September 20, 2018

Colorado Supreme Court: Non-Law Enforcement Evidence Need Not Be Admitted in Affidavit Form in Revocation Hearing

The Colorado Supreme Court issued its opinion in Department of Revenue v. Rowland on Monday, January 8, 2018.

Evidence—Revocation of License—Evidence of Sobriety Tests.

In this case, the Colorado Supreme Court considered whether C.R.S. § 42-2-126(8)(c) requires all written statements from non-law enforcement sources to be presented in affidavit form and sworn to under penalty of perjury before they can be considered as evidence in driver’s license revocation hearings. C.R.S. § 42-2-126(8)(c) provides that, in driver’s license revocation proceedings, a hearing officer “may consider evidence contained in affidavits from persons other than the respondent,” so long as those affidavits meet certain requirements, including the requirement that the affidavits be sworn to under penalty of perjury. The supreme court held that C.R.S. § 42-2-126(8)(c) does not require all written statements from non-law enforcement sources to be presented in affidavit form and sworn to under penalty of perjury before they can be considered as evidence in driver’s license revocation hearings.

Specifically, the court held that the blood alcohol content test report in this case did not have to meet the affidavit requirements of C.R.S. § 42-2-126(8)(c) for the hearing officer to consider its contents. Accordingly, the court reversed the judgment of the court of appeals.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Breath Test Must Occur Within Two Hours of Driving for Revocation Proceedings

The Colorado Court of Appeals issued its opinion in Edwards v. Colorado Department of Revenue, Motor Vehicle Division on Thursday, September 22, 2016.

Robin Edwards was pulled over for speeding at 8:51 a.m. on September 7, 2014. The officer who pulled her over observed that Edwards had bloodshot eyes and slurred speech, and requested that she perform roadside sobriety maneuvers. Her stumbling and lack of balance indicated she was intoxicated, so the officer informed Edwards of Colorado’s express consent law and asked if she would complete a blood or breath test. She agreed to a breath test and was transported to the local police department.

Due to problems during the testing sequence, Edwards’ breath tests were not completed until 10:52 a.m. and 10:56 a.m. The intoxilyzer report from the two samples showed Edwards’ BAC to be .229 grams of alcohol per two hundred ten liters of breath, well above the .08 limit for revocation. The Department initiated proceedings to revoke Edwards’ driver’s license.

The arresting officer testified at the revocation hearing that Edwards’ .229 BAC result was based on breath samples taken more than two hours after the initial traffic stop. Edwards argued that her driver’s license should not be revoked because she provided valid breath samples after the two-hour time period required by the revocation statute. The hearing officer found that Edwards’ breath samples were obtained outside the two-hour window, but ruled that the test administrator performed in “substantial accordance” with the statute, and, because the testing began at 10:50 a.m., it commenced within two hours of when Edwards stopped driving. The hearing officer revoked Edwards’ driver’s license based on excessive BAC. The district court affirmed the hearing officer on different grounds, finding that based on Edwards’ excessive BAC, it was more probable than not that she had driven with an excessive BAC.

Edwards appealed, contending the hearing officer erroneously interpreted the revocation statute, and because her breath samples were obtained outside the statutory two-hour window, her results could not be used at the revocation hearing. The Colorado Court of Appeals analyzed C.R.S. § 42-2-126(2)(b), finding that the statute mandated that breath or blood results must be obtained within two hours after driving. The court found ample legislative and case law support that the two-hour window is mandatory, and that test results obtained outside the window must not be considered. Because Edwards’ test results were obtained after the two-hour window expired, they could not be considered at the revocation hearing.

The court of appeals reversed the district court with instructions to set aside the order of revocation. The court of appeals also remarked that its findings would not affect the criminal proceedings against Edwards.

Colorado Court of Appeals: Proof of Mailing of License Revocation Notice Insufficient to Prove Knowledge in Criminal Proceeding

The Colorado Court of Appeals issued its opinion in People v. Boulden on Thursday, July 14, 2016.

Knowledge Element ofDriving Under Restraint.

Defendant’s driver’s license had been suspended for seven months when he was pulled over. He was convicted of driving under restraint.

On appeal, defendant contended that there was insufficient evidence to support his conviction. Knowledge is an essential element of the crime of driving under restraint. The prosecution admitted into evidence a certified copy of defendant’s driving history, which showed that notice of defendant’s driver’s license suspension had been mailed to him. Mere proof of mailing, however, is not sufficient in a criminal case to prove beyond a reasonable doubt a defendant’s knowledge of restraint of his driver’s privilege. Accordingly, no reasonable jury could have found that the prosecution proved the knowledge element of driving under restraint. Defendant’s conviction and sentence for driving under restraint were vacated, and the trial court was directed on remand to enter a judgment of acquittal.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Report of BAC Must Be Admitted in Affidavit Form to be Considered

The Colorado Court of Appeals issued its opinion in Rowland v. Department of Motor Vehicles on Thursday, March 10, 2016.

