Express Consent Hearings in Colorado
Colorado Express Consent Law
Colorado express consent law states that a person who drives a motor vehicle upon the streets and highways and elsewhere throughout this state shall be required to take and complete, and to cooperate in the taking and completing of, any test or tests of the person's breath or blood for the purpose of determining the alcoholic content of the person's blood or breath when so requested and directed by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle in violation of the prohibitions against DUI, DUI per se, DWAI, habitual user, or UDD. Failure to submit to a chemical test or to cooperate in submitting to a test results in a minimum one year revocation of your driving privileges for refusal. The refusal to submit to or cooperate in the taking of a test will be used against you at trial.
Below is the advisement that was previously required to be given by law enforcement officers to drivers that were suspected of operating a motor vehicle in violation of the DUI, DUI per se, DWAI, habitual user, or UDD statutes:
“You are required to take, complete or cooperate in completing an evidential chemical test to determine the alcoholic content of your blood or breath (C.R.S. 42-4-1301.1 (2) (a) (I). The chemical test you choose is the test you will be taking. You cannot choose a different test later (C.R.S. 42-4-1301.1(2) (A) (II). If you choose a blood test, two (2) tubes of blood will be drawn. One tube belongs to you and you may have it tested at a Health Department Certified Independent Laboratory of your choice. If you choose a breath test, two breath samples will be analyzed by a certified evidential breath alcohol testing device following an approved standard operating procedure. You will not receive a sample to have independently tested by a certified laboratory. If you refuse to take, complete or cooperate in completing an evidential chemical test to determine the alcoholic content of your blood or breath your driving privilege may be revoked (C.R.S. 42-2-126(2)(a)(II)).”
This advisement is no longer required to be given as too many cases were being dismissed due to law enforcement officers failing to administer this advisement correctly. So in typical Colorado fashion, instead of holding the law enforcement officers accountable for properly explaining and advising people of their rights to a choice of tests, the requirement to provide the advisement was eliminated. Now law enforcement officers are only required to advise drivers that they need to choose between a blood or a breath test if they are suspected of DUI, DUI per se, DWAI, habitual user, or UDD due to alcohol consumption. If the law enforcement officer believes that the driver is in violation of impaired driving statutes because of drugs or a combination of drugs and alcohol, the law enforcement officer has the right to mandate a blood or urine test and the officer has the right to choose the type of test the driver must submit to. Yes, that is right. The law enforcement officer chooses the type of test if you are suspected of being impaired by drugs.
In Colorado, you are allowed an administrative hearing on all excess BAC violations and alleged refusals. However, you only have seven (7) calendar days from the date of arrest to request a hearing if you submitted to a breath test or refused a test. If you fail to properly request a hearing within this seven day period, you forfeit your right to a hearing and your driving privileges will automatically be revoked. If you submitted to a blood test, you are awaiting a letter in the mail called an “Order of Revocation”. If the results of your blood test indicate your BAC was .080 or higher, you will receive this letter from the Colorado Department of Revenue, Division of Motor Vehicles. You then have 10 days from the postmarked date of that letter to properly surrender your license and request a hearing.
Failure to request a hearing within the appropriate timeframe will result in an automatic revocation of your driving privileges. Colorado Express Consent hearings are ruled on by DMV hearing officers and are judged on a preponderance standard. This is a very low standard for the state to prove and thus the success of these hearings is often times less than desired. This hearing will only determine the status of your driving privileges in Colorado. This hearing is completely separate from your criminal proceedings and winning this hearing does not mean your criminal case will be dismissed and vice versa. Colorado Express Consent hearings are designed to revoke your driving privileges. The Hearing Officer at the DMV gets paid to revoke people's driving privileges and will do everything they can to revoke you. It is that simple.
After the stop the police officer should have given you your driver's license back. You are waiting for a white piece of paper, called an Order of Revocation, in the mail from the Department of Revenue, Division of Motor Vehicles. Immediately upon being released from jail, detox, the hospital or some other form of custody, you should contact the Colorado DMV and verify that the DMV has the correct mailing address on file. If they do not, you should update your address both online and by submitting the hard copy change of address form.
You only have 10 days from the postmarked date on the order of revocation letter to report to the DMV, surrender your physical license, and request your hearing. If you fail to do this within the timeframe, you automatically lose the right to have the hearing and will have your license revoked for nine months to a year depending on your offense.
