LICENSE SUSPENSION LAW

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

(1) 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;

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

(2) (a) The department shall revoke the license of any person upon its determination that the person:

License Suspension(I) Drove a vehicle in this state when the amount of alcohol, as shown by analysis of the person’s blood or breath, in such person’s blood was 0.08 or more grams of alcohol per one hundred milliliters of blood or 0.08 or more grams of alcohol per two hundred ten liters of breath at the time of driving or within two hours after driving. If the preponderance of the evidence establishes that such person consumed alcohol between the time that the person stopped driving and the time of testing, the preponderance of the evidence must also establish that the minimum 0.08 blood or breath alcohol content was reached as a result of alcohol consumed before the person stopped driving.

(I.5) Drove a vehicle in this state when such person was under twenty-one years of age and when the amount of alcohol, as shown by analysis of the person’s blood or breath, in such person’s blood was in excess of 0.05 but less than 0.08 grams of alcohol per one hundred milliliters of blood or in excess of 0.05 but less than 0.08 grams of alcohol per two hundred ten liters of breath at the time of driving or within two hours after driving. If the preponderance of the evidence establishes that such person consumed alcohol between the time that the person stopped driving and the time of testing, the preponderance of the evidence must also establish that the minimum required blood or breath alcohol content was reached as a result of alcohol consumed before the person stopped driving.

(I.7) Drove a vehicle in this state when such person was under twenty-one years of age and when the amount of alcohol, as shown by analysis of the person’s breath, subject to section 42-4-1301.1, in such person’s blood was at least 0.02 but not in excess of 0.05 grams of alcohol per one hundred milliliters of blood at the time of driving or within two hours after driving. If the preponderance of the evidence establishes that such person consumed alcohol between the time that the person stopped driving and the time of testing, the preponderance of the evidence must also establish that the minimum 0.02 breath alcohol content was reached as a result of alcohol consumed before the person stopped driving.

(II) Refused to take or to complete, or to cooperate in the completing of, any test or tests of the person’s blood, breath, saliva, or urine as required by section 42-4-1301.1 (2), 18-3-106 (4), or 18-3-205 (4), C.R.S.

(III) Drove a commercial motor vehicle in this state when the amount of alcohol, as shown by analysis of such person’s blood or breath, in such person’s blood was 0.04 or more grams of alcohol per one hundred milliliters of blood or 0.04 or more grams of alcohol per two hundred ten liters of breath at the time of driving or any time thereafter; or

(IV) Drove a commercial motor vehicle in this state when such person was under twenty-one years of age and when the amount of alcohol in such person’s blood, as shown by analysis of such person’s breath, subject to section 42-4-1301.1, was at least 0.02 but less than 0.04 grams of alcohol per two hundred ten liters of breath at the time of driving or any time thereafter.

(b) The department shall make a determination of these facts on the basis of the documents and affidavit of a law enforcement officer as specified in subsection (3) of this section, and this determination shall be final unless a hearing is requested and held as provided in subsection (8) of this section.

(c) The determination of these facts by the department is independent of the determination of the same or similar facts in the adjudication of any criminal charges arising out of the same occurrence. The disposition of those criminal charges shall not affect any revocation under this section.

(d) For purposes of this section, “license” includes driving privilege.

(2.5) If the department revokes a person’s license pursuant to subparagraph (I), (II), or (III) of paragraph (a) of subsection (2) 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) Such 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).

(3) (a) Whenever a law enforcement officer has probable cause to believe that a person is subject to license revocation under paragraph (a) of subsection (2) of this section, the law enforcement officer having such probable cause shall forward to the department an affidavit containing information relevant to legal issues and facts that must be considered by the department to legally determine if a person’s driving privilege should be revoked as provided in subsection (2) of this section. The executive director of the department shall specify to law enforcement agencies the form of the affidavit 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) (Deleted by amendment, L. 2005, p. 647, § 16, effective May 27, 2005.)

(4) (a) Upon receipt of the affidavit of the law enforcement officer and the relevant documents required by subsection (3) of this section, the department shall make the determination described in subsection (2) of this section. The determination shall be based upon the information contained in the affidavit and the relevant documents. If the department determines that the person is subject to license revocation, the department shall issue a notice of revocation if such notice has not already been served upon the person by the enforcement officer as required in subsection (5) of this section.

