(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;
(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 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 behavioral health administration
in the department of human services 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)(a)(II).
(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 behavioral health
administration in the department of human services 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
subsection (8)(a)(III) or (8)(a)(IV) of this section, 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 sections 42-1-102 and 42-2-119, the last-known
address of the respondent for purposes of notice for any hearing pursuant to this
section is 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. If a driver so challenges the validity of the law
enforcement officer's initial contact, and the evidence does not establish that the
initial contact or arrest was constitutionally and statutorily valid, the driver is not
subject to license revocation.
(9) Appeal. (a) Within thirty-five days after the department issues its final
determination under this section, a person aggrieved by the determination has 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.