Express Consent Hearings in Colorado – Top 5 Questions Answered

Posted on August 22, 2022

Every Colorado DUI arrest creates both a criminal case as well as a DMV administrative case. In the same way you are entitled to a criminal trial to fight the criminal charges, you are also entitled to a DMV trial – called an express consent hearing – to fight the license revocation.

Here are the top five questions and answers about express consent hearings (DMV hearings) in Colorado:

1. Is Colorado an express consent state?

Yes. As an express consent state, Colorado requires you to submit to a chemical breath test or chemical blood test if you get arrested for:

• driving under the influence of alcohol (DUI),
• driving while ability impaired (DWAI), or
• underage drinking and driving (UDD).

Refusing a chemical test carries severe penalties, including:

• 1-year driver’s license suspension,
• Colorado “persistent drunk driver” (PDD) designation,
• Alcohol and drug education and treatment,
• An ignition interlock device (IID) in your vehicle for at least 1 year, and
• SR-22 insurance requirements.

Additionally, violating Colorado’s express consent laws by refusing a chemical test is admissible as evidence of guilt should your DUI case go to trial.¹

2. What is an express consent hearing?

An express consent hearing (a.k.a. Colorado DMV hearing) is an administrative hearing where you can contest your license suspension by the DMV. It is completely separate from your DUI criminal case: You can win your criminal case and still lose your DMV hearing, and vice versa.

Express consent hearings resemble trials in that you can present evidence and cross-examine witnesses, and you can be represented by a DUI defense attorney. They take place at the DMV, but you can usually attend telephonically (which most people do to avoid having to take time off work).

DMV hearings are presided over by a hearing officer. Hearing officers both prosecute the case and decide whether or not you were in control of a motor vehicle while intoxicated and should lose your license.

The hearing officer may act like they are impartial, but they are a DMV employee and therefore not on your side. Hearing officers are not actual judges (and often not lawyers).²

3. What is an express consent affidavit?

An express consent affidavit and notice of revocation is a piece of paper notifying you that your license will be revoked in seven days. This paper also serves as your seven-day driving permit.

If you take the evidentiary breath test, you receive your express consent affidavit right away from the arresting police officer.

If you take the evidentiary blood test, you get your express consent affidavit mailed to you several weeks after the arrest if your blood alcohol content (BAC) test results come back as having been 0.08% or higher within two hours of you driving.³

4. How long does it take to get a DMV hearing in Colorado?

If you choose to take the evidentiary breath test or if you refused to take a test, you must surrender your driver’s license right away. The law enforcement officer then gives you a notice of revocation. At that point, you have seven calendar days to request a DMV hearing. During those seven days, you can continue to drive – the notice of revocation serves as a seven-day temporary license.

If you take the evidentiary blood test, you get to keep your license until the DMV mails you an “order of revocation.” At that point, you have ten days after the postmarked date of the letter to request a DMV hearing. During those ten days, you can continue to drive – the notice of revocation serves as a seven-day temporary license.

(After your DUI arrest, go online at myDMV (colorado.gov) to make sure the Colorado DMV has your current address. The DMV uses the address on file, not what you tell the arresting officer. If necessary, change your address with the DMV.)

Requesting a DMV Hearing

In order to request a DMV hearing, you can go to the local DMV office and stand on the “Driver Services/Licenses” line with your express consent affidavit and notice of revocation (or the letter the DMV mailed you with your blood results). You will surrender your license, and the DMV clerk will then give you a temporary license pending the results of the DMV hearing – which will occur within 60 days.

The temporary license will be a yellow carbon copy entitled, “Request for Administrative Hearing Pursuant to Notice of Revocation for Express Consent.” You cannot drive without it. Over the next few days, check your mail for a “Notice of Hearing” from the DMV with the hearing date.

Alternatively, you can request a DMV hearing online at myDMV (colorado.gov):

• Select “Driver/ID Services”
• Select “Request a Hearing” under “Appointment and Hearings”
• Enter the requested information and submit (which triggers an auto-response confirmation)
• Wait for 24 to 48 hours for a temporary permit to drive pending your DMV hearing
• Check your email and mail for a notice from the DMV scheduling your express consent hearing date

When you request a DMV hearing, you can also request that the officer who signed your express consent affidavit appear at the hearing. (Alternatively, you can subpoena the officer to appear.) Consult with your attorney about whether you should request that the officer be present.

Although DMV hearings are scheduled within 60 days of your request, the DMV can postpone (“continue”) it if the officer has a valid excuse to delay it.

Waiving your DMV Hearing

Not requesting a DMV hearing by the deadline triggers an automatic license revocation, and you forfeit your right to contest.

A first-time DUI offense carries a nine-month revocation. And a second DUI offense – or a first-time refusal to take a chemical test – carries a year-long revocation.⁴

5. Can I win an express consent hearing?

Yes, but it is difficult in the state of Colorado.

In criminal DUI trials, the prosecution has the burden to prove beyond a reasonable doubt that you drove impaired or with an illegal blood alcohol level. In administrative DMV hearings, the state has to find only by a preponderance of the evidence that you committed DUI.

This means that the DMV can find against you even if there is a reasonable doubt. It just has to be more likely than not that you had an illegal blood alcohol level or were driving drunk or high.

When determining whether you committed DUI, the hearing officer will consider the following factors:

1. Whether you were in “actual physical control” of a motor vehicle in Colorado;
2. Whether the police had reasonable suspicion to pull you over;
3. Whether the police had probable cause to arrest you;
4. Whether the police correctly advised you of Colorado’s express consent law;
5. Whether the chemical breath- or blood test was administered legally and correctly; and
6. Whether you were cooperative about taking the chemical test.

Ultimately, DMV hearings are very difficult to win – even if you have good arguments on your side. But DMV hearings are always worth doing for three main reasons:

1. There is always a chance that you will win on the merits or a technicality, and a license revocation is the worst that can happen if you lose;
2. There is always a chance the arresting officer will not show up, allowing you to win by default.
3. DMV hearings are a cost-free opportunity to cross-examine the arresting officer under oath and impeach the officer’s credibility. This will then help your attorney craft a defense in the criminal case without having to pay for expensive depositions.

In the event you do win your express consent hearing, the DMV will still revoke your driving privileges if you ultimately lose your criminal case. The only way to completely avoid a license suspension following a DUI is to win both the criminal case and the DMV hearing.

Even if your license gets revoked, you should have the opportunity to resume driving on a restricted license if you install an ignition interlock device in your vehicle. DUI lawyers can help you get an early reinstatement of your license.

If you are facing DUI charges in Denver or elsewhere in Colorado, contact our DUI attorneys for legal advice. Our criminal defense law firm will fight to save your driver’s license.

See our related article, What is Colorado’s express consent law?

Helpful Links

• Colorado Department of Revenue, Division of Motor Vehicles (DMV)
• Colorado driver’s license forms (DMV)
• Colorado point suspensions (DMV)

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Legal References