Court of Appeals Throws Out the Constitution on DUI Stops

In an astonishing split decision, a three-judge panel of the Colorado Court of Appeals has ruled that police stops of vehicles without reasonable suspicion cannot be used to challenge the revocation of the driver's license of someone suspected of DUI.  In Francen v. Dept. of Revenue, the COA ruled that DMV does not have to consider whether an officer had reasonable suspicion to stop a driver who challenges the revocation of his/her license under the Colorado Express Consent law.  This case overrules a twenty-year old COA decision in Peterson v. Tipton that held that an unjustified stop of a licensee was grounds to challenge an EC revocation.  The majority in Francen held that, since the 1989 revision of the EC statute no longer explicitly required an actual arrest of a driver to invoke the testing mandate, the basis for the stop of a driver was not relevant in an EC appeal hearing and the DMV should not apply the Exclusionary Rule (striking evidence obained in violation of the Constitution--in this instance, the Fourth Amendment) in administrative revocation proceedings.  The dissent diasgreed that Peterson was wrongly decided and cited several examples where that case had been affirmed and reaffirmed by Colorado appellate courts in the twenty years since it was decided.  The dissent believed that the requirement that all police stops of EC suspects be legal was implicit in the EC statute and that it was unreasonable to conclude otherwise.

Under the EC law, which mandates that persons whom an officer has probable cause to believe is impaired or under the influence must take a blood or breath test or risk an absolute one-year revocation of their driver's license, a person can challenge a driver's license revocation for excessive alcohol content (.08 or greater) or refusal of testing by requesting a hearing before DMV.  Those hearings are rather informal and, beginning this year, are now almost exclusively held by telephone.  The COA's ruling in Francen greatly dimishes an already meager opportunity for due process in challenging a government action that has severe repercussions for everyone in our modern automobile-dependent society.  Simply put, the Colorado Court of Appeals has said it is okay for police to stop drivers for no reason and, if the officer believes the driver is impaired/intoxicated, revoke his/her driver's license for up to one year.  This is what the majority in Francen stated; that if the General Assembly intended for EC stops to be lawful, they would have written it into the law! It is time to ask our representative and senators in the General Assembly if that is indeed what they intended with this law.

Contrary to what you may read or hear, the law pertaining to DUI and Express Consent is not simple and straightfoward, and as demonstrated above, is constantly changing.  The assistance of an experienced attorney is not just helpful, it is essential.