Seigneur v. Motor Vehicle Division of the Department of Revenue , 1983 Colo. App. LEXIS 1049 ( 1983 )

BERMAN, Judge,

dissenting.

I respectfully dissent.

The statute governing the issuance of probationary licenses in Colorado specifies that a probationary license may be issued “for a period not to exceed the period of suspension.” Section 42-2-123(11), C.R.S. 1973 (emphasis supplied). Here, the plaintiff’s license was suspended for one year. Therefore, the probationary license, according to the above statute, could not be issued for a longer period than 12 months.

Extension of the probationary license beyond the 12 months would be neither “just” nor “reasonable.” See § 2-4-201(l)(c), C.R. S.1973 (1980 Repl.Vol. IB). By extending the probationary license indefinitely, the driver is given the privileges of a permanent license for which he will never be required to pay renewal fees and for which he will never need to undergo further examination. This places the suspended driver in a far better position than a driver with a pristine record.

The majority cites, in support of its holding our Supreme Court’s decision in Colorado Department of Revenue v. Smith, 640 P.2d 1143 (Colo.1982). However, upon a close reading of the Smith ease, I have concluded that its logic runs directly contrary to the majority holding.

In Smith, two of this court’s decisions dealing with suspension of driving privileges were reversed. One of these was Smith v. Colorado Department of Revenue (Colo.App. No. 80CA0309, ann’d October 9, 1980) (not selected for official publication). There, we held that a driver whose license had been suspended for 12 months but had not paid the required restoration fee could not face a further suspension if convicted of a traffic offense after the 12-month period had expired. Our Supreme Court reversed, holding that a driver “is not extended a privilege to drive in Colorado until the period of suspension has expired and the restoration fee has been paid.” (emphasis supplied). The additional 12-month suspension was reinstated.

I would affirm the trial court and remand for reentry of the Department of Revenue’s order extending the suspension of plaintiff’s license for an additional year.