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Colorado Department of Revenue v. Garner2/28/2002
lo. App. 1982).
The Department does not have discretion under these provisions to grant driving privileges to one who has been convicted of a driving offense committed while a previous restraint was in effect. Thus, the only issue to be determined at a hearing under § 42-2-138(3) is whether the driver has sustained a conviction for an offense committed while operating a motor vehicle during a previous period of restraint. See Harris v. Colorado Dep't of Revenue, 714 P.2d 1325 (Colo. App. 1985).
Contrary to the Department's argument, an accident report alone does not constitute a sufficient basis for an additional restraint action under § 42-2-138(3). See Harris v. Colorado Dep't of Revenue, supra; see also Conway v. Colorado Dep't of Revenue, supra.
Section 42-2-138(3) does not authorize the Department to make an independent determination whether a driver has committed the requisite driving offense for the additional restraint action. Because the statute authorizes additional administrative sanctions only when another driving "offense" or "violation" has been committed, we conclude that § 42-2-138(3) authorizes the Department to take such action only when its records show a conviction of such an infraction.
We note that many other restraint actions the Department is authorized to take are also predicated on a record of conviction of various driving offenses. See, e.g., §§ 42-2-125, 42-2-127, 42-2-203, C.R.S. 2001. Conversely, where the General Assembly has authorized the Department to take certain restraint actions based on its independent determination of the relevant facts, such statutory provisions expressly authorize such determinations under specific procedures. See §§ 42-2-126, 42-2-127.7, C.R.S. 2001.
We also perceive nothing in the language or legislative history of § 42-2-138(3), to indicate that the General Assembly intended the Department to have such independent fact finding authority in this context. The Department has not cited, and we have not found, any authority upholding a restraint action taken under the current or former provisions of § 42-2-138(3) absent a conviction of a separate offense.
Here, Garner was not convicted of any offense committed while the previous revocation was in effect. Rather, the record shows that, although he was charged with driving under restraint based on the traffic accident, that charge was later dismissed.
Under these circumstances, we conclude the administrative record does not support the Department's revocation action pursuant to § 42-2-138(3) for driving under restraint. See Lathe v. State, 691 P.2d 356 (Colo. App. 1984)(reversing Department's additional restraint
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