Francen v. Colo. Dep't of Revenue, 10CA2382.

Citation411 P.3d 693
Case DateJuly 05, 2012
CourtCourt of Appeals of Colorado

411 P.3d 693

Tom FRANCEN, Petitioner–Appellee,

No. 10CA2382.

Colorado Court of Appeals, Div. I.

July 5, 2012.

411 P.3d 694

John G. Scott, LLC, John G. Scott, Littleton, Colorado, for Petitioner–Appellee.

John W. Suthers, Attorney General, Cathern H. Smith, Assistant Attorney General, Denver, Colorado, for Respondent–Appellant.

Opinion by Judge J. JONES.

¶ 1 Respondent, the Colorado Department of Revenue (Department), revoked the driver's license of petitioner, Tom Francen, based upon a determination that he had driven a motor vehicle with a legally excessive breath alcohol content. The district court reversed the revocation order because, it found, the initial stop of his vehicle by police was not supported by reasonable suspicion. We hold that the legality of the initial contact between a driver and police is not relevant in a civil revocation proceeding. Therefore, we reverse the district court's judgment, and remand the case to the district court for reinstatement of the revocation order.

411 P.3d 695

I. Background and Procedural History

¶ 2 At approximately 2:00 a.m. on January 3, 2010, a Littleton police officer pulled behind Mr. Francen's vehicle, which was stopped at a traffic light in a left turn lane. A passenger in the vehicle got out for a moment and appeared to be trying to contact the driver of another vehicle in the adjacent lane. The passenger then got back in to Mr. Francen's vehicle. When the light turned green, Mr. Francen turned left and the police officer pulled him over.

¶ 3 When the officer approached Mr. Francen, who was seated in the driver's seat of the vehicle, he observed that Mr. Francen had a strong odor of alcohol. Mr. Francen's eyes were bloodshot and his speech was slurred. He admitted to having consumed three or four alcoholic drinks. The officer told Mr. Francen to get out of the vehicle. When Mr. Francen did so, he was unsteady and had to hold onto the door to maintain his balance. After Mr. Francen failed to satisfactorily perform voluntary roadside maneuvers, the officer placed him under arrest and advised him of his options for taking a chemical test. Mr. Francen chose to take a breath test. The results of the test showed that he had a legally excessive breath alcohol content of .115 grams of alcohol per 210 liters of breath. Based on the breath test results, the officer issued Mr. Francen a notice of revocation of his driver's license.

¶ 4 Mr. Francen requested an administrative hearing to challenge the revocation. At the hearing, both the hearing officer and Mr. Francen's counsel questioned the police officer about why he had decided to stop Mr. Francen's vehicle. Based on the officer's testimony, Mr. Francen's counsel sought dismissal on the grounds that the officer had not had reasonable suspicion to justify the initial stop.

¶ 5 In a written decision, the hearing officer made findings concerning the reason the officer had stopped Mr. Francen's vehicle, but reached no specific conclusion about whether the stop was supported by reasonable suspicion. Instead, the hearing officer concluded that the exclusionary rule (the rule requiring exclusion of evidence when there has been a violation of constitutional protections against unreasonable searches and seizures) does not apply in civil license revocation proceedings and that "all evidence obtained by the officer may be considered." Based on that conclusion, the hearing officer sustained the revocation.

¶ 6 Mr. Francen then filed this case in the district court, seeking judicial review of the revocation order. He again argued that the Department should have dismissed the revocation proceeding based on the lack of reasonable suspicion to support the initial stop of his vehicle.

¶ 7 The district court agreed with Mr. Francen, finding that "the initial stop of [Mr. Francen's] vehicle was unlawful under the reasonable suspicion standard." The district court further concluded that the hearing officer had erred in considering evidence of the roadside sobriety and breath tests derived from the unlawful stop, and that without that evidence, the hearing officer's order was arbitrary and capricious because it was not supported by substantial evidence. Consequently, the court reversed the revocation order and remanded the matter to the Department for reinstatement of Mr. Francen's license.

¶ 8 The Department appeals.

II. Standard of Review

¶ 9 Judicial review of a driver's license revocation order is governed by subsection 42–2–126(9)(b), C.R.S. 2011. It provides that a reviewing court may reverse the Department's determination only if it (1) exceeded its constitutional or statutory authority; (2) erroneously interpreted the law; (3) acted in an arbitrary and capricious manner; or (4) made a determination that is unsupported by the evidence in the record. See Baldwin v. Huber, 223 P.3d 150, 152 (Colo.App.2009) ; Scherr v. Colo. Dep't of Revenue, 49 P.3d 1217, 1219 (Colo.App.2002).

