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1993

There Must Be Fifty Ways to Lose Your (Driver's) License

H. Patrick Furman University of Colorado Law School

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Citation Information H. Patrick Furman, There Must Be Fifty Ways to Lose Your (Driver's) License, 22 COLO. LAW. 2385 (1993), available at https://scholar.law.colorado.edu/articles/795.

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Citation: 22 Colo. Law. 2385 1993 Provided by: William A. Wise Law Library

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Copyright Information CRIMINAL LAW NEWSLETTER U

There Must Be Fifty Ways to Lose Your (Driver's) License

by H. Patrick Furman

T he typical Colorado driver has under age eighteen (a minor driver) will driver is subsequently convicted of a little inkling of the variety of be suspended on the accumulation of six charge arising out of the same incident reasons for which the Motor points in twelve months or seven points and is subject to another revocation be- Vehicle Division ("DMV") can during the life of the license.1 cause of that conviction (such as for hav- suspend, revoke or deny a driver's li- Points are counted against a license ing accumulated too many points or hav- cense. Even lawyers who regularly prac- as of the date of the offense, not the date ing sustained two alcohol convictions in tice in traffic court have trouble keeping of conviction, even though the actual as- five years), the subsequent revocation up with the bewildering array ofjustifi- sessment of points cannot occur until must be consecutive to the express con- cations for DMV action against a driv- there is a conviction. 2 The number of sent revocation.9 A person whose license er's license. points assessed for the various offenses is revoked under this provision is not el- Given the fact that a driver's license is is set forth in CRS § 42-4-123(5). Convic- igible for a probationary license, no mat- often important for work, school, day care tion, as used in this statute, includes a ter how great the need for such a license. 10 and a variety of other purposes, it is es- traditional conviction, a traffic infrac- If the driver takes the chemical test sential for both prosecutors and defense tion conviction or default judgment,3 a but fails it by having a blood alcohol con- lawyers to have as complete an under- plea of nolo contendere and a conviction tent of .10 or greater, the DMV must re- of a municipal ordinance which is sub- voke the license." The period of revoca- standing as possible of the consequences 4 their actions can have on a client's driv- stantially similar to a state statute. tion is three months for the first revoca- er's license. This article summarizes the An excess of points results in a sus- tion and twelve months for any subse- ways in which a license can be denied, pension (rather than a revocation) of the quent revocations. Just as with a revo- suspended or revoked. The article does driving privilege, meaning that the driv- cation based on a refusal to take a chem- not cover the special rules which are ap- er may apply for a probationary license ical test, a driver revoked under this pro- plicable to chauffeurs and truck drivers. enabling him or her to drive to and from vision is not eligible for a probationary li- such places as work, school and day cense.12 Point Suspension Revocations care.5 The maximum length of a suspen- sion ordered pursuant to this authority Specific Offense Conviction Colorado assesses points for almost 6 all traffic convictions, and the most well- is one year. Revocation known way to lose a license is to accu- Conviction of certain offenses, or com- mulate too many points. The license of a Express Consent Revocations binations of offenses, carries with it an driver who is age twenty-one or older Colorado's express consent law is de- automatic revocation whether or not the will be suspended on the accumulation signed to aid law enforcement in the de- conviction results in the driver having ac- of twelve points in twelve months or tection and apprehension of drivers who cumulated too many points. Most of the eighteen points in twenty-four months. are under the influence of, or impaired offenses are traffic offenses, while others The license of a driver who is age eight- by, the ingestion of alcohol or other are related to the use or regulation of mo- een or older, but less than twenty-one (a drugs. The law is designed to encourage tor vehicles and a few are simply expres- provisional driver) will be suspended on drivers to submit to a chemical test of sions of public policy. The offenses are set the accumulation of nine points in twelve their blood or breath (or, when drug use forth in CRS § 42-2-122. months, twelve points in twenty-four is suspected, a urinalysis) to determine months or fourteen points during the alcohol content. It also penalizes drivers who refuse to take a chemical test or life of the license. The license of a driver 7 who take such a test but fail it. This newsletter is prepared by the Pursuant to the express consent law, CriminalLaw Section of the Colorado Column Ed.: H. Patrick Furman, the DMV must revoke for twelve months Bar Association. This month's column University of Colorado School of the license of a driver who refuses to take was written by column editor H. 8 Law, Boulder-(303) 492-8126 a chemical test of blood or breath. If that PatrickFurman.