(b) The notice of revocation which is sent by the department shall be mailed 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) The 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 that request for a hearing must be made.

(d) 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 enforcement officer.

(5) (a) (I) Whenever a law enforcement officer requests a person to take any test or tests as required by section 42-4-1301.1 and such person refuses to take or to complete or to cooperate in the completing of such test or tests, or whenever such test results are available to the law enforcement officer and such tests show an alcohol concentration sufficient to warrant revocation under paragraph (a) of subsection (2) of this section, and when the person who is tested or who refuses to take or to complete or to cooperate in the completing of any test or tests is still available to the law enforcement officer, the officer, acting on behalf of the department, shall serve the notice of revocation personally on such person.

(II) (Deleted by amendment, L. 2006, p. 260, §1, effective March 31, 2006.)

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

(c) 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 officer along with the affidavit and documents required in subsections (2) and (3) of this section.

(d) The department shall provide forms for notice of revocation and for temporary permits to law enforcement agencies. The department shall establish a format for the affidavits required by this section and shall give notice of such format to all law enforcement agencies which submit affidavits to the department. Such law enforcement agencies shall follow the format determined by the department.

(e) A temporary permit may not be issued to any person who is already driving with a temporary permit issued pursuant to paragraph (b) of this subsection (5).

(6) (a) The license revocation shall become effective seven days after the subject 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 subsection (4) of this section. If a written request for a hearing is received by the department within that same seven-day period, 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 which is caused or requested by the subject person or counsel representing that person shall not result in a stay of the revocation during the period of delay.

(b) (I) Except as otherwise provided in subparagraph (IX) of this paragraph (b), the period of license revocation under subparagraph (I) of paragraph (a) of subsection (2) of this section for a first violation shall be three months.

(II) The period of license revocation under subparagraph (I) of paragraph (a) of subsection (2) of this section for a second or subsequent revocation shall be one year.

(II.5) The period of license revocation under subparagraph (I.5) of paragraph (a) of subsection (2) of this section shall be:

(A) Except as provided in subparagraph (IX) of this paragraph (b), three months for a first violation;

(B) Six months for a second violation; and

(C) One year for a third or subsequent violation.

(III) The period of license revocation under subparagraph (II) of paragraph (a) of subsection (2) of this section shall be one year.

(III.5) The period of commercial driving privilege revocation under subparagraphs (I), (I.5), (II), or (III) of paragraph (a) of subsection (2) of this section shall be the disqualification period provided in 49 CFR 383.51 if the person was the holder of a commercial driver’s license or was operating a commercial vehicle when the violation occurred.

(IV) The period of license revocation under subparagraph (II) or (III) of paragraph (a) of subsection (2) of this section involving a commercial motor vehicle that was transporting hazardous materials as defined in section 42-2-402 (7) shall be no less than three years.

(V) (Deleted by amendment, L. 2006, p. 260, §1, effective March 31, 2006.)

(VI) The period of license revocation under subparagraph (II) of paragraph (a) of subsection (2) of this section for a second refusal shall be two years.

(VII) The period of license revocation under subparagraph (II) of paragraph (a) of subsection (2) of this section for a third or subsequent refusal shall be three years.

(VIII) The period of license revocation for a violation under subparagraph (IV) of paragraph (a) of subsection (2) shall be:

(A) Except as provided in subparagraph (IX) of this paragraph (b), three months for a first violation;

(B) Six months for a second violation; and

(C) One year for a third or subsequent violation.

(IX) (A) A person whose license is revoked for a first offense under subparagraph (I.5) of paragraph (a) of subsection (2) of this section and whose blood alcohol content was not more than 0.05 grams of alcohol per one hundred milliliters of blood or not more than 0.05 grams of alcohol per two hundred ten liters of breath 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 such request, the hearing officer may grant such person a probationary license that may be used only for the reasons provided in section 42-2-127 (14) (a).