¶ 10 The credibility of witnesses, the weight to be given to the evidence, and the resolution of conflicting evidence are factual matters solely within the province of the hearing officer as the trier of fact. See Baldwin, 223 P.3d at 152 ; see also Charnes v. Lobato, 743 P.2d 27, 32–33 (Colo.1987).

411 P.3d 696

However, we review de novo agency determinations regarding questions of law. See Meyer v. State, 143 P.3d 1181, 1187 (Colo.App.2006). We are in the same position as the district court in reviewing the Department's action in the revocation proceedings based on the administrative record. Baldwin, 223 P.3d at 152.

III. Analysis

¶ 11 Two statutes are relevant to the issues presented in this appeal, sections 42–2–126 and 42–4–1301.1, C.R.S.2011. Section 42–2–126 governs how a law enforcement officer must initiate the civil revocation process, and sets forth a procedure for revoking a license based on information provided by an officer, challenging any revocation in an administrative proceeding before a hearing officer, and appealing a hearing officer's decision to the district court. Section 42–4–1301.1, commonly referred to as the express consent statute, provides, as most relevant here, that every driver of a motor vehicle must cooperate in the taking and completing of a chemical test under certain circumstances. It also addresses situations that may arise when an officer has requested that a driver take a chemical test.

¶ 12 For many years, a previous version of section 42–2–126, codified at section 42–2–122.1, C.R.S. (1984 Repl. Vol. 17), provided that a law enforcement officer who had arrested a driver for committing the misdemeanor offense of driving with an excessive blood alcohol content, see § 42–4–1202(1.5), C.R.S. (1984 Repl. Vol. 17), would then submit a report to the Department for it to determine whether to revoke the driver's license. § 42–2–122.1(2)(a), (3)(a), C.R.S. (1984 Repl. Vol. 17). In 1988, the General Assembly amended subsection 42–2–122.1(2)(a) to require the reporting officer to include in his report "a statement of the officer's probable cause for belief that" the driver had committed the misdemeanor offense. See Ch. 293, sec. 1, § 42–2–122.1(2)(a), 1988 Colo. Sess. Laws 1360.1

¶ 13 The applicable language of the express consent statute required drivers to submit to testing "if arrested for any misdemeanor offense arising out of acts alleged to have been committed while" driving under the influence of alcohol, and provided that a test would be administered at the direction of the arresting officer having "reasonable grounds to believe" a person was driving under the influence. § 42–4–1202(3)(a)(II), (3)(b), C.R.S. (1984 Repl.Vol. 17).

¶ 14 Applying the relevant provisions of the express consent statute as they existed before 1989, a division of this court held that a driver could challenge the legality of the initial police contact or traffic stop in a revocation proceeding, noting expressly that an arrest was a prerequisite to a request that a driver submit to a blood test. Sanger v. Colo. Dep't of Revenue, 736 P.2d 431, 432 (Colo.App.1987) ; see also Nefzger v. Dep't of Revenue, 739 P.2d 224, 229 (Colo.1987) (addressing a driver's challenge to the legality of the initial stop); Wallace v. Dep't of Revenue, 787 P.2d 181, 182 (Colo.App.1989).

¶ 15 In 1989, the General Assembly repealed and re-enacted subsection 42–2–122.1(2), with substantial amendments, and substantially amended the express consent statute. As relevant here, the General Assembly amended subsection (2) of section 42–2–122.1 to delete any requirement that an arrest precede a report to the Department. Instead, the officer was to provide an affidavit to the Department when he had "probable cause to believe" a driver had committed the misdemeanor offense. Ch. 148, sec. 149, § 42–2–122.1(2)(a), 1989 Colo. Sess. Laws 859 (now codified at § 42–2–126(5)(a) ). That change was made effective July 1, 1989, to offenses committed on or after that date. Ch. 148, sec. 157, 1989 Colo. Sess. Laws 861.

¶ 16 The General Assembly also added a provision to the express consent statute stating that individuals who drive a motor vehicle in Colorado are

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  • Westra v. Iowa Dep't of Transp., 18-1050
    • United States
    • United States State Supreme Court of Iowa
    • June 14, 2019
    ...of the exclusionary rule to all criminal cases that may result from their investigations."); Francen v. Colo. Dep't of Revenue , 411 P.3d 693, 702–03 (Colo. App. 2012) (finding that the exclusionary rule under the United States and Colorado Constitutions does not apply in civil revocation p......
  • Hanson v. Colo. Dep't of Revenue, Motor Vehicle Div., 11CA1351.
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    • August 30, 2012
    ...Amendment claim fails. We agree with the division in Francen v. Colorado Department of Revenue, Division of Motor Vehicles, 2012 COA 110, 411 P.3d 693, that it does not. Francen, ¶ 36; see also Nevers v. State, 123 P.3d 958, 961–66 (Alaska 2005) ; Tornabene v. Bonine ex rel. Ariz. Highway D......

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