Understanding the DMV Express Consent Hearing in Colorado

If you have been stopped under suspicion of DUI in Colorado, it's important to understand your rights. Drivers give “express consent” when they receive their licenses. According to this law, any driver must consent to a chemical test if they are accused of driving under the influence or it is believed that they are impaired due to alcohol, drugs or both. 

For those who have a blood alcohol concentration above the .08% limit, as well as for those deemed too impaired to drive, a DUI charge is possible. 

If you're facing a DUI charge, time is of the essence. Taking action may help you prevent serious criminal penalties and protect your license. 

What Is a DMV Hearing?

The Division of Motor Vehicles allows individuals to request a hearing regarding traffic violations, citations and charges that may affect their license. The hearings go over multiple issues, such as:

  • License revocations
  • License suspensions
  • License denials
  • Cancellation of a license

The criminal case surrounding a DUI is handled in your local county court. However, the future of a person's license is determined in a hearing. These two should not be confused, because what happens in civil court doesn't have to reflect the outcome of a criminal case. 

How Do I Get a DMV Hearing in Colorado?

To get a DMV hearing in Colorado, you need to request an Express Consent Hearing within the timeframe allowed by law. The time limit depends on several factors, such as if you consented to the breath test or blood test, as well as how high your blood-alcohol concentration was at the time of the traffic stop. 

Your criminal defense attorney can help you initiate your request for DMV hearings. You can ask for a hearing with the Colorado DMV based on these rules:

  1. If your blood alcohol concentration (BAC) was .08% or higher, you did not provide a chemical test or you are a minor with a .02% BAC or greater, you will be given an Express Consent Affidavit and Notice of Revocation. From the time of receiving this notice, you have seven days to request a hearing. 
  2. If you have a BAC of .02% (minors) or .08% (adults) and did provide a chemical test sample, you will receive a Notice of Revocation from the DMV instead. This notice will arrive by mail. From the date of the postmark, you usually have only 10 days to request a hearing. If the letter was delayed, you may be able to request a hearing past that time. 

If you don't request a hearing within the time limits, you will lose your driving privileges automatically and be unable to use your driver's license. 

What Is an Express Consent Hearing?

An express consent hearing is a preponderance hearing. This hearing has a DMV hearing officer who presides over it. At this hearing, you should know that it is presumed that you are guilty until proven otherwise. 

Why Should You Request an Express Consent Hearing?

You will want to work with your attorney to prepare to speak with the hearing officer, so that you don't say or do anything to further prove the DUI case. Remember that you have attorney-client privilege and protection, thanks to your attorney-client relationship. As a result, you can tell your attorney everything about your case, and they will give you support for your Colorado DUI case. 

A good DUI defense matters at this hearing. A skillful attorney will give you legal advice in advance and offer support during the hearing. At the hearing, the officer's testimony is taken. Sometimes, this testimony can be used to impeach the officer in the criminal case, which could help prevent a license suspension, the loss of your driver’s license and/or a conviction.

It's a good idea to request an express consent hearing, because there is no risk. At worst, your license could be suspended for a statutory period, which will happen regardless of having this hearing. You may be able to keep your license if you have the hearing and are successful.

If the hearing officer determines that there isn't enough evidence, this may also benefit your criminal case. If the hearing officer can't take your license, a prosecuting attorney may have trouble getting enough evidence to land a conviction. 

This is also a great time to question an officer under oath for free. Otherwise, you'd have to pay to depose the officer. 

What Should You Expect During an Express Consent Hearing?

During the hearing itself, you may want to hire an experienced DUI attorney to represent you in Colorado. Many offer a free consultation for your case, so you can decide if you'd like them to represent you. 

At the hearing, the hearing officer will review the Expressed Consent packet with you. This packet has all kinds of information and legal documents inside, such as the police report and any test results. 

At that time, the hearing officer will ask if you have any objection to admitting this information. In some cases, your attorney may object. 

Following this, the officer who was involved in your traffic stop and who has accused you of driving while impaired will be sworn in to give their testimony. They will talk about what they saw on the date of the traffic stop and discuss why they felt you were impaired. 

Interestingly, the Express Consent Hearing allows you or your attorney to cross-examine the officer. They may ask questions about the breath test, such as if it was recently calibrated, or request other details about the traffic stop to determine if it was a legal stop. 

You will also be sworn in to speak on your behalf to the hearing officer. The hearing officer is allowed to ask you questions while you're under oath. Since there are different legal strategies for handling these hearings, you should discuss your defensive options with the defense attorney before answering any questions that you're asked. 

Keep in mind that the hearing room is not a courtroom. The hearing officer is not a judge or attorney in most cases. Do remember that anything you say will most likely be recorded, so you should remain quiet unless you are asking a question or being asked to speak to the hearing officer or another party in the room. 

How Do You Win a DMV DUI Hearing?

To win a DMV DUI hearing, it's your job to show that you were not impaired by alcohol, marijuana or other substances. You could also show that you were improperly stopped or that the officer did not perform the tests, like field sobriety or breath tests, correctly. Your attorney will work with you to plan a defense for winning your hearing. 


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