Long v. Colorado Dep't of Revenue

Decision Date02 August 2012
Docket NumberCourt of Appeals No. 11CA1646
Citation2012 COA 130
PartiesJohn Chris Long, Plaintiff-Appellant, v. Colorado Department of Revenue, Motor Vehicle Division, Defendant-Appellee.
CourtColorado Court of Appeals

City and County of Denver District Court No. 11CV862

Honorable Brian R. Whitney, Judge

JUDGMENT AFFIRMED

Division VII

Opinion by JUDGE BOORAS

Terry and Fox, JJ., concur

The Law Office of Monica S. McElyea, LLC, Monica S. McElyea, Breckenridge, Colorado, for Plaintiff-Appellant
John W. Suthers, Attorney General, Cathern H. Smith, Assistant Attorney General, Denver, Colorado, for Defendant-Appellee

¶ 1 Plaintiff, John Chris Long, appeals the district court judgment affirming an administrative order entered by defendant, the Colorado Department of Revenue, Motor Vehicle Division (the Department). The Department revoked plaintiff's driver's license for one year based on his refusal to submit to testing as required by Colorado's express consent law. We affirm.

I. Background

¶ 2 At approximately 12:42 a.m. on November 6, 2010, a Leadville police officer stopped plaintiff for speeding and for weaving in and out of his traffic lane. Upon contacting him, the officer noted indicia of alcohol intoxication. After plaintiff failed to complete voluntary roadside tests satisfactorily, the officer placed him under arrest and advised him of his options under the express consent statute.

¶ 3 Plaintiff chose a breath test and was transported to the Lake County Sheriff's Office, where a deputy certified to operate the breathalyzer machine arrived to administer the test. After the twenty-minute observation period, the deputy turned on the breathalyzer machine, and it indicated that it was not operating properly and needed solution. The deputy then restarted the machine, and the machine's printout indicated that it was working properly and "had 96 more tests to perform before it actually needed solution." The deputy explained to plaintiff that the breathalyzer was working properly, but plaintiff refused to take the test because he thought the machine was "messed up." He also asked if he could wait "ninety-six more tests before he took his." The deputy said no and explained to plaintiff that he did not have to take the test, but if he chose not to take it, his conduct would constitute a refusal. Plaintiff refused to take the test. Based on the refusal, the officer issued plaintiff an express consent affidavit and notice of revocation (notice of revocation). The document notified plaintiff that on that date he had been asked to submit to a chemical test pursuant to Colorado's express consent statute, section 42-4-1301.1, C.R.S. 2011. Furthermore, the notice stated it was his "official order"; indicated that because he had refused to take, complete, or cooperate in a test of his blood, breath, saliva, or urine, his driver's license was revoked subject to the administrative provisions of section 42-2-132, C.R.S. 2011; and advised him that he had the right to request a hearing undersection 42-2-126, C.R.S. 2011. Plaintiff signed the affidavit and surrendered his license to the officer.

¶ 4 Plaintiff timely requested an administrative hearing to challenge the revocation. Having considered the evidence and plaintiff's legal arguments, the hearing officer sustained the revocation. The hearing officer concluded, as relevant here, that (1) the arresting officer had reasonable grounds to stop plaintiff for speeding and for weaving in and out of his traffic lane; (2) because plaintiff elected a breath test and the breathalyzer was working properly, plaintiff's decision not to provide a breath sample amounted to a refusal to take a chemical test; and (3) the Department made an initial determination of revocation and, therefore, had jurisdiction to hold a revocation hearing pursuant to section 42-2-126.

¶ 5 The district court affirmed the revocation on review, and this appeal followed.

II. Standard of Review

¶ 6 A reviewing court may reverse a revocation determination if the Department "exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, acted in an arbitrary and capricious manner, or made a determination that is unsupported by the evidence in the record." § 42-2-126(9)(b), C.R.S. 2011; see Gilbert v. Julian, 230 P.3d 1218, 1221 (Colo. App. 2009). To determine that a hearing officer's decision was arbitrary and capricious under this statutory standard, a reviewing court must be convinced from the record as a whole that there was not substantial evidence to support the decision. Charnes v. Robinson, 772 P.2d 62, 68 (Colo. 1989).

