Guynn v. State, Department of Revenue, Motor Vehicle Division

939 P.2d 526, 1997 Colo. App. LEXIS 120
CourtColorado Court of Appeals
DecidedMay 15, 1997
DocketNo. 96CA1397
StatusPublished
Cited by1 cases

This text of 939 P.2d 526 (Guynn v. State, Department of Revenue, Motor Vehicle Division) 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
Guynn v. State, Department of Revenue, Motor Vehicle Division, 939 P.2d 526, 1997 Colo. App. LEXIS 120 (Colo. Ct. App. 1997).

Opinion

Opinion by

Judge RULAND.

Plaintiff, Mark Guynn, appeals from the district court judgment affirming the revocation of his driver’s license. We affirm.

Police arrested plaintiff for suspicion of driving while under the influence of alcohol. Plaintiff refused to perform roadside sobriety maneuvers and later refused to consent to alcohol testing. The Department of Revenue (Department) sent plaintiff a notice of revocation and plaintiff made a timely request for an administrative hearing. The Department scheduled the hearing well within the 60-day period required by § 42-2-126(8)(e)(I), C.R.S. (1996 Cum.Supp.).

Thereafter, plaintiff asked to change the hearing date because his attorney had a scheduling conflict. When the Department refused to reschedule the hearing, plaintiff filed a complaint in the district court and obtained an order staying and rescheduling the hearing.

In response to that order, the Department filed a petition for writ of prohibition in the supreme court. In State v. District Court, [528]*528908 P.2d 518 (Colo.1995), the supreme court concluded that the district court had exceeded its jurisdiction when it stayed and rescheduled plaintiffs administrative hearing.

Upon remand, the Department conducted plaintiffs revocation hearing within 60 days after reacquiring the case from the district court. At the conclusion of the hearing, the hearing officer revoked plaintiffs driver’s license for one year.

Plaintiff then sought review in the district court. He argued that revocation was improper because the Department conducted the hearing more than 60 days after it received his request for a hearing. In the alternative, plaintiff argued that his revocation should be stayed until such time as he could participate in the probationary license program set forth in §§ 42 — 2—126(7)(a)(II) and 42-2-126.1, C.R.S. (1996 Cum.Supp.).

During the course of the review proceeding, the Department informed plaintiff that it had accidentally erased the taped transcript of the revocation hearing. Based upon this information, plaintiff requested dismissal of the proceeding and reinstatement of his driving privileges.

The trial court rejected plaintiffs arguments and affirmed the Department’s revocation.

I.

Plaintiff first contends that the trial court erred in refusing to vacate the revocation order based upon the Department’s destruction of the hearing transcript tape. We disagree.

Section 42 — 2—126(10)(b), C.R.S. (1996 Cum. Supp.) provides that the Department’s revocation may be reversed only if the reviewing 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 which is unsupported by the evidence in the record.” See Cop v. Chames, 738 P.2d 1200 (Colo.App.l987)(ap-plying identical predecessor to § 42-2-126(10)(b)).

Although review of the Department’s determination calls for a review of the record, the absence of a transcript, standing alone, does not meet the statutory review requirements as a basis for reversal. See Cop v. Chames, supra. Instead, if the hearing tapes have been destroyed and cannot be transcribed for review, plaintiff may ask the court to determine the circumstances of the destruction. If, on such request, the court finds that the Department intentionally destroyed the tape in order to avoid its use for purposes of judicial review, the court must assume that the tape would have supported the factual allegations of the driver that the hearing results were defective. People v. District Court, 200 Colo. 65, 612 P.2d 87 (1980); Cop v. Chames, supra.

Here, plaintiff does not dispute the trial court’s finding that the Department erased the tape by accident. Thus, plaintiff was not entitled to a dismissal or any favorable evi-dentiary presumption. See People v. District Court, supra; Cop v. Chames, supra. Moreover, contrary to plaintiffs assertion, we do not read the holding of People v. District Court, supra, as being limited solely to circumstances in which a hearing tape is destroyed pursuant to “routine administrative practice” and prior to the institution of an action for judicial review.

Plaintiff does'not dispute that the Department provided a substantial record of the administrative proceeding, including police officer’s reports, the hearing officer’s notes, and other materials, which supported the revocation order. Furthermore, as the trial court noted, plaintiff failed to assert that any evidence recorded on the destroyed tape was exculpatory.

Under these circumstances, we perceive no error in the trial court’s refusal to vacate the revocation order based upon the erasure of the transcript tape.

n.

, Plaintiff next contends that the trial court erred in concluding that, although the revocation hearing was held beyond the 60-day period set forth in § 42-2-126(8)(e)(I), the Department retained jurisdiction to re[529]*529voke his license. Specifically, plaintiff asserts that it was error for the trial court to conclude that the 60-day period began anew when the Department reacquired the case after judicial intervention. We perceive no error.

Section 42-2-126(8)(e)(I) requires the Department to schedule and conduct a revocation hearing not more than 60 days after the request for such hearing is filed. This 60-day statutory time limit is jurisdictional. See Wilson v. Hill, 782 P.2d 874 (Colo.App.1989).

Although the statute authorizes the rescheduling of a revocation hearing based upon the unavailability of a law enforcement officer or the hearing officer, see §§ 42-2-126(8)(e)(III) and 42-2-126(8)(e)(IV), C.R.S. (1996 Cum.Supp.), it does not address circumstances such as this in which judicial intervention prevents the occurrence of a properly scheduled hearing. Thus, because the statute is silent concerning this issue, we must focus on the legislative intent behind the enactment and construe the statute so as to effectuate the General Assembly’s intent and the purpose of the legislative measure. See In re Estate of Royal, 826 P.2d 1236 (Colo.1992); Williams v. White Mountain Construction Co., 749 P.2d 423 (Colo.1988).

As pertinent here, the legislative purposes of the administrative revocation statute as stated in § 42-2-126(1), C.R.S. (1996 Cum. Supp.) are as follows:

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

See Deutschendorf v. People, 920 P.2d 53 (Colo.1996).

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Related

Guynn v. STATE, DEPT. OF REVENUE
939 P.2d 526 (Colorado Court of Appeals, 1997)

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