The Colorado Court of Appeals issued its opinion in Long v. Colorado Dep’t of Revenue, Motor Vehicle Division on August 2, 2012.
Driver’s License—Revocation—Refusal—Express Consent—Advisement.
Plaintiff John Chris Long appealed the district court judgment affirming an administrative order entered by defendant, the Colorado Department of Revenue, Motor Vehicle Division (Department). The judgment was affirmed.
The Department revoked plaintiff’s driver’s license for one year based on his refusal to submit to testing as required by Colorado’s express consent law. Plaintiff contended that the Department lacked statutory authority to proceed with the hearing, asserting that the Department failed to provide proof that it made an initial revocation determination as required by statute, and that there was insufficient information to support such a determination. Contrary to plaintiff’s argument, however, on receipt of the completed notice of revocation form, a copy of plaintiff’s driver’s license that was taken into possession, the officer’s affidavit, and other additional documents from the officer, the Department determined that plaintiff’s license should be revoked. It had sufficient information to make that initial revocation determination based on the documents submitted by the arresting officer, and it was not required to support its preliminary determination with formal findings. Thus, plaintiff failed to show that the Department lacked statutory authority or jurisdiction to proceed with a revocation hearing.
Plaintiff also contended that the hearing officer erred in determining that his conduct constituted a valid refusal to submit to testing. Plaintiff originally had elected to take a breath test. The breathalyzer initially indicated that it was not operating properly, but when the deputy restarted it, the breathalyzer printout indicated it was working properly. Plaintiff then refused to take the test because he did not believe that the machine was working properly. A licensee, however, cannot refuse to take a chemical test of breath or blood merely because he or she believes such testing equipment is unreliable or not working properly. Because the hearing officer’s factual finding that the breathalyzer was working properly after it had been restarted was based on unrebutted evidence and inferences on this issue, this finding is binding on judicial review.
Plaintiff contended that the hearing officer erred in determining that he was properly advised under the express consent statute. Because the breathalyzer was working properly, the deputy’s explanation was correct. The deputy had explained that plaintiff did not have to take the breath test, but because he had elected initially to take a breath test and because there were no extraordinary circumstances preventing completion of that test, if he did not take the test, it would constitute refusal.
Plaintiff further argued that there was no probable cause for the initial traffic stop. The testimony and written report of the arresting officer established that he observed plaintiff speeding and weaving in and out of his traffic lane. Therefore, the evidence was sufficient to support the hearing officer’s conclusions that there was reasonable suspicion to justify the initial traffic stop.
Summary and full case available here.
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