THE COLORADOLAWYER / NOVEMBER1993 /VOL. 22, No. 11 / 2385 2386 CRIMINAL LAW NEWSLETTER November 2386CRIMINAL LAW NEWSLETTER November

As far as pure traffic offenses are con- judication for such acts also is consid- Except as specifically noted above, cerned, the statute mandates revocation ered a triggering conviction.17 revocations under CRS § 42-2-122 are for on a conviction of either (1) driving un- A revocation under this section is a period of one year. Actual reinstate- der the influence of a controlled sub- three months on the first conviction and ment of the privilege to drive on the ex- stance or habitual user of a controlled one year on a second or subsequent con- piration of the period of revocation is dis- substance13 (which carries a mandatory viction.18 The Colorado Supreme Court cussed below. one-year revocation 4) or (2) failing to recently upheld the constitutionality of Other statutes also provide for a li- render aid in a traffic accident involving this portion of the revocation statute cense revocation. A conviction for failure death or personal injury15 It also man- against an attack that it amounted to a to provide proof of insurance 23 requires dates revocation on three reckless driv- seizure of property and that there was indefinite suspension unless the driver ing convictions within two years, two no nexus between the commission of provides proper proof of insurance to the DUI/DWAI/DUI per se convictions with- these offenses and a person's driver's li- DMV within twenty days of the notice of in five years and three DUI/DWAI/DUI cense. 19 The court held that the right to suspension. Such a suspension remains per se convictions in any time period. drive is not a fundamental right and in effect until the driver provides proof of The last-described revocation must be that the seizure of licenses is reasonably financial responsibility.24 A conviction of an indefinite suspension of no less than related to the legitimate government ob- misuse of licenses, titles, permits or li- two years. The driver may not be rein- jective of preventing the use or sale of cense plates or the permission of such un- stated until he or she has completed a controlled substances because it punish- lawful use authorizes the DMV to deny a Level II alcohol and drug education and es and deters offenders. license to an otherwise qualified appli- 25 treatment program and passed the reg- cant. ular license test. This section also pro- vides that a minor's license shall be re- Habitual Traffic Offender voked on a first DUI/DWAI/DUI per se Revocations "The statutes relating to the 26 conviction. The habitual traffic offender statute Driving-related convictions that sub- denial, suspension, revocation is designed to provide maximum safety ject a driver to revocation are: and reinstatement of driver's on the roads, deter repeat offenders and 1) vehicular homicide, CRS § 18-3- licenses are confusing and impose severe sanctions on drivers whose 106; traffic record demonstrates "their indif- 2) vehicular assault, CRS § 18-3-205; occasionally contradictory." ference to the safety and welfare of others 3) criminally negligent homicide and their disrespect for the laws of this while driving a vehicle, CRS § 18- state .... ,27 The license of a driver who is 3-105; declared to be an habitual traffic offender 4) failing to maintain proof of finan- The legislature has adopted the same must be revoked for five years. The driver cial responsibility after having general posture with regard to certain is not eligible for a probationary license.28 been ordered to do so, CRS §§ 42-4- related offenses as it has with regard to A driver can achieve habitual offend- 1213 and -1214; and these drug offenses. The revocation stat- er status in a variety of ways. The most 5) any felony in the commission of ute mandates revocation on conviction common way is to sustain three major which a motor vehicle was used of the unlawful obtaining or attempting traffic offense convictions in a seven-year (which carries a mandatory one- to obtain, or possession of beer, wine or period. Major traffic offenses, set forth year revocation1 6). liquor by a person under age twenty- in CRS § 42-2-202, are (1) driving under Convictions which relate to the regula- one. 20 The revocation of a minor or pro- the influence, (2) driving with ability im- tion of motor vehicles and which result visional license under this section must paired, (3) reckless driving, (4) driving un- in a revocation are first- or second-de- run consecutively to any other previous der suspension, (5) driving under revoca- gree perjury relating to the ownership of or subsequent revocation.21 If the license tion, (6) driving under denial, (7) vehicu- a motor vehicle and making a false affi- being revoked is a minor or provisional lar assault, (8) vehicular homicide, (9) davit or a false statement under oath in license, the revocation is to be for three manslaughter resulting from the opera- connection with the ownership or opera- months for a first conviction, six months tion of a motor vehicle, (10) criminally tion of a motor vehicle. after a second conviction and one year af- 22 negligent homicide, (11) joyriding, (12) The legislature has chosen to man- ter a third or subsequent conviction. leaving the scene of an accident involving date a license revocation based on cer- Such a licensee who is revoked for the death or personal injury and (13) know- tain offenses which are not traffic or mo- first time under this section may substi- ingly making a false affidavit or swearing tor vehicle related as part of the sanc- tute twenty-four hours of useful public or affirming falsely to a matter required tion for the commission of those offens- service, if ordered by the court, for the by motor vehicle laws. es. Those offenses include (1) all of the three-month revocation. Obviously, convictions in Colorado felony drug use and distribution offens- Finally, the revocation statute man- state court are covered by this list. How- es set forth in CRS § 18-18-404, -405 dates the revocation of the license of any ever, CRS § 42-2-202(2)(b) also provides and -406, and (2) any attempt, conspira- person who has been adjudged mentally that convictions under federal law, mu- cy or solicitation to commit those offens- incompetent by a court of competent ju- nicipal ordinance or the laws of any oth- es. For the purposes of license revoca- risdiction when that court has specifical- er state also may result in an habitual tion, both a plea of nolo contendere and a ly found that the incompetency renders offender revocation if those other laws deferred judgment and sentence are the person incapable of safely operating or ordinances substantially conform to considered as convictions. A juvenile ad- a motor vehicle. the comparable Colorado statute.

