Edwards v. Colorado Department of Revenue, Motor Vehicle Division

COLORADO COURT OF APPEALS 2016COA137
Court of Appeals No. 15CA0620
El Paso County District Court No. 14CV34046
Honorable Thomas K. Kane, Judge
Robin F. Edwards,
Plaintiff-Appellant,
v.
Colorado Department of Revenue, Motor Vehicle Division,
Defendant-Appellee.
JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS
Division VI
Opinion by JUDGE FURMAN
Miller and Navarro, JJ., concur
Announced September 22, 2016
Daniel Thom & Katzman P.C., Steven Katzman, Colorado Springs, Colorado, for
Petitioner-Appellee
Cynthia H. Coffman, Attorney General, Laurie Rottersman, Senior Assistant
Attorney General, Denver, Colorado, for Respondent-Appellant
¶1 Plaintiff, Robin F. Edwards, appeals the district court’s
judgment affirming the revocation of her driver’s license by the
Colorado Department of Revenue, Motor Vehicle Division
(Department), under provisions of Colorado’s revocation and
express consent statutes. Edwards cooperated with the person
who administered her breath test, but her breath test samples
were obtained more than two hours after she drove.
¶2 We are asked to consider a narrow question: Does
Colorado’s civil revocation statute require law enforcement
officials to obtain a valid breath sample within two hours of the
time a person drove before the person’s license can be revoked?
See § 42-2-126(2)(b), C.R.S. 2016. Contrary to the rulings of the
hearing officer and the district court, we conclude that it does.
Because Edwards’s breath samples were obtained more than two
hours after she drove, this statutory requirement was not met
and her revocation based on the test results from these samples
cannot be sustained. We therefore reverse the district court and
remand with directions to set aside the order of revocation. (We
note that this case does not address Edwards’s criminal
prosecution for various alcohol-related driving offenses, which
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could also lead to adverse consequences concerning her driver’s
license.)
I. The Breath Tests
¶3 The parties do not dispute the relevant facts. A police officer
stopped Edwards for speeding at 8:51 a.m. on September 7,
2014. It appeared to the officer that Edwards had been doing
more than speeding. Edwards’s speech was slurred, her eyes
were bloodshot, and she had difficulty locating her driver’s
license, registration, and proof of insurance. The officer invited
her to participate in voluntary roadside maneuvers; she agreed to
participate, but her stumbling and lack of balance indicated she
was intoxicated. The officer then advised her of Colorado’s
express consent law and offered her the choice between a breath
test and a blood test. Edwards chose to take a breath test. The
officer took her into custody and transported her to a local police
department where she could take a breath test.
¶4 Colorado Department of Public Health regulations require a
certified operator to administer a breath test in a specific
sequence. See Dep’t of Pub. Health & Env’t Regs. 4.1.3.5, 4.2.3,
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5 Code Colo. Regs. 1005-2. This sequence affected the timing of
Edwards’s test.
A. The Required Breath Test Sequence
¶5 On arrival at the facility, the breath test subject must
complete a twenty-minute “deprivation period” before taking the
breath test. Id. at 4.2.3. After the deprivation period, the subject
gives the administrator two breath samples. Id. at 4.1.3.5.
¶6 The results of these two samples must agree with each other
within a certain range. See id. For the purposes of this opinion,
the two samples are “valid” if they agree with each other within
the specified range and thus can be used to determine whether a
person was driving with excessive breath alcohol content (BAC).
If the results of the two samples do not agree with each other
within that range, they are not valid.
¶7 If the samples are not valid, the administrator must
discontinue the testing sequence and print an “exception report.”
Id. at 4.1.3.5.1. Then, the breath test subject repeats the
twenty-minute deprivation period. Id. at 4.1.3.5.2. After this
period, the administrator will retest the subject. See id. at
4.1.3.5.1, 4.1.3.5.2.
