An arrest for Driving Under the Influence (DUI) also carries administrative law consequences for the person charged. This is separate from the criminal case in which the District Attorney’s Office is attempting to obtain a conviction, monetary fines, probation, and jail time. Immediately after an arrest for DUI with a breath test above the per se limit or a refusal to take a test, the Colorado Department of Revenue will start administrative proceedings against you to revoke your Colorado driving privileges. A DUI involving a blood test changes the procedure and time frames, but the penalty remains the same. In DUI cases involving blood tests, the Department needs to wait for the blood tests to be reported to them from the arresting agency, before they initiate the revocation proceedings. This can take from as little as three weeks to ten or more weeks.
The Colorado Department of Revenue, Division of Motor Vehicles, can only suspend or revoke your Colorado driver’s license or driving privileges in Colorado. If you possess an out of state driver’s license, please see the following sub-section entitled “Out of State Licenses”. If this DUI is your first or if you have not had a prior administrative revocation in Colorado and your BAC comes back at or above .08, then the Department of Revenue will attempt to revoke your driving privileges for 9 months.
Under Colorado law, on a first offense below .170, a driver can apply for early reinstatement by installing an interlock device in the driver’s car for 8 months after not driving for 1 month. An ignition interlock device requires a driver to blow into the device before starting the car and also while driving.
There is also a provision within the statute that allows you to remove the device early if you qualify. Upon getting your license reinstated with interlock, you need to have no failures or tampering issues the first four months. Once the DMV gets notice from the interlock provider that you have met these criteria, they send you notice and will allow you to remove the device early. If a person’s BAC is at or above .170, then the interlock period is for a mandatory two year period following reinstatement after serving the 1 month of no driving.
If you have a prior per se revocation in Colorado, the Department of Revenue will attempt to revoke your driver’s license for a period of one year. There are no more “red” or probationary licenses available on alcohol related offenses in Colorado. Colorado is not a “right to work” state. What I mean by that is that Colorado does not care if you will lose your job if you do not have a license. The revocation length and terms are non-negotiable.
Habitual strikes are major traffic infractions that include DUI, DWAI, DUS, DUR, and Reckless Driving. If a driver receives three habitual strikes in a seven-year period, their driving privilege will be suspended for five years or more depending on the type and number of offenses.
In Colorado, there is no such thing as a “work permit” in alcohol-related cases. Other than winning your license back through administrative hearings or on appeal, the only way to get driving privileges is to agree to a restricted ignition interlock license for the period of time dictated by the persons BAC and the number or prior offenses.
After the revocation period, to get your license reinstated, you must pay the reinstatement fee, file the application for reinstatement form, and in many cases, show proof of enrollment or completion of alcohol classes, obtain SR22 insurance, and have the interlock installed for the required period of time.
Early reinstatement or an Ignition Interlock license (Blue License)
On a first offense, the interlock license is automatically granted if you file the appropriate paperwork with the Department of Revenue. The processing of this paperwork takes about 3 weeks. Remember this is the DMV. If it can get screwed up, it will, and nothing will be processed in a timely manner. For a person to be allowed to drive right after the one month day period, on a first offense, they need to file the paperwork within a week or two of the revocation of their driving privileges to ensure that their license is reinstated in a timely manner.
The expense of the ignition interlock device is, of course, to be paid by you, the licensee. There are only four companies authorized in Colorado that will install and monitor the device. These private companies charge an installation fee and a monthly monitoring fee for the ignition interlock device. You are required to have an interlock in every car you drive and own.
If you drive your employer’s vehicle, your employer will be required to place an ignition interlock device on any employer owned vehicles driven by you. Most company insurance companies will not allow this, which often leads to termination. This is another reason why you need to fight your DUI charge and hire a competent and experienced DUI defense attorney or law firm.
Preventing the Revocation
The suspension of your driving privileges can only be prevented by challenging the revocation. To challenge the revocation, it is necessary to request an administrative hearing within 7 days of being served with the express consent affidavit on a breath or a refusal case. In a blood case, you must request the hearing within 10 days of the post-marked date of the order of revocation that was sent by the DMV.
In cases of blood tests, the notice is sent to you at the address the Department has on file (usually the same address that is on your license). The notice resulting from a blood test is sent after the Department receives notice from the police agency that your blood tested over the legal limit for alcohol. Notice is not sent to the DMV for drug related DUI cases. This is because as of the date this book was published, there is not yet a per se limit for drugs. That may soon change as legislation is currently being proposed to set a per se limit for marijuana.
After the Department receives a request for an administrative hearing, the Department will provide you with a temporary 60-day driving permit. The revocation will be placed on hold until the hearing is held. During this time, you will have the same driving privileges you had before your license was taken, including commercial driving privileges.
