APPEAL TO DISTRICT COURT - APPELLATE PROCEDURE

Acceptance.  Publishing attorney will accept appeals to the District Court.  Refer to  attorney preliminary review below.             

Jurisdiction.  An appeal is brought in the District Court.  CRS 24-4-106

Venue.  In most circumstances, an appeal is brought in the District Court in the county of the residence of the driver.  CRS 42-2-126, CRS 42-2-135(1), CRS 24-4-106(4)

Statute of Limitations.  In most circumstances, an appeal must be brought within thirty (30) days from the date of the adverse action order.  CRS 24-4-106(4)  Filing with the DOR of a motion to reconsider pursuant does not extend effective date of agency's final decision. Bethesda Found. v. Colo. Dept. of Soc. Servs., 867 P.2d 1 (Colo.App. 1993); rev'd on other grounds, 877 P.2d 860 (Colo. 1994).

Service of Process.  In most circumstances, service of process is required with ten(10) days from filing the appeal.  CRS 42-2-126, CRS 24-4-106(4)

Parties & Service.  The Colorado Department of Revenue, Division of Motor Vehicles will be named as defendant - appellee.  Colorado Department of Revenue, Hearing and Appeals Division may be named as co-defendant - appellee.  In most circumstances, service of process is achieved by USPS certified mail to the Colorado Department of Revenue, Division of Motor Vehicles, to the Colorado Department of Revenue, Hearing & Appeals Division and to the Colorado Attorney General Office.  CRS 24-4-106(4).  As a courtesy, pleadings are also sent via USPS regular mail to the local District Attorney Office.

Opposing Counsel.  In most circumstances, the appellate case in the District Court will be defended by the County District Attorney Office under contract with the Colorado Attorney General Office.  A courtesy service of process mailing will also be sent to the local District Attorney Office.  CRS 42-2-135(2)

Law - Statutes & Rules.  Appeal is brought pursuant to CRS 24-4-106, the Colorado Administrative Procedures Act.  Colorado Rules of Civil Procedure (C.R.Civ.P.) and Colorado Appellate Rules (C.A.R.) apply.  In some circumstances, conduct or rules regarding appeal are also provided in a specific statute.  e.g. refusing a chemical test or excessive alcohol content revocation CRS 42-2-126

Complaint Amendment.  If counsel did not provide representation at the underlying DMV hearing, it is foreseeable that after receipt of the transcript and record the attorney will need to file a motion to amend the complaint   Motion to amend filed after expiration of thirty (30) day period is allowed; leave to amend should be granted under C.R.Civ.P. 15(a) and where the amended pleading relates back to the date on which the original petition was filed, the pleading, as amended, states a timely claim for judicial review.  Cloverleaf Kennel Club, Inc. v. Racing Commission, 620 P.2d 1051 (Colo. 1980)

Limitation of Issues.  Appellate courts will not consider issues which were not raised in the original tribunal - in this circumstance - issues not raised during the course of the DMV hearing.  This is a well established principle in multiple areas of law.  If the driver failed to preserve an argument at hearing, it may not be raised for the first time on appeal.  People v. Valencia - aka Holguin, 169 P.3d 212, 217 (Colo.App. 2007).  A driver who argued a DMV hearing pro se (without counsel) and without knowledge of the law who failed to raise valid defenses or legal issues can be the greatest impediment to a successful appeal. 

Review by District Court is limited to the record compiled by the agency. Stream v. Heckers, 184 Colo. 149, 519 P.2d 336 (1974)

CRS 24-4-106(6) does not contain any time limitations on filing a designation of record, objecting to or supplementing the record designated, or filing the record. Harris, supra.

Appellant Opening Brief.  Brief of the appellant plaintiff (driver) is due forty (40) days after the record has been filed.  C.A.R. 31(a)

Appellee Answer Brief.  Answer brief of the appellee defendant (State of Colorado) is due within thirty (30) days from after service of appellant's opening brief. C.A.R. 31(a)

Appellant Reply Brief.  Appellant plaintiff (driver) may file a reply brief within fourteen (14) days from after service of appellee's answer brief. C.A.R. 31(a)

Filing & Service.  In the District Court, it is customary to simply e-File file the brief electronically and designate service of process.  In the Court of Appeals, an original and five copies of each brief shall be filed with the clerk, unless the court by order in a particular case shall direct a lesser number.  A copy shall be served on counsel for each party separately represented.  C.A.R. 31(c) 

