If you’re facing a DUI charge, you will have a second case dealing with DMV after a DUI dealing with you privilege to operate a motor vehicle in the State of Colorado.
If you are driving in the State of Colorado, you have consented to providing a chemical test to a police officer to determine the alcohol content of your blood or breath. See C.R.S. § 42-4-1301.1. To request a driver to perform a test, an officer needs to have probable cause to believe you are committing an alcohol related driving offense. This typically comes from the reason the officer pulled you over, the officer’s observations of indicia of alcohol consumption, and any admissions an individual makes concerning alcohol consumption. The law does not provide you the right to counsel prior to selecting a test, and you are free to refuse to take the tests. If you refuse to take the test, the impact on your ability to drive could be worse.
If the test comes back with a BAC greater than .08, Colorado law will require that your license be revoked. For a first offense, the license will be revoked for a period of 9 months. A second or refusal requires your license to be revoked for a year. You may be eligible for early reinstatement. However, you would need to speak with a DUI attorney to fully understand your options.
In addition to a ticket, the police officer will also provide you with an “Express Consent Affidavit” upon arresting you for driving under the influence. If you opted for a blood test, you will have to wait for your blood results for the DMV to take action against your license. However, the affidavit will advise you that you have seven days to request a hearing to challenge the revocation. It is best for individuals to request a hearing. If you do not request the hearing your license will be revoked after seven days. If you request a hearing, you will be granted a temporary license to drive until the hearing occurs. Pursuant to statute, the hearing must be within 60 days of your request.
The hearing is only focused on your ability to drive a motor vehicle. The ability to drive is considered a privilege. This means the hearing is vastly different from a criminal trial. A defendant is not entitled to a jury, and the hearing is conducted in front of a dmv hearings officer. You will not be allowed a jury, instead the hearing officer will decide. The standard of proof used at the hearing is a preponderance of the evidence standard. This standard is considerably lower than the proof beyond a reasonable doubt standard. The evidentiary standards are also lowered. Hearsay is admissible if the hearing officer determines the statements are reliable. Police officer statements are typically held to be reliable. In order to sustain the revocation, the hearing officer must find the officer had a reason to make contact, had probable cause the believe the driver was under the influence, explained express consent, and the test came back above a .08 BAC within two hours of driving.
It is important to note that the express consent hearing and the criminal case are not related in any way. The outcome of the criminal case has no impact on the express consent hearing, and the outcome of the express consent hearing has no impact on the criminal case. The only exception to this rule is the outcome of the criminal case might have an additional impact on your ability to drive. A DUI conviction will cause 12 points to enter on your license, so you could hypothetically win the express consent hearing but lose your license because of a DUI conviction.
If you lose the hearing, your license will be revoked. After this, it is important that you refrain from driving. Individuals caught driving after revocation face stiff consequences from prosecutors and judges. If you are dealing with your first express consent revocation, your ability to drive will be revoked for nine months. A second express consent revocation will be for one year. A refusal express consent will result in the revocation of your license for one year.
Individuals who have their license revoked will be eligible for early reinstatement of their license. Typically, a person will have to go 30 days without driving before being eligible. After 30 days, a person can apply for early reinstatement provided they have an interlock device installed in their car and SR-22 insurance for their vehicle. If the person’s BAC was greater than .15, the person will also have to be enrolled in a level 2 alcohol class. A refusal carries a 60-day waiting period, but the conditions are the same.
If you or a loved one have any other questions concerning the express consent hearing, do not hesitate to contact the Lawrence Law Firm for a free consultation.