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Hibbs v. Colorado Dep't of Revenue10/7/2004
rt that is "notarized or sworn to before [another] person." This definition is consistent with the common meaning of "verified" as used in its ordinary context. See Black's Law Dictionary 1556 (7th ed. 1999)("verification" is defined as a "formal declaration made in the presence of an authorized officer, such as a notary public, by which one swears to the truth of the statements in the document"); see also McClellan v. State, 731 P.2d 769, 771-72 (Colo. App. 1986)(finding that report was properly verified where an attestation to the accuracy of the documents was both signed by the police officer and notarized, and the officer testified to their correctness).
Because the report here was not notarized or otherwise sworn to before any person, the district court properly ruled that § 42-2-126(3)(b) had been violated.
Further, this statutory violation deprived the Department of jurisdiction to revoke Hibbs's license for one year. Section 42-2-126(3)(b) does not specifically state that compliance with its provisions is a jurisdictional prerequisite to revocation actions by the Department. However, reading § 42-2-126(3)(b) and (4)(a), C.R.S. 2003, together, we construe the statute's requirement of a verified report as creating a jurisdictional condition to revocation determinations involving commercial motor vehicle operators.
First, the statute provides that the officer "shall" forward a verified report to the Department. The term "shall" is presumed to have a mandatory meaning. Morgan v. Genesee Co., 86 P.3d 388, 393 (Colo. 2004). Also, § 42-2-126(4)(a) provides that " pon receipt of the affidavit of the law enforcement officer and the relevant documents required by subsection (3) of this section, the department shall make the determination [of revocation]" (emphasis added). Thus, not only is a police officer required to comply with § 42-2-126(3)(b) by providing a verified report to the Department, but also, according to the plain language of § 42-2-126(4)(a), receipt of such a report is a prerequisite to invoking the Department's jurisdiction in revocation proceedings involving commercial motor vehicle operators. See Telluride Resort & Spa , L.P. v. Colo. Dep't of Revenue, supra, 40 P.3d at 1265 (" hen construing statutes, we should . . . construe each provision in harmony with the overall statutory design"); see also Alford v. Tipton, supra (in license revocation involving noncommercial motor vehicle operator, deletion of former statutory requirement that a "verified report" be provided evidences relaxation of requirements for invoking jurisdiction of the Department).
Further, for proceedings under § 42-2-126(3)(b), the General Assembly's use of the term "verified" evidences a legislative intent to require a heightened level of reliability of those documents on which commercial vehicle revocation determinations are based. The officer's failure to have the report verified affected the reliability of the information on which the Department made its revocation determination as a result of that failure the Department lacked jurisdiction to revoke Hibbs's license for one year. See Alford v. Tipton, supra, 822 P.2d at 515 (whether the Department acquires jurisdiction in revocation actions under former § 42-2-126 depends on whether the documents "contain sufficient information of a reliable character to permit the Department to make a revocation determination").
Because the Department's determination that Hibbs had been operating a commercial motor vehicle with an excessive BAC was not based on a verified report, we agree with the district court that the Department lacked jurisdiction to revoke Hibbs's license for one year.
The order is affirmed.
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