 | |
|
Robert D.
Gustafson, Attorney At Law
COLORADO SPRINGS TRIAL LAWYER
|
6538 Charter
Drive
Colorado Springs, CO 80918-1335
Phone (719) 260-1002
Toll Free (800) 410-1002
E-MAIL
ATTORNEY
COLORADO DMV HABITUAL OFFENDER
COLORADO SPRINGS DRIVER LICENSE
DEFENSE
|
Attorney
Business Hours
Attorney
Availability Status
FREE
INITIAL CONSULTATION
Fax (719) 260-1003
|
|
WELCOME
I appreciate your interest
perhaps I will become your attorney |
PRIVATE ATTORNEY
NOT
THE DMV
|
 |
I appreciate representation
inquiries
but
please don't call thinking this office is the Colorado DMV |
|
Colorado Springs Driver License Defense,
habitual offender, driver, license, driving, suspension, revocation, denial,
hearing, DUI, DEAC, DWAI, alcohol, reinstatement, driving under restraint, hit &
run, reckless driving, persistent drunk driver, probationary license, interlock,
restricted license, Colorado, DMV, Department of Revenue, Colorado Springs, El
Paso County, Colorado, attorney
|
GENERAL
INFORMATION and PROBATIONARY LICENSE
HABITUAL TRAFFIC
OFFENDER |
|
|
|
|
If a driver meets statutory criteria, after a due process hearing the driver will be found by the Colorado Department of
Revenue, Division of Hearing and Appeals to be an habitual traffic
offender. In such event, the driving privileges are revoked or denied in
Colorado for a period of five (5) years. The driver can not shorten the period
with "credit for good behavior." |
|
|
|
During the period of habitual offender revocation or denial, the Colorado
Department of Revenue, Division of Motor Vehicles can not issue any driving
privileges whatsoever, except interlock. Please refer to the
Interlock
Device & Probationary License page herein. |
|
Authority.
CRS 42-2-205. Prohibition.
(1) No license to operate motor vehicles in this state
shall be issued to an habitual offender, nor shall an habitual
offender operate a motor vehicle in this state:
(a) For a period of five years from the date of the
order of the department finding such person to be an habitual offender
except as may be permitted by
CRS 42-2-132.5; and
(b) Until such time as financial responsibility
requirements are met. |
|
|
|
|
If the habitual offender finding is not alcohol related, the DMV does not
have statutory authority to issue an interlock probationary license. |
|
Authority.
CRS 42-2-132.5(1.5)
early reinstatement
interlock restricted
probationary license provisions:
(c) No person who has been designated an habitual
offender under the provisions of CRS 42-2-202 for any offense other
than a violation of CRS 42-4-1301, 42-2-138, or 42-4-1401 shall be
eligible for a restricted license pursuant to this subsection (1.5). |
|
|
|
| DMV
has statutory authority to issue an
interlock probationary license
interim restricted license during restraint
if the habitual offender finding is alcohol
related. |
| |
Not eligible
during the first year; thereafter eligible.
"red license" to drive back and forth to work or on the job)
may be available
in the discretion of the DMV if you meet criteria
Regarding
probationary license
restrictions & requirements, refer to
reinstatement below
(interlock
consecutive) |
|
| |
|
Authority.
CRS 42-2-205. Prohibition.
(1) No license to operate motor vehicles in this state
shall be issued to an habitual offender, nor shall an habitual
offender operate a motor vehicle in this state:
(a) For a period of five years from the date of the
order of the department finding such person to be an habitual offender
except as may be permitted by section 42-2-132.5; and
(b) Until such time as financial responsibility
requirements are met. |
|
| |
|
Authority.
CRS
42-2-132.5(1.5)(a) "A person whose privilege to drive has been revoked
for more than one year because of a violation of any provision of CRS
42-4-1301(1) (a), (1)(b), or (2) or has been revoked for more than one
year under any provision of section 42-2-126 may voluntarily apply for
an early reinstatement with a restricted license under the provisions
of this section after the person's privilege to drive has been revoked
for one year. The restrictions imposed pursuant to this section shall
remain in effect for the longer of one year or the total time period
remaining on the license restraint prior to early reinstatement." |
|
|
HABITUAL
TRAFFIC OFFENDER
STATUTORY CRITERIA
PRIOR CONVICTIONS |
|
|
|
|
|
|
|
|
|
| |
-
Three (3) major offenses
within 7 years CRS 42-2-202(2)
alcohol related offenses -
DUI
- DEAC
- DWAI
reckless driving
driving under suspension,
revocation or denial -
driving under restraint
giving false information to the
DMV
vehicular assault, vehicular
homicide, or manslaughter or criminally negligent homicide which results
from operation of a motor vehicle or joyriding
hit and run in any accident involving death or personal
injuries
-
Ten (10) or more
convictions within 5 years - moving violations 4 points or more
CRS 42-2-202(3)
Includes
traffic infractions and penalty assessment tickets
-
Eighteen (18) or more
convictions within 5 years - moving violations 3 points or more
CRS 42-2-202(3)
Includes
traffic infractions and penalty assessment tickets
All convictions must be
separate and distinct - not arising out of the same criminal episode
Period of license revocation or denial - five
(5) years to run consecutive
(back to back - not at the same time) to any other suspension, revocation or
denial.