Driver’s License Revocation—Blood Alcohol Test—Admissibility of Evidence—Administrative Hearing—Evidentiary Affidavit Requirement.

A police officer pulled Rowland over for driving at inconsistent speeds and weaving. He unsatisfactorily performed several roadside maneuvers and was arrested for driving under the influence. In accordance with the implied consent law, Rowland chose to take a blood test to determine his blood alcohol content (BAC). An EMT drew a blood sample at the police station while an officer watched. Rowland’s BAC was almost twice the legal limit.

The Department of Revenue (department) revoked Rowland’s license for nine months. Rowland requested an administrative hearing during which the officer’s affidavit and testimony and the BAC test report were admitted into evidence. The hearing officer affirmed the revocation. Rowland appealed, and the district court rejected the hearing officer’s conclusion that the BAC test report was properly admitted at the hearing. Nevertheless, the court affirmed based on the record and a finding that the test results, though not the BAC report, were admissible.

On appeal, Rowland argued that the BAC report, which was prepared by a private organization, must comply with the affidavit requirements of CRS § 42-2-126(8)(c). The Court of Appeals agreed, but disagreed that the error in admitting the BAC report necessarily required reversal of the revocation order.

The Court agreed with Rowland that the BAC report was required to be submitted in affidavit form as a condition of its admission at the hearing, and because it was not, it should not have been admitted and relied on to revoke his license. However, the Court did not agree with Rowland that the inadmissibility of the BAC report prohibited the hearing officer from considering its contents as reported in the officer’s affidavit and hearing testimony. CRS § 24-4-105(7) permits a hearing officer to admit sufficiently reliable and trustworthy hearsay evidence in license revocation proceedings as long as the evidence possesses probative value. The BAC test results had probative value, thus the question was whether the test results, as testified to by the arresting officer and in the officer’s affidavit, were sufficiently reliable and trustworthy to permit their consideration by the hearing officer. The Court found they were.

The Court also disagreed with Rowland’s argument that consideration of the test results when the BAC test report itself was inadmissible circumvents the statute.

The Court could not determine from the record whether, or to what extent, the hearing officer relied on the inadmissible BAC test report itself in reaching his decision. Because the Court could not determine if the hearing officer would have reached the same revocation determination without the improper admission of the test report itself, it reversed and remanded the case for the hearing officer to make that determination.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: Exclusionary Rule Does Not Apply in Drivers License Revocation Proceedings

The Colorado Supreme Court issued its opinion in Hanson v. Department of Revenue on Monday, June 30, 2014.

CRS § 42-2-126—Driver’s License Revocation—Probable Cause—Exclusionary Rule.

The Division of Motor Vehicles revoked a driver’s license, following a hearing officer’s determination that the driver had improperly refused a blood alcohol test. The district court and the court of appeals both affirmed the revocation.

The Supreme Court held that under CRS § 42-2-126, as it was in effect at the time of the hearing in this case, “probable cause” in the context of the driver’s license revocation statute refers to the quantum and quality of evidence necessary for a law enforcement officer to issue a notice of driver’s license revocation, not whether the officer’s initial contact with the driver was lawful. The Supreme Court further held that the exclusionary rule does not apply in driver’s license revocation proceedings. Accordingly, the Supreme Court affirmed the judgment of the court of appeals.

Summary and full case available here.

Colorado Supreme Court: “Probable Cause” for Drivers License Revocation Refers to Evidence Necessary for Officer to Issue Notice of Revocation

The Colorado Supreme Court issued its opinion in Francen v. Department of Revenue on Monday, June 30, 2014.

CRS § 42-2-126—Driver’s License Revocation—Probable Cause—Exclusionary Rule.

The Department of Revenue, through the Division of Motor Vehicles, revoked a driver’s license, following a hearing officer’s determination that the driver had driven a motor vehicle with a blood alcohol content (BAC) in excess of the statutory maximum. The district court reversed, holding that the initial stop of the driver’s vehicle was not supported by reasonable suspicion. The court of appeals reversed the district court and held that the legality of the initial contact between the police and the driver was not relevant in the civil administrative proceeding to revoke the driver’s license. The court also held that the exclusionary rule did not apply to suppress evidence of the driver’s BAC.

The Supreme Court held that, under CRS § 42-2-126, “probable cause” in the context of the driver’s license revocation statute, as it existed at the time of the hearing in this case, refers to the quantum and quality of evidence necessary for a law enforcement officer to issue a notice of driver’s license revocation, not whether the officer’s initial contact with the driver was lawful. The Supreme Court further held that the exclusionary rule did not apply to suppress evidence of the driver’s BAC in the driver’s license revocation proceeding. Accordingly, the Supreme Court affirmed the judgment of the court of appeals.

Summary and full case available here.