Wilson v. Hill
| Citation | 782 P.2d 874 |
| Decision Date | 12 October 1989 |
| Docket Number | No. 88CA1065,88CA1065 |
| Parties | Jerome WILSON, Plaintiff-Appellant, v. Nelson HILL and Department of Revenue of the State of Colorado, Motor Vehicle Division, Defendants-Appellees. . IV |
| Court | Court of Appeals of Colorado |
Joseph A. Koncilja, Pueblo, for plaintiff-appellant.
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., and Joe L. Martinez, Jr., Asst. Atty. Gen., Denver, for defendants-appellees.
Opinion by Judge FISCHBACH. *
Plaintiff, Jerome Wilson, appeals from the district court judgment affirming the revocation of his driver's license by the Department of Revenue (Department) pursuant to § 42-2-122.1, C.R.S. (1984 Repl.Vol. 17). The sole issue on appeal is whether the revocation was improper because of an untimely administrative hearing. We conclude that the revocation hearing was not timely held and that this statutory violation requires dismissal of the proceeding. Accordingly, we reverse.
Following his arrest for driving under the influence of alcohol on October 17, 1987, plaintiff submitted to a breath test to determine his blood alcohol content. Based on the breath test results, the arresting officer served a notice of revocation on plaintiff, and on October 23, 1987, plaintiff filed a timely request for a hearing with the Department. See § 42-2-122.1(7)(b), C.R.S. (1984 Repl.Vol. 17). The Department subsequently sent plaintiff notice that the hearing would be held on December 14, 1987.
On December 14, 1987, plaintiff, his attorney, and the arresting officer all appeared for the scheduled hearing, but because of a personal problem, the hearing officer rescheduled it for December 24, 1987. On December 24, 1987, plaintiff, relying upon Colo.Sess.Laws 1983, ch. 476, § 42-2-122.1(7)(e) at 1644, objected to proceeding with the hearing on the ground that it was then more than sixty days after the filing of the request. The hearing officer rejected this argument, and the hearing was held on that day. At the conclusion of the hearing, the hearing officer revoked plaintiff's driver's license.
On review, the district court affirmed the revocation, ruling that a hearing under § 42-2-122.1 must be scheduled, but not necessarily held, within sixty days after the filing of a request. Plaintiff contends, however, that a revocation hearing under § 42-2-122.1 must actually be held within sixty days after the request for a hearing is filed. We agree.
Colo.Sess.Laws 1983, ch. 476, § 42-2-122.1(7)(c) at 1644, as then in effect, provided in pertinent part that:
"the hearing shall be scheduled as soon as possible, but in no event later than sixty days after the filing of the request for a hearing."
Cf. § 42-2-122.1(7)(e), C.R.S. (1989 Cum.Supp.) ("[t]he hearing shall be scheduled to be held as quickly as practicable but not more than sixty days after the filing of the request for a hearing....")
We hold first that the plain meaning of these provisions is that a revocation hearing conducted under the statute applicable here must be held not more than sixty days after the filing of the request for a hearing. See Mattingly v. Charnes, 700 P.2d 927 (Colo.App.1985); cf. Perez v. Department of Revenue, 778 P.2d 326 (Colo.App.1989).
We further conclude that the Department's failure to hold the required hearing requires dismissal of the action against plaintiff.
Statutory provisions governing time for actions to be taken by public officials and agencies are not jurisdictional unless a contrary legislative intent is clearly expressed. People ex rel. Johnson v. Earl, 42 Colo. 238, 94 P. 294 (1908). If the duty described is of a public nature and for a public benefit, time limitations are directory "unless ... from the language employed in the [s]tatute, it plainly appears...
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McRaith v. BDO Seidman, LLP, No. 1-06-1430 (Ill. App. 1/21/2009)
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