Articles Posted in Motor Vehicle Hearings

Get a Colorado Driver’s License Even if You are Revoked Out-of-State

Published on: June 11, 2019 | by Monte J. Robbins, Esq.

Revoked out-of-state? Even a lifetime/permanent revocation? If you are a Colorado resident, you might be able to obtain a Colorado driver’s license. Colorado has some of the most generous laws in the country in terms of issuing driver’s licenses. You may be eligible for a Colorado driver’s license even though you have been denied elsewhere. Perhaps you lived in New York and have 5 or more convictions on your driving record for alcohol/drug driving offenses. Or perhaps you caught a 10 year revocation in Florida on a 3rd DUI. Whatever the case may be, if you are a legal Colorado resident, you may be eligible to obtain a driver’s license regardless of the revocation imposed out-of-state.

Accordingly, even though a person is under restraint in another state, Colorado might issue that person a driver’s license under Colorado law. In other words, a Hearing Officer may apply Colorado law to the person’s out-of-state driving record to determine when the person would be eligible for a license in Colorado had the driving violations occurred in Colorado. If the driver would currently be eligible in Colorado had the violations occurred here, the driver may be issued a license.

“Is this legal?” The simple answer is yes. “How can Colorado do this, doesn’t Colorado belong to the Driver License Compact?” Yes, Colorado belongs to the Driver License Compact a/k/a “Interstate Compact” which essentially indicates that Colorado will check “the national list” (National Driver Registry) to determine if a Colorado driver’s license applicant has any outstanding holds from other states. Colorado motor vehicle will typically advise an applicant to go clear the holds before they may be issued a Colorado driver’s license. However, Colorado is one of the only states that has an exception to the general rule that out of state holds must be cleared first. Colorado may issue an applicant a driver’s license after a hearing before the Hearings Division of the Colorado Department of Revenue. Not all applicants will qualify for this type of driver’s license depending upon the nature of the hold(s) and other criteria the Hearings Division will utilize.

Not all states belong to the Driver License Compact. Michigan, Tennessee, Massachusetts, Wisconsin, and Georgia are not members. Some US states will even take action based upon violations that a driver receives in Canada. These states are New York, Florida, Maine, and Michigan.

The National Driver Registry is what I refer to as the “black list”. It is a computerized database of drivers who have been convicted of major traffic violations, have been revoked, or have been suspended. This is the list that may prevent a driver from obtaining a driver’s license.

In Colorado, a driver’s license “revocation” refers to an action where a person’s license is cancelled for a set period of time based upon a conviction for any of the following enumerated offenses: manslaughter or negligent homicide when a motor vehicle was involved, DUI alcohol or DUI drugs, a Felony offense when a motor vehicle was used, leaving the scene of an accident involving death or injury, and other convictions.

If a person applies for a driver’s license in Colorado and thereafter is denied due to an out-of-state hold, the person may contact the state where the hold originated in an attempt to obtain a letter of clearance. If a letter of clearance is not attainable, an applicant may request a hearing in Colorado under the Interstate Driver License Compact Rule before the Hearings Division. Once the Hearings Division receives the request, DMV will obtain the applicant’s out-of-state driver record which will be utilized at the hearing.

In order to qualify for a license in Colorado an applicant with an out-of-state hold/revocation must be able to show that she has not driven for at least one year. Further, an applicant must be safe to drive in Colorado and it must be determined that the applicant would not endanger others (or property). The applicant must be a Colorado resident (established by employment, phone bill/utility bill, voter registration, or other documentation that proves that the applicant resides in Colorado).

A reinstatement eligibility date will be determined at the hearing and an applicant should receive credit for any amount of time already served without driving privileges in the home state which issued the revocation.

FREQUENTLY ASKED QUESTIONS (FAQ)

“Do you offer free consultations for people who wish to apply for a Colorado driver’s license?”

If you are already a Colorado resident, contact Attorney Monte Robbins to discuss the possibility of retaining Mr. Robbins to represent you in the driver’s license application process despite your out-of-state holds for DUI offenses (current Colorado residents only please).

