Chapter 9 - § 9.2 • PER SE AND REFUSAL REVOCATIONS

• Jurisdiction: Colorado

§ 9.2 • PER SE AND REFUSAL REVOCATIONS

§ 9.2.1—Introduction

C.R.S. § 42-2-126 establishes a license revocation proceeding, which can begin immediately upon a driver's arrest for an alcohol- or drug-related driving offense. This proceeding occurs in two situations. The first is where the arrested driver takes a blood or breath alcohol test and gets a result that is equal to or greater than a limit set by the legislature for that class of driver. For drivers under the age of 21 the limit is .02. C.R.S. § 42-2-126(2)(d). For drivers who hold commercial driver's licenses and are arrested driving commercial vehicles the limit is .04. C.R.S. § 42-2-126(2)(c). For all other drivers, the limit is .08. C.R.S. § 42-2-126(2)(b). These are commonly referred to as "per se" revocations and apply only in alcohol (not drug) cases. The second situation is where the arrested driver refuses to allow a chemical test for alcohol or drug content to be done. C.R.S. § 42-2-126(2)(h) and (3)(c). These are referred to as refusal revocations. In both of these situations, the driver faces separate criminal and administrative proceedings that can have separate and even opposite outcomes. In some circumstances, the outcomes can be cumulative, with driver's license consequences resulting from both the administrative and criminal proceedings being consecutive to one another. The Colorado Supreme Court has determined that none of these circumstances violates the double jeopardy principles of constitutional law. People v. Deutschendorf, 920 P.2d 53 (Colo. 1996).

§ 9.2.2—Per se Breath Revocations

When an arrested driver takes an Intoxilyzer (breath) test that yields a result at or above the per se limit for that class of driver, the arresting officer is required by C.R.S. § 42-2-126(5)(b)(II) to act as the agent of the DMV and take immediate possession of the person's license. That is true regardless of whether the license is issued by Colorado or another jurisdiction. Id. The officer must then serve the driver with an Affidavit and Notice of Revocation stating the probable cause to believe that the license should be revoked. C.R.S. § 42-2-126(5)(a) and (b)(I). A copy of that affidavit, along with supporting reports (such as the reason for the initial contact, the results of roadside sobriety tests, and the Intoxilyzer test printout) is then mailed to the DMV. C.R.S. § 42-2-126(5)(b)(III).

If the license confiscated by the police officer is valid, the officer must also issue a temporary permit allowing the person to drive for seven days. C.R.S. § 42-2-126(5)(b)(II). The temporary permit appears at the bottom of the form used for the Affidavit and Notice of Revocation. If a valid license is surrendered, the revocation is automatically stayed for seven days, during which time the driver must contact the DMV in writing to request a hearing concerning the revocation. C.R.S. § 42-2-126(7). For additional discussion on this topic, refer to § 9.3. If a hearing is not requested, the revocation automatically takes effect on the eighth day. C.R.S. § 42-2-126(7)(b). Subsections 9.2.4 through 9.2.9 discuss the length of per se revocations.

§ 9.2.3—Per se Blood Revocations

When an arrested driver takes a blood test (as opposed to a breath test), the police officer must wait for the laboratory test results before beginning the license revocation procedure. Consequently, the person's license is returned pending those results. When the police officer receives a lab result equal to or greater than the per se limit, the officer then fills out the Affidavit and Notice of Revocation and sends it, along with supporting documentation, to the DMV.

The DMV then mails to the driver an Order of Revocation. The order must be mailed to the driver's last known address, according to the DMV's records, and to any differing address listed in the police officer's affidavit. C.R.S. § 42-2-126(6)(b)(II). The order is deemed received three days after it is mailed. C.R.S. § 42-2-126(6)(b)(II). The order informs the driver that a license revocation will take effect on a specified date, approximately one week from when the notice is received, unless a hearing is requested prior to that date. The order also informs the driver that a hearing will be granted if a written request is received by the DMV prior to that date. C.R.S. § 42-2-126(6)(b)(I). Surrender of a valid driver's license is not a prerequisite for receiving a hearing. It is, however, a prerequisite for receiving a temporary permit to drive pending the hearing. A driver will not be denied a hearing for failing to surrender a license, but will be denied a stay of the order of revocation and a temporary permit to drive in the interim.

§ 9.2.4—Length of Per se...