Articles Posted in Motor Vehicle Hearings

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Colorado law mandates that ignition interlock drivers are required to extend their ignition interlock lease agreements by a period of 12 months when it is reported by their ignition interlock provider that the ignition interlock device has prevented the operation of a motor vehicle in 3 of 12 consecutive reporting periods due to excessive alcohol.  This information is downloaded by the ignition interlock provider and submitted to DMV when it appears that the threshold for a suspension has been met.  Thus, it is critically important to always request a hearing regarding alleged ignition interlock violations.

The suspension process is initiated when DMV sends out a violation notice letter to a respondent indicating that the respondent is alleged to have violated the terms and conditions of the interlock device.  A respondent must then either submit a new igntiion interlock lease agreement (with a 12 month extension) by the deadline indicated in the letter.  Or, the respondent must request a hearing on the matter.  A respondent should never simply agree to the ignition interlock extension.  A hearing should always be requested.  At the hearing, the extension may be either rescinded, reduced, or sustained.

For example, an ignition interlock violation suspension hearing will be initiated if a driver has 5 violations in August 2015 and then 8 violations in November 2015 and 1 violation in December 2015.   On the other hand, a suspension will not be initiated if a driver has 5 reported violations in August 2015 and 15 reported violations in November 2015.  Why?  Because violations in 3 reporting periods must be shown.  In the latter example, fails from only 2 violation periods have been shown.  In other words, the sheer number of violations alone does not trigger an action from the Division of Motor Vehicles.  The action is only triggered if failures of the device prevent the operation of a motor vehicle in 3 separate reporting periods out of 12 consecutive periods.

And another thing, rolling retests don’t count.  Although an action may be triggered due to rolling retests, theses “fails” should not be upheld at an ignition interlock violation hearing.  Why?  Because they don’t fit the textbook definition of a fail.

The threshold alcohol detection level which triggers a fail is .025 BAC.  This figure is set by the Colorado Department of Public Health and Environment in 5 CCR 1005-3 and is defined as the “setpoint value”.

Many interferents may cause this setpoint value to trigger a “fail” aside from a driver drinking alcohol.  This is a false positive.  Some known causes include mouthwash, windshield washer fluid, contaminants from orthodontics/oral appliances, spicy foods, energy drinks, sweets such as cookies and donuts, mouthspray, chewing tobacco, and many other reported interferents.

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CBS News reports that NBA Star Lamar Odom was recently arrested for DUI in California:

“The former Los Angeles Laker and Clipper was arrested by the California Highway Patrol (CHP) in the early morning hours of Aug. 30 after officers noticed him driving slowly and weaving in and out of lanes.”

Driving slowly in the early morning hours combined with weaving is a sure-fire way to get pulled over in California or any other state. Police officers know that people who have been drinking and later decide to drive are often out at night and in the early hours of the morning. Police officers actively target minor traffic violations with an eye towards a possible DUI investigation especially during these prime times and often have designated “DUI cars” to focus on DUI arrests.

Colorado is no exception to this strategy. Colorado officers specifically train to look for these minor traffic infractions. Many jurisdictions in Colorado have designated “DUI officers” and “DUI cars”. The State of Colorado, Alcohol and Drug Impaired Driver Enforcement Manual, 2008 [Enforcement Manual], prepared by the Colorado Office of Transportation Safety, indicates that both “weaving” and “slow speed” are cues which “predict a driver is DWI at least 35 percent of the time”. The Enforcement Manual goes on to read that “the probability of DWI increases substantially when a driver exhibits more than one of the cues”.

According to the New York Daily News, “[t]he police report filed after his arrest described Odom as showing ‘objective signs of intoxication and was unable to perform field sobriety tests as explained and demonstrated.'”

In Colorado, roadside sobriety tests are a “search”, thus probable cause with exigent circumstances must exist or consent given from the motorist. However, because the maneuvers can’t be administered without the cooperation of the driver, consent is the typical focus of the investigating officer.

The National Highway Traffic Safety Administration [NHTSA] indicates that three (3) roadside tests are the most reliable: the Horizontal Gaze Nystagmus (HGN), the One Leg Stand, and the Walk and Turn. NHTSA claims that all three tests combined can predict a driver’s BAC of .08 or greater in 91 percent of the cases. However, many officers don’t do the roadsides correctly and a properly prepared cross-examination can reveal this.

The Colorado DUI Enforcement Manual adds the alphabet or counting, the finger-to-nose test, and the Rhomberg test to the 3 tests validated by NHTSA.

According to ESPN, “Odom refused all chemical tests and was booked for investigation of driving under the influence of alcohol or drugs at 5:01 a.m., CHP officials said.”

Refusals in Colorado are similar to that in California. In Colorado, if a driver refuses a chemical test of his blood, breath, urine, or saliva at the direction of a law enforcement officer in a DUI stop, he can potentially lose his privilege to drive for one (1) year. A driver is entitled to a hearing at the Department of Revenue to contest the refusal. The hearing must be requested within 7 days of the stop. A new law is set to take effect in Colorado in January, 2014 which will permit a driver with a refusal revocation to apply for an ignition interlock restricted license after 2 months of no driving.
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In Colorado, if you get too many points on your driver’s license, the Colorado Department of Revenue will send you a letter and politely let you know that they are taking away your driver’s license (and quite possibly your livelihood if you heavily rely upon your license).

If you get one of these letters, you must immediately contact the Department of Revenue, Division of Motor Vehicles and request a hearing. If the Department of Revenue prevails at the hearing, you can request that the Hearing Officer consider you for a probationary driver’s license “PDL” (a/k/a “red license” or “restricted license”).

If you are twenty-one (21) years of age or older, twelve (12) points accumulated in a twelve (12) month period will “earn” you a suspension, or eighteen (18) points accumulated in a twenty-four (24) month period. The point totals are calculated based upon date of violation, not date of conviction.

A minor driver between the ages of eighteen (18) and twenty-one (21) will lose her license at nine (9) points in a twelve (12) month period, or twelve (12) points in a twenty-four (24) month period.

Whereas a minor driver under eighteen (18) years of age will lose his license upon the accumulation of six (6) points in a twelve (12) month period or seven (7) points in a twenty-four (24) month period.

Special consideration is given to chauffeurs who accumulate points in the course of their employment. A chauffeur will lose her license if she accumulates sixteen (16) points in a twelve (12) month period or twenty-four (24) points in a twenty-four (24) month period.

The rules and regulations regarding driver’s license hearings are codified in 1 C.C.R. 211-2. The rules regarding the length of restraint and the issuance of a probationary driver’s license are codified at 1 C.C.R. 211-3.

A Hearing Officer will consider a “base period” of suspension before factoring-in aggravating or mitigating factors. The aggravating factors will be balanced with the mitigating factors to determine if the base period will be upheld, reduced, or lengthened.

If you find yourself facing a points suspension in Colorado it’s a good idea to get help with the underlying ticket which will trigger the suspension if the case is not resolved favorably. In other words, the best way to avoid a suspension is to not get one in the first place.

However, sometimes this may be unavoidable, or the underlying ticket may have already been pled/resolved. If that’s the case, it’s advisable to seek help with the points suspension hearing and potential probationary license hearing. Sometimes the suspension hearing can be won on technical grounds (i.e. DMV errors), a short suspension can be negotiated, or a probationary driver’s license can be obtained. It seems that probationary driver’s licenses are tougher to obtain if extensive preparation has not been done in advance of the hearing. More-favorable restrictions can also be negotiated.
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