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COLORADO SPRINGS TRIAL LAWYER
experienced and professional attorney - 30+ years
private practice in Colorado state and
municipal courts |
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ROBERT D. GUSTAFSON |
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ATTORNEY AT LAW
6538 Charter
Drive
Colorado Springs, CO 80918-1335 |
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ATTORNEY PHONE
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NOT
DMV
Phone (719)
260-1002
Fax (719) 260-1003 *
Toll Free (800) 410-1002 |
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Colorado driver's license - Colorado Springs defense vs. Colorado Department of Revenue, Division of Motor Vehicles - DOR / DMV / MVD suspension, revocation or denial of Colorado driver license or Colorado driving privileges. DUI convictions, DWAI convictions, DEAC convictions, alcohol convictions, excessive alcohol,
BAC, 0.17, 0.8, 0.05, breath test, blood test, multiple alcohol convictions, MIP convictions, underage alcohol convictions, habitual offender, speeding & traffic ticket excessive points, possible defenses.
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If any driver has not given
the DMV your current address, do immediately. The DMV is only required to
provide notices to the last address in their records. Drivers may request a
hearing or provide a change of address to any DMV office.
In Colorado Springs
area:
DMV Colorado Springs Regional
Service Center
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DRIVING PRIVILEGES
SUSPENSION * REVOCATION * DENIAL
GENERAL
INFORMATION & HEARING PROCEDURE |
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Loss of
Colorado driving privileges,
probationary license,
interlock and reinstatement are complex issues with
multiple variables.
A substantial amount of information is contained
within this webpage for educational purpose only. Information is
contained relative to common license actions, but it is not possible
to address all possible permutations. Do not rely
upon information contained herein - contact
Colorado
DMV Driver Control License Reinstatement Section to
determine status of Colorado driving privileges, probationary license
eligibility, interlock eligibility & reinstatement requirements. |
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Driving Privilege.
In Colorado, driving is a privilege, not a right, and most of us take our
driving privileges for granted. Places are much further away than we
realize when we have access to a vehicle. Driver's license or Colorado driving
privileges may be taken for one or more of the below identified reasons. This list is
not intended to be exhaustive - just highlight the most common reasons. |
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DOR Overview. The
Department of Revenue is an administrative agency created by
statute.
It has no more or less power than granted by the legislature. Many
functions are mandatory pursuant to statute; the DOR has discretion only
when granted by statute. The DOR has also promulgated
rules and regulations;
some are linked in this website. |
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DOR Hearing Structure.
Hearings regarding Colorado license or Colorado driving privileges loss
occur in
DOR
district offices across the state. The hearing officer is actually
employed not by the DMV, but by the Colorado Department of Revenue,
Hearing
and Appeals Division. This is a
branch of the Colorado Department of
Revenue which is separate and distinct from the DMV. Drivers commonly
believe the Colorado license or Colorado driving privileges has been
suspended, revoked or denied by the DMV, so that is the phraseology which is
used in this webpage and the
DMV Appeals webpage. |
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Statutory Basis - License Loss.
The respondent's driver license or Colorado driving privileges are in
jeopardy on the basis of a particular statute. e.g.
a.) CRS 42-2-127
points
b.) CRS 42-2-126
excessive alcohol or refusing a chemical test
c.) CRS 42-2-125
multiple alcohol offense convictions, MIP, baby DUI
d.)
CRS
42-2-201 et. seq. - habitual offender
e.)
CRS
42-2-127.7 compulsory insurance
If the criteria of the particular
underlying statute are are met, the driver license will be suspended,
revoked or denied. |
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Rules Governing Hearing. DMV hearings are conducted pursuant to
CRS 24-4-105,
the Colorado Administrative Procedures Act (APA). In some
circumstances, conduct or rules of the hearing are are provided in a
specific statute. e.g. refusing a chemical test or excessive alcohol
content revocation
CRS 42-2-126. DOR
regulations
also apply regarding conduct of hearings. Under the relaxed rules of
the APA, hearsay is admissible, including multiple levels of hearsay.
This is unfavorable to the respondent driver. |
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Setting Hearings.
In hearings such as excessive
alchohol or refusing
a chemical test, the adverse action is effective immediately
upon service of notice, with the right to request a hearing within 7 days
from service of the notice of adverse action. In such circumstances,
the respondent driver may request the presence of the arresting officer at
hearing. In other circumstances such as
points,
notice is sent to the driver. Hearing date has been scheduled and is
identified in the notice. In yet other circumstances such as
driving under
restraint, notice of adverse action is sent to the driver.
DMV has already taken the adverse action which is mandated by Colorado law
CRS 42-2-138, and the driver is simply notified of the action.
DUR = 1 additional year loss to run consecutively with any other adverse
action. In such circumstance, a hearing may also be requested upon
receipt of notice. |
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Subpoena.
In criminal & traffic court cases, attorneys may issue a subpoena or
subpoena duces tecum (document production) and no particular form is required. In DOR
hearing actions, statutes and DOR regulations require that a subpoena or
subpoena duces tecum may only be issued by the DOR hearing officer & that it
must be upon a DOR form. |
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Only Denver DOR Hearings & Appeals
may issue a subpoena, not a local DOR hearing officer. |
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If at the time of hearing request
the driver fails to request the presence of the law enforcement
officer, it can be quite difficult to get a subpoena issued and served
under this rule. |
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If the law enforcement officer under
subpoena is unable to attend, he or she may notify the DOR & a
continuance will be granted, which may be outside the 60 day statute
of limitations. If a driver or his/her attorney is unable to
attend, he or she may notify the DOR, however a continuance will only
be granted upon good cause shown and the new hearing date must be
within the 60 day statute of limitations. If the hearing date is
near the limitation period - no extension will be granted to the
driver for any reason. |
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In a criminal case, the state has
some advantages and defense has some advantages. The two sides
are essentially balanced walking into hearing or trial. The
above are a few of the reasons publishing attorney believes DOR
hearings are fundamentally unfair in favor of the state - the deck is
stacked against the respondent driver in license hearings. |
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Conduct of Hearing.
Hearings are generally conducted in a regular looking office with the DOR
hearing officer seated behind the desk. The Law enforcement officer
frequently sits beside the desk with the respondent driver & counsel or
witness seated opposite the hearing officer in front of the desk. The
hearing is recorded. The recorder continues even if the hearing
officer leaves the room, so care must be taken to avoid candid remarks or
statements as no privacy exists. The hearing officer will identify
himself and have each person in the room identify himself or herself for the
record. The hearing officer will identify the allegations - reason for
the hearing. Witnesses, if any, are sworn and the hearing officer
proceeds to take testimony and accept exhibits from a law enforcement
officer if one is present. Respondent driver is afforded an
opportunity to cross examine the law enforcement officer, and to
subsequently offer his or her own witnesses, self testimony or exhibits.
At conclusion of testimony, an opportunity is afforded for closing statement
and the hearing officer then enters a ruling. |
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If ruling is in favor of the driver,
the license is returned and the case concluded. |
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If ruling is in favor of the state,
the license or any temporary permit is seized and the hearing provides
a copy of the suspension, revocation or denial order to the driver.
The hearing officer may advise the driver regarding potential
penalties for
driving under
restraint, but is
not required to do so. |
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The hearing officer will typically
present the original order to the driver and request the driver to
sign the order acknowledging receipt. When present, publishing
attorney makes a statement on the record that he acknowledges receipt
on behalf of the client, but advises the client not to execute the DOR
order. No sense giving the DOR evidence for subsequent use in a
driving under restraint prosecution. Hearing officers do not get
excited when a driver states: "I respectfully decline execution based
upon advice of counsel." Don't sign the DOR order. |
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Right to Appeal.
If the Colorado driver license or Colorado driving privileges are suspended,
revoked or denied, please refer to the
DMV Appeals
webpage for appellate information.
Limited time exists to appeal. |
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Penalties and Procedure.
Plea bargaining is not available - at the DMV
hearing a driver wins or loses. |
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In many circumstances,
the period of suspension, revocation or denial is statutory and the
hearing officer has no discretion. Several statutory periods are
stated below; no shorter and no longer. Regarding point
suspension, hearing officer discretion exists as to length of driving
privilege loss. |
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The DMV may have the
statutory power to grant a
probationary license.
If the DOR has that power, whether the limited driving privileges are
granted or not is within the discretion of the hearing officer.
If statutory authority does not exist, no discretion exists for the
DOR hearing officer. |
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For alcohol offenses,
insurance offense and some other circumstances, to become reinstated
the driver must file SR-22 proof of insurance. This is expensive high
risk insurance, check with an independent insurance agent regarding
cost. |
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DMV revocation for
excessive alcohol content or refusing a chemical test is independent
of any underlying alcohol criminal charges; even if the alcohol
criminal case is dismissed, it will not affect a DMV license
revocation order. |
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Other DMV adverse
actions are dependent upon valid conviction before the DMV may
suspend, revoke or deny. |
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Where adverse actions
are based upon prior convictions, relevant periods are computed from date of
offense to date of offense - conviction dates are not relevant. |
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Application for Driver License in
Another State. If driving privileges
are under suspension, revocation or denial at the time a driver makes application
for a new license in another state, the driver will not be issued a license out of
state until the Colorado hold is cleared. If application is made in Colorado
during a period of suspension, revocation or denial, the driver be
charged with a separate jailable major traffic offense simply for making the
application. Refer to
National Records and False Information - Interstate Compact
page |
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PERIOD COVERED - POINTS
CAUSING SUSPENSION |
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DRIVER CLASSIFICATION |
AGE |
12 MONTHS |
24 MONTHS |
PERIOD LICENSE ISSUED |
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Adult |
21 and over |
12 |
18 |
n/a |
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Provisional |
18 - 21 |
9 |
12 |
14 |
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Minor |
16 - 18 |
6 |
n/a |
7 |
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12 MONTHS |
24 MONTHS |
48 MONTHS |
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Chauffeur
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n/a |
16 |
24 |
28 |
Chauffeur
Information
chauffeur additional point
allowance not applicable if any
points are alcohol related or leaving the scene of an accident
CRS 42-2-127(1) |
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Regarding
points which are the basis for suspension. If any such
points were incurred outside the course & scope of employment, driver is
not entitled the additional points
granted under the chauffeur exception.
