Driver's License
One of the most common questions and fears clients have is "What is going to happen to my license?" This is not as simple to answer as it would appear. Prior history, age, resident status, BAC level, type of test taken and other factors dictate potential driver's license ramifications at the Colorado DMV.
When a person is arrested and suspected of drinking and driving, he/she is supposed to be given the right to a blood or breath test. The breath test, taken on the Intoxilyzer 5000EN, will produce immediate results. If the breath test result is .080 or greater, the individual's driver's license will be immediately confiscated and you should be issued a yellow piece of paper called an Express Consent Affidavit. This affidavit is a temporary seven (7) day driving permit and serves as formal notice of the Colorado DMV's intent to revoke your driving privileges for violating Colorado's per se law. You must request a hearing within this seven day period to fight for your driving privileges and to obtain a temporary 60 day driving permit while you await your administrative hearing.
If you submit to a blood test, your blood will be sent to a lab for chemical analysis and upon the results being reported to the DMV you will be sent a letter called an "Order of Revocation." This letter will indicate your BAC level, if .080 or greater, and serve as notice that you have ten days from the postmarked date of the letter to request your hearing at the DMV to fight for your driving privileges. You must ensure the DMV has your current mailing address or you may not receive this letter. The DMV must only prove that the letter was mailed to the last address filed with the DMV. Do not rely upon the information you provided the officer; file a change of address form with the DMV immediately.
If you refused testing, your driver's license will be immediately confiscated and you should be issued a yellow piece of paper call an Express Consent Affidavit. This affidavit is a temporary seven (7) day driving permit and serves as formal notice of the Colorado DMV's intent to revoke your driving privileges for refusing a chemical test. You must request a hearing within this seven day period to fight for your driving privileges and to obtain a temporary 60 day driving permit while you await your administrative hearing.
If this is a first offense, the license will be revoked for nine (9) months and you will be eligible for an ignition interlock restricted license after 30 days of no driving. If you refused a chemical test, your license will be revoked for one (1) year with no type of restricted, work or probationary license available.
Because of the severity of the administrative penalty for DUI and the possible ramifications of a driver's license revocation, individuals should always consult with a Colorado DUI lawyer and retain representation immediately to allow their attorney enough time to prepare a defense for the Express Consent hearing. It is strongly recommended that Express Consent hearings be requested at all times. The only way to win this hearing and save your license is by requesting the hearing. You have nothing to lose by requesting your administrative hearing.
The Express Consent or DMV hearing is conducted by a hearing officer who is an employee of the DMV. This person, although not legally trained and not even required to be an attorney, will act as the "judge" and also as the prosecutor! The hearing is conducted like a miniature trial, but without jury and with somewhat different rules of evidence. The defenses tend to be more technical than in court, with procedural and bureaucratic errors often the grounds for a "dismissal" of the pending administrative action. Because of the technical nature of these hearings and the lack of an independent judge, it is inadvisable to attempt to represent yourself. And because they are not criminal in nature, public defenders are unavailable for DMV hearings. Legal representation from a reputable and experienced Colorado DUI defense law firm in these matters will greatly increase the chances of the driver's license revocation being avoided.
Testimony can be produced by both sides, although the hearing officer usually only produces documents, such as police reports, laboratory reports and the officer's sworn affidavit. Because there is no Fifth Amendment right at the hearing, the attorney may or may not choose to have the client at the hearing since they can be called by the hearing officer as a witness. A decision is usually rendered on the spot; however, based on evidence presented by the defense, it is possible to obtain a stay as the hearing officer takes the argument under advisement. If the hearing is lost, all appeals must be filed with the District Court within thirty (30) days of the hearing.
Note: Neither a plea to a reduced offense nor a dismissal of criminal charges is a defense to an Express Consent revocation. If the Express Consent or DMV hearing is lost and not won on appeal, there is no way to have this decision reversed. The administrative hearing is separate from the criminal proceedings and winning at one does not guarantee success at the other.