2386/ THE COLORADOLAWYER I NOVEMBER1993 I VOL.22, No. 11 CRIMINAL LAW NEWSLETTER 2387 CRIMINAL LAW NEWSLEITER 2387

The convictions used by the DMV to will be held against them in Colorado. the driver had the length of his suspen- declare a driver to be an habitual traffic Colorado has signed an interstate com- sion extended after he was caught driv- offender must be separate and distinct pact which provides some answers. The ing while the original suspension order offenses arising out of separate acts. The Driver License Compact, CRS § 24-60- was in effect. He argued that such an ex- statute actually provides that all offenses 1101 et seq., establishes the goal of im- tension of his suspension was improper committed within a one-day period should proving cooperation among the states in because he had been issued a probation- be treated as one offense. 29 Therefore, if a the reporting of traffic violations and ary license during his original suspension driver is convicted of both driving under the enforcing of licensing restrictions. and was legally driving under that proba- the influence and driving under suspen- The Compact requires participating tionary license. sion based on one episode, the two convic- states to report every traffic conviction The court acknowledged that a sus- tions will be counted as one for the pur- to the home state of the licensee, de- pension order does not automatically poses of the habitual offender statute. scribing the violation, the statute or or- expire at the end of the term of suspen- A less common way by which a driver dinance, the court hearing the case and sion and that the driver must still seek is declared an habitual traffic offender is the manner in which the conviction was official reinstatement before he or she by sustaining a larger number of less se- obtained 8 Under the Compact, Colora- can legally drive. However, the court held rious traffic convictions within a five-year do must treat the following convictions that any probationary license issued in period. Conviction, within a five-year pe- as if they had occurred in Colorado for connection with that suspension does ex- riod, of ten or more offenses which carry the purpose of revocation, suspension or pire. The extension of the period of sus- four or more points results in an habitu- denial: manslaughter or negligent homi- pension was affirmed. al traffic offender declaration. The same cide resulting from the operation of a mo- It is also important to advise drivers is true of conviction, within a five-year pe- tor vehicle, driving under the influence that any moving violation committed riod, of eighteen or more offenses which of alcohol or drugs, any felony in the com- during any period of revocation or sus- carry three points or less. mission of which a motor vehicle is used pension will result in an extension of and leaving the scene of an accident in- the revocation or suspension. 45 The driv- Miscellaneous Revocations volving death or personal injury.39 er need not be convicted of driving un- There are a variety of other convic- Differences among the states in the der revocation or suspension. Conviction tions, statutes and actions which trigger precise name or description of these of- of any moving violation will trigger the a revocation. While these miscellaneous fenses do not matter, as long as the of- extension. The extension is for a period revocations do not arise with great fre- fense is substantially similar to the of- of one year.46 quency, they have the same impact on a fense in the home state.40 The Compact client as any other revocation. also requires Colorado to treat all other The DMV can, for a variety of reasons, reported convictions as if they had oc- 41 refuse to issue a license to an otherwise curred here. qualified applicant. "Habitual drunk- ards" can be denied a license,30 as can Reinstatement of the anyone who suffers from a mental dis- Privilege to Drive DNA ease or defect and who has not been re- It is important for counsel to advise stored to competency.31 A license also drivers whose licenses have been sus- can be denied to anyone who is in the pended that the termination of a revoca- TESTING country in violation of federal immigra- tion period does not entitle them to jump 3 2 tion laws. Any person who has illegal- immediately behind the wheel and drive. Genetic Identification ly operated a motor vehicle without a li- Before that driver can legally drive, he or cense or in violation of an instruction she must get reinstated. permit, within three years prior to ap- The termination of the revocation pe- DNA RFLP, PCR AFLP, plying for a license, may be denied a li- riod makes the driver eligible for rein- & Classical Serology cense. 33 A failure to give the DMV accu- statement, but the driver must go to a Systems Available rate information when applying for a li- DMV office and meet all the other re- cense may result in a cancellation or de- quirements for reinstatement before he nial of the license. 34 The DMV also can or she can legally drive again. These oth- ; Case Review place restrictions on any license which it er requirements may include the pay- Testimony 35 does issue. ment of a reinstatement fee, proof of in- Depositions The DMV also will check out every driv- surance, 42 written test, driving test and Consultation er who applies to renew a driver's license. proof of successful completion of sub- Any person who, at the time of applying stance abuse counselling.43 A driver who for a renewal of his or her license, has an does not fulfill these requirements, but Qualified in Civil, outstanding judgment for failure to pay drives anyway on the theory that the Criminal & Military money owed as the result of a traffic vio- revocation has ended, is subject to pros- Court lation will be denied a license.3 6 The ex- ecution for driving under suspension. istence of a warrant for failure to appear The fact that the driver was granted a Analytical Genetic Testing Center for a traffic case, except a traffic infrac- probationary license during the period 3 7 7808 Cherry Creek S. Dr. *201 Derver.CO 80231 tion, has the same result. of the suspension does not alter this re- Phone: (303)750-2023 Drivers often ask whether convictions sult. In the Colorado Supreme Court case Fax: (303)750-2171 they have sustained in another state of Departmentof Revenue v. Brakhage,44 THE COLORADOLAWYER / NOVEMBER 1993 / VOL. 22, No. 11 / 2387 2388 CRIMINAL LAW NEWSLETTER November 2388 CRIMINAL LAW NEWSLETTER November