Edwards v. Motor Vehicle Div., 33 Colo. App. 382 (1974), Michels
v. Motor Vehicle Div of Dept. of Revenue, 32 Colo. App. 106, 506
P.2d 1243 (1973). Put another way, all
points must be job related or the driver will fall under the
normal point system - minor, provisional or adult. |
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POINTS ASSESSED - COMMON
TICKETS
CRS 42-2-127
and Relevant Offenses |
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if you are a driver licensed outside of Colorado & are wondering about
reporting to your home state, refer to
INTERSTATE COMPACT |
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STATE COURT PENALTY
ASSESSMENT
POINT REDUCTION - EARLY PAYMENT
CRS 42-2-127(5.5) |
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If a person receives a penalty
assessment notice for a violation under section 42-4-1701(5) and such
person pays the fine and surcharge for the violation on or before the
date the payment is due, the points assessed for the violation are
reduced as follows: |
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Early Payment
2 Point Reduction |
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(a) For a violation having an
assessment of three or more points under subsection (5) of this
section, the points are reduced by two points; |
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Early Payment
1 Point Reduction |
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(b) For a violation having an
assessment of two points under subsection (5) of this section, the
points are reduced by one point. |
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MUNICIPAL COURT
PENALTY ASSESSMENT
POINT REDUCTION AUTHORITY - EARLY PAYMENT
CRS 42-2-127(5.6) |
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(a) Any municipality may elect to have
the provisions of subsection (5.5) of this section apply to penalty
assessment notices issued by the municipality pursuant to counterpart
municipal ordinances. Whenever a municipality reduces a traffic offense,
the reduced offense and the points assessed for such reduced offense
shall conform to the point assessment schedule under subsection (5) of
this section.
(b) Any county may elect to have the provisions of subsection (5.5) of
this section apply to penalty assessment notices issued by the county
pursuant to counterpart county ordinances. Whenever a county reduces a
traffic offense, the reduced offense and the points assessed for such
reduced offense shall conform to the point assessment schedule under
subsection (5) of this section. |
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COLORADO SPRINGS
MUNICIPAL COURT HAS NOT ADOPTED EARLY PAYMENT POINT REDUCTION
a driver will not receive point
reduction for traffic ticket early payment in Colorado Springs
Municipal Court
appearance in court and negotiation with an assistant city attorney may
result in point reduction, but
early payment => full points |
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PERSONAL SERVICE REQUIREMENT
PENALTY ASSESSMENT POINTS
CRS 42-2-127(5.7) |
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Notwithstanding any other provision of
the statutes to the contrary, if a penalty assessment for a traffic
infraction is not personally served on the defendant or the defendant
has not accepted the jurisdiction of the court for such penalty
assessment, then the traffic infraction is a class B traffic infraction
and the department has no authority to assess any points under this
section upon entry of judgment for such traffic infraction. |
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AUTOMATED TRAFFIC CAMS
NO POINTS ASSESSED
CRS 42-2-127(5.8) |
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Notwithstanding any other provision of
this section, the department may not assess any points for a violation
if such assessment of points is prohibited under section 42-4-110.5(3).
Note - this statute is identified as automated vehicle identification
systems - this is the traffic cam system used to issue traffic tickets. |
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ALCOHOL RELATED DMV ADVERSE
ACTIONS |
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REVOCATION OR DENIAL - ADULT DRIVER'S LICENSE |
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General Information - BAC Refusal: Chemical testing refusal - no 2 hour time limit - refusal may have occurred outside the
excessive alcohol 2 hour time limit
If a driver refuses to submit to
breath or blood chemical testing, the driver should receive a notice of revocation or
denial at the time of arrest or receipt of the summons and complaint(s) -
tickets. This is usually on a yellow piece of
paper; size 8 1/2" x 11". From date of receipt, the driver has 7
days to ask for a hearing. If
the driver asks within that time, the driver will receive a hearing to
determine whether driving privileges should be revoked or denied. If the
driver fails to ask within 7 days, the driver has waived (forfeited -
given up) the right to such a hearing, and driving privileges
automatically will be revoked or
denied for the period indicated below. CRS 42-2-126.
When the driver requests a hearing,
he / she should demand that the officer be ordered to appear. Otherwise, the
determination will be on the basis of written reports submitted by the
officer. |
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Basic Elements which Must be Proven to Revoke
- BAC Refusal
other defenses may exist |
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1. The person identified as
Respondent was the driver of a motor vehicle within the State of Colorado
and within the jurisdiction of the law enforcement officer
2. The law enforcement officer
had reasonable suspicion to stop or otherwise come in contact with the
driver
3. The law enforcement officer
had probable cause to believe the driver drove a motor vehicle while he
or she was under the influence of or impaired alcohol or drug
this is tantamount to: the law enforcement officer had probable cause to
to invoke Colorado express consent law
4. The law enforcement officer
had probable cause to and did request a chemical test of the driver's blood
or breath pursuant to Colorado express consent law
5. The driver refused to submit
to a chemical test of his blood or breath. Refusal may be by oral
statement, behavior or physical manifestation.
6.
Colorado DMV Appeal
- information regarding appeal from DMV license revocation |
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Period of Driving
Privilege Loss - BAC Refusal |
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First refusal revocation: |
1 year |
CRS 42-2-126(6)(b)(III) |
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Second refusal revocation: |
2 years |
CRS 42-2-126(6)(b)(VI) |
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Third or subsequent refusal revocation: |
3 years |
CRS 42-2-126(6)(b)(VII) |
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REVOCATION OR DENIAL - ADULT DRIVER'S LICENSE |
ALCOHOL RELATED
DMV ADVERSE ACTIONS
CRS 42-2-126(2)(a)(I)
Adult Excessive Alcohol BAC Revocation or Denial |
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On May 5,
2004 Colorado Legislature
House
Bill 04-1021 lowered the
BAC limit from 0.10 to 0.08 regarding DUI presumption, DEAC threshold and
driver's license
excessive alcohol revocation. Law effective date: July 1, 2004 |
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General Information -
BAC .08 - .169:
BAC
0.08 or greater as tested within 2 hours of driving. If relevant, refer below for
BAC 0.17 or greater
If a driver's breath or blood
alcohol concentration was .08 or greater as tested within 2 hours from
the time of driving, the driver should receive a notice of revocation or denial of
driving privileges. Breath test results are instant, and usually the notice
of revocation or denial is received at the time of arrest. This is usually
on a yellow piece of paper; size 8 1/2" x 11". Blood tests take up
to 15 days to obtain results; the driver should receive a notice of revocation or
denial by certified mail in 3 to 6 weeks. This is usually on a white piece
of paper; size 8 1/2" x 11". From date of receipt, the driver has
7
days
to ask for a hearing. If
the driver asks within that time, a hearing will
be set to determine whether driving privileges should be revoked or
denied. If the driver fails to ask within 7 days, the driver has waived
(forfeited - given up) the right to
such a hearing, and driving privileges automatically will be
revoked or denied
for the period indicated below. CRS 42-2-126. When the driver requests a hearing,
he / she should demand that the officer be ordered to appear. Otherwise, the
determination will be on the basis of written reports submitted by the
officer. |
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Basic Elements which Must be Proven to Revoke
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BAC .08 - .169
other defenses may exist |
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1. The person identified as
Respondent was the driver of a motor vehicle within the State of
Colorado and within the jurisdiction of the law enforcement officer
2. The law enforcement officer
had reasonable suspicion to stop or otherwise come in contact with the
driver
3. The law enforcement officer
had probable cause to believe the driver drove a motor vehicle while he
or she was under the influence of or impaired alcohol or drug
this is tantamount to: the law enforcement officer had probable cause to
to invoke Colorado express consent law
4. The law enforcement officer
had probable cause to and did request a chemical test of the driver's
blood or breath pursuant to Colorado express consent law
5. The driver submitted to a
chemical test within two (2) hours of driving
6. The breath or blood chemical
test substantially complied with
Colorado
Department of Health Regulations
7.
The results of the breath or blood chemical test were equal to or
greater than 0.08 grams of alcohol per 100 ml blood or per 210 liters of
breath
8. BAC threshold level for
presumption state chemical test presumption : 0.096 or more (no
scientific basis or justification for presumption, but legislative)
9.
