Express Consent Revocation Hearings
Colorado’s Express Consent law says that anyone who drives a vehicle in Colorado has given consent to take a chemical test when asked to do so by a police officer with probable cause to believe that the person was driving under the influence of alcohol and/or drugs. If your test shows a BAC over .08 and was taken within two hours of the time of driving, you may have your license revoked by the DMV regardless of what happens in your criminal case.
In order to begin a revocation proceeding, the police need to file an Express Consent Affidavit and Notice of Revocation with the DMV. The police will then usually submit supporting incident reports as the basis for any Express Consent revocation entered as a result of a hearing. These reports are the police officer’s version of why the police contacted you, their observations of “indicia of intoxication,” and the results of field sobriety testing or of any blood or breath test taken in the case.
Requesting A Hearing
You are entitled to a hearing concerning the revocation of your license. You must make a written hearing request within seven days of the date on the Affidavit and Notice of Revocation if you refused or submitted to a breath test. Failure to make a timely written request to DMV for a hearing will result in the revocation of your license that you cannot appeal. The police will usually confiscate your driver’s license if you took a breath test and the result was over a 0.08 BAC or if you refused, so keep in mind that you may be able to obtain a temporary driver’s license when you request your hearing.
If the officer did not confiscate your license and if you do not turn it in at the time the hearing request is made, no temporary license will be issued. A hearing will be granted, but before the hearing happens a license revocation will go into effect, and that revocation will be rescinded if you prevail at your Express Consent Revocation Hearing.
You can choose to require the officer who signed the affidavit to appear during the Express Consent hearing. Whether or not you do this is usually a strategic call that might vary depending on the facts of your case and the quality of the affidavit written by the officer, and you should seek legal advice on whether to make this request if you are preparing for a hearing.
The Express Revocation Hearing
A few weeks after your hearing request is submitted, you will receive a Notice of the time and place of the hearing. A hearing will usually be held around forty-five days after your hearing request. With limited exceptions, you must receive a hearing within 60 days of the date of request.
Hearings are conducted by a DMV hearing officer. There are usually three other people attending a hearing: you, your attorney, and the officer who wrote the Affidavit. During the hearing, the hearing officer will ask you to introduce yourself and tell you your rights and explain the hearing briefly. The affidavit officer will testify about the facts which led the officer to believe that you drove intoxicated. Ultimately, the officer’s testimony aims to establish that you drove with a BAC over .08 as shown by a chemical test taken within two hours of the time of diving. The hearing officer may or may not ask the affidavit officer questions. Next, your attorney cross-examines the affidavit officer. This is a chance to ask the officer questions about road conditions, the calibration of the breathalyzer, the officer’s training in administering the breathalyzer, or any other topic which might call into question the results of the test and the conduct of the officer. After the affidavit officer has been cross examined and any additional government witnesses have testified, your attorney may present your case. Your case may consist of documentary evidence, testimony, or just arguments concerning the sufficiency of evidence against you. The hearing will end with entry of dismissal, a revocation order, or a continuation.
Contact Us If You Have Been Charged With A DUI
A DMV hearing is often the first opportunity you have to defend yourself when you’re facing a DUI charge, yet the opportunity is often lost when people are unaware of them or when their lawyers do not seriously prepare. If you are facing a license revocation, call our Denver office at 303-845-7082 to schedule a free consultation with our lawyers. You may also contact us online and we will respond to your inquiry promptly.
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