Court of Appeals eliminates primary issues for most DMV hearings

A division of the Court of Appeals decided  on July 5, 2012 in a 2-1 decision,that the primary issue in most DMV hearings for drivers accused of DUI was no longer an issue.  This is a major change in DUI law and legal challenges to license revocation.  Previously most drivers were able to challenge the circumstances of their investigation by police just as they did in a courtroom.  Drivers and their attorneys were previously able to allege unconstitutional stops of their vehicles, and frequently received dismissals of their cases at DMV.  This litigation in DMV hearings is now eliminated by a decision of the Court of Appeals, which indicated that issues like improper stop, and investigation  of drivers is not an issue in a 'civil' revocation proceeding.  This decision reverses a 25 year old precedent on the same issue, which allowed direct challenges to the legality of the initial stop.  See, Nefzger v. Dept. of Revenue, 739 P.2d 224, 229 (Colo. 1987).  This previous case law is affirmed by the state Supreme Court; and so the Court of Appeals is actually attempting to vacate a previous Supreme Court decision. The language of the opinion indicates that the statute in effect for the previous 21 years does not contain an express requirement that the Department of Revenue determine issues like reasonable suspicion for the vehicle contact by police.  The opinion by the Court of Appeals runs 51 pages, and includes a dissent by a Judge Taubman, who noted the legislature's intent in drafting the statute on license revocation allows for such challenges directly, and on issues like probable cause mentions them expressly.  Judge Taubman also noted the long history of the statute and case law already allowing for such decisions, like a lack of reasonable suspicion for initial contact with a driver, and indicated the previous court decision on the same topic did not likely 'misread' the statute on the issue, and that the courts have repeatedly affirmed those decisions.

The entire case linked here: Francen v. Dept. of Revenue