What will the DMV do after a DUI?

The Department of Motor Vehicles (“DMV”) can take your license if you are convicted of DUI. But even before you are convicted, the DMV can take your license. That’s because, in DUI cases, the penalties you face from the DMV are different than the penalties you face from the court. This blog focuses on what you can expect from the DMV if you are suspected of DUI in Colorado.

Express Consent

It is unlawful to drive impaired or to drive with a blood alcohol content (“BAC”) greater than .08. And if an officer has probable cause to believe you are impaired or that your BAC is above .08, the officer can ask you to take a breath or blood test to determine your BAC. You can be punished if you do not take the test. That is because of Colorado’s “Express Consent” law. Under the express consent law, any driver who gets a license in Colorado “agrees” that in situations where an officer has probable cause to believe the driver is impaired and does ask the driver to take a test, the driver will take the test. The DMV, then, can take your license if 1) your BAC is above .08 OR 2) you refuse a test that was properly requested.

The role of the police officer with the DMV

If an officer has probable cause to believe that your license should be revoked because of an excess BAC or a refusal, the officer must submit an affidavit to the DMV.[1] The affidavit must contain the facts that show that the DMV should take your license (facts about your driving and behavior, your BAC is too high, the officer had probable cause but you refused the test, etc.). If you are still with the police officer when the officer determines that, based on a refusal or based on your test results, your license should be revoked, then the officer will serve a “notice of revocation” and will take possession of your license at the scene. That is why a lot of drivers lose their licenses at the scene of a DUI.

If the officer takes your license at the scene, then the officer must give you a temporary permit that is valid for 7 seven days. That’s because you have the right to request a hearing regarding the revocation. More on that below. If the officer takes your license, then along with the affidavit, the officer will give the DMV a copy of the Notice of Revocation that he or she served on you.

The DMV’s actions

Sometimes the officer does not take your license at the scene. This can happen, for example, if you request a blood test. Because the blood must be sent off to a lab, no one will know whether your BAC is above .08 until the results come back. Once the results come back, they are forwarded to the DMV along with the officer’s affidavit.

When the DMV receives the affidavit and supporting documentation, it will determine whether revocation is appropriate. If the DMV believes it should revoke your license, the DMV will mail you a Notice of Revocation to the address you have on file with the DMV. The Notice is deemed “served” (you received it) 3 days after mailing. The DMV, however, must provide proof of mailing.

License revocation becomes effective 7 days after the Notice is given to you. So if the cop takes your license and gives you a Notice the night of the DUI, the revocation becomes effective 1 week later. If the DMV has to mail you a Notice, the revocation becomes effective 1 week after you received the Notice.

What you can do

Within 7 days after receiving Notice of Revocation, you can request a revocation hearing. At the hearing, the DMV will have to show the Hearing Officer that it can lawfully take your license. Basically, the DMV has to show either that 1) you drove when your BAC was above .08 or 2) you refused to take a test when you were lawfully asked to do so.

The DMV must set a hearing within 60 days of receipt of your request for the hearing. If the hearing does not take place within 60 days of your request, then the revocation must be dismissed and you win. You will receive a temporary driving permit to use for the time in between your request and the revocation hearing.

At the revocation hearing, the officer must establish that he or she had a reason to stop your car, that he or she had probable cause to arrest you and ask you to take a blood/breath test, and that he or she properly advised you regarding the express consent law. Generally speaking, it is fairly easy for the officer to do this (the burden of proof is lower in a civil proceeding). Sometimes (though very rarely), however, the officer does not show up, and you win the hearing based on the officer not appearing. If the officer does show up, then you will be able to cross examine the officer about the timing of the test (it must be completed within 2 hours of driving), the reasons for stopping you, the facts that establish probable cause, and the officer’s advisement. Based on the evidence that is presented at the hearing, the officer decides whether the revocation should take effect.

Overall

The DMV can take your license if your BAC was above .08 or if you refused a chemical test. Either the arresting officer will give you a Notice of Revocation on behalf of the DMV, or the DMV will mail you a Notice of Revocation once it gets your blood results. You can, however, request a revocation hearing. You must request the hearing within 7 days of the Notice of Revocation, and the hearing must take place within 60 days of your request. If the officer does not show up, if the test was taken >2 hours after you drove, or if the officer did not have a reason to stop you or probable cause to ask for the test, you win. Otherwise, your license revocation will take effect at the hearing.

At Cheney Galluzzi & Howard we are experienced criminal defense attorneys who have handled many Colorado DMV hearings. If you are facing a DUI in Colorado, call us. Life happens. We can help.

[1] CRS § 42-2-126