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B. Edwards’s Test
¶8 At the police station, Edwards’s first breath test attempt
resulted in an exception report rather than a completed test
because the results from her samples were not within the
required agreement range. Another twenty-minute deprivation
period then began at 10:30 a.m. and ended at 10:50 a.m.
Edwards provided two valid breath samples for testing, one at
10:52:06 a.m. and the other at 10:56:45 a.m.; the results from
these samples were within the required agreement range. The
intoxilyzer report from these samples showed her BAC to be .229
grams of alcohol per two hundred ten liters of breath, based on
the sample provided at 10:56 a.m. Of course, that is well over
the .08 or more level required for revocation for driving with an
excessive BAC. § 42-2-126(2)(b).
C. Edwards’s License Revocation
¶9 The hearing officer and district court considered the timing
of Edwards’s test and concluded that the Department should
revoke Edwards’s license.
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1. The Hearing Officer
¶ 10 At the revocation hearing, the arresting officer testified that
the .229 BAC result was based on a breath sample Edwards
provided more than two hours after the traffic stop. In response,
Edwards contended that her driver’s license should not be
revoked because she provided valid breath samples after the
two-hour time period required by the revocation statute.
¶ 11 The hearing officer found that the time of driving was 8:51
a.m. and that Edwards provided valid breath samples at 10:52
a.m. and 10:56 a.m. The hearing officer also found that the test
completed at 10:56 a.m. yielded the results showing Edwards’s
BAC to be .229. But the hearing officer rejected Edwards’s
argument, ruling that the test administrator performed the
breath test in “substantial accordance” with the regulations, and
the test, which began at 10:50 a.m., was within two hours of the
time Edwards stopped driving. Based on the results of this
breath test, the hearing officer ordered the revocation of
Edwards’s license for driving with an excessive BAC.
2. The District Court
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¶ 12 On review, the district court affirmed the revocation of
Edwards’s license, but on different grounds than those used by
the hearing officer. First, the court ruled that the revocation
statute does not require that the testing be completed within two
hours after driving. Second, based on Edwards’s high BAC test
results obtained two hours and five minutes after driving and
other evidence of intoxication, the court ruled that it was more
probable than not that Edwards’s BAC was above the statutory
limit at the time of driving and within two hours after driving.
The court determined that these circumstances supported the
hearing officer’s decision to revoke Edwards’s license for driving
with an excessive BAC.
¶ 13 On appeal, Edwards challenges the Department’s revocation
of her license.
II. Our Review of the Department’s Revocation Action
¶ 14 We may reverse the Department’s revocation of a license if
we determine that, based on the administrative record, the
Department “exceeded its . . . statutory authority” or “made an
erroneous interpretation of the law.” § 42-2-126(9)(b), (11); see
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also § 24-4-106(7), C.R.S. 2015; Fallon v. Colo. Dep’t of Revenue,
250 P.3d 691, 693 (Colo. App. 2010).
¶ 15 In driver’s license revocation cases, we conduct de novo
review of the legal conclusions and statutory construction made
by the district court and Department. Colo. Dep’t of Revenue v.
Hibbs, 122 P.3d 999, 1002 (Colo. 2005); Stumpf v. Colo. Dep’t of
Revenue, 231 P.3d 1, 2 (Colo. App. 2009). When construing a
statute, we ascertain and give effect to the General Assembly’s
intent, reading applicable statutory provisions as a whole and in
context to give consistent, harmonious, and sensible effect to all
their parts. Francen v. Colo. Dep’t of Revenue, 2014 CO 54, ¶ 8.
When a term is not defined in a statute, and if a statute is
unambiguous, we give effect to the statute’s plain and ordinary
meaning and look no further. Id.; Brodak v. Visconti, 165 P.3d
896, 898 (Colo. App. 2007).