Colorado DMV Appeal
- information regarding appeal from DMV license
revocation |
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Period of
Driving
Privilege Loss -
BAC .08 - .169 |
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Driving
Privilege Loss -
BAC .08 - .169 |
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First revocation:
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9 months
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CRS 42-2-126(3)(a)(II)(A)
violation
after 1/1/2009 |
Note
- 3 months violation before 1/1/2009
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Second or revocation:
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1 year
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CRS 42-2-126(3)(a)(II)(B)
violation after
1/1/2009 |
Note - 1 year
loss - violation before 1/1/2009
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Third or subsequent revocation:
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2 years
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CRS 42-2-126(3)(a)(II)(C)
violation after
1/1/2009 |
Note - 1 year
loss - violation before 1/1/2009
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REVOCATION OR DENIAL - ADULT DRIVER'S LICENSE |
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General Information
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Excessive Alcohol Revocation BAC .17 or Greater:
BAC
0.08 or greater as tested within 2 hours of driving - refer to below
reinstatement
information for BAC 0.17 aggravator
If a driver's breath or blood
alcohol concentration was .08 or greater as tested within 2 hours from
the time of driving, the driver should receive a notice of revocation or denial of
driving privileges. Breath test results are instant, and usually the notice
of revocation or denial is received at the time of arrest. This is usually
on a yellow piece of paper; size 8 1/2" x 11". Blood tests take up
to 15 days to obtain results; the driver should receive a notice of revocation or
denial by certified mail in 3 to 6 weeks. This is usually on a white piece
of paper; size 8 1/2" x 11". From date of receipt, the driver has
7
days
to ask for a hearing. If
the driver asks within that time, a hearing will
be set to determine whether driving privileges should be revoked or
denied. If the driver fails to ask within 7 days, the driver has waived
(forfeited - given up) the right to
such a hearing, and
driving privileges automatically will be
revoked or denied
for the period indicated below. CRS 42-2-126. When the driver requests a hearing,
he / she should demand that the officer be ordered to appear. Otherwise, the
determination will be on the basis of written reports submitted by the
officer. |
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Basic Elements which Must be Proven to Revoke
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Excessive Alcohol Revocation BAC .17 or Greater
other defenses may exist |
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1. The person identified as
Respondent was the driver of a motor vehicle within the State of
Colorado and within the jurisdiction of the law enforcement officer
2. The law enforcement officer
had reasonable suspicion to stop or otherwise come in contact with the
driver
3. The law enforcement officer
had probable cause to believe the driver drove a motor vehicle while he
or she was under the influence of or impaired alcohol or drug
this is tantamount to: the law enforcement officer had probable cause to
to invoke Colorado express consent law
4. The law enforcement officer
had probable cause to and did request a chemical test of the driver's
blood or breath pursuant to Colorado express consent law
5. The driver submitted to a
chemical test within two (2) hours of driving
6. The breath or blood chemical
test substantially complied with
Colorado
Department of Health Regulations
7.
The results of the breath or blood chemical test were equal to or
greater that 0.08 grams of alcohol per 100 ml blood or per 210 liters of
breath - revocation
8. BAC threshold level for
presumption state chemical test presumption : 0.096 or more (no
scientific basis or justification for presumption, but legislative)
9. To support the
persistent drunk driver
enhancement, the results of the breath or blood chemical test mush have
been equal to or greater than 0.17 grams of alcohol per 100 ml blood or
per 210 liters of breath
10.
Colorado DMV Appeal
- information regarding appeal from DMV license
revocation |
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Period of Driving
Privilege Loss
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Excessive Alcohol Revocation BAC .17 or Greater |
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3 months |
CRS 42-2-126(6)(b)(I) |
| Second or subsequent revocation: |
1 year |
CRS 42-2-126(6)(b)(II) |
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Excessive Alcohol Revocation BAC .17 or Greater
Probationary License &
Reinstatement |
above
subtopic index links to attorney's primary website
relevant information re probationary license & reinstatement |
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SUSPENSION OR DENIAL -
ADULT DRIVER'S LICENSE |
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General Information
- Point Suspension Plus Excessive
Alcohol Revocation
Point suspension under
CRS 42-2-127 in
addition to excessive alcohol revocation under CRS
42-2-126.
If relevant, refer to
2 Alcohol Offense Convictions in
5 Years or 3
Alcohol Offense Convictions in Lifetime |
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Adult, chauffeur, provisional and minor drivers' licenses have
different numbers of points over different periods of time which result in
suspension. Please refer to
Point
Structure to determine age categorization and points which
cause suspension. If relevant, refer to
chauffeur. |
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42-2-126 can occur for multiple reasons |
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Excessive Alcohol Adult Driver
Revocation -
BAC .08 - .169
Excessive Alcohol Adult Driver
Revocation - BAC .17 or Greater
Underage
Excessive Alcohol "Baby DEAC"
Underage Driver
Revocation |
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Point suspension is mandatory pursuant to
CRS 42-2-127
if sufficient points have accrued to the driver.
Upon receipt of conviction transcript from the court, the DMV will
automatically send notice of hearing to the driver via regular U.S. Mail.
Hearing will be held in the DMV district office closest to the residence of
the driver. Hearing procedure:
CRS 42-2-127§§(7),(13). |
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Basic Elements which Must be Proven
- Point Suspension Plus Excessive Alcohol
Revocation |
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1. The person identified as
Respondent was the driver convicted of
each
underlying traffic offense or infraction
and was revoked for excessive
alcohol
2. Defense 1: A
primary defense would be that the court has made clerical error and
identified Respondent as convicted of an offense committed by a
different person or DMV has made clerical error and applied a conviction
for a different person to the Respondent's driving record, or has
otherwise tagged the Respondent with a conviction which does not pertain
to the Respondent driver.
3. Defense 2:
Collateral Attack upon one or more of the underlying convictions.
4. Defense 3:
Colorado DMV Appeal
from the underlying
alcohol revocation
and stay of execution or restraining order in the District Court appeal
case.
5. Refer to
potential defenses
for other defensive arguments. No other defenses exist of
which publishing attorney is aware.
6.
Colorado DMV Appeal
- information regarding appeal from DMV license
revocation or suspension |
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| Period of Driving Privilege Loss
- Point Suspension Plus Excessive
Alcohol Revocation |
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Point suspensions have different
base periods. |
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Excessive alcohol revocation under CRS
42-2-126 have different base periods |
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Excessive Alcohol Adult Driver
Revocation -
BAC .08 - .169
Excessive Alcohol Adult Driver
Revocation - BAC .17 or Greater
Underage
Excessive Alcohol "Baby DEAC"
Underage Driver
Revocation |
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Suspension period for excessive
points runs concurrent (at the same time) with
excessive alcohol revocation.
CRS 42-2-126(6)(c)(I) That means the periods of revocation,
suspension, cancellation, or denial would run simultaneously, and period
of any elapsed revocation will be deducted from point suspension.
e.g. If the 3 month
revocation for first
excessive alcohol BAC 0.08 - 0.169 has elapsed prior to
the
point suspension
being imposed, credit will be given for "time served" during the
excessive alcohol revocation - 12 month
suspension
would be reduced by the 3 months
revocation served to a net remaining
suspension
imposition of 9 months. |
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CRS 42-2-126(6)(c)(I) Where a
license is revoked under subparagraph (I), (I.5), (III), or (IV)
of paragraph (a) of subsection (2) of this section (reference information -
all revocations for chemical test excessive alcohol)
and the person is also convicted on criminal charges arising out
of the same occurrence for a violation of
CRS 42-4-1301(1) or (2)(a), both the revocation under this section and any suspension,
revocation, cancellation, or denial which results from such
conviction shall be imposed, but the periods shall run
concurrently, and the total period of revocation,
suspension, cancellation, or denial shall not exceed the longer
of the two periods. |
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Point Suspension Plus Excessive Alcohol
Revocation
Probationary License &
Reinstatement |
above
subtopic index links to attorney's primary website
relevant information re probationary license & reinstatement |
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SUSPENSION OR DENIAL -
ADULT DRIVER'S LICENSE
MINOR OR PROVISIONAL DRIVER'S LICENSE |
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General Information
- Point Suspension Plus BAC Chemical
Testing Refusal Revocation
Point suspension under
CRS 42-2-127 in
addition to
revocation for refusal of chemical
testing under CRS
42-2-126.
If relevant, refer to
2 Alcohol Offense Convictions in
5 Years or 3
Alcohol Offense Convictions in Lifetime |
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Adult, chauffeur, provisional and minor drivers' licenses have
different numbers of points over different periods of time which
result in suspension. Please refer to the
Point
Structure page to determine age categorization and points which
cause suspension. If relevant, refer to
chauffeur. |
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Point suspension is mandatory pursuant to
CRS 42-2-127
if sufficient points have accrued to the driver.
Upon receipt of conviction transcript from the court, the DMV will
automatically send notice of hearing to the driver via regular U.S. Mail.
Hearing will be held in the DMV district office closest to the residence of
the driver. Hearing procedure:
CRS 42-2-127§§(7),(13.
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Basic Elements which Must be Proven
- Point Suspension Plus BAC Chemical
Testing Refusal Revocation |
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1. The person identified as
Respondent was the driver convicted of
each
underlying traffic offense or infraction
and was revoked for excessive
alcohol
2. Defense 1: A
primary defense would be that the court has made clerical error and
identified Respondent as convicted of an offense committed by a
different person or DMV has made clerical error and applied a conviction
for a different person to the Respondent's driving record, or has
otherwise tagged the Respondent with a conviction which does not pertain
to the Respondent driver.
3. Defense 2:
Collateral Attack upon one or more of the underlying convictions.
4. Defense 3:
Colorado DMV Appeal
from the underlying
chemical test refusal
revocation & stay of execution or restraining order in the District Court appeal
case.
5. Refer to
potential defenses
for other defensive arguments. No other defenses exist of
which publishing attorney is aware.
6.
Colorado DMV Appeal
- information regarding appeal from DMV license
revocation or suspension |
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Period of Driving Privilege Loss
- Point Suspension Plus BAC Chemical
Testing Refusal Revocation |
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Suspension period for excessive
points runs consecutive (back to back) to
chemical test refusal
revocation.
