Criminal Law Newsletter
| Publication year | 1980 |
| Pages | 713 |
| Citation | Vol. 9 No. 4 Pg. 713 |
1980, April, Pg. 713. Criminal Law Newsletter
This column is intended to assist practitioners who seldom find themselves handling Motor Vehicle hearings. The column generally covers the procedure for Motor Vehicle hearings and specifically deals with suspension hearings, probationary licenses, revocation hearings, extension of suspensions and revocations, second level suspensions and, briefly, appeals.
The following information applies to all hearings for any action the Department of Revenue, Motor Vehicle Division, may take affecting driving privileges. There must be a hearing or the opportunity for a hearing must be made available before a suspension or revocation can become effective. There must be a hearing when there is an extension of a suspension, but not necessarily before the action is effective. Extension of a revocation is mandatory, leaving no discretion to the Department.
The Department of Revenue has promulgated Regulation 2-130.3. concerning conviction for Driving under Suspension. This Regulation applies to any conviction for any violation under Title 42, C.R.S., and is applied to denials as well.
Notice(fn1) must be sent in writing by certified or registered mail to the last known
If counsel knows the client is going to be suspended or revoked, counsel should make sure that the Department has the client's correct address by complying with § 42-2-117(1). Within ten days of a change of address, counsel should notify the Department in writing of the new address, new name and the number of any license or registration held by the client. If no request is made for a hearing (such request may be made by phone to the hearing section) within the time period, then the suspension, revocation or denial will become effective.
Hearings will be held at the district office of the Department of Revenue closest to the residence of the licensee. The hearings are informal and held by a hearing officer. No
one "prosecutes" the state's case and only in implied consent hearings does a witness appear on behalf of the state---the police officer. A record is made of every hearing by tape recording. These hearings are generally governed by C.R.S. 1973, § 24-4-105, and especially subparagraphs (7) and (8),(fn3) which states, among other things, that the proponent of an order has the burden of proof.
All actions for suspension, revocation, denial and extensions are civil in nature and are adjudicatory proceedings. The Department action taken as a result of a hearing must be supported by any competent evidence.(fn4) Hearsay evidence is admissible but subject to attack on any other evidentiary grounds. The hearsay, however, cannot be solely relied upon to sustain an action, since there must be a "residuum" of other legal or competent evidence to support the hearsay.(fn5)
There is a statutory exception to this which is set forth in C.R.S. § 42-2-118. This defines official records of the Department, which include accident reports and driver histories. These documents do not have to be certified because the hearing officer may take judicial notice of these official records, which constitute prima facie evidence. In this instance, hearsay is admissible and may be sufficient to sustain an agency action unless rebutted. Also, under the new Rules of Evidence, 803(8), public records and reports are exceptions to the hearsay rule.
Counsel should always be aware of the mandate of C.R.S. § 24-4-107 of the Administrative Procedures Act:
. . . where there is a conflict between this article and a specific statutory provision relating to a specific agency, such specific statutory provision shall control as to such agency.
An attorney's absence at a revocation hearing without a reason being given is not sufficient for the granting of a continuance. Failure to appear does not in itself demonstrate an attorney's inability to appear.(fn6)
The primary actions by the Department resulting in suspensions are either for accumulation of points or under the Financial Responsibility Act.
The point structure is set forth in C.R.S. 1973, § 42-2-123(1):
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