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Dimarco v. Department of Revenue7/29/1993
The Department of Revenue (Department) appeals from a district court judgment vacating the Department's orders that both suspended and revoked the driver's license of plaintiff, Pete Cymon DiMarco. The central issue presented is whether the 60-day time limit for holding a hearing under § 42-2-123(12), C.R.S. (1992 Cum. Supp.) is jurisdictional. We hold that this time limit is not jurisdictional, and therefore, we reverse the district court's judgment. However, we remand the cause to that court with directions to remand the matter to the Department for a new hearing.
The Department is authorized to revoke the driver's license of anyone whose driving record shows that person to be an habitual traffic offender, as defined in § 42-2-202, C.R.S. (1984 Repl. Vol. 17). Such an offender is one who has sustained multiple convictions of certain specified traffic offenses. Section 42-2-203, C.R.S. (1984 Repl. Vol. 17). The Department is also authorized to suspend the driver's license of anyone whose driving record shows that person to have accumulated an excessive number of points, which are assessed on the basis of convictions of various traffic violations. Section 42-2-123, C.R.S. (1984 Repl. Vol. 17).
Prior to any revocation or suspension of a driver's license, both statutes require the Department to follow the hearing procedures set forth in §§ 42-2-123(7) to 42-2-123(12), C.R.S. (1984 Repl. Vol. 17). Sections 42-2-203 and 42-2-123(1)(d), C.R.S. (1984 Repl. Vol. 17).
Under these hearing procedures, whenever the Department's records show that a license is subject to revocation or suspension, the Department is required to schedule a hearing to consider the issue and to send written notice of the hearing to the licensee. Section 42-2-123(8), C.R.S. (1984 Repl. Vol. 17).
If the licensee fails to appear at the scheduled hearing, the Department must immediately enter an order of revocation or suspension, but that order is not effective until twenty days after the licensee is notified of such action. This notification must contain an advisement that the licensee may apply for another hearing within that 20-day period. If the licensee timely applies for such a hearing, the effective date of the order is suspended, and the issues presented must be determined at a new hearing in the same manner as if the licensee had originally appeared in response to the first notice. Section § 42-2-123(12), C.R.S. (1992 Cum. Supp.).
Section 42-2-123(12) further requires that, if the licensee applies for a second hearing under these circumstances, "such hearing shall be held within sixty days after application is made." (emphasis supplied)
Here, the Department sent plaintiff two notices in March 1991 of a hearing to determine whether his driver's license should be revoked for being an habitual offender or suspended for an accumulation of excessive points. Upon plaintiff's failure to appear at this hearing, the Department entered orders of revocation and suspension and sent plaintiff notices of these actions and of his right to apply for another hearing.
Plaintiff timely applied for such a hearing in May 1991. However, the Department scheduled the requested hearing for a date in July 1991 that was some 64 days after plaintiff made his request for that hearing.
The record of the proceedings at the July hearing is not available because the Department destroyed it. Nevertheless, it is agreed that plaintiff appeared at this hearing and objected to the proceedin
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