Drivers also should be reminded that, 4. CRS § 42-2-121(3). 26. CRS § 42-2-201 et seq. with few limited exceptions, only Colo- 5. CRS § 42-2-123(11). 27. CRS § 42-2-201(1). rado can give a person permission to 6. CRS § 42-2-124(1). 28. CRS § 42-2-205; Fuhrer v. Dept. of Mo- drive in this state. Obtaining a license 7. Zahtila v. Motor Vehicle Division, 560 tor Vehicles, 592 P.2d 402 (Colo. 1979). from another state does not permit a P.2d 847 (Colo.App. 1977); see also Augustino 29. CRS § 42-2-202(1) and (2a). v. Department of Revenue, 565 P.2d 933 (Colo. person to drive in Colorado if his or her 30. CRS § 42-2-103(2Xc). 1977) (different treatment of drivers who re- 31. CRS § 42-2-103(2Xd). privilege to drive in Colorado has been fuse a test and drivers who fail a test is not a 32. CRS § 42-2-103(3Xe). revoked, suspended or denied by the 4 7 denial of equal protection). 33. CRS § 42-2-123. DMV 8. CRS § 42-2-122.1(1.5)(a)(II) and (5)(b) 34. CRS § 42-2-119(lXa). (III). 35. CRS § 42-2-114. Conclusion 9. CRS § 42-2-122.1(5)(c)(II). 36. CRS §§ 42-2-116(3)(b) and 42-4- The statutes relating to the denial, 10. CRS § 42-2-122.1(6)(a). 1505.5(7). suspension, revocation and reinstate- 11. CRS § 42-2-122.1(1.5)(a)(I), (5)(b)(I) 37. CRS § 42-4-1505.5(7)(aXIII). ment of driver's licenses are confusing and (5)(b)(II). 38. CRS § 24-60-1101, Art. III. and occasionally contradictory. Howev- 12. CRS § 42-2-122.1(6)(a). 39. CRS § 24-60-1101, Art. IV(a). er, given the importance of a license to 13. "Controlled substance" is defined at 40. CRS § 24-60-1101, Art. IV(c). so many people, it is important that CRS § 12-22-303(7) to include those sub- 41. CRS § 24-60-1101, Art. IV(b). stances listed in CRS §§ 18-18-203 to -207. 42. The proof of insurance requirements counsel handling a traffic case be famil- 14. CRS § 42-2-122(1.5). may include compelling the driver to obtain iar with the statutes. A client who is im- 15. CRS § 42-4-1401 and -1402. an "SR 22" form, which obligates the insur- properly advised about the license con- 16. CRS § 42-2-122(1.5). ance company to notify the DMV in the event sequences of a particular plea or convic- 17. CRS § 42-2-121(4). the insurance is cancelled in the future. tion will understandably be upset when 18. CRS § 42-2-124(2)(b). Counsel should 43. Smith v. Dept. of Revenue, 793 P.2d 611 DMV takes some action the client was be aware that CRS § 42-2-122(1.5) provides (Colo.App. 1990) (DMV may order more exten- not expecting. The client may attempt to that all revocations under this section shall sive alcohol counselling as a condition of re- withdraw the plea or seek redress di- be for one year. However, the rule of lenity instatement). rectly from counsel-either of which is, and the more specific provisions of § 42-2- 44. 