State, Dept. of Revenue, Motor Vehicle Div. v. Borquez, 85SC466

• Decision Date: 14 March 1988
• Docket Number: No. 85SC466,85SC466
• Citation: 751 P.2d 639
• Parties: STATE of Colorado, DEPARTMENT OF REVENUE, MOTOR VEHICLE DIVISION, and Rick Pherson, Hearing Officer, Petitioners, v. Mickey Lee BORQUEZ, Respondent.
• Court: Colorado Supreme Court

Page 639

751 P.2d 639

STATE of Colorado, DEPARTMENT OF REVENUE, MOTOR VEHICLE DIVISION, and Rick Pherson, Hearing Officer, Petitioners, v. Mickey Lee BORQUEZ, Respondent.

No. 85SC466.

Supreme Court of Colorado En Banc.

March 14, 1988.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Steven M. Bush, Asst. Atty. Gen., Gen. Legal Services Sec., Denver, for petitioners.

George T. Ashen, James E. Freemyer, Denver, for respondent.

Norman S. Early, Jr., Dist. Atty., Nathan B. Coats, Chief Appellate Deputy Dist. Atty., Donna Skinner Reed, Deputy Dist. Atty., Denver, for amicus curiae District Attorney's Office, Second Judicial Dist.

LOHR, Justice.

The Colorado Department of Revenue, Division of Motor Vehicles (department), revoked the driver's license of the respondent, Mickey Lee Borquez, based on the determination of a hearing officer that Borquez had driven a vehicle when the alcoholic content of her breath exceeded 0.15 grams of alcohol per 210 liters of breath, in violation of section 42-2-122.1, 17 C.R.S. (1984). Borquez sought review of the revocation in the Denver District Court, but the court dismissed the petition for lack of jurisdiction because Borquez was not a resident of Denver. Borquez then appealed to the Colorado Court of Appeals, which reversed the dismissal but sustained the driver's license revocation on the merits. The department petitioned this court for certiorari, and we granted the petition to determine whether the Denver District Court may review the driver's license revocation of a nonresident of the City and County of Denver when the revocation is based upon a violation of section 42-2-122.1. We reverse the judgment of the court of appeals and hold that subsection 42-2-122.1(9)(a) precludes a district court from reviewing such a driver's license revocation of a nonresident of the county in which the district court sits, and that the Denver District Court correctly concluded that it lacked jurisdiction and properly dismissed the petition. ¹

I.

On May 9, 1984, Mickey Lee Borquez was driving her automobile on Kipling Street near its intersection with West Twenty Seventh Avenue when she was stopped by an officer of the Wheat Ridge Police Department. The officer had observed that Borquez was speeding and weaving in and out of her lane of traffic. At the officer's request, Borquez attempted to perform various roadside sobriety tests, but she was unable to achieve satisfactory results. At that point the officer asked Borquez to submit to a chemical test. She elected to take a breath test, and the officer transported her to the Wheat Ridge Police Department, where she gave the necessary breath samples. The test results showed a breath-alcohol concentration of 0.182 grams of alcohol per 210 liters of breath. Borquez was then charged with driving under the influence of intoxicating liquor, section 42-4-1202(1)(a), 17 C.R.S. (1984), as well as driving when her breath-alcohol concentration was 0.15 or more grams of alcohol per 210 liters of breath, section 42-4-1202(1.5)(a), 17 C.R.S. (1984). In addition to these criminal charges, administrative proceedings were commenced to revoke Borquez's driver's license pursuant to section 42-2-122.1 based upon the allegation that she had driven a vehicle when her breath-alcohol level was 0.15 or more grams of alcohol per 210 liters of breath.

A hearing to determine whether Borquez's license should be revoked was held on July 3, 1984, before a department hearing officer. At the hearing the arresting officer testified to the circumstances surrounding the arrest and the breath test. The hearing officer found that Borquez had driven when her breath-alcohol level was 0.15 or more grams of alcohol per 210 liters of breath, and revoked her driver's license for one year as required by section 42-2-122.1(5)(b).

Borquez, a resident of Jefferson County, filed a petition to review the revocation order in the Denver District Court on August 1, 1984. The department moved to dismiss the petition, asserting that the Denver District Court lacked jurisdiction over the matter because Borquez did not reside in Denver. On September 28, 1984, the court granted the motion and dismissed the petition, stating that pursuant to subsection 42-2-122.1(9)(a), it lacked jurisdiction to review the revocation.

