Edwards v. State, Dept. of Revenue, 78-832

Decision Date28 December 1978
Docket NumberNo. 78-832,78-832
Citation592 P.2d 1345,42 Colo.App. 52
PartiesDavid Calvin EDWARDS, Plaintiff-Appellee, v. STATE of Colorado, DEPARTMENT OF REVENUE, Defendant-Appellant. . II
CourtColorado Court of Appeals

Williams, Turner & Holmes, J. D. Snodgrass, Grand Junction, for plaintiff-appellee.

J. D. MacFarlane, Atty. Gen., David W. Robbins, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., Richard H. Forman, Asst. Atty. Gen., Denver, for defendant-appellant.

BERMAN, Judge.

This appeal brings to this court the first case involving the validity of Department of Revenue Regulation No. 2-123.11 (final), 1 Code Colo.Reg. 204-8, adopted December 12, 1977, regarding the issuance of probationary drivers' licenses. See § 42-2-123(11), C.R.S. 1973. The regulation was promulgated pursuant to the direction of our Supreme Court in Elizondo v. State, Colo., 570 P.2d 518 (1977).

Plaintiff's license was suspended, under § 42-2-123(1)(a), C.R.S.1973, for accumulating 21 points within a twelve month period. He does not contest the suspension. Subsequently, after a hearing on plaintiff's application for a probationary license, the hearing officer applied Regulation No. 2-123.11 and denied plaintiff's application.

At the hearing, the hearing officer reviewed plaintiff's driving record, listened to plaintiff's explanation of several violations, and heard testimony regarding the hardship that would be caused by the denial of all driving privileges. In his written findings, the hearing officer identified several aggravating factors, including a prior suspension for points, more than sufficient points to cause suspension, a conviction for a six point violation, repeated violations for a particular offense, and carelessness as evidenced by a conviction for careless driving. He found no mitigating factors and concluded that plaintiff's record "warrant(s) a suspension with no driving authorized to remove him from the streets, and highways in the interest of public safety."

On appeal the district court held that the regulation does not meet the requirements of the Supreme Court in Elizondo, supra, and that the Department had abused its discretion in denying plaintiff a probationary license. It therefore ordered that plaintiff be granted a probationary license. The Department appeals and we reverse and remand.

The Department contends that the district court erred in holding that Regulation No. 2-123.11 fails to meet the requirements of Elizondo, supra. We agree that the court so erred.

In Elizondo, supra, our Supreme Court held that:

"(D)ue process requires that the Department of Revenue promulgate rules or regulations to guide hearing officers in their decisions regarding requests for probationary licenses. . . . These rules or regulations must be sufficiently specific to inform the public what factors will be considered relevant by Department hearing officers, so that requests for probationary licenses may be supported by relevant evidence and arguments. Furthermore, to make judicial review a meaningful process, the rules or regulations must require that hearing officers specifically state, in each case where a probationary license is denied, the reasons for the denial." (citations omitted)

The regulation meets these requirements. The factors which "will be considered relevant" are precisely set forth, See subsections B.1(a) thru (d) of Regulation 2-123.11, and hearing officers are required to state specifically the reasons for the denial of a probationary license. See subsection C.1 of Regulation 2-123.11.

The Department also contends that the district court erred in holding that Regulation No. 2-123.11 was not properly applied in this case. Plaintiff, on the other hand, contends that the regulation was not properly applied because the hardship to plaintiff was not sufficiently considered, certain aggravating factors were improperly identified, certain mitigating factors were not considered, and the requisite specific findings were not made.

There is no evidence in the record that the hardship to plaintiff was not sufficiently considered by the hearing officer. Nor was it improper for the hearing officer to consider plaintiff's conviction for careless driving as an aggravating factor. Since the language of Regulation No. 2-123.11.A.1. (i), which concerns careless driving as an aggravating factor, tracks the language of the careless driving statute, § 42-4-1204, C.R.S.1973, a conviction under that statute necessarily qualifies as an aggravating factor. And there was no evidence at the hearing of any of the mitigating factors listed in the...

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8 cases
  • Fisher v. Jorgensen
    • United States
    • Colorado Court of Appeals
    • December 1, 1983
    ...and mitigating factors in the driver's cumulative driving record. Sonoda v. State, 664 P.2d 259 (Colo.App.1983); Edwards v. State, 42 Colo.App. 52, 592 P.2d 1345 (1978). Here, the hearing officer made findings with respect to such of those factors as were There is nothing in § 42-2-123(11) ......
  • Peshel v. Motor Vehicle Division, Dept. of Revenue, 79CA0005
    • United States
    • Colorado Court of Appeals
    • July 19, 1979
    ...exceeded its authority by selecting seven years as the relevant period for probationary license requests. See Edwards v. State, Colo.App., 592 P.2d 1345 (1978). The plaintiff contends that the hearing officer was required to make a specific finding that plaintiff was "not a fit person to op......
  • Elkins v. Charnes, 83CA0672
    • United States
    • Colorado Court of Appeals
    • May 17, 1984
    ...2-123.11 was promulgated to provide articulated standards to serve as a guide in the exercise of that discretion. Edwards v. State, 42 Colo.App. 52, 592 P.2d 1345 (1978); see also Elizondo v. State, 194 Colo. 113, 570 P.2d 518 (1977). Pursuant to Regulation No. 2-123.11, a hearing officer, ......
  • Hoth v. Charnes, 85CA0887
    • United States
    • Colorado Court of Appeals
    • January 8, 1987
    ...The decision whether to grant a probationary license is within the sound discretion of the hearing officer, Edwards v. State, 42 Colo.App. 52, 592 P.2d 1345 (1978), and will be set aside as an abuse of discretion only if there is no competent evidence in the record to support it. Dolan v. R......
  • Request a trial to view additional results
1 books & journal articles
  • Criminal Law Newsletter
    • United States
    • Colorado Bar Association Colorado Lawyer No. 9-4, April 1980
    • Invalid date
    ...12. Elizondo v. State, 570 P2d 518 (1977). 13. Loesch v. State, 570 P2d 530 (1977). 14. Edwards v. State Department of Revenue, 592 P2d 1345 (Colo App 1978). The guidelines are available for $1.50 at either the Dept. of Rev., Cashier, Motor Veh. Div., 140 W. 6th Ave., Denver, CO 80261, or D......

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