Colorado Dept. of Revenue v. Hibbs, No. 04SC759.

• Citation: 122 P.3d 999
• Decision Date: 07 November 2005
• Docket Number: No. 04SC759.
• Parties: Petitioner: The COLORADO DEPARTMENT OF REVENUE, v. Respondent: Terry Lee HIBBS.
• Court: Supreme Court of Colorado

122 P.3d 999

Petitioner: The COLORADO DEPARTMENT OF REVENUE, v. Respondent: Terry Lee HIBBS.

No. 04SC759.

Supreme Court of Colorado.

November 7, 2005.

John W. Suthers, Attorney General, Ceri Williams, Assistant Attorney General, Business and Licensing Division, Denver, for Petitioner.

Law Office of Pete Cordova, P.C., Pete Cordova, Law Office of M. Stuart Anderson, P.C., M. Stuart Anderson, Salida, for Respondent.

HOBBS, Justice.

We granted certiorari to review the court of appeals judgment in Hibbs v. Colorado Department of Revenue, 107 P.3d 1061 (Colo.App.2004).¹ The court of appeals upheld a judgment of the District Court for Chafee County that overturned the Department of Revenue's one-year revocation of Terry Lee Hibbs's commercial vehicle driver's license.

The Department of Revenue's ("Department") revocation order stemmed from Officer Theresa Barger's ("Barger") arrest of Terry Lee Hibbs ("Hibbs") for driving a commercial vehicle while intoxicated. Using the form specified by the Department, Barger submitted to Hibbs and to the Department a report documenting the circumstances of the arrest and that Hibbs's breath alcohol content while driving was 0.151, nearly four times the legal limit, § 42-2-126(2)(a)(III), C.R.S. (2002). Barger signed and swore, under oath, to the veracity of the report but did not notarize the report or otherwise affirm the report before a third party. Shortly thereafter, Barger testified at Hibbs's administrative hearing, under oath and subject to cross examination, concerning the events surrounding Hibbs's arrest for driving while intoxicated. After reviewing all of the evidence, the Department's hearing officer ordered revocation of Hibbs's commercial driver's license for one year.

The district court and the court of appeals overturned this revocation and ruled that the statute then in effect for a commercial vehicle driver's license, section 42-2-126(3)(b), C.R.S. (2002), required a law enforcement officer to forward to the Department a notarized report setting forth the basis for the revocation action.

The Department contends that Barger's report to the Department satisfied section 42-2-126(3)(b). We agree, and hold that the verification requirement of section 42-2-126(3)(b), C.R.S. (2002),² did not require notarization and was satisfied in this case by Barger's signature and affirmation, under penalty of perjury, that the facts contained in her report submitted on the Department's form were true to the best of her belief. Thus, we reverse the judgment of the court of appeals with directions to reinstate the Department's one-year revocation of Hibbs's commercial vehicle driver's license.

I.

On the icy night of December 4, 2002, Silverthorne Police Department Officer Barger stopped Hibbs, who was driving a semi tractor-trailer, for running a red light. She observed that he had "watery, red bloodshot eyes, and slow, deliberate, thick tongued, and slurred speech." He failed three roadside sobriety tests: the horizontal gaze, the walk and turn, and the one leg stand tests.

Advised of Colorado's express consent law, Hibbs elected to take a breath test. He tested at 0.151 grams of alcohol per two hundred ten liters of breath, nearly four times the legal limit of .04 grams for commercial drivers. Barger transported Hibbs to the Summit County Jail and issued him a court summons for driving while intoxicated and running a red light. She also signed and filled-out the Department's Affidavit and Notice of Revocation form (Department of Revenue Form DR-2576).

This was the first situation in which Barger had been called upon to utilize the Department's form when a commercial vehicle was involved. Although she checked that Hibbs was driving a commercial vehicle, she did not check the "0.04" box that stated the limit for commercial vehicle drivers. Instead, she checked the "0.10" box for other motor vehicle drivers. Nevertheless, the back side (second page) of the Affidavit and Notice of Revocation form clearly placed Hibbs on notice that his commercial driver's license was subject to revocation for exceeding the .04 limit. It stated:

6. If you submit to a test which discloses an alcohol content of 0.04 or more (Commercial/HAZMAT Operators) or 0.10 or more or at least 0.02 but less than but less than 0.04 (Commercial/HAZMAT Operator under 21) or at least 0.02 but less than 0.10 (operator under age 21), the officer shall serve a Notice and Order of Revocation on behalf of the Department of Revenue to become effective on the eighth (8^th) day after *date shown on the other side.

