People v. District Court of Seventeenth Judicial Dist., 80SA521

• Decision Date: 09 February 1981
• Docket Number: No. 80SA521,80SA521
• Citation: 623 P.2d 55
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. The DISTRICT COURT of the SEVENTEENTH JUDICIAL DISTRICT and the Honorable Harlan R. Bockman, One of the Judges Thereof, Respondents.
• Court: Colorado Supreme Court

Page 55

623 P.2d 55

The PEOPLE of the State of Colorado, Petitioner, v. The DISTRICT COURT of the SEVENTEENTH JUDICIAL DISTRICT and the Honorable Harlan R. Bockman, One of the Judges

Thereof, Respondents.

No. 80SA521.

Supreme Court of Colorado, En Banc.

Feb. 9, 1981.

Paul Q. Beacom, Dist. Atty., Marc P. Mishkin, Deputy Dist. Atty., Brighton, for petitioner.

Robert W. Caddes, Denver, for respondents.

LOHR, Justice.

We issued a rule under C.A.R. 21 directing the respondent district court to show cause why it should not be prohibited from admitting certain evidence which the defendant, Patrick Able, proposes to offer during his pending trial on the criminal charge of operating a motor vehicle while under revocation as an habitual traffic offender, section 42-2-206, C.R.S.1973. We now make that rule absolute.

A sketch of the history of this case is necessary to an understanding of the issue before us. The defendant's driver's license was revoked pursuant to section 42-2-203, C.R.S.1973, as the result of an administrative hearing held by the Department of Revenue. The revocation was based upon a finding by the hearing officer that the defendant was an habitual traffic offender because he had sustained three driving convictions within a seven-year period. See section 42-2-202, C.R.S.1973. One of the driving convictions relied upon was based on a municipal ordinance prohibiting reckless driving. ¹ The defendant did not appeal from the revocation order, as he could have done pursuant to section 42-2-204, C.R.S.1973.

Thereafter, the defendant was arrested and charged in county court with operating a motor vehicle while under revocation as an habitual traffic offender, section 42-2-206, C.R.S.1973. He moved to dismiss the charge on the basis that the Department of Revenue hearing officer should not have considered the municipal ordinance violation. The defendant reasoned that the hearing officer's improper reliance on that violation to support revocation of the defendant's driver's license made the order revoking his license void. The county court was persuaded and dismissed the charge.

The People then filed an information in the district court charging the defendant with the same offense. He again successfully moved to dismiss on the same grounds urged in the county court.

The People appealed from the district court's judgment of dismissal, and we reversed and remanded the case to that court with instructions to reinstate the information. People v. Able, Colo., 618 P.2d 1110 (1980). There we held that, in a trial for violation of section 42-2-206, C.R.S.1973, the defendant could not collaterally attack the order of revocation on any bases other than lack of jurisdiction or a violation of constitutional protections in the proceeding upon which the order was based.

After the information had been reinstated, the defendant moved for an in limine hearing on certain objections and defenses, all of which challenged the Department of Revenue's order revoking his driver's license. Although cast in the form of alleged violations of provisions of the United States and Colorado Constitutions and lack of jurisdiction, the defendant's arguments are bottomed on the single contention that reliance on the municipal ordinance violation makes the order revoking his driver's license void, or at least voidable, and subject to collateral attack. ²

At the hearing on the defendant's motion in limine the defendant expressed the intent to offer at his trial an affidavit of the director of the Motor Vehicle Division of the Department of Revenue reflecting that revocation of his driver's license was based upon erroneous consideration of the municipal ordinance violation and expressing the opinion that the order of revocation is a nullity for that reason. The trial court concluded that evidence of the mistake underlying the order of revocation could be introduced, ruling as follows:

"At this point I am going to allow the jury to have the evidence as to what facts were or were not before the Department of Revenue when they made their order, especially based upon the Affidavit presented today by the Department of Revenue, indicating that they entered whatever order by mistake. Under those circumstances, I will allow the Department of Revenue representative, if that's honestly his opinion, to set forth what is the position of the Department of Revenue."

The trial court also ruled, on the basis of lack of relevance, that the People would not be permitted to introduce evidence that, if the error in consideration of the municipal ordinance violation had been raised in the proceeding before the hearing officer, the People could have produced evidence of another traffic conviction sustained by the defendant which would have been sufficient to support the order of the hearing officer.

The People seek relief in the nature of prohibition in this court to prevent implementation of the trial court's order permitting evidence collaterally attacking the validity of the order of revocation of the defendant's driver's license to be introduced at trial.

I.

We first consider the appropriateness of exercise of our original jurisdiction in this matter under C.A.R. 21.

It is implicit in the trial court's ruling that the jury will be permitted to consider whether the order of revocation of the defendant's driver's license is valid. This is the only purpose for which the evidence in issue here would be relevant. If the jury is permitted to acquit the defendant on the basis that the order of revocation is invalid, the defendant would have been in jeopardy and could not be retried, ³ although the People could challenge the trial court's ruling on appeal. See section 16-12-102, C.R.S.1973 (now in 1978 Repl.Vol. 8). Moreover, the permissibility of collateral attack on the order of revocation here in question was considered and ruled on by us in People v. Able, supra, in a manner consistent with the People's position here. Because we conclude that the trial court abused its discretion ⁴ and appellate remedies are inadequate, we exercise our original jurisdiction under C.A.R. 21. See, e. g., Varner v. District Court, Colo., 618 P.2d 1388 (1980) (Supreme Court No. 80SA344, announced November 3, 1980); Chicago Cutlery Co. v. District Court, 194 Colo. 10, 568 P.2d 464 (1977); Tyler v. District Court, 193 Colo. 31, 561 P.2d 1260 (1977); Vaughn v. District Court, 192 Colo. 348, 559 P.2d 222 (1977); People v. District Court, 183 Colo. 101, 515 P.2d 101 (1973).

II.

Our ruling in People v. Able, supra, in this very case is dispositive of this matter. There we explicitly held as follows:

"We agree with the People's contention that, in the criminal proceeding brought under section 42-2-206, C.R.S.1973, the appellee was not entitled to collaterally attack the 1975 order revoking his driver's license on the basis that, in entering that order, the hearing officer had improperly considered a municipal reckless driving conviction."

618 P.2d at 1112. The defendant's arguments, though variously framed, all have their source in the proposition that the order of revocation was erroneously entered because the municipal ordinance violation should not have been considered. We answered this argument in People v. Able, supra, in the following manner:

"When an administrative agency has jurisdiction over the person and subject matter in question, and when the agency is not proceeding contrary...