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DUI and DMV Revocations in Colorado: Know Your Rights

By Timothy Bussey on April 28, 2020

Being charged with a DUI can be a challenge. In Colorado, it can be more daunting than in most other states.  Dealing with the criminal charge is just one part of the process. If you are charged with DUI, you will have to fight your case in court, but you will also have to fight the Colorado Department of Revenue to retain your license. Often, losing your license can cause you more problems than the outcome of the criminal case. This is a separate process apart from the criminal prosecution.  This article focuses on the DMV aspect of a DUI charge.

If a police officer suspects you are driving under the influence of alcohol or drugs, they will begin a roadside investigation that begins with asking you to perform roadside tests such as walking straight line, standing on one foot, saying your alphabet or counting backwards to name a few. They will also ask you to follow a light or their finger with your eyes. These tests are voluntary. Theoretically, these tests provide clues to impairment. Each test has a certain number of indicators. If the officer scores you as having enough indicators they will go further in the investigation. (Yes, the tests are based on the officer’s subjective observations.)

In Colorado, if after making a judgment that you are under the influence, the officer will ask you if are willing to a consent to a test of your breath or blood to determine the amount of alcohol in your system.

If you choose a breath test, the officer will take your license if your BAC is a .08 or higher.  They should provide you with what is called an “Express Consent Affidavit and Notice of Revocation.”  This document serves as your temporary license for the next seven days. You have the right to contest the revocation at a DMV hearing. However, you must request the hearing in writing at your local DMV by the first business day following the sixth calendar day from the date of the Notice. If you fail to request the hearing, your license will remain revoked for a period of time depending on circumstances of your charge.

If you elect to have your blood tested, the officer will likely take you to a local hospital and have a phlebotomist draw your blood. Your blood samples will be shipped to the Colorado Bureau of Investigations to be tested.  The officer will not take your license at this point because there is no test result indicating your BAC is over .08. However, if the results determine your alcohol level was .08 or higher, the DMV will send you a “Notice of Revocation” and again instruct you that you have seven days to request a hearing.  Just like with the breath test, if you fail to request a hearing, your license will remain revoked.

You should always request a DMV hearing. It is your only opportunity to potentially overturn the revocation and keep your license during the pendency of your criminal case. The DMV is required to hold your hearing within 60 days of your request.

When you go to the DMV you will be asked if you want the officer present at the hearing.  We recommend discussing your situation with an attorney before you go to the DMV to determine whether you should request the officer’s presence or not.

Analyzing each of the steps above is critical to a successful defense of a DUI revocation at the DMV: from analyzing the initial stop itself, to determining if the officer had a reasonable basis to ask you to perform roadside tests, to analyzing whether the roadside tests were performed correctly and the officer’s observations were correct, to determining whether the breath or blood tests were performed lawfully and correctly.

This analysis requires a trained attorney with experience in handling DMV hearings. At the Bussey Law Firm, we handle the DMV as part of our overall DUI defense. We believe the DMV hearing can often have positive effects on the criminal case down the road.  But more importantly, it allows you to fight to overturn a revocation. We take the DMV hearings seriously.

We’ve had success in attacking the validity of the evidence and the viability of the legal charge in DMV hearings.

For instance, we recently had a case where neither of the two blood vials contained the appropriate amount of blood as is required by law. We brought in a lab expert to testify that it was more likely than not that the blood vials’ seals were defective, thus allowing contaminants into the specimens. We further argued there was no evidence the blood draw was performed in accordance with state regulations. We prevailed and our client’s revocation was overturned.

A few months ago, we had a case where the state could not prove our client’s blood test conformed to state regulations in force to ensure tests are done in medically valid manner and produce accurate results. The State is supposed to file an affidavit signed by qualified person who took the blood test stating that they followed the proper procedures and completed the test appropriately. In this case, the State could not do that. Absent of that crucial piece of evidence, we were successful in excluding the test results and obtaining a reversal of the revocation.

Finally, we recently successfully argued that the police officers did not have a legal basis to cite our client with DUI because there was no evidence that our client was actually driving a vehicle. After hearing our arguments, the Hearing Officer agreed and overturned the revocation.

These three cases are examples of how critical it is to look very closely at all of the facts and evidence in any particular case. At the Bussey Law Firm, we take the time and put in the effort to critically look at every aspect of any particular case. It’s this expertise and effort that allows us to achieve favorable results for our clients.

If you’ve been charged with a DUI in Colorado, you should contact The Bussey Law Firm, P.C. at 719-475-2555. Let us take a look at your case and fight for you.

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