CRS 42-2-205 After a statutory waiting period, limited
driving privileges during habitual status may become available with an
interlock device
|
| ALFRED E. NEUMAN QUOTE (Mad
Magazine): "WHO ME?"
|
|
|
Yes - you can become an
habitual traffic offender and lose your license or driving privileges for 5
long years by merely speeding 9 mph over the limit or less. Read
again the above convictions criteria within five or seven years. |
|
| |
I've defended that type of
driving after judgment prohibited felony criminal case when it carried mandatory minimum 1 year
DOC penitentiary sentence to maximum 4 years DOC time. |
|
|
| * *
*
*
*
*
* * |
|
|
|
Major
Offense Definitions
Habitual Traffic
Offender |
|
| |
|
CRS 42-2-202. Habitual offenders — frequency and type of
violations
Relevant
Statutes
(1) An habitual offender is any person, resident or nonresident, who has
accumulated convictions for separate and distinct offenses described in subsection (2) of this section committed during a seven-year period or
committed during a five-year period for separate and distinct offenses described in subsection (3) of this section; except that, where more than
one included offense is committed within a one-day period, such multiple offenses shall be treated for the purposes of this part 2 as one offense.
The record as maintained in the office of the department shall be considered prima facie evidence of the said convictions.
(2)(a) An habitual offender is a person having three or more convictions
of any of the following separate and distinct offenses arising out of separate acts committed within a period of seven years:
(I) Driving a motor vehicle in violation of any provision of section 42-4-1301(1) or (2)(a);
-
DUI
-
DEAC
-
DWAI
(II) Driving a motor vehicle in a
reckless manner, in violation of section 42-4-1401;
(III) Driving a motor vehicle upon a highway while such person's license or privilege to drive a motor vehicle has been denied, suspended, or
revoked, in violation of section 42-2-138; -
driving under restraint
(IV) Knowingly making any false affidavit or swearing or affirming falsely to any matter or thing required by the motor vehicle laws or as to
information required in the administration of such laws;
(V) Vehicular assault or vehicular homicide, or manslaughter or criminally negligent homicide which results from the operation of a motor vehicle, or
aggravated motor vehicle theft, as such offenses are described in title 18,
C.R.S.;
(VI) Conviction of the driver of a motor vehicle involved in any accident involving death or personal injuries for failure to perform the duties
required of such person under section 42-4-1601.
hit and run
(b) The offenses included in subparagraphs (I), (II), (III), and (V) of
paragraph (a) of this subsection (2) shall be deemed to include convictions under any federal law, any law of another state, or any ordinance of a
municipality that substantially conforms to the statutory provisions of this state regulating the operation of motor vehicles. For purposes of this
paragraph (b), the term "municipality" means any home rule or statutory city or town, a territorial charter city, or a city and county.
(3) A person is also an habitual offender if such person has ten or more
convictions of separate and distinct offenses arising out of separate acts committed within a period of five years involving moving violations which
provide for an assessment of four or more points each or eighteen or more convictions of separate and distinct offenses arising out of separate acts
committed within a period of five years involving moving violations which provide for an assessment of three or less points each in the operation of
a motor vehicle, which convictions are required to be reported to the department and result in the assessment of points under section 42-2-127,
including any violations specified in subsection (2) of this section.
(4) For the purpose of this section, the term "conviction" has the meaning
specified in section 42-2-127(6) and includes entry of judgment for commission of a traffic infraction as set forth in section 42-4-1701.
|
|
|
|
|
HABITUAL
TRAFFIC OFFENDER
POTENTIAL DEFENSES |
|
|
|
|
|
|
|
|
DMV has failed to provide adequate notice of
hearing.
