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Hibbs v. Colorado Dep't of Revenue10/7/2004
ORDER AFFIRMED
In this driver's license revocation case, the Colorado Department of Revenue (the Department) appeals a district court order reversing a hearing officer's order revoking the commercial driver's license of Terry L. Hibbs. We affirm.
On December 4, 2002, a police officer saw Hibbs drive his truck through a red light. After stopping the truck, the police officer noticed that Hibbs appeared to be intoxicated. The results of a breath test showed that he had a breath alcohol content (BAC) of 0.151.
The police officer completed a combined affidavit and notice of revocation form and served it on Hibbs. On the form, the officer checked a box stating, "Because you submitted to testing which disclosed an alcohol concentration of 0.10 or more, your driver's license and/or driving privilege is hereby revoked for a minimum of THREE MONTHS FOR A FIRST REVOCATION . . . ." Other than describing the vehicle he had been driving as a semitractor truck, the form did not indicate that Hibbs had been operating a commercial vehicle at the time of his arrest. No checkmark was placed in the "COMMERCIAL/HAZMAT OPERATOR" box of the form, which provides: "Because you submitted to testing which disclosed an alcohol concentration of 0.04 or more, your driver's license and/or driving privilege is hereby revoked for a minimum of ONE YEAR FOR THE FIRST OFFENSE . . . ."
The police officer forwarded copies of the citation and the completed affidavit and notice of revocation form to the Department. In addition, she submitted a report consisting of (1) an incident report and narrative; (2) DUI and arrest reports; (3) a warrantless arrest probable cause statement; and (4) information relating to the breathalyzer test and results. Although the probable cause statement was notarized, the report as a whole was not notarized or otherwise signed and sworn to by the officer before another person.
The Department issued two separate "Orders of Revocation." The first order provided that, in conformity with § 42-2-126, C.R.S. 2003, Hibbs's license was revoked for three months because he had operated a "motor vehicle" while having an alcohol content of 0.10 or more. The second order provided that because Hibbs had been operating a "commercial motor vehicle" while having an alcohol content of 0.04 or more, his license was revoked for one year in accordance with § 42-2-126. Both orders notified Hibbs that he had the right to request a hearing.
In response to Hibbs's timely request for a hearing, the Department issued a "Notice of Hearing." In this notice, the Department stated that the hearing concerned "revocation of your commercial driver privilege for driving a commercial motor vehicle when you had a blood alcohol content of .04 or more pursuant to [§] 42-2-126, C.R.S."
At the revocation hearing, the police officer admitted that she had checked the incorrect box on the notice of revocation form and had failed to indicate that Hibbs had been driving a commercial vehicle. The hearing officer nevertheless found that Hibbs had been driving a commercial motor vehicle, that he had a BAC of 0.10 or more at the time of his arrest, and that he had not been prejudiced by the officer's having treated the "paperwork the same way she does that of a [noncommercial] motor vehicle driver."
Based on these findings, the hearing officer issued two orders of revocation. Citing § 42-2-126 generally, the first order revoked Hibbs's license for a period of three months. The second order revoked his license for one year based on a finding that the facts supported revocation under § 42-2-405, C.R.S. 2003, the statute pertaining to driver's license disciplinary action
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