Compliance with Filing Times.  Timeframes set forth in CRS 24-4-106(4) and C.A.R. 31 to file briefs are not to be disregarded.  It is within the court's discretion to dismiss an appeal or enter judgment against appellee if either has not complied with the statutory time limitations for filing briefs. Warren Village, Inc. v. Bd. of Assmt. Appeals, 619 P.2d 60 (Colo. 1980), DuPuis v. Charnes, 668 P.2d 1 (Colo. 1983)

Readiness for Final Judgment- District Court.  After the record and transcript have been filed, and all briefs have been filed, the DMV appeal case in the district court is then ready for ruling by the District Court judge.

Oral Argument - District Court.  Appellant plaintiff or appellee defendant may file a request for oral argument within the timeframe provided by the C.A.R.  No new evidence will be received; oral argument is just that - an opportunity for each side to argue the merits of the case and attempt to persuade the court.  The District Court judge may grant the request and set the case for oral argument, or may deny the request and enter final ruling based upon the record.  The District Court judge may also sua sponte order oral argument - without request of either party.

Oral Argument - Court of Appeals.  Oral argument in the Court of Appeals will be allowed upon the written request of a party or upon the court's own motion, unless the court, in its discretion, dispenses with oral argument.  A request for oral argument shall be made in a separate, appropriately titled document filed no later than ten days after the briefs are closed.  Unless otherwise ordered, argument shall not exceed fifteen minutes for the appellants and fifteen minutes for the appellees.  The court may terminate the argument whenever in its judgment further argument is unnecessary.  C.A.R. 31(a)(2)

District Court - Under Advisement.  The District Court judge frequently takes the matter under advisement while he or she contemplates the merits of the case, facts and applicable law.  In addition to considering the legal precedent set forth by counsel for each party, the court frequently conducts independent legal research.  A ruling may not be received for several months.  From the time an appeal is commenced until final ruling, 9 months lapse of time would not be uncommon.

No Substitution of Judgment.  District court cannot substitute its judgment for that of administrative tribunal when there is substantial evidence in record to support tribunal's decision.  Institute for Research v. Bd. of Assessment Appeals, 748 P.2d 1346 (Colo.App. 1987).  Weighing evidence and resolving conflicts is the task of the administrative agency, not the reviewing court.  Board of Assessment Appeals v. Arlberg Club, 762 P.2d 146 (Colo. 1988).  Where evidence is conflicting, the hearing officer's finding is binding on appeal, and a reviewing court may not substitute its judgment for that of the fact finder.  Marek v. Department of Revenue, 709 P.2d 978 (Colo.App. 1985); Glasmann v. Department of Revenue, 719 P.2d 1096 (Colo.App. 1986).

Arbitrary and Capricious Standard.  A reviewing court may not reverse the decision of an agency unless the court finds it to be arbitrary and capricious or contrary to rule or law.  Kramer v. Colorado Department of Revenue, 964 P.2d 629 (Colo.App. 1998).  A reviewing court may reverse an administrative agency's determination if the court finds that the agency acted in an arbitrary and capricious manner, made a determination that is unsupported by the evidence in the record, erroneously interpreted the law, or exceeded its constitutional or statutory authority.  Ohlson v. Weil, 953 P.2d 939 (Colo.App. 1997).  In determining whether an administrative agency's decision is arbitrary or capricious, the court must determine whether a reasonable person, considering all of the evidence in the record, would fairly and honestly be compelled to reach a different conclusion.  If not, no abuse of discretion has occurred and the agency decision must be upheld. Ramseyer v. Colo.  Dept. of Soc. Servs., 895 P.2d 1188 (Colo.App. 1995); WCC v. Umetco Minerals, 919 P.2d 887 (Colo.App. 1996).

