21CA0335 Wood v Colo Dept of Revenue 01-20-2022
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA0335
Jefferson County District Court No. 20CV75
Honorable Lily W. Oeffler, Judge
John Joseph Dwane Wood,
Plaintiff-Appellant,
v.
Colorado Department of Revenue, Motor Vehicles Division,
Defendant-Appellee.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE TAUBMAN*
Dailey and Fox, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced January 20, 2022
John Joseph Dwane Wood, Pro Se
Philip J. Weiser, Attorney General, Laurie Rottersman, Senior Assistant
Attorney General, Torrey Samson, Assistant Attorney General, Denver,
Colorado, for Defendant-Appellee
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2021.
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¶ 1 John Joseph Dwane Wood appeals the district court’s
judgment affirming the extension of his interlock restricted driver’s
license by the Colorado Department of Revenue’s Division of Motor
Vehicles (the Department). We affirm.
I. Background
¶ 2 Wood’s driver’s license was revoked due to an alcohol-related
conviction. When his driver’s license was reinstated, the
Department required Wood to install an interlock device on his
vehicle to test his breath alcohol content (BAC) in accordance with
section 42-2-132.5(1)(a)(I), C.R.S. 2021.
¶ 3 Over the following months, the interlock device prevented the
operation of Wood’s vehicle multiple times based on the level of his
BAC (BAC fail). Due to those BAC fails, the Department extended
Wood’s interlock restriction by one year under section
42-2-132.5(7)(d).
¶ 4 Wood requested an administrative hearing on the extension of
the restriction. During that hearing, the Department introduced
the interlock device’s records as evidence. Those records showed
that Wood had eight BAC fails from September through December
2019 as follows:
2
Date
Time
BAC Level
September 8
6:24 p.m.
0.025
September 14
5:51 a.m.
0.026
5:52 a.m.
0.026
October 6
6:48 a.m.
0.061
6:50 a.m.
0.060
October 17
12:31 p.m.
0.036
October 24
7:30 a.m.
0.099
7:31 a.m.
0.040
October 31
7:41 a.m.
0.042
7:45 a.m.
0.042
November 2
10:05 a.m.
0.030
December 26
10:25 a.m.
0.043
10:27 a.m.
0.047
10:35 a.m.
0.047
10:36 a.m.
0.034
10:52 a.m.
0.036
10:54 a.m.
0.041
¶ 5 After considering the interlock device’s records and Wood’s
testimony, the hearing officer sustained the Department’s extension
of the interlock restriction but reduced the extension from one year
to eight months. The hearing officer concluded that Wood’s breath
sample registered a BAC of 0.025 or above in at least three separate
months within a twelve-month time period. In reaching that
conclusion, the hearing officer made the following findings of fact:
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• Wood admitted the BAC fails on October 6 and December
26 but argued the other BAC fails were due to his use of
hand sanitizer or other contaminants.
• The BAC fails on September 14, October 6, October 31,
November 2, and December 26 were supported by the
evidence. In those BAC fails, Wood “waited hours to start
the car or walked away until the next day.”
• The remaining BAC fails were “clearly erratic readings”
that had quickly dissipated.
• There were aggravating factors based on the presence of
BAC fails in more than three months under
consideration, a BAC of 0.05 or greater, and three or
more readings consistent with attempted drinking and
driving.
• That more than one year remained on the interlock
device was a mitigating factor.
• The aggravating factors outweighed the mitigating factor,
warranting an eight-month extension of the interlock
restriction.
4
¶ 6 Wood filed a complaint for judicial review of the hearing
officer’s decision with the district court. As relevant to this appeal,
he contended that (1) although he drank alcohol on the night before
October 6 and December 26, he did not drink alcohol on the same
day as those BAC fails; (2) he did not drink alcohol at all on the
days of the other BAC fails; and (3) the other BAC fails were due to
his consumption of spicy and highly seasoned foods and his use of
hand sanitizer. In the brief in support of his complaint for judicial
review, Wood reiterated those contentions.
¶ 7 The district court affirmed the hearing officer’s decision,
concluding that
• Wood’s primary argument was that the BAC fails were
due to heavy use of hand sanitizer or the consumption of
spicy or heavily-seasoned food, but he also argued that
two of the BAC fails were due to consuming alcohol the
night before;
• for purposes of section 42-2-132.5(7)(d), “it is not
relevant when someone drinks, only whether there is
excessive [BAC] once someone attempts to operate their
vehicle,” so Wood’s contention that he drank alcohol the
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night before the two BAC fails cannot justify overturning
them; and
• it was required to defer to the hearing officer as the trier
of fact in resolving conflicts in the evidence and the
weight to be given the evidence — in this case, whether
the erratic BAC readings were due to contaminants.