“I live in Colorado and have unpaid tickets in another state. Can you help me get a license so I don’t have to pay those out of state tickets?”

No, we don’t offer this service. Our service is limited to helping Colorado residents who have out of state DUI holds only. It’s probably best (and cheaper) just to go ahead and pay those out of state tickets rather than trying to hire a lawyer to avoid paying them.

“I live in another state and am thinking about moving to Colorado if you can get me a driver’s license. Will you give me free advice as to how to get a Colorado driver’s license?”

No, unfortunately we don’t offer this service. Applying for a Colorado driver’s license is available to current Colorado residents only. Due to an overwhelming amount of inquiries in this area, we don’t offer free consultations or free advise to out-of-state residents who are thinking about moving to Colorado and applying for a Colorado driver’s license. Thank you for your understanding. If you choose to move to Colorado and become a Colorado resident, you’re welcome to contact Attorney Robbins to inquire about retaining his services to obtain your driver’s license as a Colorado resident.

“Is there a guarantee that I will get a Colorado driver’s license?”

No. There are no guarantees in life and obtaining a Colorado driver’s license is no exception.

“I live in another state and am thinking about moving to Colorado so I can get a driver’s license. What are my odds?”

Obtaining a Colorado driver’s license is limited to Colorado residents only. We don’t have the staff to offer advice or “odds” to out-of state residents who are thinking about moving to Colorado. Thank you for your understanding.

“Can you pull up my driver history record and tell me if I can get a license?”

No, due to driver privacy protection laws, we don’t have access to your driver history record unless we are representing you. In order to obtain your driving record we must first be retained as your lawyer and submit proper release documentation to DMV before accessing your record.

“It’s the weekend and DMV is closed. Can you look-up my record and tell me what’s going on with my license?”

No, we don’t have access to your record and don’t provide this service. Please contact Driver Services during normal business hours at 303-205-5613 to get answers to your questions.

Dismissal of DUI Charges When Police Violate Colorado Express Consent

Published on: May 15, 2019 | by Monte J. Robbins, Esq.

If a police officer in Colorado has probable cause to believe that a person’s ability to drive is impaired even to the slightest degree due to alcohol consumption, he will require the person (driver) to submit to a chemical test of either blood or breath. According to Colorado law, the driver has already consented to this test simply by driving on the roads in Colorado. An adult driver at least 21 years of age or older has a right to a blood test.

If extraordinary circumstances are present, then a police officer may request that a driver submit to a different test than the one chosen. Extraordinary circumstances are those which are out of the control of law enforcement. Examples include, but are not limited to: high call volume affecting medical personnel, power outages, malfunctioning breath test equipment and weather-related delays. Extraordinary circumstances do not include: a busy workload, inconvenience, a minor delay that does not impact the 2-hour window to complete the test, and routine circumstances within law enforcement’s control.

Absent extraordinary circumstances, a driver may not change his election of chemical test. In other words, a driver may not select blood and then change his mind to breath or vice versa. The police officer is required by law to accommodate the driver’s initial selection. Although the law does not specify sanctions when the police don’t honor the driver’s initial selection, case law has shown that dismissal is appropriate in certain cases.

The purpose of the Express Consent Statute is to facilitate cooperation between law enforcement and drivers in promoting highway safety. In order to further this cooperation, the law creates mutual rights and responsibilities for the driver and the police. If a police department has no reasonable protocol in place for completing the driver’s selection of test, then dismissal of the charges has been held in some cases to be an appropriate remedy. Further, the courts have held that when an officer denies a driver his right to choose between a blood and a breath test that the officer denies the driver the right to establish non-intoxication. The state may not disregard the statutory rights of drivers with impunity.