Standard of Competent Evidence in the Record. 
     1.)  In order for a court to set aside a decision by an administrative agency on the ground that it is arbitrary or capricious pursuant to section CRS 24-4-106(7), the court must find that there is no competent evidence supporting the agency's decision.  Dolan v. Rust, 195 Colo. 173, 175-176, 576 P.2d 560 (1978), Board of County Commissioners v. Simmons, 177 Colo. 347, 494 P.2d 85 (1972).
                 In order for a court to set aside a decision of an administrative body on the ground that it is arbitrary and capricious, the court must find that the decision is unsupported by any competent evidence.  Noe v. Dolan, 197 Colo. 32, 589 P.2d 483 (1979); Board of County Commissioners v. Bd. of Assessment Appeals, 628 P.2d 156 (Colo.App. 1981); Mertsching v. Webb, 757 P.2d 1102 (Colo.App. 1988).  A trial court may not set aside the decision of an administrative body as arbitrary and capricious unless the decision is unsupported by competent evidence.  Guildner Way, Inc. v. Board of Adjustment, 35 Colo. App. 70, 529 P.2d 332 (1974). 
     2.)  Abuse of discretion has not been shown where the factual question is debatable.  Board of County Commissioners v. Simmons, 177 Colo. 347, 494 P.2d 85 (1972).
     3.)  Conflicting Testimony or Evidence.
                 Administrative action "taken pursuant to an agency's statutory authority `is entitled to a presumption of validity.'"  People v. Lessar, 629 P.2d 577, 581 (Colo. 1981) (quoting Moore v. District Court, 184 Colo. 63, 67, 518 P.2d 948, 951 (1974)).  The court of appeals has held that where "the inferences to be drawn from the evidence are conflicting, . . . the reviewing court may not displace an administrative agency's choice between two fairly conflicting views, even though the court could justifiably have made a different choice had the matter been before it de novo."  Walton v. Banking Board, 36 Colo. App. 311, 313-14, 541 P.2d 1254, 1256 (1975).
                 Where conflicting testimony is presented in an administrative hearing, the credibility of witnesses and the weight to be given their testimony are decisions within the province of the agency.  Mellow Yellow Taxi Co. v. Public Utilities Commission, 644 P.2d 18 (Colo. 1982).  See also Sanchez v. State, 730 P.2d 328 (Colo. 1986) (agency officer who heard conflicting testimony "is in the best position to make the credibility assessments."  Id. at 333); Ram Broadcasting v. PUC, 702 P.2d 746 (Colo. 1985) (where hearing examiner "assigned the expert's opinion no weight," this court held that "a decision as to the weight to be placed on particular testimony is uniquely within the province of the PUC, and this court will not substitute its judgment for that of the PUC."  Id. at 750-51).
                 A hearing officer was presented with conflicting testimony when the licensee testified that he had smoked a cigarette during the twenty minute period between his arrest and administration of the breath test, and the arresting officer testified to the contrary. [fn6].  The hearing officer resolved the conflicting testimony in favor of the department, but was reversed by the district court.  The court of appeals reversed the district court, saying: "To set aside a decision by a hearing officer on the ground that it is arbitrary or capricious, a reviewing court must be convinced from the record as a whole that there is no substantial evidence to support the hearing officer's decision."  Glasmann v. Motor Vehicle Division, 719 P.2d 1096, 1097 (Colo.App.)   The court concluded that when "the evidence is conflicting, the hearing officer's finding is binding on appeal and a reviewing court may not substitute its judgment for that of the fact finder."  Id,
                 Conflicting evidence was presented at a revocation hearing on the issue of whether the arresting officer had properly advised the suspected drunk driver, as required by statute.  "[m]uch of [the arresting officer's testimony] was contradicted by appellant," but went on to hold the hearing officer's order binding on appeal because "it is a maxim of appellate law that reviewing courts will not substitute their judgment for that of the fact finder."  Creech v. Department of Revenue, 190 Colo. 174, 176, 544 P.2d 633, 634 (1976).
                 Conflicting BAC evidence.  An administrative hearing officer functions as the trier of fact, makes determinations of witness' credibility, and weighs the evidence presented at the hearing.  By statute, a reviewing court must affirm a DMV revocation order unless DMV has (1) exceeded constitutional or statutory authority; (2) erroneously interpreted the law; (3) acted in an arbitrary and capricious manner; or (4) made a determination unsupported by evidence in the record.  CRS 42-2-122.1(9)(b) Note - now CRS 42-2-126.  Lobato argued that the hearing officer's finding as to his BAC was an abuse of discretion, in light of the conflicting testimony.  The record as a whole supported the hearing officer's revocation order.  Charnes v. Lobato, 743 P.2d 27 (Colo. 1987).  Two witnesses testified regarding separate analyses of the driver's blood alcohol content, performed by different people at different times with different results.  Each witness testified as to his experience, the procedures and equipment used, and the results obtained. One witness testified to a test result of 0.170; the other witness testified to a test result of 0.129.  The hearing officer heard testimony as to possible reasons for the discrepancy, including the opinion of the licensee's toxicology expert that the second sample was probably not affected by the mere passage of time.  After hearing this testimony, the hearing officer determined that the state had established by a preponderance of the evidence that the licensee was driving a vehicle with a BAC of 0.15 or higher.  Based on the record, we cannot say that there was no competent evidence on which the hearing officer could base his finding.  The evidence was conflicting, and when conflicting evidence is offered it is the agency's role, not the role of the reviewing court, to assess credibility and weigh testimony and other evidence.  In holding that "the evidence weighed evenly," the court of appeals incorrectly substituted its judgment for that of the trier of fact.  Many factors may enter into a hearing officer's decision that one test is more reliable than another, including but not limited to such variables as the equipment and chemical standards used, the experience of each witness, and the circumstances surrounding a particular test.  The determination as to which test result has greater reliability and deserves greater weight is within the agency's discretion and not an issue to be analyzed on appellate review.  We conclude that the hearing officer did not abuse his discretion, and the court of appeals erred in reversing the revocation order. Ruling: The record does not reveal any of the grounds for reversible error set forth in the statute - conflicting evidence at the revocation hearing supported the hearing officer's finding that the driver had the requisite BAC.
     4.)  The hearing panel's findings of basic facts must be rejected if they are unsupported by substantial evidence when the record is considered as a whole or if they are not supported by competent evidence in the record.  Ricci v. Davis, 627 P.2d 1111 (Colo. 1981).

