Kenney v. Charnes, 85CA0178
| Decision Date | 13 March 1986 |
| Docket Number | No. 85CA0178,85CA0178 |
| Parties | Terrill Lee KENNEY, Plaintiff-Appellee, v. Alan CHARNES, Director of the Department of Revenue, Motor Vehicle Division, State of Colorado, and the Motor Vehicle Division, State of Colorado, Defendants-Appellants. . IV |
| Court | Colorado Court of Appeals |
Polidori, Rasmussen, Gerome & Jacobson, Dennis J. Jacobson, Barry A. Seldin, Lakewood, for plaintiff-appellee.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Steven M. Bush, Asst. Atty. Gen., Denver, for defendants-appellants.
Defendants appeal the district court judgment reversing the revocation of plaintiff's driver's license entered pursuant to § 42-2-122.1, C.R.S. (1984 Repl.Vol. 17). We reverse.
Plaintiff was arrested and charged with driving while under the influence of alcohol. After plaintiff refused to submit to a test to determine the alcohol content of his blood, the arresting officer prepared a notice of revocation and took possession of plaintiff's driver's license. Upon plaintiff's refusal to sign an acknowledgement of receipt of the notice, rather than giving the notice to plaintiff, the arresting officer retained it and forwarded it, along with plaintiff's driver's license and his verified report, to the Department of Revenue (department). Plaintiff subsequently contacted the department, explained that he had not received a notice of revocation, and requested return of his license. The department returned the license, but issued its own notice of revocation, specifying the procedure for requesting a hearing. Plaintiff requested a hearing and was issued a temporary driver's permit.
At the hearing, plaintiff argued that the department lacked jurisdiction to revoke his license because the arresting officer had failed to follow the provisions of § 42-2-122.1(4)(a), C.R.S. (1984 Repl.Vol. 17). The hearing officer ruled that the notice of revocation mailed to plaintiff by the department was sufficient to confer jurisdiction and revoked plaintiff's license. The district court reversed, holding that the notice of revocation had been improperly served on plaintiff and concluded, therefore, that the department lacked jurisdiction to enter an order revoking the license.
On appeal, the department contends that it had jurisdiction even though the police officer failed to serve plaintiff personally. We agree.
Because the arresting officer erroneously failed to serve plaintiff personally with notice of revocation after his refusal to submit to the blood alcohol test, as required by § 42-2-122.1(4)(a), C.R.S. (1984 Repl.Vol. 17), plaintiff did not receive sufficient notice at that time. Contrary to plaintiff's contention, however, the officer's error did not affect the department's jurisdiction to serve plaintiff with notice and enter an order revoking his license.
The department issued a notice of...
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Alford v. Tipton
...a police officer's noncompliance with the dating requirement now contained in the statute to be jurisdictional. See also Kenney v. Charnes, 717 P.2d 1020 (Colo.App.1986) (police officer's statutory violation in failing to serve notice of revocation personally on driver is not jurisdictional......
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Shumate v. Department of Revenue of State of Colo., Motor Vehicle Div., 88CA0962
...not prejudiced by the allegedly defective service, and the district court therefore erred in reversing on this basis. Kenney v. Charnes, 717 P.2d 1020 (Colo.App.1986). III. In his answer brief in this appeal, plaintiff also claims that the hearing officer was biased against him. As this cla......
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Potter v. State, Dept. of Revenue, Motor Vehicle Div., 85CA1655
...did not affect the Department's jurisdiction to serve plaintiff with notice and, after service, to revoke his license. Kenney v. Charnes, 717 P.2d 1020 (Colo.App.1986); see Mattingly v. Charnes, 700 P.2d 927 The Department also contends that since the notice of revocation was mailed in conf......