II. Argument Raised for the First Time on Appeal
¶ 8 Wood did not argue before the hearing officer that there was
no way to know the age or accuracy of the interlock device he used
since no agency regulations governed the maintenance and testing
of interlock devices. Because Wood did not raise this argument
before the hearing officer, he did not preserve it for our review, and
we may not consider it. See Debalco Enters., Inc. v. Indus. Claim
Appeals Off., 32 P.3d 621, 624 (Colo. App. 2001).
III. Analysis
¶ 9 Wood argues that the district court erred by not considering
his arguments that the results of an interlock device are affected by
the use of alcohol-based products (like hand sanitizers,
mouthwash, and cough and cold medicines) and certain foods and
beverages. He reiterates his contentions that (1) he did not drink
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alcoholic beverages on October 6 and December 26 but only drank
one glass of wine the night before; (2) he did not drink alcoholic
beverages the night before or on September 8, September 14,
October 17, October 24, October 31, and November 2; and (3) the
BAC fails were caused by his use of hand sanitizer and eating
certain foods. Wood also argues that his use of other alcohol-based
products and his consumption of certain foods caused the BAC
fails.
¶ 10 We discern no reason to set aside the hearing officer’s
decision.
A. Standard of Review
¶ 11 As relevant here, we may set aside the hearing officer’s
decision only if it is (1) “[a]rbitrary or capricious” or (2) an “abuse or
clearly unwarranted exercise of discretion”. § 24-4-106(7)(b)(I), (VI),
(11)(e), C.R.S. 2021. A hearing officer’s decision is arbitrary and
capricious if substantial evidence does not support the decision
when reviewing the record as a whole. See Baldwin v. Huber, 223
P.3d 150, 152 (Colo. App. 2009).
¶ 12 “The credibility of witnesses, the weight to be given to the
evidence, and the resolution of conflicting evidence are factual
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matters solely within the province of the hearing officer as the trier
of fact.” Long v. Colo. Dep’t of Revenue, Motor Vehicle Div., 2012
COA 130, ¶ 7, 296 P.3d 329, 332 (Colo. App. 2012). If there is
conflicting evidence, “the hearing officer’s finding is binding on
appeal” and we “may not substitute [our] judgment for that of the
fact finder.” Glasmann v. State, 719 P.2d 1096, 1097 (Colo. App.
1986). Moreover, if the person seeking review of the hearing
officer’s decision fails to provide a copy of the hearing transcript for
our review, we presume that the evidence supports the hearing
officer’s findings. See Nova v. Indus. Claim Appeals Off., 754 P.2d
800, 801 (Colo. App. 1988).
B. Applicable Law
¶ 13 If an interlock device’s records show that the device was
“interrupted or prevented the normal operation of the vehicle due to
excessive [BAC] in three of any twelve consecutive reporting
periods,” the Department must extend the interlock restriction for
an additional twelve months after the expiration of the existing
interlock restriction. § 42-2-132.5(7)(d).
¶ 14 When the Department holds an evidentiary hearing on the
extension of an interlock restriction, the hearing officer has the
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discretion to reduce the twelve-month extension. See Dep’t of
Revenue, Div. of Motor Vehicles Rule 5.3(a), 1 Code Colo. Regs.
204-30. In such a case, the hearing officer must determine if “an
Excessive BAC Event occurred in any three months within twelve
consecutive Reporting Periods and, if so, shall determine an
appropriate extension period for the Interlock-Restricted License not
to exceed twelve months.” Id.
C. Application
¶ 15 The hearing officer’s finding that there were BAC fails on
September 14, October 6, October 31, November 2, and December
26 is supported by the interlock device’s records. Those records
show that Wood’s vehicle was prevented from starting on those
dates due to a BAC level of 0.025 or above. Specifically, Wood had
BAC levels on those dates of 0.026, 0.061, 0.042, 0.030, and 0.047.
Thus, the evidence shows that Wood had excessive BAC events in
four of the twelve consecutive reporting periods.
¶ 16 We recognize that Wood disputes the validity of those BAC
readings from his interlock device. However, Wood failed to
designate the hearing transcript for our review. Indeed, he
indicated in the notice of appeal that a transcript was not necessary
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to review the issues on appeal. Because we do not have a copy of
the hearing transcript in the appellate record, we presume that the
hearing officer’s findings of fact about the validity of the BAC
readings were supported by substantial evidence in the record. See
Nova, 754 P.2d at 801. The hearing officer found that those BAC
fails were supported by the evidence.
¶ 17 Under these circumstances, we conclude that the hearing
officer’s decision to sustain the extension of the interlock device
restriction on Wood’s driver’s license was supported by substantial
evidence in the record. Therefore, we may not set aside the hearing
officer’s decision on review.
IV. Conclusion
¶ 18 The judgment is affirmed.
JUDGE DAILEY and JUDGE FOX concur.