It
periodically happens that the DMV fails to comply with hearing notice
requirements, and thus has failed to acquire personal jurisdiction. This
would be a defense..
DMV assessed points or conviction against wrong
person.
It
periodically happens that when a court certifies a conviction and points to
the DMV, the assessment is made against the wrong person. Usually two
persons have the same or similar names, but different dates of birth.
Error may have been made the law enforcement officer issuing the ticket, by a
court clerk or by a DMV keypunch operator. Certified copies of the court
file (including the ticket) can be obtained from the originating court,
introduced into evidence at DMV hearing. Misidentification:
-
Deprives the DOR hearing
officer of use of the
"conviction" or points to support
DMV adverse
action order (suspension, revocation, denial or habitual
offender status), or driver would have meritorious grounds for appeal.
Multiple Colorado cases have been decided regarding improper application of
the law, however none have been decided specifically on the issue of
misidentification.
-
Will
not affect the
underlying court proceedings - but, they pertain to someone else.
-
May not be used as a
subsequent
driving
under restraint criminal case
jurisdictional
attack.
-
May
be a defense in a
subsequent
driving
under restraint criminal charge as a
collateral
attack (DMV order void for lack of personal jurisdiction).
However that is questionable. DMV has subject matter jurisdiction
over license actions and personal jurisdiction is acquired when the notice
of hearing is served. There is no Colorado appellate caselaw on the
issue of whether misidentification deprives the DMV of personal
jurisdiction to proceed with adverse action. If not argued at DMV
hearing, use of an improper conviction may be considered a mere error in
application of the law and denial of criminal case
collateral
attack.
Points not identified on traffic infraction penalty
assessment.
Periodically a state court or municipal court
traffic infraction penalty assessment has been paid by mail or paid at an expedited
and simplified traffic violations bureau, and the law enforcement officer
failed to provide notice on the traffic infraction penalty notice (ticket) of
points for each relevant charge. Certified copies of the court file
(including the ticket) can be obtained from the originating court, introduced
into evidence at DMV hearing. Failure to provide notice of points:
-
Deprives the DOR hearing
officer of use of the "conviction" or points to support
DMV adverse
action order (suspension, revocation, denial or habitual
offender status), or driver would have meritorious grounds for
appeal. Three Colorado cases have been decided
on point.
-
Will not affect the
underlying court proceedings or plea & payment.
-
May not be used as a
subsequent
driving
under restraint criminal case
jurisdictional
attack.
-
May not be used as
be a defense in a subsequent
driving
under restraint criminal charge as a
collateral
attack. This issue does not rise to:
DMV order void for lack
of personal jurisdiction
Deprivation of constitutionally protected right
-
This prohibition of usage
for DMV adverse
action is not applicable if, in the underlying traffic case, the
driver appeared in court and entered a guilty plea or was convicted at
trial.
Municipal court default judgment
defendant failure to appear
traffic
infraction penalty assessment.
Periodically the law enforcement officer
issues a traffic infraction penalty notice (ticket) into municipal court,
the driver failed to appear in municipal court and default judgment enters. Certified copies of the court file
(including the ticket and the court register of action) can be obtained from the originating court, introduced
into evidence at DMV hearing. Municipal court FTA default judgment:
-
Deprives the DOR hearing
officer of use of the "conviction" or points to support
DMV adverse
action order (suspension, revocation, denial or habitual
offender status), or driver would have meritorious grounds for
appeal. One Colorado case has been decided
on point.
-
Will not affect the
underlying court proceedings or the default judgment.
May not be used as a
subsequent
driving
under restraint criminal case
jurisdictional
attack.
May not be used as
be a defense in a subsequent
driving
under restraint criminal charge as a
collateral
attack. This issue does not rise to:
DMV order void for lack
of personal jurisdiction
Deprivation
of constitutionally protected right
Will not affect the DMV noting the
infraction plea on the consumer driving abstract
insurance rates may increase
This prohibition of usage
for
DMV adverse
action is not applicable if, in the underlying traffic case, the
driver appeared in court and entered a guilty plea or was convicted at
trial.
Caveat: Failure to appear
will result in an outstanding judgment warrant fee ($30 in state court) which
must be paid before a driver is eligible for license renewal or
reinstatement. OJW hold
triggers suspension, is a hold against future licensing and
will cause
driving under suspension charges to be
brought against the driver if he or she operates a motor vehicle before
becoming reinstated.