CRS 42-2-126(6)(c)(II) That means the periods of revocation,
suspension, cancellation, or denial would be stacked; one to run after
the other concludes. |
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CRS 42-2-126(6)(c)(II) Where a license is
revoked under subparagraph (II) of paragraph (a) of subsection (2) of
this section (reference information -
revocations for chemical test refusal) and the person
is also convicted on criminal charges arising out of the same
occurrence for a violation of
CRS 42-4-1301(1) or (2)(a), any
suspension, revocation, cancellation, or denial which results from
such conviction and is imposed shall run consecutively with the
revocation under this section. |
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CRS 42-4-1301.2. Refusal of test —
effect on driver's license — revocation — reinstatement.
(1) If a person refuses to take, or to complete, or to cooperate
with the completing of any test or tests as provided in CRS
42-4-1301.1, the person shall be subject to license revocation
pursuant to the provisions of CRS 42-2-126. Such revocation shall
take effect prior to and shall stay the remainder of any previous
suspension, or denial in lieu of suspension, and shall not run
concurrently, in whole or in part, with any previous or subsequent
suspensions, revocations, or denials that may be provided for by
law, including any suspension, revocation, or denial that results
from a conviction of criminal charges arising out of the same
occurrence for a violation of CRS 42-4-1301. The remainder of any
suspension, or denial in lieu of suspension, stayed pursuant to
the provisions of this subsection (1) shall be reinstated
following the completion of any revocation provided for in CRS
42-2-126. Any revocation taken under said section shall not
preclude other actions that the department is required to take in
the administration of the provisions of this title. |
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Point Suspension Plus BAC Test Refusal Revocation
Probationary License &
Reinstatement |
above
subtopic index links to attorney's primary website
relevant information re probationary license & reinstatement |
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ADULT
CDL |
REFUSAL * EXCESSIVE ALCOHOL CONTENT
ALCOHOL OFFENSE CONVICTION * POINT SUSPENSION
OUT OF SERVICE ORDER |
MINOR
CDL |
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COMMERCIAL DRIVER'S LICENSE * SUSPENSION * REVOCATION OR DENIAL |
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ALCOHOL RELATED DMV
ADVERSE ACTIONS
NON-ALCOHOL DMV
ADVERSE ACTIONS |
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Adult CDL Revocation or Denial |
Minor CDL Revocation or Denial |
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General Information - Alcohol Violations & Commercial Driver License
- CDL
It is not possible to condense the myriad of alcohol CDL statutory &
regulatory law to a single webpage subsection. This is a synopsis.
Alcohol related "out of service order"
Anticipated when a CDL driver is operating a commercial motor vehicle (CMV)
at the time of the stop
Alcohol Related Traffic Offense Conviction
CRS 42-2-126(2)(a)(II)
DUI
- DEAC
- DWAI
conviction will trigger CDL
Disqualification
Chemical Test Refusal
CRS 42-2-126(2)(a)(IV)
No requirement for request to be within two (2) hours of driving
Revocation will trigger
CDL Disqualification
Refusal or BAC 0.044
or greater as tested at the time of driving a commercial motor vehicle
or anytime thereafter - no 2 hour time limit
Excessive Alcohol
BAC 0.04 or Greater - Adult CDL
CRS 42-2-126(2)(a)(III)
No requirement for request or test to be within two (2) hours of driving
If an adult commercial driver breath or blood
alcohol concentration was 0.04 or greater as tested at the time of
driving a commercial motor vehicle or anytime thereafter, the driver should receive an
"out
of service order"
at the time of the stop and should receive notice of revocation or denial of
driving privileges. CRS 42-2-126(2)(a)(III) Breath test results are instant, and usually the notice
of revocation or denial is received at the time of arrest. This is usually
on a yellow piece of paper; size 8 1/2" x 11". Blood tests take up
to 15 days to obtain results; the driver should receive a notice of revocation or
denial by certified mail in 3 to 6 weeks. This is usually on a white piece
of paper; size 8 1/2" x 11". From date of receipt, the driver has
7
days
to ask for a hearing. If
the driver asks within that time, a hearing will
be set to determine whether driving privileges should be revoked or
denied. If the driver fails to ask within 7 days, the driver has waived
(forfeited - given up) the right to
such a hearing, and driving privileges automatically will be
revoked or denied
for the period indicated below (this includes CDL). CRS 42-2-126. When the driver requests a hearing,
he / she should demand that the officer be ordered to appear. Otherwise, the
determination will be on the basis of written reports submitted by the
officer. Revocation will trigger
CDL Disqualification.
Excessive Alcohol
BAC 0.02 - 0.040 - Minor CDL
CRS 42-2-126(2)(a)(IV)
No requirement for request or test to be within two (2) hours of driving
If a commercial driver under age 21 breath or blood alcohol
concentration was 0.02 - 0.04 as tested at the time of driving a
commercial motor vehicle or anytime thereafter, the commercial driver
should receive an "out
of service order" at the time of the stop and should receive
a notice of revocation or denial of driving privileges. Breath test results are instant, and usually the notice
of revocation or denial is received at the time of arrest. This is usually
on a yellow piece of paper; size 8 1/2" x 11". Blood tests take up
to 15 days to obtain results; the driver should receive a notice of revocation or
denial by certified mail in 3 to 6 weeks. This is usually on a white piece
of paper; size 8 1/2" x 11". From date of receipt, the driver has
7
days
to ask for a hearing. If
the driver asks within that time, a hearing will
be set to determine whether driving privileges should be revoked or
denied. If the driver fails to ask within 7 days, the driver has waived
(forfeited - given up) the right to
such a hearing, and driving privileges automatically will be
revoked or denied
for the period indicated below (this includes CDL). CRS 42-2-126. When the driver requests a hearing,
he / she should demand that the officer be ordered to appear. Otherwise, the
determination will be on the basis of written reports submitted by the
officer. Revocation will trigger
CDL Disqualification.
Refer to
Driver Mandatory Reporting Obligations.
CDL Point Suspension
CRS 42-2-127(1)(a)
CDL may be suspended for accumulation
of non-alcohol traffic offense or traffic infraction
points.
Information is provided below. |
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Basic Elements which Must be Proven to
Revoke or Suspend CDL
Note: "out
of service order"
is a horse of a different color -
49 CFR 392.5 |
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Basic Elements which Must be Proven to Revoke -
Excessive Alcohol BAC or Chemical Test Refusal - CDL
other defenses may exist |
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1. Person identified as
Respondent was the CDL driver of a commercial motor vehicle within the State of
Colorado and within the jurisdiction of the law enforcement officer
2. The law enforcement officer
had reasonable suspicion to stop or otherwise come in contact with the
driver
3. The law enforcement officer
had probable cause to believe the driver drove a motor vehicle while he
or she was under the influence of or impaired alcohol or drug
this is tantamount to: the law enforcement officer had probable cause to
to invoke Colorado express consent law
4. The law enforcement officer
had probable cause to and did request a chemical test of the driver's
blood or breath pursuant to Colorado express consent law
5. The driver submitted to a
chemical test - no requirement for request or test to be within two (2) hours of driving
6. The breath or blood chemical
test substantially complied with
Colorado
Department of Health Regulations
7.
The results of the breath or blood chemical test were equal to or
greater than the below grams of alcohol per 100 ml blood or per 210 liters of
breath
Adult CDL: 0.04 or greater as tested at the time of driving a
commercial motor vehicle or anytime thereafter
Minor or Provisional CDL (under age 21): 0.02 - 0.04 as tested at
the time of driving a commercial motor vehicle or anytime thereafter
8. BAC threshold level for
presumption state chemical test presumption : 0.096 or more (no
scientific basis or justification for presumption, but legislative)
OR
9. The Respondent driver
refused chemical testing to determine breath or blood alcohol or
drug concentration
10.
Colorado DMV Appeal
- information regarding appeal from DMV license
revocation |
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Basic Elements which Must be Proven to Revoke -
Alcohol Conviction - CDL
CRS 42-2-126(2)(a)(II) |
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1. The person identified as
Respondent was the holder of a commercial driver license - CDL
2. The person identified as
Respondent was the CDL driver convicted of
an underlying
DUI
- DEAC
- DWAI offense -
CRS 42-4-1301(1) or (2)(a)
3. Defense 1: A
primary defense would be that the court has made clerical error and
identified Respondent as convicted of an offense committed by a
different person or DMV has made clerical error and applied a conviction
for a different person to the Respondent's driving record, or has
otherwise tagged the Respondent with a conviction which does not pertain
to the Respondent driver.
4. Defense 2:
Collateral Attack upon the underlying conviction.
5. No other defenses exist of
which publishing attorney is aware.
6.
Colorado DMV Appeal
- information regarding appeal from DMV license
revocation |
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Basic Elements which Must be Proven to Suspend
-
Points - CDL
CRS 42-2-127(1)(a) |
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1. The person identified as
Respondent was the holder of a commercial driver license - CDL
2. The person identified as
Respondent was the CDL driver convicted of
an underlying
DUI
- DEAC
- DWAI offense -
CRS 42-4-1301(1) or (2)(a)
3. Defense 1: A
primary defense would be that the court has made clerical error and
identified Respondent as convicted of an offense committed by a
different person or DMV has made clerical error and applied a conviction
for a different person to the Respondent's driving record, or has
otherwise tagged the Respondent with a conviction which does not pertain
to the Respondent driver.
4. Defense 2:
Collateral Attack upon the underlying conviction.
5. No other defenses exist of
which publishing attorney is aware.
6.