Although dismissal of DUI charges against a person has been held to be a drastic remedy, courts appear to be serious about ensuring that the police honor a driver’s selection. Dismissal has been held to be an appropriate remedy when the police don’t have a reasonable protocol in place to obtain and complete the test under routine circumstances or when the test that the driver selected is not given and there is no good faith effort by the police to follow that protocol.

60 Day Deadline for Colorado Express Consent DUI Hearings

Published on: November 30, 2018 | by Monte J. Robbins, Esq.

Colorado Express Consent (DUI) Revocation Hearings must be held within 60 days of the request pursuant to CRS 42-2-126. The Hearings Division loses jurisdiction over the case after 60 days. There are a few exceptions to the 60 day time limit such as the unavailability of the law enforcement officer or unavailability of the hearing officer. However, there are no exceptions for the unavailability of the respondent or respondent’s lawyer. If the hearing is rescheduled beyond the 60 day time period due to the unavailability of the law enforcement officer or hearing officer, the respondent driver’s temporary permit shall continue until the new hearing date.

Colorado case law has held that a hearing must not only be scheduled, but actually held within the 60 day time period. In the 1989 Colorado Court of Appeals case of Wilson v. Hill, 782 P.2d 874, the Court held that the department’s failure to hold the Express Consent Revocation hearing within 60 days required dismissal of the action. If the 60th day lands on a Saturday, Sunday, or legal holiday, the Hearings Division can still hold a timely hearing outside 60 days if the hearing is held by the end of the next business day. The date the respondent requests the hearing is not included in the calculation of the 60 days. In other words, the Hearings Division gets a full 60 days after the date of the request to hold the hearing. Bottom line is that it’s important to always check the date of the hearing to make sure that it’s within 60 days of the request. If it’s not within 60 days, a motion to dismiss is critical.

Although the hearing must be held within 60 days, there is no statutory requirement that the Hearings Division actually render a decision within 60 days. Sometimes hearing officers “take matters under advisement” for days or even weeks beyond the hearing before rendering a decision in a case.

A respondent driver must request an Express Consent Revocation Hearing within 7 days of the date of notice (indicated on the Express Consent Affidavit and Notice of Revocation). It’s important to note that this 7 day period includes weekends and holidays. Thus, it’s critical for a respondent driver to immediately request an Express Consent Revocation Hearing upon receipt of the Affidavit and Notice of Revocation to avoid any possible miscalculations.

There are some exceptions for timely requesting a hearing within the required 7 days. These exceptions include when a respondent was unable to make timely request due to lack of actual notice of the revocation or factors of physical incapacity such as hospitalization or incarceration. If a late hearing request is granted, however, the respondent driver will not receive a temporary permit to drive on up until the hearing.

Colorado Driving After Revocation Prohibited (DARP) as a Habitual Traffic Offender (HTO) Criminal Penalties 2018

Published on: April 20, 2018 | by Monte J. Robbins, Esq.

Driving after revocation prohibited in Colorado is a Class 1 Misdemeanor punishable by a minimum of 6 months in jail up to 18 months jail and a fine of $500 up to $5000. Clearly, driving after revocation prohibited in Colorado is a serious offense.

A driving after revocation prohibited charge occurs when a person who has been found to be a habitual traffic offender at DMV drives a motor vehicle in Colorado. A separate provision of the statue provides that there is a mandatory minimum 30 days jail to be imposed for a conviction for driving after revocation prohibited (DARP), however the court may suspend the mandatory 30 days jail (or a portion of it) if the person completes at least 40 hours of community service up to a maximum of 300 hours of community service. A lot of courts and district attorneys seem to not like this provision of the statute. Many courts and district attorneys believe that jail should be served in all DARP cases and won’t consider community service as a substitute.

A mandatory minimum fine of $3000 shall be imposed in lieu of jail or in addition to jail. The mandatory minimum fine may be suspended entirely or partially if the person completes 40 to 300 hours of community service. The court does not have the discretion to place someone on probation for a DARP offense. If the court agrees to community service instead of jail, the court may vacate a suspended jail sentence upon the person’s successful completion of the community service hours. If the person does not complete the community service hours (if ordered) the court has to impose the mandatory jail and/or mandatory fine.

