Thursday, September 22, 2016

COA: Statutory Two-Hour Limit on Chemical Testing Mandatory in Per Se Revocations

Today, the Colorado Court of Appeals ruled that the statutory two-hour time limit to conduct a chemical test of drivers suspected of DUI/DWAI is mandatory and cannot be circumvented by excuse or good-faith actions/intentions.

Colorado's "Expressed Consent" law requires the revocation of a driver's license if he/she is contacted by law enforcement with probable cause that the driver is DUI/DWAI and a chemical test conducted within two hours of driving reveals a blood/breath alcohol content of .08 or greater.  In recent years, the Department of Revenue, Motor Vehicles Division has interpreted existing case law to permit revocation even when proven that the chemical test was conducted more than two hours after driving, or when it could not be definitively ascertained just how much time had elapsed between driving and conduct of the chemical test.

In Edwards v. Dept. of Revenue, a panel of the COA reversed the per se revocation of a driver who was stopped and suspected of DUI.  Because of Intoxylizer error messages for two abortive testing attempts, a measured breath sample of .229 was not achieved until two hours and five minutes after the driver was last known to be driving.  At the DMV hearing, the hearing officer concluded that, since the first attempts at testing were made before the statutory two-hour limit had expired, the test results obtained outside the two-hour test limits were nonetheless valid to be considered re revocation.  The driver appealed to the District Court, which upheld the revocation on different grounds; holding that the statutory time limit had been violated, but that given the high BrAC test result, the driver's BrAC was no doubt well-above the legal limit when testing began inside the two-hour time limit.

The COA disagreed and reversed the per se revocation, holding that the two-hour limit does include any exceptions or exclusions for special circumstances.  Since the test results that were used against the driver were obtained outside the two-hour limit, the results could not be used in a per se revocation proceeding against the driver.  The COA was careful to point out that this two-hour time limit applies only to civil, administrative revocation proceedings conducted by DMV; test results obtained outside of two hours may still be offered against a defendant in a criminal proceeding provided the test results meet all the other evidentiary requirements of scientific tests.

As one can see from this case along, DUI is a very complex body of law, and the assistance of an experienced attorney is no longer advisable, but essential.