Appeal Win.  If the District Court judge rules in favor of the appellant plaintiff (driver), a certified copy of the judgment is mailed to the DMV & DOR which causes the Colorado license or Colorado driving privileges to be reinstated.  The former adverse action is nullified or invalidated.
                   or
the District Court may remand the case to the DOR for further proceedings and such other relief as may be appropriate.

Appeal Loss.  If the District Court judge rules against the appellant plaintiff (driver) and in favor of the State of Colorado, a copy of the judgment is mailed to the DMV & DOR which causes the former adverse action to be reinstated.  Any time that the appellant plaintiff's driving privileges were permitted under a temporary restraining order or preliminary injunction stay is added to the remaining driving privilege reinstatement eligibility date.  This stops drivers from getting the benefit of a stay during appeal and driving in the interim without paying the piper his due - full loss of license as exacted in the original adverse action order will be enforced.  The power of the court in a temporary or preliminary injunction is to stay the effect date or enforcement, not to modify the agency order.  Tomasi v. Thompson, 635 P.2d 538 (Colo. 1981).

Driver Liability - Frivolous Appeal or Purpose of Delay.  If the District Court finds that the appeal is frivolous or brought for the purpose of delay, award of fees and cots to the State of Colorado is mandatory.  CRS 24-4-106(8) 

No Award Against State.  If the driver is the appellant petitioner and wins the DMV appeal, the driver will not be awarded fees or litigation costs.  There is no specific statutory provision allowing for the award of costs where an individual pursues his right to judicial review of an administrative hearing officer's actions under CRS 42-2-127 and this section; such an award is erroneous, because C.R.Civ.P. 54(d) limits the imposition of costs against the state to "the extent permitted by law". Lucero v. Charnes, 44 Colo. App. 73, 607 P.2d 405 (1980).  Upon judicial review of administrative action, while CRS 24-4-106(7) permits the court "to afford such other relief as may be appropriate", this provision cannot be construed to authorize the assessment of costs against the state so as to take precedence over C.R.Civ.P. 54(d). Shumate v. State Personnel Board, 34 Colo. App. 393, 528 P.2d 404 (1974). 

C.R.Civ.P. 54. Judgments; Costs.  Except when express provision therefor is made either in a statute of this state or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the state of Colorado, its officers or agencies, shall be imposed only to the extent permitted by law. Costs may be taxed by the clerk on one day's notice. On motion served within five days thereafter, the action of the clerk may be reviewed by the court.

C.A.R. 39(b) Costs For and Against the State of Colorado.  In cases involving the State of Colorado or an agency or officer thereof, if an award of costs against the State is authorized by law, costs shall be awarded in accordance with the provisions of section (a) of this Rule; otherwise, costs shall not be awarded for or against the state.

