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Erbe v. Colorado Department of Revenue6/20/2002
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Dailey, J., concurs; Taubman, J. specially concurs
Plaintiff, Cheryl Erbe, appeals from the district court judgment affirming the revocation of her driver's license by the Department of Revenue for refusing to submit to testing as required by the express consent statute. Because we conclude that the Department violated plaintiff's statutory right to counsel in the revocation proceedings under the circumstances here, we reverse and remand for a new revocation hearing.
The record reveals the following facts. After plaintiff was arrested for driving under the influence of alcohol, she allegedly refused to submit to the required tests of her blood or breath. Consequently, plaintiff's driver's license was subject to revocation pursuant to the provisions of § 42-2-126, C.R.S. 2001.
Plaintiff made a timely request for a revocation hearing on February 3, 2000. On February 17, the Department sent plaintiff a notice that it had scheduled her revocation hearing for 2:30 p.m. on March 13. In a letter dated February 28, plaintiff's counsel requested the Department to reschedule the hearing because of a scheduling conflict, stating that he was scheduled to make a court appearance in another county at 2:00 p.m. on that date.
In response, the Department sent notice of its policy that "reschedule requests based on the unavailability of either the respondent or the respondent's counsel will not be granted." Based on the statutory sixty-day time limit for holding such hearings, the Department's "reschedule policy" provides that rescheduling beyond this time period "obviously is not a valid option" because it would result in a loss of jurisdiction. The Department's policy further provides that rescheduling within the sixty-day limit at the request of licensees or their attorneys "is not feasible" because of "docketing pressures."
On advice of counsel, plaintiff did not appear for the scheduled hearing under these circumstances, because she could not have the benefit of legal representation at the hearing by the counsel of her choice as a result of the scheduling conflict. The Department thereafter revoked plaintiff's driver's license pursuant to § 42-2-126.
Plaintiff brought this action in the district court challenging the revocation on various grounds. On judicial review, the district court rejected plaintiff's arguments and affirmed the revocation. This appeal followed.
Plaintiff contends, among other things, that the Department's policy against rescheduling any revocation hearings violates various statutory provisions. We agree with plaintiff that, under the circumstances here, the Department's actions effectively violated her statutory right to counsel of her own choosing at the administrative hearing, and plaintiff is therefore entitled to a new revocation hearing.
The standard governing judicial review of express consent revocation proceedings is set forth in § 42-2-126(10)(b), C.R.S. 2001. Under these provisions, a reviewing court may reverse a revocation order when, among other things, the Department has acted in an arbitrary and capricious manner or has made an erroneous interpretation of the law.
Section 42-2-126(1)(b), C.R.S. 2001, provides that one purpose of the revocation statute is to "guard against the potential for any erroneous deprivation of driving privilege by providing an opportunity for a full hearing." This statutory scheme is intended to provide for a prompt but fair revocation procedure. See Guynn v. State, 939 P.2d 526 (Colo. App. 1997).
Thus, a revocation under § 42-2-126 may be reversed on review if a st
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