A. Statutory Two-Hour Time Limit
Applicable to Revocations for Excessive BAC
¶ 16 Edwards contends the Department erroneously interpreted
Colorado’s revocation statute. Because her BAC test results were
obtained more than two hours after she drove, Edwards argues
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that the Department’s revocation was improper as a matter of
law. To address Edwards’s contention, we consider specific
terms of Colorado’s revocation and express consent statutes.
1. Colorado’s Revocation Statute
¶ 17 Colorado’s revocation statute provides two circumstances
when the Department may revoke a person’s driver’s license: (1)
when a driver takes a BAC test and the results show excess BAC
or (2) when a driver refuses to take a BAC test. See § 42-2-
126(2), (3); Stumpf, 231 P.3d at 1. The first scenario applies in
this case.
¶ 18 With respect to breath test results, the term “BAC” is defined
as meaning a person’s BAC “expressed in grams of alcohol per
two hundred ten liters of breath as shown by analysis of the
person’s breath.” § 42-1-102(8.5)(b), C.R.S. 2016. “Excess BAC
0.08” is defined as meaning that a person drove a vehicle in this
state when the person’s BAC was 0.08 or more “at the time of
driving or within two hours after driving.” § 42-2-126(2)(b)
(emphasis added.)
¶ 19 So what is the meaning of the term “within two hours after
driving” in the revocation statute? To answer this question, we
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first analyze the temporal limitation of when testing must occur
based on current and past versions of the revocation statute.
Then we conclude, contrary to the district court’s analysis, that
in civil revocation proceedings based on BAC test results, the
revocation statute requires that law enforcement officials obtain
valid breath test samples within two hours of when that person
last drove.
¶ 20 It is well settled that, as to revocations based on a refusal of
testing, there is no precise temporal limitation on when that
refusal must have occurred. Rather, a driver’s refusal of testing
will support a revocation on that basis as long as the testing
request was made within a “reasonable time” after driving. See
Charnes v. Boom, 766 P.2d 665, 666 (Colo. 1988); Stumpf, 231
P.3d at 1, 3.
¶ 21 In contrast, as to revocations based on excessive BAC test
results, it has long been understood that there is a precise
temporal limitation on when that testing must have occurred.
See Boom, 766 P.2d at 667; Stumpf, 231 P.3d at 1. This
temporal limitation is now set forth in the language of section 42-
9
2-126(2)(b) providing for revocations based on excessive BAC test
results “within two hours after driving.”
¶ 22 This statutory language has been part of the revocation
statute applicable to revocations based on excessive BAC test
results since 1988. See Ch. 293, sec. 2, § 42-2-122.1(1.5)(a)(I),
(8)(c), 1988 Colo. Sess. Laws 1360, 1362. (We also note that the
criminal misdemeanor offense of “DUI per se” is defined in
identical terms, as this offense is committed when a person
drives a vehicle when the person’s BAC is 0.08 or more “at the
time of driving or within two hours after driving.” § 42-4-
1301(2)(a), C.R.S. 2016.) As originally enacted, the revocation
statute provided a shorter temporal limitation on testing,
requiring revocation based on excessive BAC test results “at the
time of the commission of the alleged offense or within one hour
thereafter.” Ch. 476, sec. 9, § 42-2-122.1(1)(a)(I), 1983 Colo.
Sess. Laws 1641.
¶ 23 In upholding revocations based on excessive BAC test
results under the original statutory language, the supreme court
acknowledged that this language provided a one-hour limitation
for when the testing must have occurred. See Charnes v. Olona,
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743 P.2d 36, 38 n.8 (Colo. 1987) (stating that this statutory
language required the test to be “performed” within one hour of
the alleged offense); Colo. Div. of Revenue v. Lounsbury, 743 P.2d
23, 24 n.2 (Colo. 1987) (same). Similarly, in a refusal case, the
supreme court stated that, under the original statutory language,
a driver who took a test was not subject to revocation unless the
test was “performed” within the one-hour period after the
commission of the alleged offense. Boom, 766 P.2d at 667.