*
* *
* *
* *
*
* *
* *
* *
Penalty assessment notice
deficiency. Periodically a penalty assessment
notice fails to comply with the requirements of Colorado state law. Certified copies of the court file
(including the ticket) can be obtained from the originating court, introduced
into evidence at DMV hearing. This has arisen in the context of the PA notice failing
to advise the defendant that payment constitutes a guilty plea and will be
used as a conviction. PA notice deficiency:
-
Deprives the DOR hearing
officer of use of the "conviction" or points to support
DMV adverse
action order (suspension, revocation, denial or habitual
offender status), or driver would have meritorious grounds for
appeal. One Colorado case has been decided
on point.
Will not affect the
underlying court proceedings or the judgment -
A separate
collateral
attack would be required in the underlying court proceedings
If the DOR is unable to use the
"conviction" or points for
DMV adverse
action, in my opinion separate
collateral
attack would be a waste of time and money unless
The driver will incur
significant
insurance or employment consequences, such as hazmat CDL.
DMV uses
"convictions" and points for a statutory period of time
when issuing DMV adverse
action notices (suspension, revocation,
denial or habitual offender status) - see
Point
Structure. If the driver has no intent to be a
law abiding citizen, but intends to be a "truly dangerous
criminal" and anticipates receiving another minor traffic
infraction or DUI within the near future, the same issue may arise
before expiration of the point suspension period or the period for
which revocation, denial or habitual offender status may
enter. If the driver is unable to control his / her
behavior,
collateral
attack in the
underlying court proceedings may be worthwhile.
-
May not be used as a
subsequent
driving
under restraint criminal case
jurisdictional
attack.
May be a defense in a
subsequent
driving
under restraint criminal charge as a
collateral
attack - (inadequate notice reaches constitutional proportions) However that is
questionable - no Colorado cases have been decided
whether PA notice deficiency may be used as a
collateral
attack in a subsequent
driving
under restraint criminal charge. If not argued at DMV
hearing, use of an improper conviction may be considered a mere error in
application of the law and denial of criminal case
collateral
attack. -
Will not affect the DMV
noting the infraction plea on the consumer driving abstract
insurance rates may
increase
This prohibition of usage
for DMV adverse
action is not applicable if, in the underlying traffic case, the
driver appeared in court and entered a guilty plea or was convicted at
trial.
Constitutional deprivation
penalty assessment notice deficiency or summons and
complaint traffic
offense.:
A penalty assessment
notice may be defective to the degree of constitutional proportions, or
In a
traffic offense, misdemeanor traffic offense or misdemeanor offense in a
providency hearing under C.R.Crim.P. 11, the court may fail to adequately advise the
defendant of his / her constitutional rights
Whether PA notice,
traffic offense, misdemeanor traffic offense or misdemeanor offense this
usually arises as failure to advise of the right to counsel, but may be other constitutional
rights. Certified copies of the court file
(including the ticket, register of action and transcript of court proceedings) can be obtained from the originating court, introduced
into evidence at DMV hearing. Error of constitutional proportion:
-
Deprives the DOR hearing
officer of use of the "conviction" or points to support
DMV adverse
action order (suspension, revocation, denial or habitual
offender status), or driver would have meritorious grounds for
appeal. Multiple Colorado cases have been decided
on point.
Will not affect the
underlying court proceedings or the judgment -
A separate
collateral
attack would be required in the underlying court proceedings
If the DOR is unable to use the
"conviction" or points for
DMV adverse
action, in my opinion separate
collateral
attack would be a waste of time and money unless
The driver will incur
significant
insurance or employment consequences, such as hazmat CDL
DMV uses
"convictions" and points for a statutory period of time
when issuing DMV adverse
action notices (suspension, revocation,
denial or habitual offender status) - see
Point
Structure. If the driver has no intent to be a
law abiding citizen, but intends to be a "truly dangerous
criminal" and anticipates receiving another minor traffic
infraction or DUI within the near future, the same issue may arise
before expiration of the point suspension period or the period for
which revocation, denial or habitual offender status may
enter. If the driver is unable to control his / her behavior,
collateral
attack in the
underlying court proceedings may be worthwhile.
-
May not be used as a
subsequent
driving
under restraint criminal case
jurisdictional
attack.