In prosecuting the charge, the district attorney’s office has to prove that the driver had “knowledge” of the revocation. Knowledge it is an essential element of the charge. The mailing of the notice of the order of revocation from DMV is only prima facie proof of receipt, and it is not conclusive proof. The district attorney’s office also has to show that the person operated a motor vehicle in Colorado while the order of revocation of the person’s driver’s license as a habitual traffic offender (HTO) was in effect.

Aggravated driving with a revoked license occurs when an HTO driver commits any of the following offenses while driving a motor vehicle: reckless driving, vehicular eluding, hit-and-run/failure to report an accident, and eluding or attempted eluding of a police officer. Aggravated driving with a revoked license is punishable as a Class 1 Misdemeanor with a minimum sentence of 60 days jail. It’s important to note that there is no provision in the statute for a person to complete community service in lieu of jail under an aggravated driving with a revoked license charge. Probation may also be imposed for aggravated driving with a revoked license.

If a person is found to be driving under the influence (DUI), driving under the influence per se (DUI per se), or driving while ability impaired (DWAI) and at the same time driving after revocation prohibited, she will be subject to a separate sentence for each offense. Probation for the aggravated DARP charge may run concurrent with the DUI/DWAI charge. Both convictions, if applicable, will be reported on the person’s driving history.

By statute, district attorneys are required to screen all cases where a person is charged with driving under revocation or driving without a driver’s license to determine if the person should actually be charged with the greater offense of driving after revocation prohibited (DARP). Essentially, the district attorney is required to screen all cases to determine if the person charged has been found to be a habitual traffic offender (HTO) at DMV. If so, the district attorney’s office is required by law to charge the person under the DARP law.

Colorado Habitual Traffic Offender (HTO) Driver’s License Penalties

Published on: April 20, 2018 | by Monte J. Robbins, Esq.

Three (3) or more major offenses in a seven (7) year period will cause the Colorado Department of Revenue, Division of Motor Vehicles (DMV), to impose severe driver’s license sanctions against a driver. These major offenses include: driving under the influence (DUI), driving while ability impaired (DWAI), driving under the influence per se (DUI per se), reckless driving, driving under revocation, false affidavit or false swearing to DMV, vehicular homicide, vehicular assault, manslaughter-motor vehicle related, criminally negligent homicide-motor vehicle related, aggravated motor vehicle theft, and hit-and-run/leaving the scene of an accident involving injuries or death.

Some out-of-state convictions also qualify. This is an enhanced provision of the statute. If Colorado DMV is aware of a conviction for any of the following offenses out-of-state, charged federally, or charged in a municipal court it may factor in the non-Colorado conviction in reaching a determination that a driver is a Habitual Traffic Offender (HTO). Out-of-state (or charged federally) convictions for DUI, DUI per se, DWAI, reckless driving, driving under restraint, vehicular assault, vehicular homicide, manslaughter-motor vehicle related, and criminally negligent homicide-motor vehicle related may trigger an HTO sanction/determination at Colorado DMV. According to the law, it does not matter if the driver is a Colorado resident or out-of-state resident for determination of status as HTO.

If more than one HTO offense is committed on the same day, the law reads that the multiple offenses shall be treated as one offense for purposes of determining HTO status. Thus, if a driver is convicted of both DUI and driving under restraint on the same day, only one HTO strike shall be imposed upon the driver at DMV.

When Colorado DMV has made a determination that a driver is HTO, it will immediately revoke the driver’s license pursuant to CRS 42-2-203. A habitual traffic offender (HTO) will be revoked for a period of 5 years from the HTO determination. However, sometimes HTO drivers may be reinstated early with ignition interlock.

A driver will also be designated as a Habitual Traffic Offender if she accumulates 10 or more traffic convictions of 4 or more points within a 5 year period, based upon date of violation (not date of conviction). Or, she will also be designated as a Habitual Traffic Offender (HTO) is she accumulates 18 or more convictions having a point assessment of 3 or fewer points within a 5 year period (based upon date of violation, note date of conviction).

