was a matter solely for the hearing officer as the trier of fact. See Lobato, 743 P.2d at 32-33.

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Baldwin v. Huber
223 P.3d 150 (Colorado Court of Appeals, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
223 P.3d 150, 2009 Colo. App. LEXIS 1907, 2009 WL 4070879, Counsel Stack Legal Research, https://law.counselstack.com/opinion/baldwin-v-huber-coloctapp-2009.