Stackpool v. Colo. Dep't of Revenue

• Citation: 507 P.3d 100,2021 COA 150
• Decision Date: 16 December 2021
• Docket Number: Court of Appeals No. 20CA1359
• Parties: Kelly Driver STACKPOOL, Plaintiff-Appellant, v. COLORADO DEPARTMENT OF REVENUE, MOTOR VEHICLE DIVISION, Defendant-Appellee.
• Court: Colorado Court of Appeals

507 P.3d 100

2021 COA 150

Kelly Driver STACKPOOL, Plaintiff-Appellant,

v.COLORADO DEPARTMENT OF REVENUE, MOTOR VEHICLE DIVISION, Defendant-Appellee.

Court of Appeals No. 20CA1359

Colorado Court of Appeals, Division III.

Announced December 16, 2021

Recht Kornfield, P.C., Abraham V. Hutt, Andrew E. Ho, Denver, Colorado, for Plaintiff-Appellant

Philip J. Weiser, Attorney General, Laurie Rottersman, Senior Assistant Attorney General, Jessica E. Ross, Assistant Attorney General, Denver, Colorado, for Defendant-Appellee

Opinion by JUDGE LIPINSKY

¶ 1 "A person whose privilege to drive has been revoked for one year or more because of a DUI [driving under the influence], DUI per se, or DWAI [driving while ability impaired] conviction ... may apply for an early reinstatement" of her privilege to drive with an "interlock-restricted license" after her privilege to drive has been revoked for one month. § 42-2-132.5(4)(a)(I), C.R.S. 2021 (the interlock statute). A driver who is issued an interlock-restricted license must install and use a device that does not allow "a motor vehicle to be started or to continue normal operation if the device measures [a blood alcohol level] above the level established by the department of public health and environment." § 42-2-132.5(9)(a).

¶ 2 In this case, we consider whether a person convicted of felony DUI may apply for early reinstatement of her privilege to drive with an interlock-restricted license. To resolve this issue, we must decide whether the reference to "DUI ... conviction" in the interlock statute encompasses convictions for felony DUI or is limited to convictions for misdemeanor DUI.

¶ 3 At the time the General Assembly enacted the interlock statute in 2012, all DUIs were misdemeanors. See Ch. 278, sec. 1, § 42-2-132.5(4)(a)(I), 2012 Colo. Sess. Laws 1476-77. In 2015, the General Assembly amended section 42-4-1301(1)(a), C.R.S. 2021 (the DUI statute), to provide that DUI "is a class 4 felony if the violation occurred after three or more prior convictions, arising out of separate and distinct criminal episodes, for DUI, DUI per se, or DWAI; vehicular homicide ...; vehicular assault ...; or any combination thereof." Ch. 262, sec. 1, § 42-4-1301(1)(a), 2015 Colo. Sess. Laws 990. But the General Assembly did not amend the reference to "DUI ... conviction" in the interlock statute to refer to "misdemeanor DUI ... conviction" after it created the offense of felony DUI. The interlock statute referred to "DUI ... conviction" before the amendment of the DUI statute and refers to "DUI ... conviction" today.

¶ 4 So does "DUI ... conviction" in the interlock statute mean, as it did before the General Assembly created the crime of felony DUI, misdemeanor DUI convictions only, or does it mean a conviction for misdemeanor DUI or a conviction for felony DUI? Appellant, Kelly Driver Stackpool, urges us to hold that the reference to "DUI" in the interlock statute means a conviction for either misdemeanor DUI or felony DUI. Appellee, the Colorado Department of Revenue (Department), contends that the interlock statute does not allow drivers convicted of felony DUI to reinstate their privilege to drive early with an interlock-restricted license.

¶ 5 We agree with Stackpool and hold that the interlock statute encompasses convictions for misdemeanor DUI and felony DUI and, thus, provides that a person convicted of felony DUI may apply for early reinstatement of her privilege to drive with an interlock-restricted license. We therefore reverse the district court's judgment in favor of the Department on Stackpool's request to apply for early reinstatement of her privilege to drive.

I. Background Facts and Procedural History

¶ 6 In August 2018, a Colorado state patrol trooper stopped Stackpool for failing to drive in a single lane. A roadside breath test showed that Stackpool's blood alcohol content was more than twice the legal limit. The trooper arrested her for DUI. The Department initially revoked Stackpool's driver's license because her blood alcohol content exceeded 0.08. See § 42-2-126(3)(a)(I), C.R.S. 2021 ("The [D]epartment shall revoke the license of a person for excess [blood alcohol content] 0.08....").

¶ 7 Under the interlock statute, Stackpool applied for early reinstatement of her privilege to drive, and the Department issued her an interlock-restricted license in November 2018.

