BY:  Kip O’Connor II, Esquire

UNDERSTANDING DMV REVOCATIONS FOR A BREATH OR BLOOD TEST

An equally important factor in defending a DUI case is a strong understanding of the intricate rules and regulations regarding the Department of Motor Vehicles (DMV) revocation proceedings.  The trial court has no direct authority to revoke or take away a motorist’s license who has been accused of a DUI/DWAI.  It is the DMV that is empowered to take action against a motorist’s driving privileged based on the outcome of a chemical test of the motorist’s blood, breath or a refusal to submit to a test, independent of the trial court.  The DMV may also take additional action based on the outcome of the court case. 

Revocation for breath tests

When a motorist who is arrested for DUI elects to take a breath test that produces a test result of .08 grams of alcohol per 200 liters of breath or higher, the motorist is deemed to be above the “per se” limit for drinking and driving.  The arresting officer is then required to take possession of the motorist’s license and start Colorado’s Express Consent revocation proceedings.  The arresting officer now becomes an agent of the DMV.  The process begins with the arresting officer serving (usually handing) the motorist his copy of the “Express Consent Affidavit and Notice of Revocation”, which outlines the allegations and probable cause to believe that the motorist’s license should be revoked.  If the motorist’s license is valid (regardless of whether the license is a Colorado license or an out of state license) the arresting officer will check the box at the bottom of the Express Consent Affidavit and Notice of Revocation issuing the motorist a temporary driving permit.  This permit is only valid for seven (7) days.  Remember, the arresting officer is required to confiscate the motorist’s license regardless of whether it is a Colorado license or an out of state license.  The motorist then has seven (7) days to contact the Colorado DMV in person or in writing and request a hearing on the notice of revocation.  The motorist always has the right to request the presence of the arresting officer at the revocation hearing.  If the motorist makes a timely request for a hearing, the DMV may issue the motorist another temporary driving permit at that time.  The temporary driving permit is valid up to the time of the first scheduled hearing or sixty days, whichever is the lesser of the two.  If a hearing is not timely requested, then the suspension takes place on the eighth (8^th) day.

The arresting officer is then required to mail a copy of the Express Consent Affidavit and Notice of Revocation along with any other supporting documents and evidence (the summons and complaint, the breath test results, the field sobriety test results, the police report and narrative etc.) to the DMV.  These documents then become prima facia evidence to be used against the motorist at the revocation hearing. 

Next week – Revocations for Blood tests