Colorado DMV Appeal
- information regarding appeal from DMV license
revocation |
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Suspension criteria, procedure &
hearing is similar to Point
Suspension for a regular license except that the
point threshold which triggers suspension is different if all
convictions were incurred during the course & scope of employment.
Refer to link. |
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Chauffeur additional point
allowance is not applicable if any
points are alcohol related or leaving the scene of an accident
CRS 42-2-127(1) |
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Regarding points which are the basis for suspension. If any
such points were incurred outside the course & scope of employment,
driver is not entitled the
additional points granted under the chauffeur exception.
Edwards v. Motor Vehicle Div., 33 Colo. App.
382 (1974), Michels v. Motor Vehicle Div of Dept. of Revenue,
32 Colo. App. 106, 506 P.2d 1243 (1973). Put another way,
all points must be job related
or the driver will fall under the normal point system - minor,
provisional or adult. |
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Period of
Driving
Privilege Loss - Violations & Commercial
Driver License - CDL |
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Colorado Law
- CDL Excessive Alcohol
Revocation |
| Adult CDL: 0.04 or greater |
Minor CDL: 0.02 - 0.04
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Driving Commercial
Vehicle: |
1 year |
CRS 42-2-126(6)(b)(III.5) |
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Driving Commercial Vehicle -
Hazardous Materials : |
3 years |
CRS 42-2-126(6)(b)(IV) |
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CRS 42-2-126(6)(b)(III.5)
The period of commercial driving privilege revocation under
subparagraphs (I), (I.5), (II), or (III) of paragraph (a) of
subsection (2) of this section shall be the
disqualification
period provided in
49 CFR § 383.51 if the person was the holder of
a commercial driver's license or was operating a commercial
vehicle when the violation occurred. |
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CRS 42-2-126(6)(b)(IV) The
period of license revocation under subparagraph (II) or (III) of
paragraph (a) of subsection (2) of this section involving a
commercial motor vehicle that was transporting hazardous
materials as defined in CRS 42-2-402(7) shall be no less than
three years. |
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Colorado Law -
CDL Revocation for Refusal to Submit to Chemical Testing |
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Driving Commercial
Vehicle: |
1 year |
CRS 42-2-126(6)(b)(III.5) |
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Driving Commercial Vehicle -
Hazardous Materials : |
3 years |
CRS 42-2-126(6)(b)(IV) |
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CRS 42-2-126(6)(b)(III.5)
The period of commercial driving privilege revocation under
subparagraphs (I), (I.5), (II), or (III) of paragraph (a) of
subsection (2) of this section shall be the
disqualification
period provided in
49 CFR § 383.51 if the person was the holder of
a commercial driver's license or was operating a commercial
vehicle when the violation occurred. |
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CRS 42-2-126(6)(b)(IV) The
period of license revocation under subparagraph (II) or (III) of
paragraph (a) of subsection (2) of this section involving a
commercial motor vehicle that was transporting hazardous
materials as defined in CRS 42-2-402(7) shall be no less than
three years. |
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CRS 42-4-1301.1(4) Any
driver of a commercial motor vehicle requested to submit to a
test as provided in paragraph (a) or (b) of subsection (2) of
this section shall be warned by the law enforcement officer
requesting the test that a refusal to submit to the test shall
result in an out-of-service order as defined under CRS
42-2-402(8) for a period of twenty-four hours and a revocation
of the privilege to operate a commercial motor vehicle for one
year as provided under
CRS 42-2-126. |
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CRS 42-2-402(8)
Definitions "Out-of-service order" means an
"out-of-service order" as defined by
49 CFR 383.5. |
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Refer to
49 CFR 392.5 Alcohol
Prohibition regarding alcohol related 24 hours "out of
service order" and reporting requirements. |
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Colorado Law -
Alcohol Offense Conviction - CDL |
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refer to Federal
period of disqualification
regarding equivalent Colorado license revocation |
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CDL During
Federal Disqualification Prohibited by Colorado Law |
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CRS 42-2-404(1.5)(a)
The department shall not issue a commercial driver's license to,
and shall immediately cancel the commercial driver's license of,
any person subject to a federal disqualification order on the
basis of imminent hazard to public safety pursuant to 49 CFR
383.52.
(b) A person who is subject to a federal
disqualification order on the basis of imminent hazard, or whose
commercial or noncommercial driver's privilege is under
restraint, shall not be eligible for a restricted, probationary,
or hardship license that would permit the person to operate a
commercial motor vehicle during the period of such
disqualification or restraint.
(reference information -
if disqualified by the Feds, Colorado offers no CDL
relief) |
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Colorado Law -
CDL Point Suspension
refer to
Index Links - but
substitute period of
disqualification for
license revocation |
Point Suspension + Excessive
Alcohol Chemical Test
suspension will run concurrent with revocation |
Point Suspension + Chemical
Test Refusal
suspension will run consecutive to revocation |
Point Suspension + First
Alcohol Conviction CDL Revocation
suspension may run concurrent with revocation |
Point Suspension + Multiple
Alcohol Convictions Revocation
suspension will run consecutive with revocation |
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To publishing attorney's belief, simply because a
CDL has been revoked
& disqualified
does not mean that the driver couldn't apply for and receive a
regular adult license. e.g. adult first offense DWAI
conviction with BAC below 0.08 grams of alcohol per 100 ml blood
or per 210 liters of breath - 8 points against license.
Regular adult license would not be subject to excessive alcohol
revocation nor point suspension if no other points existed.
Counsel had not had occasion to defend this type of action, but
I can see no prohibition to eligibility for regular adult
licensing. Naturally a chemical test refusal or revocation
for excessive where the BAC was above the limit for a regular
adult, provisional or minor license would not qualify for this
type of argument as any driver would be subject to license loss. |
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Colorado Law -
DUI Drugs - Revocation - CDL |
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Driving Commercial Vehicle -
DUI Drugs - Hazardous Materials: |
3 years |
CRS 42-2-125 §§ (1)(b) & (2) |
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Federal
Regulation
49 CFR § 383.51
Disqualification of Drivers |
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49 CFR § 383.51(a)(1)
A driver or holder of a CDL who is disqualified must not drive
a CMV. |
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49 CFR § 383.51(b)
Disqualification for major offenses. Table 1 to § 383.51
contains a list of the offenses and periods for which a driver
must be disqualified, depending upon the type of vehicle the
driver is operating at the time of the violation, as follows: |
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Table 1 to § 383.51 |
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Action
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1st Refusal
or Conviction
Operating CMV
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1st Refusal
or Conviction
Operating Non-CMV
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1st Refusal
or Conviction
Operating CMV
Hazardous Materials |
2nd Refusal
or Conviction
Operating CMV
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2nd Refusal
or Conviction
Operating Non-CMV
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DUI
- DEAC
- DWAI
-
Conviction
Alcohol
|
1 year |
1 year |
3 years |
life |
life |
|
DUI
- DEAC
- DWAI
-
Conviction
Drugs |
1 year |
1 year |
3 years |
life |
life |
| BAC 0.04 or Greater -
Revocation Operating CMV |
1 year |
not applicable |
3 years |
life |
not applicable |
| Refusing Chemical Test -
Revocation |
1 year |
1 year |
3 years |
life |
life |
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49 CFR § 383.51(a)(5)
Reinstatement after lifetime disqualification. A State
may reinstate any driver disqualified for life for
offenses described in paragraphs (b)(1) through (b)(8)
of this section (Table
1 to § 383.51) (reference information -
Table 1 in part provided above) after 10
years if that person has voluntarily entered and
successfully completed an appropriate rehabilitation
program approved by the State. Any person who has
been reinstated in accordance with this provision and
who is subsequently convicted of a disqualifying offense
described in paragraphs (b)(1) through (b)(8) of this
section (Table 1 to § 383.51) must not be reinstated.
No more bites out of apple. |
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A CDL holder who is
charged with an alcohol traffic offense, refuses a chemical test or has an excessive alcohol revocation
while driving a private vehicle (not a CMV) may incur revocation of the CDL or
may incur CDL disqualificaiton. Colorado statutes, Colorado regulations
and federal regulations apply. |
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Attorney Notation:
Other CDL problems may exist, such as
out of service order or
school bus endorsement. Consult counsel. |
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Alcohol Violations & Commercial Driver License - CDL
Probationary License &
Reinstatement |
above
subtopic index links to attorney's primary website
relevant information re probationary license & reinstatement |
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REVOCATION OR DENIAL - ADULT DRIVER'S LICENSE
MINOR OR PROVISIONAL DRIVER'S LICENSE |
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General Information
-
2 Alcohol Offenses Within a Period of 5 Years
Revocation under
CRS 42-2-125(1)(g)(I) - convictions for 2 alcohol related traffic offenses
committed within a period of 5 years
Underlying offenses -
DUI
- DEAC
- DWAI offense -
CRS 42-4-1301(1) or (2)(a)
Revocation is mandatory pursuant to
CRS 42-2-125(1)(g)(I). Upon receipt of conviction
transcript from the court, the DMV will automatically take the adverse
action against the Colorado driver license or Colorado driving
privileges and send notice of revocation or denial to the driver via
regular U.S. Mail. Driver may then request (in writing) a hearing pursuant
CRS 42-2-125(4). Hearing will be held in the DMV district office closest to the residence
of the driver. |
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CRS 42-2-125. Mandatory
revocation of license and permit.
(1) The department shall immediately revoke the
license or permit of any driver or minor driver upon receiving a
record showing that such driver has: ...
