Fort Collins Express Consent Lawyer
What Is an Express Consent Law?
Colorado has an express consent law, which requires a suspected intoxicated driver to consent to a chemical test of his or her blood, breath or urine. This is an administrative action and is not considered a criminal proceeding by the Colorado Supreme Court. As such, the burden of proof at the hearing is a preponderance of the evidence. It is a good idea to get a Fort Collins express consent attorney to help you navigate this process.
The DUI Administrative Process
When a driver has a blood alcohol content (BAC) of .080 or above, an Express Consent Affidavit and Notice of Revocation is the form used by the Department of Motor Vehicles (“DMV”) to start the process. The form generally is yellow. When you submit to a breath test the notice is given to you by the law enforcement officer at the time of your arrest. You have seven days from receipt of the notice to request a hearing. If you gave a blood sample, it often takes weeks to get the test results. If the officer learns your BAC was .080 or above, he will contact the DMV and the Notice of Revocation form will be mailed by the DMV to your last known address. Upon receiving the Notice of Revocation you have a limited amount of time to request a hearing or the revocation automatically goes into effect.
If you request a hearing and no other driving restrictions apply, you will be given a temporary permit to drive until the hearing date. The DMV must schedule the hearing within 60 days of the request. Additionally, the DMV must provide a minimum of ten days’ notice prior to the hearing date. You can request that the officer be present at the hearing or waive the officer’s appearance. If requested, the officer must appear at the hearing or the action is dismissed. Obviously, when the officer appears, he or she will testify. If the officer is not requested, the DMV will determine whether to revoke your license based on the report prepared by the officers who contacted you.
To revoke a license under the express consent law, the hearing officer must find:
1. You were in control of a motor vehicle.
2. The officer had a basis to contact you.
3. The officer had a reasonable belief that you were intoxicated.
4. The officer advised you of the express consent law.
5. A blood or breath test was administered in conformity with the Colorado Department of Health Regulations, or if this is a refusal, that you refused to take a test.
6. If a test was given, the BAC is .080 or above.
7. If a test was administered, the sample had to be given within two hours of the time of driving.
BAC .08 - .149
If all of the elements are proven at the hearing, the DMV will revoke your privilege to drive in Colorado – there are no exceptions. On a first express consent revocation, an adult driver with a BAC of .08 – .149 will receive a nine-month revocation. After serving 30 days of the revocation, you may receive an interlock restricted license. The interlock requirement will remain in effect for the remainder of the revocation period or until allowed to be removed earlier by the DMV.
BAC .150 or Above
On a first express consent revocation, an adult driver with a BAC of .150 or above will receive a revocation of nine months. After serving 30 days of the revocation you may receive an interlock restricted license, which must be maintained for a minimum of two years.
If you lose your privilege to drive based on a refusal to give a test and it is your first refusal, you will receive a revocation of one year. After serving 60 days of the revocation, you may receive an interlock restricted license. The interlock requirement will remain for the remainder of the revocation period. A revocation based on a refusal will run consecutive to any previous or subsequent suspension, revocation or denial.
A second Express Consent Revocation based on a BAC of .08 or above or a second DUI/DWAI conviction will require an interlock for two years. You must wait 30 days after the order goes into effect before applying for an interlock license. A third or subsequent Express Consent Revocation based on a BAC of .08 or above or a third or subsequent DUI/DWAI conviction in a lifetime will require an interlock for two years. You must wait 30 days after the order goes into effect before applying for an interlock license.
If you have a revocation based on a second refusal you will require an interlock for two years. A revocation based on a third refusal requires an interlock for the longer of two years or what would have been the remaining period of revocation at the time of reinstatement. With all refusals, you must wait 60 days after the order goes into effect before applying for an interlock license.
Drivers Under 21
Drivers under the age of 21 who lose their license for a BAC of .08 or above or based on a refusal are not allowed early reinstatement, but must serve the full nine-month revocation period without driving.
If the BAC is between .02 and .05 and is your 1st offense, you will receive a three-month revocation, but can receive a Probationary Drivers License after going 30 days without driving. The total restraint remains three months. A 2nd restraint based on a BAC of .02 – .05 results in a six-month revocation. A 3rd restraint based on a BAC of .02 – .05 results in a one-year revocation.
Drivers under the age of 21 with a BAC between .051 and .079 lose their license for three months on a 1st offense, six months on a 2nd offense and one year for a 3rd or subsequent offense. There is no probationary license allowed at this alcohol level.
Commercial Driver's License
If a driver is operating a commercial vehicle or a school bus and has an Express Consent Revocation based on a BAC of .04 to .079, a one-year revocation will be taken against his CDL. If a driver holds a commercial driver’s license (CDL), is driving any motor vehicle and loses his privilege to drive at an Express Consent Hearing for the first time based on BAC of .08 – .149, his Commercial Driver’s License is revoked for one year. The driver can reinstate his regular driver’s license with an interlock restricted license as stated above. If the BAC is .150 or above, the driver cannot reinstate his CDL until after the interlock requirement is removed, which means a minimum of two years and one month. A driver who has two express consent revocations and held a CDL at the time of both offenses is disqualified from ever obtaining another CDL. Both offenses must have occurred on or after October 1, 2005.
At this time, there are four companies that provide Interlock devices for Northern Colorado. All companies provide interlocks that test specifically for alcohol. The companies are:
Smart Start, Inc. 800-880-3394
Guardian Interlock 800-499-0994
Understanding the Express Consent Law is a complicated matter. At the Fort Collins law office of David H. Johnson, of the law firm Liggett, Johnson & Goodman, P.C., I evaluate your case and discuss the best options available for you.
For more information or to discuss your criminal defense needs, contact me today at my Fort Collins, Colorado, law office. Call 970-829-1221 now to schedule your FREE CONSULTATION with a Fort Collins Express Consent Lawyer.