You may go to any full-service DMV location that offers driver's license services. Get in line for Driver Services/Licenses. If you do not have a state ID or another picture ID other than your driver's license, get into the line while you are waiting for the Driver Services/Licenses and obtain a state ID. You can show them your driver's license as proof of identity. They may say you cannot have a state ID and a driver's license at the same time. Please inform them that you will be surrendering your driver's license momentarily. Once called by Driver Services/Licenses go to the window and hand them the letter you received titled “Order of Revocation” and also give them your driver's license.
Do not forget to surrender your driver's license! You are then requesting an Express Consent hearing on your alleged DUI. The staff member will hand you a yellow carbon copy document that will serve as your 60 day driving permit. This document is called a Request for Administrative Hearing Pursuant to Notice of Revocation for Express Consent. This is now your driver's license. Do not drive without this license in your possession. This license has no restrictions except that it is a paper license and not a hard copy. However, this means that you will not be allowed to rent a car with this license as the rental car companies will not honor a paper license. You are now waiting on the DMV to send you another letter titled "Notice of Hearing." This letter will tell you the time, date and location of your Express Consent hearing. If you fail to notify the DMV of your correct mailing address, you may not receive this letter and thus you will not be present for your hearing.
If You took a Breath Test or Refused a Test
Upon being released from jail, detox, the hospital or some other form of custody, you should have been given a document titled Express Consent Affidavit and Notice of Revocation. This is often a yellow carbon copy document unless you were cited by Colorado State Patrol as their document is usually on a standard, white 8.5' x 11' piece of paper. The police officer should have confiscated your driver's license as well. The Express Consent Affidavit and Notice of Revocation is your seven day driving permit.
You have only seven calendar days to report to the DMV and request your express consent hearing or you automatically lose the right to have the hearing and the DMV will take your license for nine months in a first offense case or one year for a second / third offense or a refusal. Do not wait until the last day! Go and request your hearing well in advance of the date.
You may go to any full-service DMV location that offers driver's license services. Get in line for driver services/licenses. If you do not have a state ID or another picture ID other than your driver's license, get into the line while you are waiting and obtain a state ID. Once called by Driver Services/Licenses go to the window and hand them the yellow sheet of paper titled Express Consent Affidavit and Notice of Revocation. You are then requesting an Express Consent hearing on your alleged DUI.
Please ensure the DMV has your correct mailing address as you are waiting on the DMV to send you another letter titled "Notice of Hearing." This letter will tell you the time, date and location of your Express Consent hearing. If you fail to notify the DMV of your correct mailing address, you may not receive this letter and thus you will not be present for your hearing. The staff member will hand you a yellow carbon copy document that will serve as your 60 day driving permit. This document is called a Request for Administrative Hearing Pursuant to Notice of Revocation for Express Consent. This is now your driver's license. Do not drive without this license in your possession. This license has no restrictions except that it is a paper license and not a hard copy. However, this means that you will not be allowed to rent a car with this license as the rental car companies will not honor a paper license.
Clients often times ask us why they should request a hearing or what the benefit is of requesting a hearing? As most Denver DUI attorneys know, it is very difficult to have your case dismissed at the DMV. The Express Consent hearing is a preponderance hearing and is presided over by a DMV hearing officer. You are guilty until proven innocent at this hearing. So why go through the trouble to request a hearing? The answer is simple; you don't win any fights you don't get into.
The only way to save your license is by requesting this hearing and preparing a defense designed to combat the preponderance level at the DMV. A good Colorado DUI defense lawyer will have a strategy for these hearings and how they plan on cross examining the officers. This is a great opportunity to get the officer's testimony under oath and use that testimony to impeach the officer in the criminal case. We win more criminal cases as a result of testimony elicited at the DMV than we do for any other reasons. Having this hearing is a critical part of your case and while you may not win the hearing, sometimes you have to lose the battle to win the war.
Any attorney who tells you to not have the hearing is giving you very poor advice in our opinion. Do not hire these attorneys – they are afraid to fight and do not understand the value of cross examination!
Upon conclusion of your Express Consent hearing, the DMV hearing officer will make a decision based upon evidence presented at the hearing. The hearing officer will either revoke your driving privileges or dismiss the case. The hearing officer will make his/her determination of your guilt based on the following criteria at preponderance standard: 1. Were you in actual physical control of a motor vehicle in the state of Colorado? 2. Did the officer have a lawful reason to contact you? 3. Did the officer have probable cause to require you to take a chemical test? 4. Was the chemical test conducted within substantial compliance and was the test failed (≥.080)? 5. Were you properly advised of Colorado Express Consent Law and did you refuse to take a test or to cooperate in the taking of a test?
If it is more likely than not that the above are true, the hearing officer is going to revoke your driving privileges. That is why you need an experiences and knowledgeable Colorado DUI attorney to protect your rights and defend your driving privileges.