(g) (I) Been twice convicted of any offense
provided for in
CRS 42-4-1301(1) or (2)(a) for acts committed
within a period of five years; |
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Refer to
vehicle forfeiture
- legislative debate
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Basic Elements which Must be Proven to Revoke
-
2 Alcohol Offenses Within a Period of 5 Years.
|
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1. The person identified as
Respondent was the driver convicted of
each
underlying
DUI
-
DEAC
-
DWAI offense -
CRS 42-4-1301(1) or (2)(a)
2. Defense 1: A
primary defense would be that the court has made clerical error and
identified Respondent as convicted of an offense committed by a
different person or DMV has made clerical error and applied a conviction
for a different person to the Respondent's driving record, or has
otherwise tagged the Respondent with a conviction which does not pertain
to the Respondent driver.
3. Defense 2:
Collateral Attack upon one or both the underlying convictions.
4. No other defenses exist of
which publishing attorney is aware.
5.
Colorado DMV Appeal
- information regarding appeal from DMV license
revocation |
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| Period of Driving Privilege Loss -
2 Alcohol Offenses Within a Period of 5 Years |
| |
1 year |
CRS 42-2-125(2) |
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2 Alcohol Offenses Within a Period of 5 Years
revocation period above runs consecutive (back to back) to to any other adverse action suspension or revocation. CRS
42-2-125 §§ (3) & (5),
CRS 42-2-126(6)(c)(I)
That means the periods of revocation, suspension, cancellation,
or denial would be stacked; one to run after the other. |
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2 Alcohol Offenses Within a Period of 5 Years
Probationary License &
Reinstatement |
above
subtopic index links to attorney's primary website
relevant information re probationary license & reinstatement |
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REVOCATION OR DENIAL - ADULT DRIVER'S LICENSE
MINOR OR PROVISIONAL DRIVER'S LICENSE |
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ALCOHOL RELATED DMV
ADVERSE ACTIONS
CRS 42-2-125(1)(i)
Multiple Alcohol Offense Revocation or Denial |
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General Information
-
3 Alcohol Offenses Within a Person's Lifetime
Revocation under
CRS 42-2-125(1)(i) - convictions for 3 alcohol related traffic offenses
committed within a person's lifetime
Underlying offenses -
DUI
- DEAC
- DWAI offense -
CRS 42-4-1301(1) or (2)(a)
Revocation is mandatory pursuant to
CRS 42-2-125(1)(i). Upon receipt of conviction
transcript from the court, the DMV will automatically take the adverse
action against the Colorado driver license or Colorado driving
privileges and send notice of revocation or denial to the driver via
regular U.S. Mail. Driver may then request (in writing) a hearing pursuant
CRS 42-2-125(4). Hearing will be held in the DMV district office closest to the residence
of the driver. |
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CRS 42-2-125. Mandatory
revocation of license and permit.
(1) The department shall immediately revoke the
license or permit of any driver or minor driver upon receiving a
record showing that such driver has: ...
(i) Been convicted of any offense provided for in
CRS 42-4-1301(1) or (2)(a) and has two previous convictions of any of such
offenses. The license of any driver shall be revoked for an
indefinite period and shall only be reissued upon proof to the
department that said driver has completed a level II alcohol and
drug education and treatment program certified by the division of
alcohol and drug abuse pursuant to
CRS 42-4-1301.3 and that said
driver has demonstrated knowledge of the laws and driving ability
through the regular motor vehicle testing process. In no event
shall such license be reissued in less than two years. |
|
|
Basic Elements which Must be Proven to Revoke
-
3 Alcohol Offenses Within a Person's Lifetime |
|
1. The person identified as
Respondent was the driver convicted of
each
underlying
DUI
-
DEAC
-
DWAI offense -
CRS 42-4-1301(1) or (2)(a)
2. Defense 1: A
primary defense would be that the court has made clerical error and
identified Respondent as convicted of an offense committed by a
different person or DMV has made clerical error and applied a conviction
for a different person to the Respondent's driving record, or has
otherwise tagged the Respondent with a conviction which does not pertain
to the Respondent driver.
3. Defense 2:
Collateral Attack upon one or more of the underlying convictions.
4. No other defenses exist of
which publishing attorney is aware.
5.
Colorado DMV Appeal
- information regarding appeal from DMV license
revocation |
|
|
| Period of Driving Privilege Loss
-
3 Alcohol Offenses Within a Person's Lifetime |
| |
2 years |
CRS 42-2-125(1)(i) |
|
|
3 Alcohol Offenses Within a Person's Lifetime
revocation period above runs consecutive (back to back) to to any other adverse action suspension or revocation. CRS 42-2-125 §§ (3) & (5),
CRS 42-2-126(6)(c)(I)
That means the periods of revocation, suspension, cancellation,
or denial would be stacked; one to run after the other. |
|
3 Alcohol Offenses Within a Person's Lifetime
Probationary License &
Reinstatement |
above
subtopic index links to attorney's primary website
relevant information re probationary license & reinstatement |
|
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|
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REVOCATION OR DENIAL - ADULT DRIVER'S LICENSE
MINOR OR PROVISIONAL DRIVER'S LICENSE |
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| |
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General Information - Habitual Offender - Alcohol Related
Criteria:
Major offenses:
Conviction of three separate major offenses occurring within a period 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
All convictions must be
separate and distinct - not arising out of the same criminal episode
Minor
traffic offenses and infractions: CRS 42-2-202(3)
Minor traffic offenses & infractions can also be the basis for alcohol
related habitual offender status if an alcohol related offense is
included in convictions
10 or more separate moving violation offense or infraction convictions
(4 points or greater) for acts committed within 5 years
18 or more separate moving violation offense or infraction convictions
(3 points or less) for acts committed within 5 years
Revocation is mandatory pursuant to
CRS 42-2-205, however pursuant to CRS 42-2-203, hearing
procedure similar to
CRS 42-2-127§§(7),(13) is mandated. Notice of
hearing is sent to the driver via
regular U.S. Mail. Hearing will be held in the DMV district office closest to the residence
of the driver.
Refer to
vehicle forfeiture
- legislative debate |
|
Basic Elements which Must be Proven to Revoke
- Habitual Offender - Alcohol Related. |
|
1.
The person identified as
Respondent was the driver convicted of
each underlying
major offenses
or
minor
traffic offenses and infractions
2. Defense 1: A
primary defense would be that the court has made clerical error and
identified Respondent as convicted of an offense committed by a
different person or DMV has made clerical error and applied a conviction
for a different person to the Respondent's driving record, or has
otherwise tagged the Respondent with a conviction which does not pertain
to the Respondent driver.
3. Defense 2:
Collateral Attack upon one or more of the underlying convictions.
4. Refer to habitual offender
page
potential
defenses for other defensive arguments. No other defenses exist of
which publishing attorney is aware.
5.
Colorado DMV Appeal
- information regarding appeal from DMV license
revocation |
|
|
a. Period of Driving Privilege Loss
- Habitual Offender - Alcohol Related |
| |
5 years |
CRS 42-2-205 |
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REVOCATION OR DENIAL
MINOR OR PROVISIONAL DRIVER'S LICENSE |
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| |
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General Information
- Underage BAC in excess of 0.02 but
less than 0.08 - "Baby DEAC Revocation"
Underage
BAC 0.021 - 0.079
-
as tested within 2 hours of driving.
CRS 42-2-126(6)(b)(II.5)
If relevant,
refer to
BAC 0.08 - .0169
or
BAC 0.17 or greater
If a underage driver's breath or blood alcohol
concentration was 0.021 - 0.079 as tested within 2 hours from the time
of driving, the driver should receive a notice of revocation or denial
of driving privileges. Breath test results are instant, and usually the
notice of revocation or denial is received at the time of arrest. This
is usually on a yellow piece of paper; size 8 1/2" x 11". Blood tests
take up to 15 days to obtain results; the driver should receive a notice
of revocation or denial by certified mail in 3 to 6 weeks. This is
usually on a white piece of paper; size 8 1/2" x 11". From date of
receipt, the driver has
7 days
to ask for a hearing. If the driver asks
within that time, a hearing will be set to determine whether driving
privileges should be revoked or denied. If the driver fails to ask
within 7 days, the driver has waived (forfeited - given up) the right to
such a hearing, and driving privileges automatically will be
revoked or denied
for the period indicated below. CRS 42-2-126. When the driver requests a hearing, he / she should
demand that the officer be ordered to appear. Otherwise, the
determination will be on the basis of written reports submitted by the
officer.
Refer to
vehicle forfeiture
- legislative debate |
|
Basic Elements which Must be Proven to Revoke
- Underage BAC in excess of 0.02 but
less than 0.08 - "Baby DEAC Revocation"
other defenses may exist |
|
1. The person identified as
Respondent was the driver of a motor vehicle within the State of
Colorado and within the jurisdiction of the law enforcement officer
2. The law enforcement officer
had reasonable suspicion to stop or otherwise come in contact with the
driver
3. The law enforcement officer
had probable cause to believe the driver drove a motor vehicle while he
or she was under the influence of or impaired alcohol or drug
this is tantamount to: the law enforcement officer had probable cause to
to invoke Colorado express consent law
4. The law enforcement officer
had probable cause to and did request a chemical test of the driver's
blood or breath pursuant to Colorado express consent law
5. The driver submitted to a
chemical test within two (2) hours of driving
6. The breath or blood chemical
test substantially complied with
Colorado Department of Health Regulations
7.
The results of the breath or blood chemical test were greater than 0.02
grams of alcohol per 100 ml blood or per 210 liters of breath, but less
than 0.08 grams of alcohol per 100 ml blood or per 210 liters of breath.
