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Colorado Department of Revenue v. Garner2/28/2002
JUDGMENT AFFIRMED
Rothenberg and Kapelke, JJ., concur
In this driver's license revocation case, the Department of Revenue appeals the district court's judgment entered in favor of appellee, Jake A. Garner. The Department had revoked Garner's driver's license for driving under restraint pursuant to § 42-2-138(3), C.R.S. 2001, and the district court set aside the revocation order on judicial review. We affirm.
The relevant facts are not in dispute. On June 14, 2000, Garner was arrested for driving under the influence of alcohol, and the results of a breath test showed an excessive blood alcohol content. Based on this incident, the Department later revoked his driver's license for three months pursuant to § 42-2-126, C.R.S. 2001, effective July 22, 2000. Garner's driver's license was reinstated on October 23, 2000.
Meanwhile, on August 19, 2000, Garner was involved in a traffic accident in which the vehicle he was driving was rear-ended by another vehicle. The accident report shows that the other driver was ticketed for careless driving, while Garner was ticketed only for driving under restraint in violation of § 42-2-138(1), C.R.S. 2001.
Based on the accident report, the Department subsequently revoked Garner's driver's license for an additional year pursuant to § 42-2-138(3), for driving while the previous revocation was in effect. At the hearing on this revocation action, Garner presented documentary evidence showing that the driving under restraint charge had been dismissed on October 27, 2000. The hearing officer rejected his arguments and ordered the revocation.
Garner thereafter brought an action for judicial review in the district court. Ruling that the hearing officer had erroneously construed § 42-2-138(3) to authorize revocation under these circumstances, the district court set aside the revocation and ordered the reinstatement of Garner's driver's license.
On appeal, the Department contends the district court erred in holding that a conviction for a driving offense committed while under restraint is required for an additional restraint action under § 42-2-138(3). We disagree.
Section 42-2-138(3) provides as follows:
The department, upon receiving a record of conviction or accident report of any person for an offense committed while operating a motor vehicle, shall immediately examine its files to determine if the license or operating privilege of such person has been suspended or revoked. If it appears that said offense was committed while the license or operating privilege of such person was revoked or suspended, except as permitted by section 42-2-132.5, the department shall not issue a new license or grant any driving privileges for an additional period of one year after the date such person would otherwise have been entitled to apply for a new license or for reinstatement of a suspended license and shall notify the district attorney in the county where such violation occurred and request prosecution of such person under subsection (1) of this section. (emphasis added)
These provisions authorize the Department to extend the period of a previous restraint action for an additional year whenever a driver whose license has been suspended or revoked commits additional traffic offenses while the previous restraint is in effect. See Allen v. Charnes, 674 P.2d 378 (Colo. 1984). Conviction of any driving offense, not necessarily just the offense of driving under restraint, committed during a previous period of restraint is sufficient to support an extension of that restraint period by the Department under § 42-2-138(3). See Conway v. Colorado Dep't of Revenue, 653 P.2d 411 (Co
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