In light of the Hedstrom case, 662 P.2d 173 (Colo. 1983), the DMV does not have any discretion when making an HTO determination. In other words, if the driver has the reached the threshold qualifying conviction, DMV cannot make an exception to the rule of revoking a driver’s license for 5 years. Further, in light of the Fuhrer case, 592 P.2d 402 (1979), a DMV hearing officer does not have discretion to issue a probationary driver’s license to a Habitual Traffic Offender.

It is also important to note that Habitual Traffic Offenders remain designated as such, even after the 5 year period has passed, until the driver actually goes therough the reinstatement process at DMV. In other words, the HTO status is not automatically lifted at DMV after the 5 year sanction has been completed.

The Habitual Traffic Offender laws in Colorado have developed significantly within the past few years. The HTO designation has become easier for DMV to prove by the use of out-of-state major convictions. Thus it is imperative for a driver to not “achieve” HTO status at DMV to avoid the severe sanction of a 5-year loss of license. HTO status can be avoided if the driver is aware of his prior convictions and successfully navigates the court system, when charged, to resolve his matter to a non-HTO strike.

Driving Under Restraint, Suspension, or Revocation in Colorado in 2018

Published on: March 14, 2018 | by Monte J. Robbins, Esq.

In Colorado it’s illegal for a driver to drive a motor vehicle when the person knows that their license is “under restraint”. “Knowledge” of the restraint is an element that the district attorney’s office would have to prove in order to obtain a conviction if the matter were to proceed to trial. Sometimes the “knowledge” element may be difficult for a district attorney to prove due to various factors such as a driver not receiving a notice of suspension letter in the mail from DMV. “Knowledge” under this law pertains to actual knowledge of any restraint from whatever source. “Knowledge” does not mean that the person had to have knowledge of a specific restraint or the length of the restraint.

Colorado’s driving under restraint law applies to persons who are driving under suspension, restraint, denial, and revocation. Further, this law applies to both residents and non-residents of Colorado. The violation of this law is a misdemeanor with a maximum possible jail sentence of 6 months and a maximum possible fine of $500 for offenses committed when the person’s license is under restraint, suspension, or revocation for reasons not related to alcohol traffic violations such as driving while ability impaired, driving under the influence, driving under the influence per se, or underage drinking and driving. This statute specifically notes that this penalty applies to offenses that occurred on or after July 1, 1974.

Under Colorado law, if there is a second or subsequent conviction for driving under restraint whereby the restraint is not due to an alcohol traffic violation and the conviction occurs within 5 years of the previous conviction, the division of motor vehicles (DMV) will not issue a driver’s license to an adult or minor for 3 years after the second or subsequent conviction. This DMV penalty is in addition to any penalty imposed by the court for the driving under restraint charge.

The penalty is enhanced for those drivers who are convicted of driving under restraint when their license is suspended, revoke, or under restraint for alcohol-related traffic violations. Colorado considers a restraint due to an alcohol-related traffic offense to be more serious or more aggravated than driving under suspension due to accumulating too many points or not having having insurance, for instance. The restraint in these types of cases can be entirely or partially due to an alcohol-related traffic offense. This statute applies to both residents and nonresidents of Colorado and to restraints due to convictions in Colorado for DUI, DUI per se, underage drinking and driving (UDD), and DWAI as well as restraints due to Express Consent Revocations pursuant to CRS 42-2-126, as well as out-of-state alcohol-related traffic offenses. The mandatory penalty is a minimum 30 days jail up to a maximum of 1 year and a fine of $500 dollars up to $1000 dollars.

