Chapter 9 - § 9.3 • REQUESTING AND SCHEDULING PER SE AND REFUSAL HEARINGS

• Jurisdiction: Colorado

§ 9.3 • REQUESTING AND SCHEDULING PER SE AND REFUSAL HEARINGS

§ 9.3.1—Requesting the Hearing

If a driver fails to request a hearing within seven days of receiving the notice of revocation, the right to a hearing is waived. C.R.S. § 42-2-126(7)(b). In the vast majority of refusal and breath test cases, these seven days begin running the day after the driver is arrested because the notice is served immediately by the police officer. It is important to note the actual date on the Notice of Revocation, however, since it is very common for a driver to be stopped and arrested shortly before midnight on one date and have the Notice of Revocation filled out and dated the next day. According to Colorado's statute on time computation, C.R.S. § 1-1-106, these seven-day periods are calculated by excluding the first day and including the last, and by counting all calendar days and not just business days. However, if the seventh day falls on a weekend or holiday, the period is automatically extended to include the next business day. For example, Jane Roe is stopped at 11:30 p.m. on Friday, April 10th, and arrested for DUI. At 1:00 a.m. on April 11th, she takes a breath test and blows .142. The police will issue her a Notice of Revocation dated April 11th, even though her ticket (i.e., the criminal summons and complaint) will be dated April 10th. The seventh day of her hearing request period therefore falls on Saturday, April 18th. Consequently, she has until the end of business on Monday, April 20th, to get her written request to the DMV. In blood test cases, the driver is mailed a notice of revocation, which specifically states the deadline for applying for the hearing. Due to the vagaries of the mail, this deadline may actually be slightly more or less than seven days from when the driver receives the notice.

Only in circumstances in which the DMV is shown that a person had no actual notice or was physically incapable of making a timely request can the seven-day deadline be waived. C.R.S. § 42-2-126(7)(c). Even then, although the DMV is required to grant a hearing, it will not stay the revocation pending the hearing. Id.

A driver may request the hearing by appearing in person or by mailing or faxing a written request to the DMV, or by having an attorney file the request. When the COVID-19 pandemic began in March of 2020 and government offices were shut down, the DMV began accepting hearing requests by email to dor_hearingrequest@state.co.us. Prior to that, hearing...