(emphasis added).

Barger narrated on the Department's form the facts of her stop and arrest of Hibbs under the "probable cause" space. She included the results of the excessive alcohol breath test at 0.151, and signed the report in the signature block set forth at the bottom of the form. That signature block contained the following language: I swear (or affirm) under penalty of perjury that the information and facts contained in this Affidavit and Notice of Revocation are true to the best of my knowledge and belief. (emphasis in original).

Barger forwarded the filled-out form to the Department along with the signed intoxilyzer test results, certified intoxilyzer records, a Silverthorne Police Department Incident Narrative, an arrest report, a DUI report, a notarized warrantless arrest probable cause statement, a Summit County Sheriff's Office Arrest Summary Report, and summonses for driving a vehicle under the influence of alcohol, driving a vehicle with excessive alcohol content in his blood or breath, and failing to obey a traffic control device. The Department form Barger filled out and swore to included information that identified Hibbs by name, social security number, and birthdate, a statement of Barger's probable cause for belief that Hibbs drove while under the influence of alcohol, and the intoxilyzer results and time of the test.

When the Department received Barger's report and documentation, it sent Hibbs a notice of revocation for one year and scheduled an administrative hearing on "revocation of your commercial driver privilege for driving a commercial motor vehicle when you had a blood alcohol content of .04 or more pursuant to 42-2-126 CRS." The Department also sent Hibbs a notice of revocation of his motor vehicle driving privilege for three months for violating the 0.10 limit and scheduled the administrative hearing to include that revocation.

Through counsel at the hearing, Hibbs argued that the report Barger forwarded to the Department on its form along with accompanying documents was inadequate for lack of notarization and that the Department's revocation of his commercial vehicle driver's license should be reversed for lack of jurisdiction. Barger testified at the hearing under oath to the facts and circumstances of her arrest of Hibbs for driving a commercial vehicle while intoxicated and her report and documentation to the Department.

After hearing Barger's and Hibbs's testimony and reviewing the documentary evidence, the hearing officer found Hibbs to be in violation of the 0.04 limit for a commercial vehicle operator and revoked all of his driving privileges for three months and his commercial vehicle driver's privilege for one year, as provided by subsections 42-2-126(6)(b)(I) and (III), C.R.S. (2002). The hearing officer ruled that Barger substantially complied with section 42-2-126(3)(b)'s requirements for a "verified" report by using the Department's form and supplying the other documents and there was no jurisdictional defect in the proceedings.

Hibbs appealed to the district court and prevailed in overturning the commercial driver's license revocation. Affirming the district court's ruling, the court of appeals held that section 42-2-126(3)(b) required Barger to submit a notarized report to the Department and her failure to do so deprived the Department of jurisdiction to revoke Hibbs's commercial driver's license. We disagree and order reinstatement of the Department's revocation order.

II.

We hold that the verification requirement of section 42-2-126(3)(b), C.R.S. (2002), did not require notarization and was satisfied in this case by Barger's signature and affirmation, under penalty of perjury, that the facts contained in her report on the Department's form were true to the best of her belief.

A. Standard of Review

Hibbs argues that the term "verified report" in section 42-2-126(3)(b) meant a report notarized or otherwise attested to before a third party. He reasons that the preceding subsection, § 42-2-126(3)(a), C.R.S. (2002), for revocation of a non-commercial vehicle driver's license, contained language expressly dispensing with notarization, while subsection 3(b) applicable to commercial vehicle drivers did not, thereby implying that notarization was required in the commercial driver situation.

We review questions of statutory construction de novo. Colo. Dep't of Labor & Employment v. Esser, 30 P.3d 189, 194 (Colo.2001). While statutory construction is ultimately a judicial responsibility, we consult and ordinarily defer to the agency's guidance, rules, and determinations, if they are within the agency's statutory authority and do not contravene constitutional requirements. Wash. County Bd. of Equalization v. Petron Dev. Co., 109 P.3d 146, 150 (Colo.2005).

B. Administrative Revocation of a Commercial Vehicle Driver's License for Driving Under the Influence of Alcohol

In Colorado, commercial vehicle drivers are held to a higher standard than those holding other driving privileges. At the time of Hibbs's arrest, a commercial vehicle driver's license was subject to revocation for proof of driving with an alcohol concentration of 0.04 or more grams of alcohol per two hundred ten liters of breath. § 42-2-126(2)(a)(III), C.R.S. (2002). A one year revocation resulted for the first offense. § 42-2-126(6)(b)(III), C.R.S. (2002). The trigger for revocation of...