C.A.R. 39.5. Attorney Fees on Appeal.  If attorney fees are otherwise recoverable for the particular appeal, the party claiming attorney fees shall specifically request them, and state the legal basis therefor, in the party's principal brief in the appellate court. Any opposition to a request for attorney fees shall be set forth, as pertinent, in either the answer or reply brief. The appellate court may determine entitlement to and the amount of any attorney fees for the appeal. In its discretion, the appellate court may remand to the trial court or tribunal below the determination of entitlement to or the amount of any attorney fees.

District Court Original Proceeding.  Publishing attorney has referred to the District Court proceeding as a DMV Appeal because that phraseology is commonly known to the public; similar to a dissolution of marriage action being referred to as a divorce.  Judicial review pursuant to CRS 24-4-106(6) is an original proceeding and not an appeal.  Tassian v. People, 696 P.2d 825 (Colo.App. 1984), reversed on other grounds, 731 P.2d 672 (Colo. 1987).  Since the District Court action is an original proceeding, the District Court judgment may be appealed to the Court of Appeals as a matter of right.

CRS 24-4-106(9).  The decision of the district court shall be subject to appellate review as may be permitted by law or the Colorado appellate rules.

CRS 24-4-106 §§ (9),(11).  Notice of intent to seek appellate review must be filed in the District Court within 45 days from final judgment, and notice of appeal must be filed in the Court of Appeals within 45 days from the date of service of District Court final judgment together with a certificate of service showing service of a copy of said notice of appeal on the agency and on all other persons who have appeared as parties to the action before the agency. The date of service of an order is the date on which a copy of the order is delivered in person or, if service is by mail, the date of mailing.  C.A.R. §§ 3, 4(a) are in accord regarding the 45 day limitation.

Court of Appeals Case Acceptance.  Publishing attorney will accept appeals to the Court of Appeals.  Refer to Attorney Fees and Costs.

Final Appeal As a Matter of Right.  The Colorado Court of Appeals is the end of the line for appeal as a matter of right.  From a Court of Appeals final judgment, either party may petition the Colorado Supreme Court for certiorari.  If it is a case of first impression (new idea), a novel or unique theory or if the matter may impact a significant number of persons or have a significant impact on society, or if the decision is in conflict with previous Supreme Court or Court of Appeals decisions, the Supreme Court may accept the case for review.

Certiorari is a two bit, fancy legal word.  In this context, it means an appellate proceeding for re-examination of action of an inferior legal tribunal.  Black's Law Dictionary

Potential for Appeal.  Rulings of District Court judges are not reported in the case law books.  The Colorado Reporters contained in the Pacific Reporters are full of appellate decisions entered by the Colorado Court of Appeals and the Colorado Supreme Court.  DMV appeals are no exception.

1.  Fact of hearing loss

2.  Statement of period of driving privilege loss and potential consequences of unlawful driving

3.  Whether a probationary license is available, and if so, under what terms and attorney recommendation

4.  Attorney opinion whether meritorious appellate issues exist, and if so, identification of potential appellate issues
      Notice: on-line legal research may be required for opinion regarding appellate merits.

5.  Quote regarding appellate attorney fees and estimated costs, including a requested appellate trust deposit

6.  Statement of the last day the attorney will accept appellate representation (time is required to prepare and file the appeal)

1.  Copy or fax of all summons and complaints (criminal or traffic charging documents), DMV notices of suspension, revocation or denial, DMV notices of hearing, client request for hearing, any communications from or to the DMV, any hearing exhibits, DMV rulings or any other written materials in the client's possession pertaining to the DMV hearing or the underlying criminal charges related to the DMV case.

2.  Statement of facts presented by the law enforcement officer.

3.  Statement of facts presented by or on behalf of the driver client.

4.  Statement of issues perceived by the driver client or reasons client believes the DMV ruling is improper or unlawful.

PAYMENT

Prior to commencement of representation, the attorney will quote the amount requested as a trust deposit against which attorney's fees and costs may be billed.  The requested trust deposit will be dependent upon the facts and circumstances of your case.

DMV Appeal
* this shall not constitute an offer, nor be construed as a binding estimate

If a collateral attack transcript of court proceedings is required, a common initial request for costs is $250 per uncontested case attacked.  If no transcript a common initial request for costs is $100 per case attacked.  If subpoena or subpoena duces tecum is required, anticipate $50 - 60 per witness for process service and payment of mileage and witness fees.  This shall not constitute an offer.  Absent collateral attack or subpoena or subpoena duces tecum, I generally do not request a trust deposit for costs in DMV cases.