Drinking and Driving: an Update on the 1989 Legislation
| Jurisdiction | Colorado,United States |
| Citation | Vol. 10 No. 1989 Pg. 1943 |
| Pages | 1943 |
| Publication year | 1989 |
1989, October, Pg. 1943. Drinking and Driving: An Update On the 1989 Legislation
Between April and June 1989, Governor Romer signed four new bills pertaining to Colorado's DUI bill. These bills contain some significant changes in the law. The four bills, in order of the scope of their effect on existing law, are Senate Bill ("S.B.") 246 and House Bills ("H.B.") 1172, 1289 and 1111. All took effect on July 1, 1989.
S.B. 246 makes substantial changes to CRS § 42-2-122.1, the statute dealing with administrative revocation for excessive blood or breath alcohol content or refusal to allow blood or breath testing. H.B. 1172 contains changes to the DUI statute, CRS § 42-4-1202. H.B. 1289 makes virtually the same changes to the vehicular assault and homicide statutes, CRS §§ 18-3-106 and 18-3-205. Finally, H.B. 1111 is the so-called "abuse and lose" law, mandating driver's license revocation for minors who are convicted of simply possessing liquor.
This article discusses these bills and the changes each of them makes to Colorado's DUI law.
S.B. 246 changes the defense of DUI cases in the most significant ways of the four bills. The following subsections highlight these changes.
Under the changes to the administrative revocation statute, police officers are no longer required to appear at Motor Vehicle Division ("Division") hearings unless a specific request is made by the driver.(fn1) Previously, the arresting officer had to be present or the revocation action was dismissed.
Drivers must now indicate when they request the hearing whether or not they want the officer present. If a driver indicates "yes," the Division will issue to the officer a notice to appear. If the request is not made at that time, however, the driver still can require the officer's presence by serving a Division subpoena at least five days in advance of the hearing.
If the officer has been notified or subpoenaed to appear and does not, counsel should move to dismiss the revocation. If the officer has not been notified or subpoenaed, the hearing will proceed based solely on examination of the reports and documents submitted by the officer and any evidence presented by the defense.
Practitioners should carefully consider whether to request the presence of the police officer when the hearing is requested. For example, there may arise some cases in which the documentation provided to the Division by the police is incomplete or defective (such as a missing intoxilyzer checklist or criminal summons and complaint). In such a situation, if the hearing is held without the presence of the officer, there will be no way for the defect in the documentation to be corrected and the revocation will have to be dismissed. It may be that the correct tactic will be to check the packet of documents prior to making a decision about subpoenaing the officer to testify.
The police officer, or his or her supervisor, may now contact the Division and "reschedule the hearing to a time when the officer will be available."(fn2) This can happen at any time prior to the dismissal of the revocation proceeding, and there is no limit on the number of times a hearing may be rescheduled. The officer or supervisor can do this for
medical reasons, a law enforcement emergency, another court or administrative hearing, or any other legitimate just cause as determined by the Department(fn3)
There is no requirement that any prior notice be given to the respondent driver or the driver's attorney that the hearing has been continued. There is only a requirement that the driver have at least ten days notice of the rescheduled hearing.
The Division has stated that it will make its best effort to give advance notice of rescheduling to a driver by asking for the driver's phone number at the time the hearing request is made. Because hearings now can be rescheduled at any time up to the instant at which the revocation is dismissed, however, it is possible that lawyers will have hearings rescheduled as they sit with clients
Hearings still must be scheduled originally within sixty days of a request for hearing.(fn4) A hearing may be rescheduled, however, beyond the sixty-day deadline, and there is no provision for a new sixty-day clock beginning.(fn5) In other words, once a hearing has been rescheduled, there is no time limit on when it can be held. However, if the hearing is delayed at the request of the police, the temporary permit issued to the driver at the time the hearing was requested continues in effect until the hearing actually is held.(fn6) The same is not true if a driver or defense counsel reschedules the hearing. In those cases, the revocation takes effect as of the date of the original hearing.(fn7)
There is one minor change in the notice provision of CRS § 42-2-122.1. The former law was that the notice of revocation or hearing was deemed received three days after it was mailed to the driver, unless returned by postal authorities. The new section deletes the words "unless returned by postal authorities."(fn8) Precisely what effect this change will have is unclear. However, it appears that the legislature is trying to put the Division in the position of saying "tough luck" to a driver who requests a hearing beyond the time limit, even where that driver can demonstrate that non-receipt of the notice was due to an error by the Division or the Post Office.
S.B. 246 also prescribes the method for submitting defense testimony by affidavit. The defense can present evidence from individuals in the form of affidavits as long as the affidavits include the affiant's address, phone number and signature along with the date.(fn9) While the affidavits must be sworn to under penalty of perjury, they need not be notarized or witnessed by any third person. Statements or reports made by police officers, however, need not even be sworn. While the Notice of Revocation itself still must be sworn and notarized by the arresting officer, other police reports need not be.(fn10)
S.B. 246 creates a new subparagraph of CRS § 42-2-122.1. It provides that, if the blood or breath test done by or on behalf of a law enforcement agency is over.12, there is a presumption favoring that analysis.(fn11)
In this author's opinion, there is no justification for this presumption. In the case of blood samples, the...
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