Chapter 9 - § 9.4 • PER SE AND REFUSAL HEARING PROCEDURES AND ISSUES

• Jurisdiction: Colorado

§ 9.4 • PER SE AND REFUSAL HEARING PROCEDURES AND ISSUES

§ 9.4.1—Introduction

When a police officer is not required to appear at a hearing, the only parties are the driver and the DMV. The hearing is presided over by a Department of Revenue hearing officer. These hearing officers have administrative decision-making training and most have law degrees. They are authorized to make evidentiary rulings, administer oaths, consider any relevant evidence, issue subpoenas, including subpoenas duces tecum, and regulate the course and conduct of hearings. C.R.S. § 42-2-126(8)(d). Hearing officers are even authorized to cause depositions and interrogatories to be taken, although as a practical matter this never happens. The Hearings Section has promulgated rules concerning the conduct of these hearings with which practitioners should be familiar. They can be found at 1 C.C.R. 211-2 and are also available online at the websites for the Colorado Department of Revenue (www.colorado.gov/revenue/hearings) and the Colorado Secretary of State (www.sos.state.co.us/CCR).

§ 9.4.2—Appearances

Hearings are most commonly conducted with the hearing officer, police officer (or officers), respondent driver, and defense counsel in attendance. However, the driver need not attend and may have a lawyer appear on his or her behalf. So long as the driver's personal testimony is not required, conducting a hearing without the appearance of the driver has no impact whatsoever on the conduct or outcome of the hearing.

The hearings must be recorded and the presiding officer's decision rendered in writing. C.R.S. § 42-2-126(8)(f). It is the hearing section's policy to retain the recording for at least 60 days following the hearing, although the deadline for filing an appeal is sooner (35 days). Refer to § 9.4.10 for a more detailed discussion on the deadline in which to file an appeal. Because these recordings are now digital, they are easier to store and are generally being retained for much longer than 60 days. A transcript can be purchased by making a written request and paying the transcription fee. A digital copy of the recording can also be obtained, and both items are covered by a request form available from the Hearings Section.

In order to create a backup in the event of a malfunction of the DMV's recording or transcription systems, some attorneys request permission of the hearing officer to make their own, unofficial, recording of the hearing. Consistent with an attorney's ethical obligations, the request must be made of the hearing officer prior to the recording being made. Because a failure of the recording system does not automatically result in a new hearing or reversal of the revocation, having such a recording is very important in the rare cases where the official recording is never made, is lost, or is destroyed. See Cop v. Charnes, 738 P.2d 1200 (Colo. App. 1987); see also Myers v. Dep't of Revenue, 126 P.3d 328 (Colo. App. 2005).

A series of regulations concerning the issuance, service, and enforcement of subpoenas for these hearings can be found in the Code of Colorado Regulations at 1 C.C.R. 211-2(5.1), et seq. The subpoenas must be requested using a DMV form application and must be issued by a DMV hearing officer. 1 C.C.R. 211-2(5). All subpoenas for law enforcement officers to appear at the hearing must be served to the officer at least five calendar days before the hearing, while subpoenas for any other witnesses need only be served 48 hours in advance. C.R.S. § 42-2-126(7)(f); 1 C.C.R. 211-2(5.9.3). Many police agencies designate a person to accept service for the officer and, if so, such service is deemed sufficient by hearing officers, so long as the appropriate proof of service can be provided at the time of the hearing. For in-person hearings, witness fees and mileage fees must also be tendered when the subpoenas are served. 1 C.C.R. 211-2(5.9.2). Appropriate mileage and witness fees may be found in C.R.S. §§ 13-33-102 and -103. Requests for DMV subpoenas may be faxed or emailed to the hearing section in Lakewood for issuance and signature by a hearing officer. Requests for subpoenas for officers other than the officer who signed the Affidavit and Notice of Revocation must also include a statement indicating (1) the nature of the expected testimony; (2) good cause as to why the expected testimony is relevant, necessary, and not cumulative; (3) why the testimony is not unduly burdensome on the witness to be subpoenaed; (4) why compliance with the subpoena will not significantly delay the proceedings; and (5) that the information sought is not otherwise obtainable before the hearing. 1 C.C.R. 211-2(5.5). Similar representations must also be made concerning subpoenas for documents or other tangible evidence. 1 C.C.R. 211-2(5.5). Unlike court subpoenas, the attorney may not issue the subpoena under his or her own signature. DMV rules for those subpoenas include a provision requiring payment of expert fees if the person subpoenaed is an expert. 1 C.C.R. 211-2(5.8.4). DMV hearing officers routinely exercise their discretion to deny the issuance of subpoenas. While their discretion is broad, it is not unlimited. See Gilbert v. Julian, 230 P.3d 1218 (Colo. App. 2009). Consequently, practitioners need to be careful and thorough in drafting a request for a subpoena.