¶ 7 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 v. Huber, 223 P.3d 150, 152 (Colo. App. 2009); see also Charnes v. Lobato, 743 P.2d 27, 32-33 (Colo. 1987). 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. Department's Initial Determination and Statutory Authority

¶ 8 Plaintiff contends that the Department lacked statutory authority to proceed with the hearing, asserting that the Department failed to provide proof that it made an initial revocation determination as required by statute, and that there was insufficient information to support such a determination. We reject these arguments as unsupported by the record.

¶ 9 Under section 42-2-126(5)(a), C.R.S. 2011, a law enforcement officer having probable cause to believe that a person is subject to license revocation for refusal to take a chemical test is required to forward to the Department a completed express consent affidavit form, containing "information relevant to the legal issues and facts that shall be considered by the [D]epartment to determine whether the person's license should be revoked." Moreover, the Department "may specify any additional documents or copies of documents needed . . . to make its determination in addition to the affidavit." Id. (emphasis added).

¶ 10 The Department acquires jurisdiction to make an initial revocation determination so long as the affidavit and other documents forwarded by the police officer contain sufficient information of a reliable character to permit the Department to make such a determination. Duckett v. Tipton, 826 P.2d 873, 874 (Colo. App. 1992); Alford v. Tipton, 822 P.2d 513, 515 (Colo. App. 1991).

¶ 11 Next, under section 42-2-126(6)(a), C.R.S. 2011, upon its receipt of the express consent affidavit, the Department "shall determine whether the person's license should be revoked," and this initial determination "shall be based upon the information contained in the affidavit and the relevant documents submitted to the [D]epartment." Also, this determination "shall be final unless a hearing is requested and held." Id.

¶ 12 We agree with plaintiff that, under the foregoing statutory provisions, before any hearing, the Department must make an initial revocation determination based on the information submitted to it by the law enforcement officer. See Knaus v. Dep't of Revenue, 844 P.2d 1318, 1320 (Colo. App. 1992) (under similar provisions in former statutory scheme, Department was also required to make a preliminary revocation determination based on the documents submitted to it by the arresting officer); see also Colo. Dep't of Revenue v. Hibbs, 122 P.3d 999, 1005 (Colo. 2005) (stating that similar provisions in former statutory scheme were the "operative provision[s] for the Department's exercise of its revocation authority").

¶ 13 We disagree, however, that the Department here did not make an initial determination as required by section 42-2-126(6), C.R.S. 2011.

¶ 14 The arresting officer served plaintiff personally with the notice of revocation after his refusal to submit to the breath test, as required by section 42-2-126(5)(b)(I), C.R.S. 2011 ("A law enforcement officer, on behalf of the department, shall personally serve a notice of revocation on a person who is still available to the law enforcement officer if the law enforcement officer determines that, based on a refusal . . . , the person's license is subject to revocation for . . . refusal."). Thereafter, pursuant to section 42-2- 126(5)(b)(III), C.R.S. 2011, the law enforcement officer forwarded to the Department a copy of the completed notice of revocation form, a copy of plaintiff's driver's license that was taken into possession, the officer's affidavit, and other additional documents. Upon receipt of the documents, the Department determined that plaintiff's license should be revoked, as reflected by this entry made by the Department on plaintiff's driving record: "ECS [express consent] ARREST ADMIN CONVICTION."

¶ 15 To the extent plaintiff argues that the Department was required to issue a separate notice of revocation, we disagree. Because the arresting officer served plaintiff personally with the notice of revocation, the Department was not required to issue a separate notice of revocation. See § 42-2-126(6)(b)(I), C.R.S. 2011 ("If the department determines that the person is subject to license revocation, the department shall issue a notice of revocation if a notice has not already been served upon the person by the law enforcement officer as provided in paragraph (b) of subsection (5) of this section." (emphasis added)); cf. § 42-2-126(6)(b)(I) & (II), C.R.S. 2011 (if the driver was not personally served with the notice of revocation by the officer, the Department must send a notice of revocation to the driver's last known address).

¶ 16 Furthermore, we are not aware of any statutory mandate, nor does plaintiff direct us to one, requiring the Department to support its...

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