From Our Readers

• Publication year: 1986
• Pages: 37
• Citation: Vol. 15 No. 1 Pg. 37

15 Colo.Law. 37 Colorado Lawyer 1986.

1986, January, Pg. 37. From our Readers

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37

Vol. 15, No. 1, Pg. 37

From our Readers

Dear Editor:

Readers of my article ["DUI Defense Under the Per Se Law," 14 The Colorado Lawyer 2155 (December 1985)] should be alerted that an appellate court decision appears in the same issue at 2255 which has a significant impact on the defenses set forth in my article.

In Marek v. Dept. of Revenue, 14 Colo.Law.. 2255 (Dec. 1985) (App. No. 84CA0689, annc'd 10/31/85, the Colorado Court of Appeals reversed a district court ruling on the ground that the lower court reweighed the evidence presented at a license revocation hearing. The district court found that the hearing officer unduly relied on the unverified intoxilyzer (breath) test results offered by the Motor Vehicle Department ("MVD") (BAC of .164), while improperly disregarding the testimony of the driver's expert witness (BAC of. 149). The Court of Appeals reinstated the driver's revocation, stating that where the evidence is conflicting, the hearing officer's finding is binding on appeal.

The effect of Marek is that the BAC test results offered by the MVD is given an unchallengeable status, amounting to an irrebutable presumption. The right to a second BAC test becomes meaningless, given that a hearing officer may always choose the MVD test results. Under Marek, no degrees of reliability of evidence are recognized.

The trouble with the Marek decision is that district courts will probably interpret the decision as a directive to refrain from ever reversing a hearing officer's resolution of conflicting evidence. This especially affects the defense discussed at 2158 of my article regarding the effect of independent BAC test results. Actually, the ramifications of Marek may be felt in all other hearings conducted under the Administrative Procedures Act.

Marek realistically should be read as a...