Under Colorado law, driving a motor vehicle is considered a privilege and not a right. This means an individual’s privilege to drive may be taken away for a period of time by the Colorado Department of Revenue – Division of Motor Vehicles (DMV) through an administrative determination. Such administrative hearings are generally held separately from any criminal proceedings initiated against that individual. Such is the case for an individual accused of driving under the influence (DUI) of alcohol or drugs within Colorado.

Under Colorado law, every individual receiving a license to drive or who otherwise drives in the State of Colorado expressly consents to submitting to a test for alcohol and/or drug intoxication when a law enforcement officer believes the individual was i) driving a motor vehicle, and ii) has reason to believe the motorist was under the influence of alcohol and/or drugs while driving.

What does Express Consent really mean?

The process for the DMV to suspend a driver’s license by an independent administrative determination is commonly referred to as Express Consent. An individual involved in a simple traffic stop within Colorado is permitted to refuse a test for alcohol intoxication. However, the Express Consent license suspension implications for refusal are in many instances more severe than taking a test showing alcohol intoxication.

Typically, a person charged with DUI is subject both to criminal proceedings in a Colorado County Court and to an Express Consent administrative action at the DMV. The two proceedings take place completely independent of each other.

Although similar defense arguments may be asserted in both proceedings, the outcome of a DMV hearing does not influence the outcome of a criminal case nor does the outcome of the criminal case have any impact on an Express Consent administrative hearing. Thus, it is possible for an individual accused of DUI to lose a driver’s license in a DMV administrative hearing and be found not guilty in criminal court.

When a person twenty-one years of age or older completes a breath test with a result of 0.08 or greater Blood Alcohol Content (BAC), or refusing a breath or blood test, the law enforcement officer will typically issue a document entitled “Express Consent Affidavit and Notice of Revocation.” Once issued the affidavit, normally the motorist must request a hearing at the DMV within 7 days of receiving the affidavit if he or she wants an administrative hearing.

If a blood test is administered, the Notice of Revocation will typically be mailed to the individual if that blood test shows a BAC of greater than 0.08. The individual normally has 10 days from the date of the letter to request an Express Consent Hearing at the DMV.

The Express Consent Affidavit will act as a temporary driver’s license for a seven day period. Upon scheduling an Express Consent administrative hearing, the DMV will extend the individual’s driving privileges until the hearing date which normally by law, with limited exceptions, must be within 60 days of the request for the Express Consent hearing being made.

Do you have to request an Express Consent Hearing?

A person over twenty-one is not required to request an Express Consent Hearing. Further, a person does not need to request a hearing if the individual thereafter wants to be considered for early reinstatement with an Ignition Interlock Device (IID). Regardless, upon receiving an Express Consent Affidavit and Notice of Revocation it is normally within a person’s best interest to request a hearing date with the DMV and consult a Colorado DUI attorney to determine how best to proceed at the hearing.

There are two general types of express consent license suspensions based upon an administrative hearing by the DMV. The first type is when an individual was asked by a law enforcement officer to take a chemical test but refused. The second type is where an individual is asked to take a test and the result was over 0.08 if the person is 21, or over 0.02 if the motorist is under 21. The length of the suspension is based on a person’s record of previous alcohol or drug related driving offenses and, if the test is taken, the results of the Breathalyzer or other BAC test.

For example, for those over 21 years of age who submitted to blood alcohol testing and scored a BAC of 0.08 or more, but under 0.150, the duration of the license revocation is 9 months if it is the person’s first offense. No probationary license is possible. However, early reinstatement is possible, after the completion of one month of a total suspension, with the use of a Colorado approved Ignition Interlock Device for the remainder of the nine month period of revocation.

First Offenses

If it is a person’s first offense, and the individual refuses to take the breath or blood test upon a request by a law enforcement officer, the suspension is for a period of twelve months. However, after two months of complete suspension, early reinstatement is possible with the use of a Colorado approved Ignition Interlock Device for the duration of the 12 month suspension. Alternatively, first time offenders can simply choose to not drive for the entirety of the revocation period and opt to get an unrestricted license back when the period ends.

It is important to note that, due change recent changes in the law, refusal to take or to complete a blood alcohol test will result in classification of the offender as a “Persistent Drunk Driver”.

“Persistent Drunk Driver” Exceptions

Under the following circumstances a motorist will be i) classified as a “Persistent Drunk Driver”, ii) required to complete a Level II alcohol and drug education and treatment program prior to getting their license back, and iii) required to have an ignition interlock device on all the vehicles they may operate for 2 years following reinstatement of their license:

• Their BAC was .15 or higher while driving or within a couple of hours of driving.
• They are found guilty of (or had their license pulled) for two or more alcohol-related driving crimes.
• They are caught driving after their license or driving privileges have been terminated as a result of alcohol-related driving convictions.
• They refuse to take or fail to finish a test of their blood alcohol content (BAC).

Commercial Driver Exceptions

The consequences of driving under the influence for individuals with commercial driver’s licenses are particularly harsh. If an individual has a commercial driver’s license or permit at the time he or she is stopped, regardless of the type of vehicle being driven, their first DUI offense results in a one year revocation of commercial driving privileges and a second offense results in a lifetime disqualification from commercial driving privileges.

If an individual was driving a commercial motor vehicle at the time of offense, with a BAC between .04 and .079, a first offense is a one year revocation and a second is a lifetime disqualification. By law, there is no probationary driver’s license or early reinstatement permitted for commercial driving privileges.

Changes to Refusal-Related Suspension Guidelines

In the past, when a driver’s license was suspended as a result of his or her refusal to submit to a BAC test, any additional suspension of their license would run before or after the refusal suspension. This often resulted in drivers’ licenses being suspended for very long periods of time.

With recent changes to Colorado law, any conviction resulting from criminal charges arising out of the same refusal-related DUI offense now run at the same time with the longest suspension controlling how long a driver must wait before reacquiring their license.

Early Reinstatement

If an individual seeks early reinstatement information and otherwise does not dispute the revocation, the motorist may confirm applicable requirements by calling the Colorado Division of Motor Vehicles at 303-205-5613. Early reinstatement packets, with forms included are available by clicking on the links below. Early reinstatement is not available under certain circumstances. For example, drivers under 21 and non-Colorado residents are not eligible for early reinstatement.

Legal Disclaimer – The information contained at this web site is not intended to be legal advice and all information regarding Colorado criminal law is general content only and should not be relied upon for any specific Colorado criminal law situation. Information on this web site is not intended to be comprehensive and does not cover all the issues, nuances or ramifications related to the topic discussed. This web site may not be updated routinely to reflect the very most current Colorado law.

Individuals should consult an experienced Denver criminal attorney, Denver DUI laywer, or Denver traffic lawyer for advice regarding an individual situation. 

by Ross Koplin