A second or subsequent conviction carries an even more enhanced penalty of a minimum of 90 days in jail up to a maximum of 2 years and a fine of $500 dollars up to $3000 dollars. The minimum 90 day jail sentence is mandatory and the Court does not have discretion to grant probation or a suspended sentence. In cases where a driver is convicted of driving a motor vehicle under restraint (and the restraint due to an alcohol offense) a driver may avoid the mandatory jail provision if she can show that she had to drive due to an emergency. This, however does not mean that the driver will absolutely avoid any jail, but rather it simply means that the driver is not subject to mandatory jail. The possible maximum penalty under this factual situation for a first offense is 1 year with a maximum fine of $1000. For a second or subsequent offense where it is shown that an emergency necessitated the driving under restraint, there is no mandatory jail, however the court may impose in its discretion jail of up to 2 years and a fine not to exceed $3000. If the second or subsequent driving under restraint due to an alcohol offense occurs within 5 years after the first conviction, then DMV will further sanction the driver in that she will not be eligible for a driver’s license for 4 years after the second or subsequent conviction.

When there is a verdict or judgement of guilt for an alcohol or non-alcohol related driving under restraint, the Court shall require the driver to immediately surrender his driver’s license issued by Colorado or another state. Thereafter, the Court shall complete a special form notifying the DMV of the notice of verdict or judgment of guilt and send the driver’s license with this form to DMV. The law further reads that a person who does not surrender her license to the court commits a separate misdemeanor traffic offense. Thus it is important for drivers (and the courts) to be aware of this additional surrender requirement.

If a person drives a motor vehicle in Colorado and the restraint is due to an outstanding judgment warrant (OJW), then the penalty is reduced to a non-criminal traffic infraction.

If a person is convicted of driving under restraint whereby the restraint was not initiated by an OJW, the person’s eligibility for a driver’s license at DMV will be extended by one (1) year. In other words, in addition to the criminal penalties provided by the Court, DMV will also impose a sanction whereby a person will not be eligible to reinstate their driver’s license for a period of 1 year on top of their current eligibility date. This is a very common issue that surfaces when drivers elect to represent themselves in driving under restraint cases in court. Sometimes a pro se defendant (a person without a lawyer) will achieve a reduced charge in a driving under restraint case and maybe even avoid jail time. However, the person soon learns thereafter that because they pleaded guilty to a moving violation during the period of restraint that they will now lose their license for 1 year (and they are not eligible for any kind of “red license” , “work license”, or “probationary license” during this 1 year period). Thus due to the potential collateral consequences at DMV, driving under restraint cases can be much more complex than simply rushing through the court process to get a plea so that one may return home to catch the last few minutes of Orange is the New Black on Netflix. Achieving a good resolution in the criminal case is only half the battle.

The Letter No One Wants: Colorado DMV is Extending Your Interlock Due to Violations

Published on: August 18, 2017 | by Monte J. Robbins, Esq.

Picture yourself enjoying Colorado’s blue sky and sunshine and reaching into your mailbox to find this little “gem”:

“Colorado Department of Revenue records indicate that your ignition interlock device has prevented the operation of a motor vehicle in three of twelve consecutive reporting periods due to excessive blood alcohol content. In accordance with CRS 42-2-132.5 the period of your driver license interlock restriction is hereby extended for an additional one (1) year from the current expiration of your restriction. If we do not receive a new lease agreement by the Order of Suspension effective (date indicated in letter) through the extended restricted licensing period, your privilege to operate a motor vehicle in Colorado will be suspended. If suspended, you must immediately surrender any driver licenses and/or permits in your possession to any driver license office.” [Credit to: Colorado Department of Revenue, Driver Control Section, Colorado Division of Motor Vehicles, Standard Letter to Respondent, Letter# dL408 (2017)]

What should you do? Panic? Ask you neighbor for advice? Sign-up for another year with that damn interlock machine? The answer is no, no, and no. You should immediately request a hearing. As of the date of this blog post, DMV ignition interlock violation hearings are backlogged 6-8 weeks just to receive a Notice of Hearing letter and you must first secure a spot on a waiting list. As soon as your name appears at the top of the waiting list, the Hearings Division will mail you a Notice of Hearing letter setting the hearing. Most of the hearings anymore are held via telephone. If at all possible an in-person hearing is typically better than a telephone hearing. However more and more hearings are being scheduled telephonically and a Respondent may not have a choice. If a hearing is requested, the Hearings Division may postpone the effective date of the extension until after the hearing. It is vitally important for a Respondent to clarify this information with the Hearings Division and determine the status of the driver’s license until the hearing.

