If you are charged with a DUI in Colorado, an administrative action to revoke your license at the DMV may also begin at the same time. If your Blood alcohol content is in excess of a .08, or if you refused to consent to a chemical test of your breath or blood (Refusal) you will be given an express consent notice and affidavit.
For beath tests and refusals, you will receive the notice immediately from law enforcement. However, if you elect a blood test, you will receive a notice by mail about 3-4 months later. This is because the blood testing in Colorado is backed up, and it is currently taking months for the State to process all the tests in DUI cases.
Here’s a guide on how to navigate the DMV hearing request process.
Understanding Express Consent
Colorado’s Express Consent Law stipulates that by driving in the state, you already consented to chemical testing if you are suspected of driving under the influence of alcohol or drugs. If you refuse to comply, or you are over the .08, you will face revocation of your license. Some important factors to note here:
- Even though the legal limit in Colorado is a .05 BAC, the DMV process only begins if you are above a .08 (for drivers over 21)
- Under 21, the DMV will file on you if your BAC is in excess of a .02
- For CDL drivers, the limit is a .04
- The Express Consent process isn’t concerned with drugs in your system, but the Courts definitely are. That is to say, if you have illegal drugs in your system, the DMV won’t hold an Express Consent hearing against you, but you can still face criminal charges. If you are later convicted of a DUI, you will face a revocation because of the conviction.
Refusal to comply with testing can lead to an automatic license suspension, but you have the right to contest this through a DMV hearing.
Step 1: Know Your Deadline
Time is critical. You have just seven days from the date of your arrest to request a hearing in breath and refusal cases. If you fail to make this request within the deadline, you will forfeit your right to the hearing, and your license suspension will automatically go into effect. Remember, for blood cases, the DMV needs your results before they start a revocation against you. That will typically be several months before they notify you. Be on the lookout for the DMV letter, because once it comes you only have a few days to request the hearing.
Step 2: Requesting the Hearing
To request a hearing, you’ll need to contact the DMV directly. You can do this in two ways:
In Person: Visit any full-service DMV office in Colorado. It’s advisable to go as soon as possible within the seven-day window. When you go, bring your driver’s license (if law enforcement didn’t already take it), and any paperwork provided by law enforcement, which typically includes a notice of revocation (Express Consent notice).
Online: The DMV allows for the request of an Express Consent hearing online. They will reply via email notifying you whether the hearing has been granted, and if you are eligible, provide you a temporary permit that is valid until the date of the hearing.
Go to the Colorado DMV website: https://mydmv.colorado.gov/
Click: Driver/ID services
Click: Request a hearing
Then follow the prompts for an Express Consent hearing. It will ask for a copy of your Express Consent affidavit (typically a yellow or pink carbon copy provided to you by police)
A day or two later you will receive notice of whether your hearing was granted, and a copy of your temporary license if it was granted.
You will be asked whether you want the officer to be present. Talk to your attorney about your situation. In my opinion, in most situations the best strategy is to have the officer present to be able to cross-examine them about the events of the DUI. However, in some circumstances it is best to not have the officer there if they have important holes in their reports. This way they aren’t present to testify about things they forgot to include in their report. This is an important decision, so speak to an attorney about what is best in your situation.
Step 3: Prepare for the Hearing
Once the hearing is scheduled, you will receive a notification from the DMV with the date, time, and location of your hearing. The hearings are scheduled within 60 days of the request. The hearings are currently conducted via zoom. You can do a call into the zoom meeting, or you can join via your computer.
Gather Evidence: As you prepare for the hearing, gather all relevant evidence that may help your case. This includes any witness statements, photographs from the scene, or evidence of time of the incident. Your DUI attorney can help with this process.
Legal Representation: Consider hiring an attorney who specializes in DUI and DWAI law. An experienced lawyer can provide assistance in navigating the complexities of DMV hearings and will advocate on your behalf at the DMV hearing and in court.
Step 4: Attend the DMV Hearing
The Express Consent hearing is similar to a court trial, but less formal. Here’s what typically happens:
Presentation of Evidence: Both you (or your attorney) and law enforcement will have the opportunity to present evidence, call witnesses, and testify about the circumstances surrounding your arrest and chemical testing. If you did not request that the officer be present, the hearing officer will rely on police reports.
Questioning: There is a chance for cross-examination, where both sides can question the other’s witnesses.
Legal Arguments: Both sides can make legal arguments based on the evidence presented.
The hearing officer’s role is similar to a judge in that they decide whether the driver’s license suspension is justified based on the evidence. They will determine if the law enforcement officer had reasonable grounds to believe you were driving under the influence, whether you were lawfully requested to submit to testing, and whether the test was above the limit and completed within the two-hour window.
Step 5: After the Hearing
After the hearing, the officer will either notify you immediately or mail you the decision. If it isn’t an immediate decision, they may “take it under advisement,” if they need to review the law or facts more closely. This usually takes a few days to a week. If the decision is in your favor, your license will be reinstated. However, if the hearing officer upholds the revocation, you can appeal the decision. The details and timeframe for the appeal will be included in the decision notice.
Step 6: Understanding Further Implications
If your license is revoked, you may be eligible for early reinstatement with an interlock device, SR-22 insurance and either a certificate or proof of enrollment in a Level 2 Alcohol Education program. To obtain this, you must apply at the DMV and provide proof of these items as required.
Conclusion
Remember that requesting a DMV hearing on an Express Consent case in a DUI is time sensitive! If you miss the deadline, you will likely be out of luck in having the ability to have a hearing. You can still request a late hearing, but that isn’t ideal as it raises other potential issues.
Requesting a DMV hearing in Colorado under the Express Consent Law is your legal right, and it’s an important step in maintaining your driving privileges after a DUI/DWAI charge. If you have questions about the process, give us a call.