Cop v. Charnes, 86CA0303
| Decision Date | 14 May 1987 |
| Docket Number | No. 86CA0303,86CA0303 |
| Citation | 738 P.2d 1200 |
| Parties | Edward F. COP, Jr., Plaintiff-Appellee, v. Alan N. CHARNES, Executive Director of the Department of Revenue, Motor Vehicle Division, State of Colorado, Defendant-Appellant. . I |
| Court | Colorado Court of Appeals |
Marc P. Mishkin, Denver, for plaintiff-appellee.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Richard T. Hill, Asst. Atty. Gen., Denver, for defendant-appellant.
In this driver's license revocation proceeding, the Department of Revenue (department) appeals the judgment entered by the district court in which it ordered reinstatement of Edward F. Cop's driver's license. We reverse.
Following his arrest on December 19, 1984, on charges of careless driving and driving while under the influence of intoxicating liquor, Cop agreed to submit to an intoxilyzer breath test. The test results showed .170 grams of alcohol per 210 liters of breath. After a hearing on March 5, 1985, Cop's license was revoked for one year.
Seeking review of the revocation, Cop filed a complaint and motion for stay in the Arapahoe County District Court on April 2 and mailed a copy to the district attorney. On April 10, the district attorney entered his appearance on behalf of the department and filed a brief in opposition to a stay. On May 2 the stay was granted.
On May 8, Cop requested a transcript of the March 5 revocation hearing. By that time, however, the hearing tapes had been destroyed pursuant to the agency's policy to destroy or reuse tapes 60 days after the hearing. Therefore, no transcript was available.
The department was not served with a copy of the complaint until May 16. On June 10, an answer was filed on its behalf by the district attorney. Attached to the answer was a copy of the records the department had pertaining to this revocation proceeding.
Based on the lack of a transcript, the department moved for dismissal of Cop's complaint and Cop moved for judgment reinstating his driver's license.
At the oral argument on the motions, the following colloquy occurred:
Counsel then argued that, by entering a general appearance on April 10, the department was on notice that the revocation was being appealed and at that time should have required the tape be held and not be destroyed or reused.
The court denied the department's motion for dismissal and granted Cop's motion for judgment, ordering his license to be reinstated. Although the court refused to make findings or enter a written order, the apparent basis for the judgment was that no transcript of the revocation hearing could be prepared.
On appeal, the department contends that the district court erred in granting Cop's motion when the court's role in this proceeding was limited to that of review of the agency's decision. We agree.
Under § 42-2-122.1(9)(b), C.R.S. , review by the district court "shall be on the record without taking additional testimony." The record includes "the original or certified copies of all pleadings, applications, evidence, exhibits, and other papers presented to or considered by the agency, rulings upon exceptions, and the decision, findings, and action of the agency." Section 24-4-106(6), C.R.S. .
"[T]he record specified in the statute does not include a transcript of the proceedings." Harris v. District Court, 655 P.2d 398 (Colo.1982). "However, if...
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Myers v. State, Dept. of Revenue, M.V.D., No. 04CA2179.
...1217 (Colo.App.2002). Section 42-2-126(10)(b) requires specific findings based on the court's review of the record. See Cop v. Charnes, 738 P.2d 1200 (Colo.App.1987)(holding that, under the statutory criteria, the absence of a transcript, standing alone, is not a sufficient basis to reverse......
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Shafron v. Cooke
...528 (Colo.App.1997) (absence of transcript does not meet the statutory review requirements as a basis for reversal); Cop v. Charnes, 738 P.2d 1200, 1202 (Colo.App.1987) (reversal not appropriate merely because of lack of transcript); see also Schaffer v. Dist. Court, 719 P.2d 1088, 1089-90 ......
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Guynn v. State, Dept. of Revenue, Motor Vehicle Div., 96CA1397
...in an arbitrary and capricious manner, or made a determination which is unsupported by the evidence in the record." See Cop v. Charnes, 738 P.2d 1200 (Colo.App.1987)(applying identical predecessor to § Although review of the Department's determination calls for a review of the record, the a......
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ARTICLE 2 DRIVERS' LICENSES
...of transcript due to administrative practice, standing alone, does not require reversal of department's decision. Cop v. Charnes, 738 P.2d 1200 (Colo. App. 1987). Nor does absence of transcript due to accidental erasure of the tape, standing alone, require reversal of the department's decis......
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Chapter 9 - § 9.4 • PER SE AND REFUSAL HEARING PROCEDURES AND ISSUES
...a recording is very important in the rare cases where the official recording is never made, is lost, or is destroyed. See Cop v. Charnes, 738 P.2d 1200 (Colo. App. 1987); see also Myers v. Dep't of Revenue, 126 P.3d 328 (Colo. App. 2005). A series of regulations concerning the issuance, ser......