After the Department receives a timely request for an administrative hearing, the Department will set the date for the administrative hearing to take place within that sixty 60-day time period.
It is not necessary for you to appear at the administrative hearing if your attorney waives your appearance and appears on your behalf. If no one shows on the licensee’s behalf, the revocation will be upheld and the revocation will begin as of the time and date of the set hearing date. If the officer in the case has been requested or subpoenaed and fails to appear, the Department should dismiss the revocation action. It is important to understand that there is often times more than one officer who played a vital role in the case, and a good DUI defense attorney will be able to identify all necessary officers and request subpoenas requiring those officers to appear at the hearing as well.
If all the parties appear, then the Administrative Hearing Officer will hear the issues and make a ruling. As the law currently stands as of the date this book was sent to print, the only thing the DMV must proof is: that the person was in actual physical control of a motor vehicle, that the officer had probable cause to arrest the person and that test was done within substantial compliance of the Department of Health Rules and regulations within 2 hours of driving (or actual physical control). If it is a refusal case, the Hearing Officer will determine if the person was in actual physical control of a motor vehicle, that the officer had probable cause to arrest the person, and whether the person refused to take a test or cooperate with the taking of a test of their blood or breath after being advised of Colorado express consent law.
The burden of proof is on the police officer and the standard of proof is a preponderance of the evidence. Preponderance of the evidence means it is more likely than not that you were driving or in actual physical control of a motor vehicle with a BAC over .08 for adults over the age or 21 years old. The BAC limit for a person under 21 years of age is .02. The preponderance standard is a lesser standard of proof than the criminal standard of proof, which is beyond a reasonable doubt.
Unfortunately, there are attorneys who tell their clients not to bother with the administrative hearing because they cannot be won. This is tantamount to malpractice in the authors’ opinion, as the author has and continues to get their clients’ licenses back after successfully challenging the revocation. Any attorney that advises you not to request the hearing and challenge the revocation should be avoided at all costs. The administrative hearing is the opportunity to cross-examine the officer under oath to discover the weaknesses or strengths of the government’s case against you. It allows your attorney to lock the state’s witness into their testimony prior to proceeding in the criminal case. Not challenging the revocation and cross-examining the officer at the hearing is the equivalent of not reading the police reports. Not only are these administrative hearings the only chance you have to save your license, but they are an invaluable part of the discovery process.
If your license was under suspension or revocation when you were arrested, it is still very important that you request the administrative hearing. A new revocation will extend your license suspension/revocation time. Again, these hearings are not easy to win. Nothing involving a DUI and defending them is easy. However, you don’t win battles that you do not fight. You have nothing to lose by requesting a hearing. As stated above, these hearings can be critical in helping your defense attorney obtain useful information and testimony in your case. The authors have had hundreds of cases dismissed and reduced out of alcohol based on the testimony given and the information obtained from these hearings.
District Court Appeals
If the Department sustains or upholds the revocation after an administrative hearing has been held, you have the right to appeal the Hearing Officer’s decision. The petition for judicial review must be filed with in thirty calendar days from the order sustaining the revocation.
If the court finds that the hearing officer erred, acted in an arbitrary or capricious manner or that there was an abuse of discretion, then the court can dismiss the action or remand the decision for further hearings.
Out-of-State Licenses
If you possess a driver’s license from another state, Colorado can only suspend or revoke your Colorado driving privileges. Most states belong to the Interstate Driver’s License Compact. This comp act requires all member states to report driving convictions or departmental actions to the licensee’s home state. The home state is the state that issued the licensee’s license.
Once the home state is notified, it may take action against your license. If the home state takes action, it will send notice to you at the address the home state has on file. This notice will usually advise you of the home state’s action. The notice may or may not have the licensee’s appellate rights listed.
Once this notice is received, you should immediately contact a lawyer in your home state to explore ways to prevent license suspension. The authors are able to refer our clients to other qualified DUI attorneys that we have taught or trained with at the national or international level.
Each state handles license suspensions differently. If the suspension in Colorado is the result of not successfully challenging the suspension at the administrative level, then the suspension is an administrative suspension. If the suspension in Colorado is based on a conviction for DUI, then the suspension is a conviction suspension. This is an important distinction as some states will not suspend your license based on an administrative suspension. Most states will suspend your driver’s license if you are criminally convicted of DUI.
It is important to contact a DUI attorney from the state of origin of your license to see what, if any, ramifications will occur with either an administrative action or a criminal conviction. This knowledge allows you and your attorney to discuss the best course of action. Not helping a client determine what ramifications will occur in their home state is tantamount to malpractice.