(A.5) A person whose license is revoked for a first offense under subparagraph (I) of paragraph (a) of subsection (2) of this section 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 six 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).

Editor’s note: This version of sub-subparagraph (A.5) is effective until January 1, 2007.

(A.5) A person whose license is revoked for a first offense under subparagraph (I) of paragraph (a) of subsection (2) of this section 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 six months. If the person is a persistent drunk driver, as defined in section 42-1-102 (68.5), the probationary license shall be conditioned on the use of an approved ignition interlock device, as defined in section 42-2-132.5 (7) (a). The time served under a probationary license shall not be credited against any mandatory interlock restriction imposed pursuant to section 42-2-132.5. 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).

Editor’s note: This version of sub-subparagraph (A.5) is effective January 1, 2007.

(B) The hearing to consider a request under sub-subparagraph (A) or (A.5) of this subparagraph (IX) 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) (I) Where a license is revoked under subparagraph (I), (I.5), (III), or (IV) of paragraph (a) of subsection (2) of this section and the person is also convicted on criminal charges arising out of the same occurrence for a violation of section 42-4-1301 (1) (a) or (2), both the revocation under this section and any suspension, revocation, cancellation, or denial which results from such 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.

(II) Where a license is revoked under subparagraph (II) of paragraph (a) of subsection (2) of this section and the person is also convicted on criminal charges arising out of the same occurrence for a violation of section 42-4-1301 (1) (a) or (2), any suspension, revocation, cancellation, or denial which results from such conviction and is imposed shall run consecutively with the revocation under this section.

(III) Any revocation pursuant to this section shall run consecutively and not concurrently with any other revocation pursuant to this section.

(7) (a) The periods of revocation specified by subsection (6) of this section are intended to be minimum periods of revocation for the described conduct. No license shall be restored under any circumstances, and no probationary license shall be issued during the revocation period; except that:

(I) A person whose privilege to drive a commercial motor vehicle has been revoked because the person drove a commercial motor vehicle when the person’s blood alcohol content was 0.04 or greater, but less than 0.08, grams of alcohol per one hundred milliliters of blood or per two hundred ten liters of breath 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. Such person may not operate any commercial motor vehicle during the period of revocation of such person’s privilege to operate commercial motor vehicles. The department may not issue such person a probationary license that would authorize such person to operate any commercial motor vehicle.

(II) Repealed.

(b) Upon the expiration of the period of revocation under this section, if the person’s license is still suspended or revoked on other grounds, the person may seek a probationary license as authorized by section 42-2-127 (14) subject to the requirements of paragraph (c) of this subsection (7).

(c) (I) Following a license revocation, the department shall not issue a new license or otherwise restore the driving privilege unless it 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. The department may not require a person to undergo skills or knowledge testing prior to issuance of a new license or restoration of such person’s driving privilege if such person’s license was revoked for a first violation of driving with excessive alcohol content pursuant to subparagraph (I) of paragraph (b) of subsection (6) of this section.

(II) If the person was determined to be in violation of subparagraph (I) of paragraph (a) of subsection (2) of this section and the person had a blood alcohol level, as shown by analysis of such person’s blood or breath, that was 0.20 or more grams of alcohol per one hundred milliliters of blood or 0.20 or more grams of alcohol per two hundred ten liters of breath at the time of driving or within two hours after driving; 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 such person to complete a level II alcohol and drug education and treatment program certified by the division of alcohol and drug abuse pursuant to section 42-4-1301.3 before driving privileges may be restored.

Editor’s note: This version of subparagraph (II) is effective until January 1, 2007.

(II) If the person was determined to be in violation of subparagraph (I) of paragraph (a) of subsection (2) of this section and the person had a blood alcohol level, as shown by analysis of such person’s blood or breath, that was 0.17 or more grams of alcohol per one hundred milliliters of blood or 0.17 or more grams of alcohol per two hundred ten liters of breath at the time of driving or within two hours after driving; 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 such person to complete a level II alcohol and drug education and treatment program certified by the division of alcohol and drug abuse pursuant to section 42-4-1301.3 before driving privileges may be restored.

Editor’s note: This version of subparagraph (II) is effective January 1, 2007.