If relevant, refer above for
BAC 0.08 - .169 and
BAC 0.17 or greater
8. BAC
threshold level for presumption state chemical test presumption : 0.096
or more (no scientific basis or justification for presumption, but
legislative)
9.
Colorado DMV Appeal
- information regarding appeal from DMV license
revocation |
|
|
Period of
Driving
Privilege Loss
- Underage BAC in excess of 0.02 but
less than 0.08 - "Baby DEAC Revocation"
|
| |
First revocation: |
3 months |
CRS 42-2-126(6)(b)(II.5)(A) |
| |
Second revocation: |
6 months |
CRS 42-2-126(6)(b)(II.5)(B) |
| |
Third or subsequent revocation: |
1 year |
CRS 42-2-126(6)(b)(II.5)(C) |
|
Underage BAC in excess of 0.02 but less
than 0.08
Probationary License &
Reinstatement |
above
subtopic index links to attorney's primary website
relevant information re probationary license & reinstatement |
|
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|
|
|
REVOCATION OR DENIAL
MINOR OR PROVISIONAL DRIVER'S LICENSE |
|
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|
|
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|
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|
| |
|
General Information
-
"Baby DUI" Conviction BAC 0.02 - 0.05
Revocation under
CRS 42-2-125(1)(g.5) - alcohol related traffic infraction conviction
incurred by an underage driver
Underlying offense - driving with
excessive alcohol content
CRS 42-4-1301(2)(a.5) -
BAC 0.02 - 0.05
If relevant,
refer to
Underage Alcohol Conviction
Revocation is mandatory pursuant to
CRS 42-2-125(1)(g.5). Upon receipt of conviction
transcript from the court, the DMV will automatically take the adverse
action against the Colorado driver license or Colorado driving
privileges and send notice of revocation or denial to the driver via
regular U.S. Mail. Driver may then request a hearing pursuant
CRS
42-2-125(4). Hearing request must be made in writing.
Hearing will be held in the DMV district office closest to the residence
of the driver. |
|
CRS
42-2-125. Mandatory
revocation of license and permit.
(1) The department shall immediately revoke the
license or permit of any driver or minor driver upon receiving a
record showing that such driver has: ...
(g.5) In the case of a minor driver, been convicted
of an offense under section
CRS 42-4-1301(2)(a.5) committed when such
driver was under twenty-one years of age; |
|
|
Refer to
vehicle forfeiture
- legislative debate |
|
Basic Elements which Must be Proven to Revoke
-
"Baby DUI" Conviction BAC 0.02 - 0.05.
other defenses may exist |
|
1. The person identified as
Respondent was the driver convicted of
the underlying offense -
driving with
excessive alcohol content
CRS 42-4-1301(2)(a.5) -
BAC 0.02 - 0.05
If relevant, refer to
Underage Alcohol Conviction
2. Defense 1:
A primary defense would be that the court has made clerical error and
identified Respondent as convicted of an offense committed by a
different person or DMV has made clerical error and applied a conviction
for a different person to the Respondent's driving record, or has
otherwise tagged the Respondent with a conviction which does not pertain
to the Respondent driver.
3. Defense 2:
Collateral Attack upon the underlying conviction.
4. No other defenses exist of
which publishing attorney is aware.
5.
Colorado DMV Appeal
- information regarding appeal from DMV license
revocation |
|
|
|
|
|
"Baby DUI" Conviction BAC 0.02 - 0.05
Probationary License &
Reinstatement |
above
subtopic index links to attorney's primary website
relevant information re probationary license & reinstatement |
|
|
|
|
|
|
REVOCATION OR DENIAL
MINOR OR PROVISIONAL DRIVER'S LICENSE |
|
|
|
|
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| |
|
General Information
-
Alcohol Offense Conviction - Underage Person
Rrevocation under
CRS 42-2-125(1)(g)(II) - conviction of an
alcohol offense by a person under age 21
Underlying offense -
DUI
- DEAC
- DWAI offense -
CRS 42-4-1301(1) or (2)(a)
Revocation is mandatory pursuant to
CRS 42-2-125(1)(g)(II). Upon receipt of conviction
transcript from the court, the DMV will automatically take the adverse
action against the Colorado driver license or Colorado driving
privileges and send notice of revocation or denial to the driver via
regular U.S. Mail. Driver may then request (in writing) a hearing pursuant
CRS 42-2-125(4). Hearing will be held in the DMV district office closest to the residence
of the driver. |
|
CRS 42-2-125. Mandatory
revocation of license and permit.
(1) The department shall immediately revoke the
license or permit of any driver or minor driver upon receiving a
record showing that such driver has: ...
(II) In the case of a minor driver, been convicted of an offense
under section
CRS 42-4-1301(1) or (2)(a) committed while such driver
was under twenty-one years of age; |
|
|
Refer to
vehicle forfeiture
- legislative debate |
|
Basic Elements which Must be Proven to Revoke
-
Alcohol Offense Conviction - Underage Person |
|
1. The person identified as
Respondent was the driver convicted of
the underlying
DUI
-
DEAC
-
DWAI offense -
CRS 42-4-1301(1) or (2)(a)
2. Defense 1: A
primary defense would be that the court has made clerical error and
identified Respondent as convicted of an offense committed by a
different person or DMV has made clerical error and applied a conviction
for a different person to the Respondent's driving record, or has
otherwise tagged the Respondent with a conviction which does not pertain
to the Respondent driver.
3. Defense 2:
Collateral Attack upon the underlying conviction.
4. No other defenses exist of
which publishing attorney is aware.
5.
Colorado DMV Appeal
- information regarding appeal from DMV license
revocation |
|
|
a. Period of Driving Privilege Loss
-
Alcohol Offense Conviction - Underage Person |
| |
1 year |
CRS 42-2-125(2) |
|
|
Alcohol Offense Conviction - Underage Person
revocation period above runs consecutive (back to back) to to any other adverse action suspension or revocation. CRS 42-2-125 §§ (3) & (5),
CRS
42-2-126(6)(c)(I)
That means the periods of revocation, suspension, cancellation,
or denial would be stacked; one to run after the other. |
|
Alcohol Offense Conviction - Underage Person
Probationary License &
Reinstatement |
above
subtopic index links to attorney's primary website
relevant information re probationary license & reinstatement |
|
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|
|
REVOCATION OR DENIAL
MINOR OR PROVISIONAL DRIVER'S LICENSE |
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| |
|
General Information
-
MIP
Revocation
- Minor in Possession or Consumption of
Alcohol Conviction
Revocation under
CRS 42-2-125(1)(m) - conviction of
MIP
- Minor in Possession or Consumption of
Alcohol
Underlying offense -
underage possession or consumption of ethyl
alcohol
CRS 12-47-901 (1) (b) or (1) (c), CRS 18-13-122 or any counterpart municipal charter or ordinance offense to such sections
Revocation is mandatory pursuant to
CRS 42-2-125(1)(m). Upon receipt of conviction
transcript from the court, the DMV will automatically take the adverse
action against the Colorado driver license or Colorado driving
privileges and send notice of revocation or denial to the driver via
regular U.S. Mail. Driver may then request (in writing) a hearing pursuant
CRS 42-2-125(4). Hearing will be held in the DMV district office closest to the residence
of the driver. |
|
CRS 42-2-125). Mandatory
revocation of license and permit.
(1) The department shall immediately revoke the
license or permit of any driver or minor driver upon receiving a
record showing that such driver has: ...
(m) Been convicted of violating section 12-47-901(1)(b) or (1)(c),
C.R.S., or section 18-13-122(2), C.R.S., or any counterpart
municipal charter or ordinance offense to such sections; |
|
|
Refer to
vehicle forfeiture
- legislative debate |
|
Basic Elements which Must be Proven to Revoke
-
MIP
Revocation
Minor in Possession or Consumption of
Alcohol Conviction |
|
1. The person identified as
Respondent was the driver convicted of
the underlying
MIP
offense - CRS 12-47-901 (1) (b) or (1) (c), CRS 18-13-122 or any counterpart municipal charter or ordinance offense to such sections
2. Defense 1: A
primary defense would be that the court has made clerical error and
identified Respondent as convicted of an offense committed by a
different person or DMV has made clerical error and applied a conviction
for a different person to the Respondent's driving record, or has
otherwise tagged the Respondent with a conviction which does not pertain
to the Respondent driver.
3. Defense 2:
Collateral Attack upon the underlying
conviction.
4. No other defenses exist of
which publishing attorney is aware.
5.
Colorado DMV Appeal
- information regarding appeal from DMV license
revocation |
|
|
|
|
Note:
The former election between 3 months license revocation or 24
hours useful pubic service
if ordered by the court which was provided by
CRS
42-2-125 §§ (6)(a) and (6)(b) was repealed effective July 1, 2007. Such
election is no longer available. |
|
MIP
Revocation
- Minor in Possession or Consumption of
Alcohol Conviction
period above runs consecutive (back to back) to to any other adverse action suspension or revocation. CRS 42-2-125 §§ (3) & (5),
CRS 42-2-126(6)(c)(I)
That means the periods of revocation, suspension, cancellation,
or denial would be stacked; one to run after the other. |
|
Minor in Possession or Alcohol Consumption Conviction
Probationary License &
Reinstatement |
above
subtopic index links to attorney's primary website
relevant information re probationary license & reinstatement |
|
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|
NON-ALCOHOL RELATED DMV
ADVERSE ACTIONS |
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SUSPENSION OR DENIAL -
ADULT DRIVER'S LICENSE
MINOR OR PROVISIONAL DRIVER'S LICENSE |
|
NON-ALCOHOL RELATED DMV
ADVERSE ACTIONS
CRS 42-2-127 Suspension or Denial |
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Basic Elements which Must be Proven
- Point Suspension - Not Alcohol Related
1. The person identified as
Respondent was the driver convicted of
each
underlying traffic offense or infraction.