The unexcused failure of the police officer who filed the Affidavit and Notice of Revocation to appear at the hearing in response to a subpoena or DMV notice results in the dismissal of the action against the driver's license. 1 C.C.R. 211-2(5.10.2.2). Unexcused failure of other subpoenaed officers or lay witnesses to appear or to produce subpoenaed materials may also result in dismissal if the hearing officer finds that the non-appearance substantially impairs the right of the driver to present a defense. 1 C.C.R. 211-2(5.10.2.1). Other possible remedies for a secondary officer's failure to appear can include continuance or civil contempt proceedings against the officer. 1 C.C.R. 211-2(5.10.4.1). These authors have never seen nor heard of such civil contempt proceedings being initiated.

§ 9.4.3—Hearing Documents and Exhibits

The police officer's affidavit that initiated the proceeding must be signed, dated, and sworn to under penalty of perjury, but need not be notarized. C.R.S. § 42-2-126(5)(a). That officer, however, may also submit reports of other officers, which need not be under oath but must identify the officer. C.R.S. § 42-2-126(8)(c).

The hearing normally begins with the hearing officer advising the driver of the purpose of the hearing, the burden of proof, and the right to appeal. The hearing officer then inquires if counsel has received and reviewed the documents submitted by the police agency. Because the hard copies submitted by the police are scanned at the DMV and only retained electronically, counsel must make sure that he or she has in fact reviewed the exact same documents contained in the DMV's electronic file. Occasionally, the packet sent to the driver will be missing something in the DMV file, or vice versa. This can create a difficult logistical problem in telephone hearings, as the missing documents need to be faxed or emailed to whoever is missing them. Refer to § 9.4.9 for discussion of issues related to presentation of documents or other evidence by the defense. It is much less of an issue in a video conference hearing because of the technology allowing screen sharing.

The driver or counsel may then question the officer about the documents and make any objections to their admissibility. As a practical matter, there are few sustainable objections to the admissibility of these documents if the officer is present. One basis for objection is the police officer's failure to sign, date, and swear to the affidavit, which defects almost all hearing officers will allow the police officer to cure at the hearing. If, however, the hearing is conducted without a police officer having been noticed to appear, such defect may result in the documents being excluded and the dismissal of the action. Another basis for objection to the admissibility of documents is that the chemical test result is not reliable and not admissible for any reason. In fact, when arguing that the test result is not reliable, objections to the admissibility of the documents relating to the testing must be made in order to argue successfully that the result itself is inadmissible. See Davis v. Department of Revenue, 2012 Colo. App. LEXIS 87 (Colo. App. Jan. 19, 2012) (unpublished).

If no police officer has been noticed or subpoenaed to the hearing, the hearing officer begins the hearing by reviewing the documents submitted by the police to see if they establish the essential elements of the revocation proceeding. Refer to § 9.4.4, "Essential Elements of Refusal and Per se Actions," for further discussion. The hearing is then opened to the driver and counsel to present any evidence or testimony. Finally, counsel can argue to the hearing officer that the police reports do not establish one of the essential elements by a preponderance of evidence, or that the reports and/or testimony establish a defense, such as an illegal traffic stop, an invalid breath test, or a recanted refusal. Refer to §§ 9.4.5, 9.4.6, and 9.4.7 for further discussion.

The driver and counsel for the driver have the right...