Borquez appealed to the Colorado Court of Appeals, which reversed the trial court's order dismissing the case for lack of jurisdiction. The appellate court concluded, however, that the appeal lacked merit and therefore sustained the trial court's judgment of dismissal. Borquez v. State Dep't of Revenue, 712 P.2d 1108 (Colo.App.1985). The decision noted that section 24-4-106(4), 10 C.R.S. (1982), of the State Administrative Procedure Act specifies that, unless otherwise provided, any person adversely affected or aggrieved by state agency action may commence an action for judicial review in district court, with the residence of the state agency to be deemed to be the City and County of Denver. The court held that subsection 42-2-122.1(9)(a) simply liberalized the venue provisions of section 24-4-106(4), allowing a party challenging a driver's license revocation the option of seeking review in the licensee's home county. ² The department then sought certiorari to review the court of appeals' determination that a person whose driver's license is revoked under section 42-2-122.1 has the option of commencing an action for judicial review in Denver District Court in addition to that person's right to obtain such review in the district court of the county of her residence pursuant to subsection 42-2-122.1(9)(a). We granted the petition for certiorari.

II.

The department contends that the court of appeals erred in interpreting subsection 42-2-122.1(9)(a) as "relat[ing] solely to venue, not jurisdiction." Borquez v. State, 712 P.2d at 1109. The department asserts that subsection 42-2-122.1(9)(a) requires that any petition to review an administrative revocation order be filed in the driver's county of residence, and that failure to comply with that requirement in this case deprived the district court of jurisdiction, mandating dismissal. Borquez supports the court of appeals' interpretation of the statute as prescribing venue, not limiting jurisdiction. She reasons, therefore, that the Denver District Court had jurisdiction to hear her petition and that since the department failed to move for a change of venue, her action should not have been dismissed.

A.

Resolution of the issue presented in this case turns on the meaning of subsection 42-2-122.1(9)(a). We must determine whether this provision specifies venue or limits jurisdiction. Venue, or place of trial, see C.R.C.P. 98, relates to the locality where an action may be properly brought. See 1 J. Moore & J. Lucas, Moore's Federal Practice p 0.140 (1907). Jurisdiction has been defined as "the authority to decide a case presented to the court." Hill v. District Court, 134 Colo. 369, 373-74, 304 P.2d 888, 891 (1956).

Section 42-2-122.1 governs the administrative revocation of licenses for driving a vehicle when a driver's blood-alcohol or breath-alcohol content exceeds prescribed levels. The provisions of this statute critical to our inquiry are subsections 42-2-122.1(9)(a) and 42-2-122.1(10). Subsection 42-2-122.1(9)(a) provides:

Within thirty days of the issuance of the final determination of the department under this section, a person aggrieved by the determination shall have the right to file a petition for judicial review in the district court in the county of the person's residence.

Subsection 42-2-122.1(10) states that:

The "State Administrative Procedure Act," article 4 of title 24, C.R.S., shall apply to this section to the extent it is consistent with subsections (7), (8), and (9) of this section relating to administrative hearings and judicial review.

Article 2 of title 42, relating to drivers' licenses, also contains a general provision for judicial review of administrative action concerning such licenses. That provision is found in section 42-2-127, 17 C.R.S. (1984), and states in relevant part:

(1) Every person finally denied a license or whose license has been finally cancelled, suspended, or revoked by or under the authority of the department may, within thirty days thereafter, obtain judicial review in accordance with section 24-4-106, C.R.S.; except that the venue for such judicial review shall be in the county of residence of the person seeking judicial review.

Completing the statutory framework for our analysis is section 24-4-106(4), 10 C.R.S. (1982), of the State Administrative Procedure Act, which provides that persons adversely affected or aggrieved by agency action may commence an action for judicial review in district court within thirty days after the agency action becomes effective. The statute also is determinative of venue, stating that the residence of a state agency for purposes of this section is the city and county of Denver. See also C.R.C.P. 98(c) (with certain exceptions not applicable here, the county of a defendant's residence is a proper venue).

B.

In Kirby v. Union Pacific Railway Co. this court stated "that the bringing of an action in an improper county is not a jurisdictional defect, where the court has general jurisdiction of the subject matter...." 51 Colo. 509, 542, 119 P. 1042, 1054 (1911) (quoting School District No. 38 of Boulder County v. Waters, 20 Colo.App. 106, 77 P. 255 (1904) (emphasis added)). Thus, we must determine whether the Denver District Court had subject matter jurisdiction to review Borquez's petition under the statutes applicable to this proceeding.

Article VI, section 1, of the Colorado Constitution vests the judicial power of the state in the supreme court, the district courts, and various other enumerated courts, and Article VI, section 9(1), provides in pertinent part:

The district courts shall be ...