(III) If the total period of license restraint under this paragraph (c) is not sufficient to allow for the completion of level II alcohol and drug education and treatment, or the documentation of completion of such education and treatment is incomplete at the time of reinstatement, proof of current enrollment in a level II alcohol and drug education and treatment program certified by the division of alcohol and drug abuse pursuant to section 42-4-1301.3, on a form approved by the department shall be filed with the department.

(8) (a) Any 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. If the person’s driver’s license has not been previously surrendered, it must be surrendered at the time the request for a hearing is made.

(b) The request for a hearing must be made in writing within seven days after the day the person received 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 subsection (4) of this section. If written request for a hearing is not received within the seven-day period, the right to a hearing is waived, and the determination of the department which is based upon the documents and affidavit required by subsections (2) and (3) of this section becomes final.

(c) If a written request for a hearing is made after expiration of the seven-day period and if it is accompanied by the applicant’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, a stay of the revocation pending issuance of the final order following the hearing shall not be granted.

(d) At the time the request for a hearing is made, if it appears from the record that the person is the holder of a valid driver’s or minor driver’s license or any instruction permit issued by this state or temporary permit issued pursuant to subsection (5) of this section and that the license has been surrendered as required pursuant to subsection (5) of this section, the department shall issue a temporary permit which will be valid until the scheduled date for the hearing. If necessary, the department may later issue an additional temporary permit or permits in order to stay the effective date of the revocation until the final order is issued following the hearing, as required by subsection (6) of this section.

(e) (I) The hearing shall be scheduled to be held as quickly as practicable but not more than sixty days after the day that the request for a hearing is received by the department; 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 (e), the hearing may be rescheduled more than sixty days after the day that the request for the hearing is received by the department, and the department shall continue any temporary driving privileges held by the respondent until the date that such hearing is rescheduled. The department shall provide a written notice of the time and place of the hearing to the party requesting the hearing in the manner provided in section 42-2-119 (2) at least ten days prior to the scheduled or rescheduled hearing, 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) The law enforcement officer who submits the documents and affidavit required by subsection (3) of this section need not be present at the hearing unless the presiding 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 attorney for the respondent determines that the law enforcement officer should be present and serves a timely subpoena upon such officer in accordance with subparagraph (II.5) of this paragraph (e). If the respondent notifies the department in writing at the time that the hearing is requested that the respondent desires the law enforcement officer’s presence at the hearing, the department shall issue a written notice for the officer to appear at the hearing. An officer 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.

(II.5) 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.

(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 any original or rescheduled hearing date set by the department due to a reasonable conflict, including but not limited to training, vacation, or personal leave time, the officer or the 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 officer will be available. If the law enforcement officer cannot appear at any 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 officer or the officer’s supervisor gives notice of such 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 officer or the officer’s supervisor at the earliest possible time when the officer and the hearing officer will be available.

(IV) If a hearing officer cannot appear at any original or rescheduled hearing because of medical reasons, a law enforcement emergency, another court or administrative hearing, or any other legitimate just cause, such 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.

(V) At the time that a respondent requests a hearing, written notice shall be given to the respondent advising such respondent of the right to subpoena the law enforcement officer for the hearing, that such subpoena must be served upon the officer in accordance with subparagraph (II.5) of this paragraph (e), and of the respondent’s right, at the time that the respondent requests the hearing, to notify the department in writing that the respondent desires the officer’s presence at the hearing, and that, upon such notification, the department shall issue a written notice for the officer to appear at the hearing. The written notice shall also state that, if the law enforcement officer does not appear at the hearing, documents and an affidavit prepared and submitted by the law enforcement officer will be used at the hearing. The written notice shall further state that the affidavit and documents submitted by the law enforcement officer may be reviewed by the respondent prior to the hearing.

(f) If a hearing is held pursuant to this subsection (8), the department shall review the matter and make a final determination on the basis of the documents and affidavit submitted to the department pursuant to subsections (2) and (3) of this section. Except as provided in paragraph (e) of this subsection (8), the law enforcement officer who submitted the affidavit required by subsection (3) of this section need not be present at the hearing. The department shall consider all other relevant evidence at the hearing, including the testimony of law enforcement officers and the reports of such officers which are submitted to the department. The reports of law enforcement officers shall not be required to be made under oath, but such reports shall identify the officers making the reports. The department may consider evidence contained in affidavits from persons other than the respondent, so long as such 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.

