Hanson v. Colo. Dep't of Revenue, Motor Vehicle Div., 11CA1351.

• Citation: 411 P.3d 1
• Decision Date: 30 August 2012
• Docket Number: No. 11CA1351.,11CA1351.
• Parties: Andrew HANSON, Petitioner–Appellant, v. COLORADO DEPARTMENT OF REVENUE, MOTOR VEHICLE DIVISION, Respondent–Appellee.
• Court: Colorado Court of Appeals

411 P.3d 1

Andrew HANSON, Petitioner–Appellant,

v.COLORADO DEPARTMENT OF REVENUE, MOTOR VEHICLE DIVISION, Respondent–Appellee.

No. 11CA1351.

Colorado Court of Appeals, Div. VII.

Aug. 30, 2012.

Foster Graham Milstein & Calisher, LLP, Daniel S. Foster, Christopher P. Carrington, Chip G. Schoneberger, Denver, Colorado, for Petitioner–Appellant.

John W. Suthers, Attorney General, Laurie Rottersman, Assistant Attorney General, Grant T. Sullivan, Assistant Attorney General, Denver, Colorado, for Respondent–Appellee.

Opinion by Judge BOORAS.

¶ 1 Petitioner, Andrew Hanson, appeals the district court's judgment affirming the administrative order entered by respondent, the Colorado Department of Revenue (Department), revoking Hanson's driver's license for one year. We affirm the district court's judgment.

I. Background

¶ 2 A private citizen saw a vehicle strike a highway sign after being driven erratically and at excessive speed. The citizen contacted law enforcement and followed the vehicle to a private residence.

¶ 3 Deputy Ashby was the first officer to arrive at the residence. According to his report, he looked through a garage window and saw a damaged vehicle matching the description of the reported vehicle. Deputy Ashby's report further indicated that the front door of the residence was open and that he "pushed open the door and made announcements."

¶ 4 According to his report, Deputy Ashby then made contact with a female who said that her boyfriend had come home and was acting strangely. When the female subsequently brought Hanson downstairs, he exhibited indicia of alcohol intoxication and admitted he had consumed alcohol.

¶ 5 Hanson was transported to a hospital where he continued to show indicia of alcohol intoxication. He was eventually placed under arrest by a different officer and was advised of his options under the express consent statute. Based on Hanson's refusal to cooperate, the officer deemed him to have refused testing and issued a notice of revocation.

¶ 6 Hanson timely requested a hearing. He also sought and obtained an administrative subpoena from the Department requiring Deputy Ashby's appearance.

¶ 7 When Deputy Ashby failed to appear at the hearing, Hanson's counsel sought dismissal, arguing, based on Deputy Ashby's report, that the initial entry into the residence appeared to be illegal, and that he needed to question Deputy Ashby about the details surrounding the entry to determine whether it was constitutionally permissible.

¶ 8 The hearing officer accepted that Deputy Ashby had been properly served with the subpoena. However, he denied Hanson's request for dismissal and, in effect, quashed the subpoena, concluding that dismissal was too drastic a remedy and that Deputy Ashby's appearance was "not necessary" because he had "limited contact" with Hanson and had "little to do with the case in chief."

¶ 9 Then, relying largely on the contents of Deputy Ashby's written report, the hearing officer concluded that Deputy Ashby was justified in entering the house based on a reasonable belief the driver of the vehicle might be injured. The hearing officer further concluded that once Deputy Ashby was inside the residence, the subsequent contact with Hanson was consensual. Based on these conclusions and other findings, the hearing officer sustained the revocation.

¶ 10 On review in the district court, Hanson argued, as pertinent here, that the hearing officer violated his due process rights including, specifically, his right to cross-examination, by declining to dismiss the action or impose any remedy based on Deputy Ashby's failure to appear at the hearing.

¶ 11 In affirming the revocation, the district court "discern[ed] no error in the hearing officer's finding that Deputy Ashby's testimony was not required" and concluded that "the hearing officer did not err in proceeding in Deputy Ashby's absence."

II. Analysis

¶ 12 Hanson contends that we should reverse the revocation order because the hearing officer erroneously denied him the opportunity to cross-examine Deputy Ashby about the circumstances surrounding his entry into the residence. We disagree.

A. Standard of Review

¶ 13 Judicial review of driver's license revocation orders is governed by section 42–2–126(9)(b), C.R.S.2011. That statute provides that a reviewing court may reverse the Department's determination 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). Additionally, a court may reverse a revocation order if a statutory violation by the Department prejudices the substantial rights of a licensee. Erbe v. Colo. Dep't of Revenue, 51 P.3d 1096, 1098 (Colo.App.2002) ; Nye v. Motor Vehicle Div., 902 P.2d 959, 961 (Colo.App.1995).

