When a person is charged with a DUI in Colorado and receives a license suspension they have to navigate two separate, although parallel, systems. The first is obviously the criminal justice system. The second is the administrative system run by the Department of Motor Vehicles (DMV) in connection with a person’s privilege to drive.

We say “privilege” because many often feel that the ability to drive a vehicle is a right. There is, among others, the right to equal protection under the law, the right against self-incrimination, and, implicitly, the right to privacy. Some think that, like privacy, driving should be a an implicit constitutional right. Unfortunately, Colorado case law is clear that driving is not a fundamental right. See, e.g., Heninger v. Charnes, 613 P.2d 884 (Colo. 1980). This allows the DMV to regulate who can and cannot drive in Colorado.

We frequently toss around the term “driver’s license” without considering what we’re saying. Let’s break this phrase down. “License” can be used as a verb or a noun. The verb means to give permission; the noun refers to that permission which frequently takes the form of a document. The person granting the license is called a licensor. The person receiving the benefit of the license is deemed a licensee. James Bond had a license to kill. He was a licensee. A Broncos fan is given a ticket for their license to watch a game. The Broncos are the licensors. If you look at the back of a lift ticket to ski, you’ll see on the back that it is a license.

We all know that an unruly person at a movie or game can be escorted out. A skier that ducks a rope may have their lift ticket yanked. This is because a license can be revoked. The licensor essentially says to the licensee, “You no longer have my permission.”

Timing of Your Request

The time for enforcement of a revocation and hearing on that revocation hinges on whether a defendant submits to a blood or breath test. If a breath test is conducted and the defendant’s BAC is above .08, the officer will likely take the defendant’s license and issue what’s called a Notice of Revocation. In short, the Notice will state that the person has 7 days to request a hearing to contest the presumptive suspension of their license. The defendant can drive during that time, but the writing is on the wall. They either need to request a telephonic hearing, in which case they’ll be able to drive until the hearing, or prepare to lose their license a week from their arrest.

On the other hand, if the defendant submitted to a blood test, there will be a fairly lengthy delay in obtaining the results. We have had several cases where the Colorado Department of Health has taken 3+ months in processing the blood samples to determine the BAC. As above, during this period of uncertainty, a person can still drive. Once the Department of Health tests the blood sample, it will inform the DMV if the results are .08 or more. Upon receiving confirmation that the defendant’s BAC was .08 or higher at the time of driving, the Colorado DMV will issue a form letter to the defendant’s last known address via US Mail. It is imperative that the last registered address is accurate. When Ryan was a prosecutor he saw countless numbers of people who had old PO boxes or addresses from 4 years ago and didn’t receive the Notice. The Notice will state that the defendant’s license will be revoked in 7 days unless the defendant requests a hearing.

In either case, the key deadline for requesting a hearing is 7 days. Within that time, a person needs to request a hearing by (1) going into a DMV office, (2) sending in a request in writing, or (3) having a criminal defense attorney submit a request on behalf of the defendant. Our experience is that #1 is the best due to the certainty. If the defendant goes into a DMV office in person, the DMV will likely ask that you surrender your license on the spot and issue a temporary license. In requesting a hearing, the defendant will have to decide whether or not they want the officer to be present (call in) at the revocation hearing. Because the facts of each case vary greatly, it is best to consult with a local criminal defense attorney in deciding what strategy works best.

Expressed Consent

A condition of a Colorado driver’s license is that a person must submit to a chemical test if there is probable cause to believe the driver is violating the DUI/DWAI statute.

Many people will rightfully ask, “How can this be a condition when there’s nothing on the back of my driver’s license?” The easy answer is that there is a Colorado law directly on point: the Expressed Consent Statute. The legal citation is C.R.S. 42-4-1301.1. The first section of the Expressed Consent Statute states, “Any person who drives any motor vehicle upon the streets and highways and elsewhere throughout this state shall be deemed to have expressed such person’s consent to the provisions of this section.” In other words, when you get behind the wheel, you have already agreed that you will provide a chemical test of your blood, breath or, in the case of drugs, saliva, blood or urine, if the police officer has probable cause to believe you are under the influence of alcohol and/or drugs.

Assuming the officer rightfully has probable cause, they will place the driver under arrest and read the following:

“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 (2) 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)).”

At this point, the person has a choice: blood or breath. If the person refuses, their driver’s license will be revoked for at least a year. The underlying policy is to encourage suspects to submit to a chemical test. Once a decision is made – blood or breath – the Expressed Consent Statute explicitly states that a person cannot change their mind. Unless there are extraordinary circumstances, the test must occur within 2 hours from when the person was driving. This is often an issue when a collision is involved.

If the test occurs outside of the 2 hours and there are no extraordinary reasons for the delay, the person will likely keep their license. Nevertheless, the chemical test may still be used by the prosecution in the criminal case. There is a jury instruction that requires the jury to take into consideration how long between the driving and the test. Thus, if a person’s BAC is .005, but it was taken 5 hours after an accident, the jury will reasonably deduce that the defendant’s BAC was much higher at the time they were driving. The difference between how a test taken outside of the 2 hours is used in the DMV (administrative proceeding) versus the criminal case (legal system) highlights the independent nature of each. People are frequently confused by this fact.