What does 3 out of 12 reporting periods mean? This can be confusing. A “reporting period” is a month, and is defined the Code of Colorado Regulations as the first and last days of a calendar month. The violations must occur in 3 out of 12 consecutive months. The 12 months must be consecutive, the 3 months reporting violations do not need to be consecutive.

What is “excessive blood alcohol content”? Excessive alcohol content for purposes of the ignition interlock machine means a BAC of .025 or greater.

How does DMV monitor the ignition interlock device? At least every 60 days, a driver must have the interlock device inspected by the interlock company. There are 4 ignition interlock companies approved in Colorado at the current time: Guardian, Intoxalock, #1 A LifeSafer of CO, and 1A Smart Start, Inc. At this inspection, the interlock company will download the data records and forward them to DMV. An interlock provider is supposed to notify a driver at the time of inspection if there are any violations. However, a failure of the interlock company to advise a driver of any violations will not win an ignition interlock violation hearing for a Respondent.

What if a driver gets their regular unrestricted license back before violations are reported to Colorado DMV- can Colorado DMV still cause an ignition interlock extension? The short answer is yes. Even if a driver gets their unrestricted full privileges back, they can still be subjected to an ignition interlock extension for violations that occurred before the driver got their license back.

According to the Code of Colorado Regulations, if there is evidence of circumvention of an interlock device, an ignition interlock company will file a report of circumvention to the Colorado Department of Revenue. If a police officer detects circumvention of the interlock device, he/she may file a report with the Colorado Department of Revenue and may file criminal charges in the appropriate county court.

The sole issue at a hearing for an extension of an ignition interlock period is whether “lockouts” occurred in 3 of any 12 consecutive reporting periods, and if proven, to then determine the length of the extension.

A Hearing Officer may determine the following as “aggravating factors” in determining an extension period: 2 or more lockouts in 1 month, a prior extension for lockouts, a pattern of readings consistent with attempted drinking and driving, any BAC readings of .05 or higher, lockouts in more than 3 of the 12 consecutive months at issue, and any lockouts in the last 6 months of an ignition interlock lease agreement.

A Hearing Officer may determine the following as “mitigating factors” in determining an extension period: any factors the driver may submit in mitigation (obviously this is very subjective), attendance at alcohol treatment after the last lockout, only 1 lockout in each of the 3 months and no lockouts in any other months at issue, more than 1 year remaining of the interlock requirement, and alcohol readings subsequent to the last lockout indicating that the driver walked away from the vehicle and did not re-attempt to start it after consuming alcohol.

Ignition Interlock Requirements for 1st DUI Offenses in Colorado and Penalties for Driving Without Interlock.

Published on: April 7, 2017 | by Monte J. Robbins, Esq.

What are the requirements? Well that depends. Adult drivers age 21 and up who have been stopped for a DUI or DWAI offense in Colorado and have either submitted a chemical test of their blood or breath at .08 or higher, or, have refused a chemical test are subject to revocation of their driver’s license. Out of state residents who are stopped in Colorado are subject to the same revocation process and term as Colorado residents.

The revocation for a 1st offense per se revocation, blood or breath .08 or greater but less than .15, is 9 months. Colorado residents are eligible to reinstate early after 30 days of no driving with ignition interlock on their vehicle for 8 months. Early removal of the interlock device is possible after 4 months of 100% compliance. The specific language of the statute requires that the monthly monitoring reports reflect that the ignition interlock device did not prevent or interrupt the “normal operation” of the vehicle due to breath alcohol. Further, no tampering is evident, and no other reports of circumvention or tampering exist, and there are no other grounds to extend the interlock requirement. Thus, in light of full compliance with the interlock, the requirement can be whittled down to just 4 months.