2. Defense 1: A
primary defense would be that the court has made clerical error and
identified Respondent as convicted of an offense committed by a
different person or DMV has made clerical error and applied a conviction
for a different person to the Respondent's driving record, or has
otherwise tagged the Respondent with a conviction which does not pertain
to the Respondent driver.
3. Defense 2:
Collateral Attack upon one or more of the underlying convictions.
4. Refer to
Potential Defenses
for other defensive arguments. No other defenses exist of
which publishing attorney is aware.
5.
Colorado DMV Appeal
- information regarding appeal from DMV license
revocation or suspension |
|
Relevant Information
- Point Suspension - Not Alcohol Related |
|
a. Period of Driving Privilege Loss
- Point Suspension - Not Alcohol Related
- Suspension Base Period - Duration of License Loss |
| |
Point suspensions have different
base periods. |
|
| |
1 year |
Statutory point suspension period is mandatory 12 months for
conviction of DUI, habitual user or DEAC (BAC 0.08 or above). |
|
| |
|
|
DWAI is not included in the mandatory statutory point suspension period,
but it is likely DOR hearing officer
discretion
will be 12 months - DWAI aggravator |
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|
| |
6 months |
Regulatory base period for
non-alcohol point suspension |
|
| |
3 months |
Regulatory discretionary
minimum period for non-alcohol point suspension |
|
| |
1 year |
Regulatory discretionary
maximum period for non-alcohol point suspension |
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| |
|
DOR hearing officer will make fact findings to shorten or lengthen
the period of suspension.
Refer to links for DOR Regulations |
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CONTINUING LICENSE LOSS UNTIL REINSTATEMENT |
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|
After the specified period of
suspension, a driver is only eligible for reinstatement.
A suspension, revocation or denial continues indefinitely (forever) until the
driver has taken the steps necessary to become reinstated. If the driver is uncertain as to
the date eligible to get the license back, during the period of your suspension,
revocation or denial he / she should contact the
Colorado Driver
Services - Driver Control Section to determine the date eligible for reinstatement and what conditions must
be fulfilled to
become reinstated. Follow the above link for address and phone. Even if
the driver does not wish to obtain a Colorado driver's
license - he / she should reinstate here to clear any adverse action - suspension,
revocation or denial. Failure to do so will come back to haunt later if the adverse action
is left pending. |
|
A person's driving status of
"suspended" continues
unless and until the driver obtains removal of the suspension at the end of
the designated period of suspension by paying the restoration fee and
providing the requisite proof of insurance. Colorado Department of
Revenue v. Brakhage,
735 P.2d 195, 197 (Colo. 1987). Regardless of whether an
expiration date is specified in a probationary license, such a probationary
license is not valid beyond the period of suspension specified in the order
of suspension. Id. at 198 - 199 |
| |
In the Brakhage
case, the Colorado Supreme Court cut both ways against drivers.
1. A suspension, revocation or denial does not end on the
specified date in the DOR order, but continues indefinitely until cured.
2. A probationary license does end on the specified date in the
DOR order. A driver may not operate a motor vehicle indefinitely on a
probationary license. |
|
|
|
b.
Probationary License
- Point Suspension
- Not Alcohol Related
- interim restricted license during restraint
refer to above links for statutory
authority to grant probationary license & determine restrictions
thereon |
| |
Eligibility determined by excessive alcohol revocation - links below.
"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
it is in the
hearing officer's discretion (judgment) whether to grant the interim limited
privileges |
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| |
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|
c. Suspension - Reinstatement Information
- Point Suspension - Not Alcohol Related
As a general rule, a driver
may reinstate as indicated below at the conclusion of a suspension.
Call
DMV Driver Control Reinstatement
to determine particular reinstatement requirements and eligibility date in your own
circumstances. |
|
1. Application for reinstatement: by mail only to
DMV
Driver Control Section - Reinstatement
- not allowed at any DMV Office |
|
2. Written and driving tests:
generally, not required
CRS 42-2-111, DOR
Regulation
1 CCR 204-6
|
|
Written and driving tests will be required if the driver
has been suspended or otherwise without a license for a
period of 1 year or longer. |
|
|
3.
Mandatory interlock restricted license: no
requirement |
|
4. Insurance
Requirement
- Point Suspension - Not Alcohol Related |
|
|
5. Education required for reinstatement
- Point Suspension - Not Alcohol Related
CRS 42-2-126(7)(c),
CRS 42-2-127(14)(a)(I)(A) |
|
Generally, no education is required for reinstatement.
However, if ordered by the court, an educational
requirement may be imposed for reinstatement at the time
of initial point suspension or probationary license.
Refer to:
Traffic Safety Classes |
|
CRS 42-2-127(14)(a)(II)
If there is no other
statutory reason for denial of a probationary
license, any individual who has had a license
suspended by the department because of, at least in
part, a conviction of an offense specified in
paragraph (b) of subsection (5) of this section may
be entitled to a probationary license pursuant to
subsection (12) of this section for the purpose of
driving for reasons of employment, education,
health, or alcohol and drug education or treatment,
but: (A) If ordered by the court that convicted the
individual, the individual shall be enrolled in a
program of driving education or alcohol and drug
education and treatment certified by the division of
alcohol and drug abuse in the department of human
services; |
|
|
|
|
DMV Forms:
Application for Reinstatement
Evidence of Insurance |
|
|
|
|
SUSPENSION *
REVOCATION * DENIAL - ADULT DRIVER'S LICENSE
MINOR OR PROVISIONAL DRIVER'S LICENSE |
|
NON-ALCOHOL RELATED DMV
ADVERSE ACTIONS |
|
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|
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| |
|
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 has 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.
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| |
|
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 does not affect current validity, but is a hold
against future licensing. |
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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. |
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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 |
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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. |
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OUTSTANDING JUDGMENT WARRANT |
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SUSPENSION OR DENIAL - ADULT DRIVER'S LICENSE
MINOR OR PROVISIONAL DRIVER'S LICENSE |
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a. Defendant has failed to appear for
a court appearance |
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BWO - FTA (Bench Warrant Ordered - Failure to
Appear) |
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Warrant will issue for arrest of defendant |
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The court sets bail bond
The court sends notice
to the DMV of the OJW and default judgment conviction is certified,
including points
DMV imposes an OJW suspension or "OJW hold" on the Colorado driving
privileges of the defendant |
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CRS 42-2-122(1) The department has
the authority to cancel, deny, or deny the reissuance of any
driver's or minor driver's license upon determining that the
licensee was not entitled to the issuance thereof for any of the
following reasons:...
(h)(I) The person has an outstanding judgment or
warrant referred to in
CRS 42-4-1709(7) issued against such
person; except that, as used in this paragraph (h), "judgment or
warrant" shall not include any judgment or warrant reported to
the department in violation of CRS 42-4-110.5(2)(c).
(II) Upon receipt of a judgment or warrant from a
court clerk on or after September 1, 2000, the department shall
send written notice to the person identified in the court order
that such person is required to provide the department with
proof that the judgment or warrant is no longer outstanding
within thirty days after the date such notice is sent or such
person's driver's license shall be canceled or any application
for a new license shall be denied. Proof that the judgment or
warrant is no longer outstanding shall be in the form of a
certificate issued by the clerk of the court entering the
judgment or issuing the warrant in a form approved by the
executive director.
(III) If acceptable proof is not received by the
department within thirty days after notice was sent, the
department shall cancel the driver's license or deny any
application for a license of the person against whom the
judgment was entered or the warrant was issued. |
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CRS 42-2-127(6)(b) For the purposes of
this article, a plea of no contest accepted by the court or the
forfeiture of any bail or collateral deposited to secure a
defendant's appearance in court or the failure to appear in
court by a defendant charged with a violation of
CRS 42-4-1301(1)(a), (1c) or (2) (reference information - DUI, DWAI, DEAC, Baby DUI
Underage BAC 0.02 - 0.05) who has been issued a
summons and notice to appear pursuant to section 42-4-1707 as
evidenced by records forwarded to the department in accordance
with the provisions of CRS 42-2-124 shall be considered as a
conviction. Failure to appear will trigger all conviction
adverse actions. |
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If the case is a minor
traffic infraction and points will not be problematic, defendant may simply
enter a plea, pay the fines & court costs + OJW fee. That would be the
end of court case. Driver procures a a certified copy of the OJW
clearance from the court |
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To clear the DMV OJW
suspension, driver submits to the DMV
1. Court certified
OJW clearance
2. Copy of the court receipt for payment of fines and costs
3.
DMV Forms:
Application for Reinstatement
Evidence of Insurance
4. $60 reinstatement fee
DMV driving record will reflect the conviction, however the DMV will
reinstate the Colorado driving privileges in 2 - 6 weeks no other reason
exists for the driving privileges to be held under suspension,
revocation or denial |
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If the case
is a traffic offense or the conviction or points would be problematic,
defendant may appear before the court or turn himself / herself in to
the local Sheriff's Office in order that the warrant will be executed
(ended). Either way of appearing, defendant will likely process
through the jailhouse and be required to post bond. |
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The court will set a
new court date and the defendant proceeds to negotiation or trial in
similar fashion to that if warrant had not issued
The court will send decertification of the conviction and points to
the DMV
Defendant pays the OJW
fee and procures a a certified copy of the OJW clearance from the court |
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