Nye v. Motor Vehicle Div. of State of Colo., Dept. of Revenue, 94CA1543

• Decision Date: 13 July 1995
• Docket Number: No. 94CA1543,94CA1543
• Citation: 902 P.2d 959
• Parties: Dirk S. NYE, Petitioner-Appellee, v. MOTOR VEHICLE DIVISION OF the STATE OF COLORADO, DEPARTMENT OF REVENUE, Respondent-Appellant. . III
• Court: Colorado Court of Appeals

Page 959

902 P.2d 959

Dirk S. NYE, Petitioner-Appellee, v. MOTOR VEHICLE DIVISION OF the STATE OF COLORADO, DEPARTMENT

OF REVENUE, Respondent-Appellant.

No. 94CA1543.

Colorado Court of Appeals,

Div. III.

July 13, 1995.

Brian Cook, Englewood, for petitioner-appellee.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Robert C. Ripple, Asst. Atty. Gen., Lauren Edelstein, Asst. Atty. Gen., Denver, for respondent-appellant.

Opinion by Judge NEY.

The Department of Revenue (Department) appeals from a district court judgment reversing its revocation of the driver's license of plaintiff, Dirk S. Nye. We affirm.

On September 26, 1993, plaintiff was stopped for speeding. The law enforcement officer on the scene suspected plaintiff had been drinking. At the officer's request, plaintiff submitted to a chemical test of his breath.

The police log sheet indicates that plaintiff was given three separate intoxilyzer tests. The third of these tests produced a reading of 0.138 grams of alcohol per 210 liters of breath. Information concerning the time of the first two tests and the results from at least one of those tests appears to be "whited out" from the police log. Based upon the results of the third intoxilyzer test, the law enforcement officer prepared the documentation to commence revocation of plaintiff's license.

Thereafter, plaintiff requested an administrative hearing pursuant to § 42-2-122.1(7), C.R.S. (1993 Repl.Vol. 17) (now codified with changes at § 42-2-126(8), C.R.S. (1994 Cum.Supp.)). In accordance with that statute, the reverse side of the request for administrative hearing form advised plaintiff of his right to have the law enforcement officer present at the hearing. Plaintiff was further informed that he could arrange for the officer's presence either by asking the Department to make such arrangements or by serving the officer with a subpoena. Accordingly, plaintiff requested that the Department arrange for the officer to be present at the hearing. The Department concedes that, despite the written request, no subpoenas were ever issued or sent to the officer.

The Department conducted the revocation hearing on November 22, 1993. The law enforcement officer was not present at the hearing. Plaintiff objected to the entire proceeding on the ground that the Department, by failing to issue the requested subpoenas, had deprived him of his right to subpoena witnesses, including the law enforcement officer. The hearing officer rejected plaintiff's argument and concluded that plaintiff could have prepared the subpoenas himself. Based solely upon the documents prepared and submitted by the law enforcement officer, the hearing officer revoked plaintiff's driver's license.

The district court vacated the order of revocation, concluding that the Department had frustrated plaintiff's right to subpoena witnesses by failing to provide the requested subpoenas.

I.

The Department contends that plaintiff or plaintiff's counsel could have issued the subpoenas without the assistance of the Department. We disagree.

Section 42-2-122.1(10), C.R.S. (1993 Repl.Vol. 17) (now § 42-2-126(11), C.R.S. (1994 Cum.Supp.)) provides that the State Administrative Procedure Act (APA), § 24-4-101, et seq., C.R.S. (1988 Repl.Vol. 10A) applies to license revocation hearings to the extent it is consistent with §§ 42-2-122.1(7) to 42-2-122.1(9), C.R.S. (1993 Repl.Vol. 17). See also Colorado Department of Revenue v. Kirke, 743 P.2d 16 (Colo.1987).

At least two provisions of the APA address an administrative agency's authority and obligation to issue subpoenas. Section 24-4-105(4), C.R.S. (1994 Cum.Supp.) provides that: "[A]ny agency conducting a hearing, any administrative law judge, and any hearing officer shall have authority to ... sign and issue subpoenas...." Section 24-4-105(5), C.R.S. (1994 Cum.Supp.) states that:

[S]ubpoenas shall be issued without discrimination between public and private parties by any agency or any member, the secretary, or chief administrative officer thereof or, with respect to any hearing for which an administrative law judge or hearing officer has been appointed, the administrative law judge or the hearing officer. (emphasis added)

These sections are consistent with § 42-2-122.1(8)(b), C.R.S. (1993 Repl.Vol. 17) (now § 42-2-126(9)(b), C.R.S. (1994 Cum.Supp.)) which authorizes the presiding hearing officer to "issue subpoenas for the attendance of witnesses...." See also Miller v. Motor Vehicle Division, 706 P.2d 10 (Colo.App.1985).

In contrast to the above provisions authorizing the Department or hearing officer to issue subpoenas, we are not aware of any authority that would allow a respondent in a revocation hearing, or his attorney, to issue administrative subpoenas for such a hearing. Although several subsections of § 42-2-122.1 reference a licensee's right to serve witnesses, including an officer, with subpoenas, see §§ 42-2-122.1(7)(e)(II) and 42-2-122.1(7)(e)(V), C.R.S. (1993 Repl.Vol. 17), none of these provisions authorizes a respondent, or the attorney representing the respondent, to issue the subpoenas.

A respondent in a revocation hearing...