May be used as a defense in a
subsequent
driving
under restraint criminal charge as a
collateral
attack - (defect reaching constitutional proportions). Multiple Colorado cases have been decided
on point. -
Will not affect the DMV
noting the infraction or offense plea or conviction on the consumer driving abstract
Insurance rates may
increase
The logic applied
by Colorado appellate courts in this area is somewhat of a maze. To
simplify, each above defense will
work in
DMV adverse
action hearings and appeal to district court should the
DOR hearing officer rule against the driver. Bottom line - except for DMV
lack of jurisdiction or deprivation of constitutional rights in the underlying
tickets, the arguments will not work as a
collateral
attack in
driving
under restraint criminal charges - if you snooze, you lose.
Driving
under restraint criminal charges carry mandatory jail and some are
felonies carrying penitentiary time. If you
have a license problem and your driver's license is important to you, it's a plan to consult an
attorney as quickly as possible.
|
REINSTATEMENT OF COLORADO DRIVING PRIVILEGES
HABITUAL TRAFFIC
OFFENDER - ALCOHOL RELATED REVOCATION OR DENIAL
Relevant
Statutes |
|
|
|
|
|
|
REINSTATEMENT OF COLORADO DRIVING PRIVILEGES
HABITUAL TRAFFIC
OFFENDER - REVOCATION OR DENIAL NOT ALCOHOL RELATED
Relevant
Statutes |
|
|
|
|
|
DMV
PROCEEDINGS & DRIVER LICENSE
MATTERS
LOSS OF COLORADO DRIVING PRIVILEGES |
|
|
Driving in Colorado is
a constitutionally protected privilege, but nevertheless a privilege
which may be lost. Multiple statutes can cause loss of driving
privileges for different driver behavior. Drivers are entitled
to a
DMV hearing. In some circumstances the right to hearing
precedes potential DMV adverse action; under other Colorado traffic
laws the adverse order is entered, then the driver is provided notice
of the adverse action and right to request subsequent hearing.
If hearing has been held or a DMV final order has otherwise
entered and the Colorado driver's license or Colorado driving privileges have
been suspended, revoked or denied, the driver's remaining recourse is appeal to
the District Court.
DMV appeal is subject to a
statute of limitations. Right to
appeal may be lost if the driver delays. Upon final order in the District
Court, either party make take the case on appeal to the Colorado Court of
Appeals. Refer to links for additional information. |
|
| |
|
Do I need an attorney?
|
Probably time to loosen the pocket book and
hire a
defense attorney.
|
|
DMV habitual offender status
results in 5 year loss of driving privileges and can lead to later
misdemeanor or felony criminal charges of
driving
after revocation prohibited (DARP) with county jail or state
penitentiary time. Habitual offender is serious. You need not retain my services, but hire counsel.
|
|
|
|
ATTORNEY'S
FEES AND COSTS
HABITUAL
OFFENDER
DRIVER LICENSE SUSPENSION
*
REVOCATION
*
DENIAL ACTIONS
COLORADO DMV *
DOR *
DRIVER LICENSE DEFENSE
Secure
On-Line Payment |
|
|
|
At the time of the first
visit, a prospective client will be quoted attorney's fees and estimated costs. The quote will
be honored for a period of seven (7) days, after which it is subject to change
without notice if this office has not been retained. Attorney is a sole
practitioner with need to manage his caseload. Pending proposed client
acceptance and payment, retainer agreement proposals are subject to
withdrawal. Attorney reserves the right to decline any case.
In most circumstances, attorney initially makes an option offer of
1.) billing to be upon hourly fees, or in the alternative, 2.)
quote of a hearing limited flat fee.
ELECTION.
Offered fee options will be up to the client, however client's initial election will be
final.
Included in attorney's primary website is a
web page devoted to clear definition & understanding of free
first
consultation, fees and costs, retainer agreement and terms of
representation. Additional
information regarding fees & costs may be found via the links
following potential quotes.
POTENTIAL FEE QUOTE
HABITUAL OFFENDER
DRIVER
LICENSE REVOCATION * DENIAL ACTIONS
COLORADO DOR
*
DMV -
DRIVER LICENSE DEFENSE |
|
|
|
|
I offer hourly fees
or a hearing limited flat fee. The hearing limited flat fee would be dependent upon the facts and circumstances of the
case. Based upon the fact it is impossible to predict arguments,
documents to be placed under subpoena duces tecum, witness to be placed
under subpoena and transcripts of court proceedings (contested or
uncontested), attorney would need to know more about the cases before offering
a hearing limited flat fee or estimating costs. |
Collateral
attack brings another layer of complexity to estimation of fees and costs.
TBD*
To
Be Determined
|
|
trust deposit request
regarding fees & costs |
|
| |
|
|
PAYMENT
Secure
On-Line 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.
|
|
|
| |