The Department of Revenue will serve a driver with a notice of eligibility for early removal. If on the other hand, the driver has been compliant and has not received notice of early removal eligibility from the Department of Revenue, then the driver may request a hearing to determine eligibility by contacting the Hearings Division at 303-205-5606.

If the driver submits a blood or breath test result at .15 or greater or refuses a chemical test, the ignition interlock requirement lasts for 2 years following reinstatement. Colorado labels these drivers “persistent drunk drivers” by statute. Those who submit a chemical test .15 or greater are eligible for reinstatement as a Colorado resident after 30 days of no driving. Those who are found to refuse a chemical test are eligible after 60 days of no driving. There is no temporary or restricted driving privileges available for any drivers during the 30 day or 60 day period of “no driving”.

If a driver who has submitted a chemical test at .15 or greater or refused a chemical test decides not to reinstate his/her license early after 30 days or 60 days of no driving they must still reinstate with ignition interlock for 2 years once they decide to get back on the road again. Thus, there really is no benefit for a driver who has either refused or submitted a .15 or greater BAC to wait on the sidelines in the hopes of avoiding an ignition interlock requirement. If they ever want to get their license back in Colorado, thus must have 2 years of interlock.

Some drivers who cannot afford the full monthly cost of ignition interlock are eligible for financial assistance to help pay for the ignition interlock device. Information on this program may be obtained by contacting Driver Services at 303-205-5600.

Drivers who hold an ignition interlock restricted driver’s license must only drive a vehicle in which an approved ignition interlock machine is installed. This is sometimes difficult for drivers to adhere to. An example of a common violation is when a driver’s vehicle is in the shop for repairs and the driver “takes the wife’s car” to work and is stopped for not using a turn signal or other minor traffic infraction. Thereafter, DMV may revoke the driver’s ignition interlock license for failing to drive a vehicle equipped with interlock. The revocation will cause a driver to no be eligible to reinstate his/her license for one (1) year or the remaining period of license restraint imposed prior to driver obtaining the interlock license, whichever is longer. A driver subject to this type of sanction is eligible to request (and should request) a hearing to determine whether or not the license will be revoked and the length of time in which the driver is deemed to be ineligible to reinstate. Operating a vehicle not equipped with interlock (when the driver’s license requires an interlock equipped vehicle) is a Class 1 Misdemeanor Traffic Offense.

If a police officer stops a driver and thereafter determines that the driver is not driving a vehicle equipped with interlock (and is required to under the terms of their license), the police officer is required to confiscate the driver’s license, file an incident report on a special form provided by the Department of Revenue, and not permit the driver to continue to drive the vehicle not equipped with interlock.

Courts may not accept a plea of guilty to just any reduced traffic offense or infraction for a driver charged with circumventing interlock/driving without interlock. Courts may only accept a plea to another offense or infraction of the district attorney prosecuting the case is willing to state to the Court that he/she doesn’t have a prima facie case for the interlock offense charged.

Colorado Ignition Interlock Violation Suspension Hearings

Published on: May 4, 2016 | by Monte J. Robbins, Esq.

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 ignition 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.

A violation must be shown to interrupt or prevent the normal operation of the vehicle in 3 of 12 consecutive reporting periods.

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.

It is imperative in ignition interlock violation hearings that the complete interlock reports be acquired from the interlock company and investigated well in advance of the hearing. Often times due to the sheer number of interlock violation hearings being held the reports are sent out by DMV only a few days in advance of the hearing. This shortens the time period the respondent has to investigate the reports and prepare for the hearing. The ignition interlock reports tell a very detailed story of the history of the use of the machine and are vital in defense preparation.

Lamar Odom arrested for DUI in California. Colorado DUI process not dissimilar.

Published on: September 17, 2013 | by Monte J. Robbins, Esq.

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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