¶ 24 We next consider whether the temporal limitation for testing
applicable to revocations based on excessive BAC is consistent
with the express consent statute.
2. Express Consent Statute
¶ 25 Colorado’s express consent and revocation statutes work
together. The express consent statute provides the authority for
an officer to ask a driver to take a breath test, § 42-4-1301.1,
C.R.S. 2016; the revocation statute provides the consequences
for driving while intoxicated, § 42-2-126(3), (4).
¶ 26 Certain provisions of Colorado’s express consent statute also
relate to the temporal limitation for testing applicable to
revocations based on excessive BAC test results. Colorado’s
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express consent statute requires a suspected intoxicated driver
to take a breath test or a blood test “when so requested and
directed by a law enforcement officer [who has] probable cause to
believe” that the driver has committed an alcohol related driving
offense. § 42-4-1301.1(2)(a)(I). If a law enforcement officer
requests a test under section 42-4-1301.1(2)(a), “the person must
cooperate with the request such that the sample of blood or
breath can be obtained within two hours of the person’s driving.”
§ 42-4-1301.1(2)(a)(III). The General Assembly initially added
this section to the revocation statute in 1999 and later recodified
it as part of the express consent statute. See Ch. 35, sec. 1, §
42-2-126(2)(a)(II), 1999 Colo. Sess. Laws 90; Ch. 342, sec. 3, §
42-4-1301.1(2)(a)(III), 2002 Colo. Sess. Laws 1908; see Stumpf,
231 P.3d at 2.
¶ 27 The General Assembly amended the express consent statute
in 2007 to add an “extraordinary circumstances” exception to the
general rule that a driver is entitled to choose between taking
either a blood test or a breath test. See Ch. 261, sec. 1, § 42-4-
1301.1(2)(a.5), 2007 Colo. Sess. Laws 1023-24; People v. Null,
233 P.3d 670, 678 (Colo. 2010). As pertinent here, we note that
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section 42-4-1301.1(2)(a.5)(I) describes the time period set forth
in section 42-4-1301.1(2)(a)(III) as “the two-hour time period
required” for the “completion” of the chosen test. Thus, taken
together, the provisions of section 42-4-1301.1(2)(a)(III) and
section 42-4-1301.1(2)(a.5)(I) indicate that timely “completion” of
a test is synonymous with obtaining the test samples within the
two-hour time limit.
¶ 28 Based on the provisions of section 42-4-1301.1(2)(a)(III), the
courts have stated in more recent refusal cases that there is a
two-hour time frame for a test to be “completed” or “a sample to
be obtained.” Gallion v. Colo. Dep’t of Revenue, 171 P.3d 217,
220 (Colo. 2007); see Haney v. Colo. Dep’t of Revenue, 2015 COA
125, ¶ 15.
3. The Operative Language of the Revocation Statute
¶ 29 We now return to the operative language of section
42-2-126(2)(b) of the revocation statute, providing for revocations
based on excessive BAC test results “within two hours after
driving.” We conclude that, when read in context, the plain and
ordinary meaning of the language in section 42-2-126(2)(b) is
that test samples must be obtained within two hours after the
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time of driving to support a revocation based on excessive BAC
test results from these samples. See § 42-4-1301.1(2)(a)(III);
§ 42-4-1301.1(2)(a.5)(I); Gallion, 171 P.3d at 220; Haney, ¶ 15;
Stumpf, 231 P.3d at 1.
¶ 30 Applying the plain and ordinary meaning of the term
“within,” we conclude that the two-hour time limit set forth in
section 42-2-126(2)(b) for obtaining the test samples includes the
entire one hundred-twentieth minute after the time of driving.
See Bath v. Dep’t of Revenue, 762 P.2d 767, 767-68 (Colo. App.
1988) (holding that the one-hour time limit under the original
statutory language included the entire sixtieth minute after
driving).
