While I promised a post on how and when to request a DMV hearing quite some time ago, I’ve been distracted with preparing for an upcoming trial and a few demanding clients. Let’s get back to a substantive discussion on the topic.
The time for enforcement of a revocation and hearing on that revocation hinges on whether a defendant submits to a blood or breath test. If a breath test is conducted and the defendant’s BAC is above .08, the officer will likely take the defendant’s license and issue what’s called a Notice of Revocation. In short, the Notice will state that the person has 7 days to request a hearing to contest the presumptive suspension of their license. The defendant can drive during that time, but the writing is on the wall. They either need to request a telephonic hearing, in which case they’ll be able to drive until the hearing, or prepare to lose their license a week from their arrest.
On the other hand, if the defendant submitted to a blood test, there will be a fairly lengthy delay in obtaining the results. I have several cases pending where the Colorado Department of Health has taken 3+ months in processing the blood samples to determine the BAC. As above, during this period of uncertainty, a person can still drive. Once the Department of Health tests the blood sample, it will inform the DMV if the results are .08 or more. Upon receiving confirmation that the defendant’s BAC was .08 or higher at the time of driving, the Colorado DMV will issue a form letter to the defendant’s last known address via US Mail. It is imperative that the last registered address is accurate. When I was a prosecutor I saw countless numbers of people who had old PO boxes or addresses from 4 years ago and didn’t receive the Notice. The Notice will state that the defendant’s license will be revoked in 7 days unless the defendant requests a hearing.
In either case, the key deadline for requesting a hearing is 7 days. Within that time, a person needs to request a hearing by (1) going into a DMV office, (2) sending in a request in writing, or (3) having a criminal defense attorney submit a request on behalf of the defendant. My experience is that #1 is the best due to the certainty. If the defendant goes into a DMV office in person, the DMV will likely ask that you surrender your license on the spot and issue a temporary license. In requesting a hearing, the defendant will have to decide whether or not they want the officer to be present (call in) at the revocation hearing. Because the facts of each case vary greatly, it is best to consult with a local criminal defense attorney in deciding what strategy works best.