¶ 14 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 trier of fact. See Baldwin, 223 P.3d at 152. 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 under the administrative record. Baldwin, 223 P.3d at 152.

B. Illegality of Initial Police Contact as a Defense

¶ 15 Hanson argues that Deputy Ashby's entry into his residence violated his rights under the Fourth Amendment unless the entry was supported by exigent circumstances.¹ Hanson's counsel conceded at oral argument that if the Fourth Amendment exclusionary rule does not apply, Hanson's Fourth 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 Dep't, 203 Ariz. 326, 54 P.3d 355, 363–65 (App.2002) ; Fishbein v. Kozlowski, 252 Conn. 38, 743 A.2d 1110, 1118–19 (1999) ; Martin v. Kansas Dep't of Revenue, 285 Kan. 625, 176 P.3d 938, 949–53 (2008) ; Powell v. Sec'y of State, 614 A.2d 1303, 1306–07 (Me.1992) ; Riche v. Dir. of Revenue, 987 S.W.2d 331, 333–36 (Mo.1999) ; Chase v. Neth, 269 Neb. 882, 697 N.W.2d 675, 682–85 (2005) ; Lopez v. Dir., N.H. Div. of Motor Vehicles, 145 N.H. 222, 761 A.2d 448, 450–51 (2000) ; Holte v. State Hwy. Comm'r, 436 N.W.2d 250, 252 (1989) ; State v. Brabson, 976 S.W.2d 182, 184–86 (Tex.Crim.App.1998) ; Beller v. Rolfe, 194 P.3d 949, 951–55 (Utah 2008).

1. Requirements of the Fourth Amendment

¶ 16 The Fourth Amendment has "drawn a firm line" at the entrance to a person's home. Payton v. New York, 445 U.S. 573, 590, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The warrantless entry into a person's home to conduct a search is presumptively unreasonable unless a well-established exception to the warrant requirement applies, such as when both probable cause and exigent circumstances exist. People v. Mendoza–Balderama, 981 P.2d 150, 156 (Colo.1999). Violations of the Fourth Amendment are remedied by the judicially created "exclusionary rule," which is intended to deter illegal police contact by requiring suppression of evidence obtained following the initial unlawful contact. United States v. Calandra, 414 U.S. 338, 347–48, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) ; Ahart v. Colo. Dep't of Corr., 964 P.2d 517, 520 (Colo.1998).²

¶ 17 The exclusionary rule applies routinely in criminal cases, but not so in civil cases. Francen, ¶ 37; Ahart, 964 P.2d at 520. "In determining whether the exclusionary rule should apply in a civil case, a court must balance the likely deterrent effect against the societal cost of excluding relevant evidence: only when the former outweighs the latter should the rule apply." Francen, ¶ 38. To assess the likely deterrent effect, the court must consider "(1) whether the illegal agency conduct is ‘inter-sovereign’ or ‘intrasovereign’; and (2) whether the proceedings may be characterized as ‘quasi—criminal.’ " Id. at ¶ 39 (quoting Ahart, 964 P.2d at 520 ). Neither consideration is dispositive. Ahart, 964 P.2d at 521 ; see I.N.S. v. Lopez–Mendoza, 468 U.S. 1032, 1042–45, 104 S.Ct. 3479, 82 L.Ed.2d 778 (1984) (exclusionary rule did not apply in deportation proceeding even though agency conduct was intra-sovereign).

¶ 18 Here, as discussed in Francen, the conduct at issue is inter-sovereign, and thus application of the exclusionary rule would result in only marginal deterrence. Francen, ¶ 40. Also, as discussed in Francen, the proceeding is not quasi-criminal because the primary objective of the driver's license revocation statute is to protect public safety. Francen, ¶ 41; see § 42–2–126(1)(a)–(c), C.R.S.2011. Although driver's license revocation proceedings play a role in the law enforcement process, the United States Supreme Court has "repeatedly declined to extend the exclusionary rule to proceedings other than criminal trials," even to civil proceedings that are closely related to criminal law enforcement. Pennsylvania Bd. of Probation & Parole v. Scott, 524 U.S. 357, 363, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998) (the exclusionary rule does not apply in parole revocation proceeding); Calandra, 414 U.S. at 347–48, 94 S.Ct. 613 (the exclusionary rule does not apply to grand jury proceedings).

¶ 19 The dissent discusses facts relevant to the constitutionality of Deputy Ashby's entry into Hanson's home and observes that in a related criminal case, the district court concluded that Deputy Ashby's entry into the home violated Hanson's constitutional rights and entered a suppression order. This related criminal proceeding is exactly where the exclusionary rule should be applied; however, it should not be applied in this civil driver's license revocation...