¶ 31 To summarize, since BAC is defined as a person’s alcohol
content as shown by an analysis of the person’s breath, that
analysis cannot occur until an alcohol evaluation is reported, or,
in other words, the test is completed and the results are
obtained.
B. Edwards Was Not Subject to Revocation
¶ 32 Because Edwards did not give the breath sample that
established her BAC within two hours after she stopped driving,
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the test results from those samples provide no basis for
revocation based on an excessive BAC under the revocation
statute. § 42-2-126(2)(b).
¶ 33 No one disputes that Edwards stopped driving at 8:51 a.m.,
as the hearing officer found. Thus, to sustain a revocation based
on excessive BAC test results, Edwards was required to give the
breath samples that established her BAC no later than 10:51
a.m., two hours after driving. See § 42-2-126(2)(b). But,
Edwards gave breath samples at 10:52 a.m. and 10:56 a.m.,
more than two hours after driving. See Boom, 766 P.2d at 667
(in a refusal case, stating that a driver who consented to a test “is
not subject to” revocation for driving with an excessive BAC
unless the test was performed within the then-applicable
statutory one-hour time limit); Pierson v. Colo. Dep’t of Revenue,
923 P.2d 371, 373 (Colo. App. 1996) (similarly stating in another
refusal case that a driver who consented to and failed a test “is
not subject to” revocation for driving with an excessive BAC
unless the test was performed within the then-applicable
statutory two-hour time limit), superseded by statute as stated in
Gallion, 171 P.3d 217; cf. Francen, ¶¶ 10, 13 (noting that a driver
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“is subject to” revocation when the requirements of section 42-2-
126(2)(b) have been met).
¶ 34 We disagree with two of the hearing officer’s and district
court’s conclusions. First, contrary to the hearing officer’s
analysis, section 42-2-126(2)(b) does not include a “substantial
accordance” standard concerning the two-hour time limit
requirement. Thus, it is irrelevant when the breath test
sequence begins. Rather, when, as here, the breath test subject
gives the samples that establish her BAC after the statutory two-
hour time limit, she is simply not subject to revocation for driving
with an excessive BAC under the requirements of section 42-2-
126(2)(b). See Boom, 766 P.2d at 667; Pierson, 923 P.2d at 373.
¶ 35 Second, contrary to the district court’s analysis, the
revocation statute provides no basis for a fact finder to use test
results obtained after the two-hour time limit to infer that a
driver had an excessive BAC at the time of driving or within two
hours after driving.
¶ 36 In this regard, we note that test results may give rise to
permissible inferences concerning the criminal misdemeanor
offenses of “DUI” or “DWAI,” but the criminal misdemeanor
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offense of “DUI per se” is based solely on tests administered
within two hours after driving. See § 42-4-1301(2)(a), (6)(a). Like
the offense of DUI per se, revocation for driving with an excessive
BAC under section 42-2-126(2)(b) must be based solely on test
results showing a BAC of 0.08 or more from samples taken
within the two-hour time limit.
¶ 37 Finally, we note that a driver is subject to revocation for
refusal for failing to cooperate with a testing request such that
the samples of blood or breath can be obtained within two hours
after driving. See § 42-2-126(2)(h), (3)(c); § 42-4-1301.1(2)(a)(III);
Stumpf, 231 P.3d at 3. But, in this case, the evidence did not
show that the failure to obtain breath samples within the
statutory two-hour time limit was due to any noncooperation by
Edwards. To the contrary, the hearing officer expressly found
that Edwards was not at fault in this regard, so she is not
subject to revocation for refusal.
III. Conclusion
¶ 38 Because the Department revoked Edwards’s license for
driving with an excessive BAC based on its application of
erroneous legal standards, we cannot sustain its order on
17
judicial review, and the district court erred in upholding it. See §
42-2-126(9)(b).
¶ 39 Accordingly, the district court’s judgment is reversed, and
the case is remanded with directions to set aside the order of
revocation.
JUDGE MILLER and JUDGE NAVARRO concur.
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