(9) (a) 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. The person requesting the hearing may be referred to as the respondent.

(b) The presiding hearing officer shall be the executive director of the department or an authorized representative designated by the executive director. The presiding hearing officer shall have authority to administer oaths and affirmations; to consider the affidavit of the law enforcement officer filing such affidavit as specified in subsection (3) of this section; to consider other law enforcement officers’ reports which are submitted to the department, which reports need not be under oath but shall identify the officers making the reports; to examine and consider documents and copies of documents containing relevant evidence; to consider other affidavits which are dated, signed, and sworn to by the affiant under penalty of perjury, which affidavits need not be notarized or sworn to before any other person but shall contain the affiant’s home or work address and phone number; to 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 judicial notice of general, technical, or scientific facts within the hearing officer’s knowledge, judicial notice of appropriate and reliable scientific and medical information contained in studies, articles, books, and treatises, and judicial notice of charts prepared by the department of public health and environment pertaining to the maximum blood or breath alcohol levels that people can obtain through the consumption of alcohol when such 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 such alcohol; to compel witnesses to testify or produce books, records, or other evidence; to examine witnesses and take testimony; to receive and consider any relevant evidence necessary to properly perform the hearing officer’s duties as required by this section; to issue subpoenas duces tecum to produce books, documents, records, or other evidence; to issue subpoenas for the attendance of witnesses; to take depositions, or cause depositions or interrogatories to be taken; to regulate the course and conduct of the hearing; and to make a final ruling on the issues.

(c) (I) Where a license is revoked under subparagraph (I), (I.5), or (I.7) of paragraph (a) of subsection (2) of this section, the sole issue at the hearing shall be whether, by a preponderance of the evidence, the person drove a vehicle in this state when the amount of alcohol, as shown by analysis of the person’s blood or breath, in such person’s blood was 0.08 or more grams of alcohol per one hundred milliliters of blood or 0.08 or more grams of alcohol per two hundred ten liters of breath at the time of driving or within two hours after driving if the person was twenty-one years of age or older at the time of driving the vehicle or, subject to section 42-4-1301.1, at least 0.02 but not in excess of 0.05 grams of alcohol per two hundred ten liters of breath at the time of driving or within two hours after driving if the person was under twenty-one years of age at the time of driving the vehicle, or in excess of 0.05 grams of alcohol per one hundred milliliters of blood or in excess of 0.05 grams of alcohol per two hundred ten liters of breath at the time of driving or within two hours after driving if the person was under twenty-one years of age at the time of driving the vehicle. If the preponderance of the evidence establishes that such person consumed alcohol between the time that the person stopped driving and the time that testing occurred, the preponderance of the evidence must also establish that the minimum 0.08 blood or breath alcohol content required in subparagraph (I) of paragraph (a) of subsection (2) of this section, the minimum 0.05 blood or breath alcohol content required in subparagraph (I.5) of paragraph (a) of subsection (2) of this section, or the minimum 0.02 breath alcohol content required in subparagraph (I.7) of paragraph (a) of subsection (2) of this section was reached as a result of alcohol consumed before the person stopped driving; or, where a license is revoked under subparagraph (II) of paragraph (a) of subsection (2) of this section, whether the person refused to take or to complete or to cooperate in the completing of any test or tests of the person’s blood, breath, saliva, or urine as required by section 42-4-1301.1. If the presiding hearing officer finds the affirmative of the issue, the revocation order shall be sustained. If the presiding hearing officer finds the negative of the issue, the revocation order shall be rescinded.

(II) When the determination of the issue pursuant to this paragraph (c) is based upon an analysis of the respondent’s blood or breath and evidence is offered by the respondent to show 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 when 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 or when a preponderance of the evidence establishes that the law enforcement breath test was administered using a properly working breath testing device certified by the department of public health and environment, which device was properly operated by a qualified operator, there shall be a presumption favoring the accuracy of the analysis done on behalf of the law enforcement agency if such analysis showed the amount of alcohol in the respondent’s blood or breath to be 0.096 or more grams of alcohol per hundred milliliters of blood or 0.096 or more grams of alcohol per two hundred ten liters of breath. If the respondent offers evidence of blood or breath 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.