¶ 8 On September 18, 2019, Stackpool pleaded guilty to DUI — fourth or subsequent offense, a class 4 felony. See § 42-4-1301(1)(a). One month later, the Department sent Stackpool two notices stating that it had revoked her privilege to drive. But the notices contained inconsistent language.

¶ 9 One notice, citing section 42-2-125(1), C.R.S. 2021, informed Stackpool that her privilege to drive had been revoked for two years because she had been "convicted of 3 or more alcohol and/or drug violations." It further stated that, "in accordance with [ section] 42-2-132.5, you may be eligible to reinstate early with an ignition interlock restricted driving privilege after serving one (1) month under revocation." The parties agree that the Department premised the first revocation notice on section 42-2-125(1)(i). The second notice generally cited section 42-2-125 (the revocation statute), which addresses "[m]andatory revocation of license and permit." That notice stated that the Department had revoked Stackpool's privilege to drive for one year because she had been "convicted of a felony in which a motor vehicle was used" and that she was "not eligible for any type of driving privileges during the revocation period." The Department premised the second revocation notice on section 42-2-125(1)(c).

¶ 10 Stackpool requested an administrative hearing on the Department's determination that she was ineligible for early reinstatement of her privilege to drive with an interlock-restricted license because she had been convicted of a felony.

¶ 11 The hearing officer held that the Department did not err by revoking Stackpool's driver's license for one year because she had been "convicted of a felony DUI which requires the use of a motor vehicle." He noted that, as reflected on its website, the Hearing Division of the Department took the position that

if you are convicted of a felony offense which involved the use of a motor vehicle, your license will be revoked for one year. You may not drive while your license is under revocation. There are no driving privileges that can be granted by the Hearings Division while under this type of action.

The hearing officer concluded that, in light of Stackpool's revocation under section 42-2-125(1)(c), he had "no authority to determine [Stackpool's] eligibility [for early reinstatement with an interlock-restricted license under the interlock statute] or the propriety of the [Department's] denial."

¶ 12 Stackpool appealed to the district court, which affirmed the hearing officer's decision. Stackpool appealed the district court's judgment.

II. Analysis

¶ 13 Stackpool contends that the district court erred by (1) incorrectly interpreting the interlock statute to hold that drivers convicted of felony DUI are not entitled to apply for an early reinstatement of their privilege to drive with an interlock-restricted license and (2) failing to grant her motion for change of judge. The Department responds that the district court correctly affirmed the hearing officer's decision and asserts in its answer brief that Stackpool's appeal is moot because, during the pendency of the appeal, the Department issued an interlock-restricted license to her.

A. Mootness

¶ 14 At oral argument, the Department withdrew its assertion that Stackpool's appeal of the district court's judgment affirming the hearing officer's decision is moot. However, because "[m]ootness is a jurisdictional prerequisite," Diehl v. Weiser , 2019 CO 70, ¶ 9, 444 P.3d 313, 316, that the parties can neither agree upon nor waive, Horton v. Suthers , 43 P.3d 611, 615 (Colo. 2002), we must determine whether we have jurisdiction to consider Stackpool's statutory interpretation argument under an exception to the mootness doctrine.

¶ 15 Although "[a]ppellate courts generally will not render opinions on the merits of an appeal when the issues have become moot," they "may resolve an otherwise moot case if the matter is one capable of repetition yet evading review." Johnson v. Griffin , 240 P.3d 404, 406 (Colo. App. 2009). Colorado cases addressing this exception to the mootness doctrine differ in their interpretation of the meaning of "capable of repetition." See People in Interest of Vivekanathan , 2013 COA 143M, ¶¶ 25-28, 338 P.3d 1017, 1022 (Hawthorne, J., dissenting). Some cases hold that an issue is capable of repetition if it "may" recur, see, e.g., Byrne v. Title Bd. , 907 P.2d 570, 573 (Colo. 1995), while other cases apply the exception only if the issue is "likely" to recur, see, e.g., Carney v. Civ. Serv. Comm'n , 30 P.3d 861, 864 (Colo. App. 2001). An issue evades review when its effect does not persist long enough for appellate review. See, e.g., People in Interest of Hoylman , 865 P.2d 918, 920 (Colo. App. 1993) (holding that disputes involving orders for short-term hospitalization will evade review because those orders "will expire before ... review ... may be had before an appellate court").

¶ 16 While the issue of whether a driver convicted of felony DUI is entitled to seek early reinstatement of her privilege to drive with an interlock-restricted license is moot with respect to Stackpool, we hold that it is an important issue capable of repetition yet evading review. We need not resolve the courts' differing interpretations of the meaning of "capable of repetition" because we conclude that this prong is satisfied here under the more stringent "likely to recur" test.

¶ 17 Although the record does not indicate how often this issue arises, the parties have brought to our attention a number of district court decisions addressing whether drivers convicted of...