735 P.2d 195 (Colo. 1987). to say the least, unpleasant. 124(2)(b) should control. 45. CRS § 42-2-130(3). 19. People v. Zinn, 22 Colo.Law. 634 (March 46. Id. 1993) (S.Ct. No. 92SA9, annc'd 111/93). 47. CRS §§ 42-2-120 and -126; Colorado NOTES 20. Specifically, CRS §§ 12-46-112(lXc) and Departmentof Revenue v. Smith, 640 P.2d (d) and 12-47-128(1)(b) and (c). 1143 (Colo. 1982). 1. CRS § 42-2-123(1)(a). 21. CRS § 42-2-122(2). 2. CRS § 42-2-123(2)(a). 22. CRS § 42-2-122(5). 3. People v. Lewis, 745 P.2d 668 (Colo. 23. CRS § 42-4-1213. 1987) (traffic infraction procedure held to be 24. CRS § 42-4-1214. constitutional). 25. CRS § 42-2-119(1)(c).

Public Counsel Award Presented at CBA Convention

The Public Counsel of the Year Award was presented to William Morris during the Saturday lunch- eon program of the CBA Convention. The award is given annually by the CBA Public Counsel Com- mittee in recognition of significant contributions to the advancement of public counsel practice and representation of public clients. Morris has been an active member of the Public Counsel Committee and is a past Committee chair. He has spent numerous hours assisting public counsel in deciphering state police and fire pension law and was instrumental in establishing an internship program for public counsel offices. Morris is general counsel for the Fire and Police Pension Association.

Biomedical Information Service Available

Denison Memorial Library at the University of Colorado Health Sciences Center in Denver recently announced a new informa- tion service. The Information Express Delivery Service ("TEDS") offers convenient photocopy and delivery of biomedical journal articles and book chapters. In addition, if the items requested are not immediately available at Denison, the service will locate and obtain them. IEDS offers easy ordering, fast delivery, personalized service, a quality product, professional staff and reasonable rates. Or- ders can be made by phone, (303) 270-5595; by fax, (303) 270-6255; or by mail, University of Colorado Health Sciences Center, IEDS-Campus Box A003, 4200 E. 9th Ave., Denver, CO 80262. Delivery can be made by mail or fax ($.50 per page), or materials can be picked up at Denison Library. Payments may be made by cash, check, VISA/MasterCard or deposit account ($50 minimum). Call Yvette Ferree at (303) 270-5595 for more information.

2388 / THE COLORADO LAWYER/NOVEMBER 1993 / VOL. 22, No. 11