(III) Where a license is revoked under subparagraph (III) or subparagraph (IV) of paragraph (a) of subsection (2) of this section, the sole issue at the hearing shall be whether, by a preponderance of the evidence, the person drove a commercial motor vehicle in this state when the amount of alcohol, as shown by analysis of the person’s blood or breath, in such person’s blood was 0.04 or more grams of alcohol per one hundred milliliters of blood or 0.04 or more grams of alcohol per two hundred ten liters of breath at the time of driving or anytime thereafter for a person twenty-one years of age or older or, subject to section 42-4-1301.1, 0.02 but less than 0.04 grams of alcohol per two hundred ten liters of breath at the time of driving or anytime thereafter for a person under twenty-one years of age, or 0.04 or more grams of alcohol per one hundred milliliters of blood or 0.04 or more grams of alcohol per two hundred ten liters of breath at the time of driving or anytime thereafter for a person under twenty-one years of age, if the preponderance of the evidence establishes that such person did not consume any alcohol between the time of driving and the time of testing. If the presiding hearing officer finds the affirmative of the issue, the revocation order shall be sustained. If the presiding hearing officer finds the negative of the issue, the revocation order shall be rescinded.

(IV) Under no circumstances shall the presiding hearing officer consider any issue not specified in this paragraph (c).

(d) The hearing shall be recorded. The decision of the presiding hearing officer shall be rendered in writing, and a copy will be provided to the person who requested the hearing.

(e) If the person who requested the hearing 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 subsections (2) and (3) of this section shall become final.

(10) (a) Within thirty days of the issuance of the final determination of the department 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) The review 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 which is unsupported by the evidence in the record, the court may reverse the department’s determination.

(c) The 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 motion and hearing and upon a finding that there is a reasonable probability that the petitioner will prevail upon the merits and that the petitioner will suffer irreparable harm if the order is not stayed.

(11) 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 (8), (9), and (10) of this section relating to administrative hearings and judicial review.

Source: L. 94: 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.

Editor’s note: (1) This section was formerly numbered as 42-2-122.1 and the former section 42-2-126 was relocated to section 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.

(3) Section 11 of chapter 297, Session Laws of Colorado 2006, provides that the act amending subsections (6)(b)(IX)(A.5) and (7)(c)(II) applies to offenses committed on or after January 1, 2007.

Cross references: For the legislative declaration contained in the 1998 act amending this section, 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.

ANNOTATION

Am. Jur.2d. See 7A Am. Jur.2d, Automobiles and Highway Traffic, § 135.

C.J.S. See 60 C.J.S., Motor Vehicles, §§ 328-335.

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).

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).

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).

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 .005% too high, and the margin by which driver allegedly exceeded the statutory limit was only .003%, 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).

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 .005% too high, and the margin by which driver allegedly exceeded the statutory limit was only .003%. Scherr v. Dept. of Rev., 49 P.3d 1217 (Colo. App. 2002).

Revocation of driver’s license is not reversible upon review based upon non-jurisdictional 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).

“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).

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 subsection (8)(e) (formerly subsection (7)(e)), the 60-day time limit in § 42-2-127 (13) (formerly § 42-2-123 (12)) is not mandatory. DiMarco v. Dept. of Rev., 857 P.2d 1349 (Colo. App. 1993).

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).

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 Procedures 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).

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 former subsection (7)(e)(II) (currently subsection (8)(e)(II)), police officers did not have authority to absent themselves from revocation hearings. People v. Attorney A., 861 P.2d 705 (Colo. 1993).

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).

Revocation of license may not be reversed based on non-jurisdictional statutory violation unless substantial rights of licensee are prejudiced by the error. Mitchek v. Dept. of Rev., 911 P.2d 715 (Colo. App. 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. People v. Olson, 921 P.2d 51 (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).