Express Consent Hearings in Colorado – 3 things to know

Posted on December 10, 2021

Every Colorado DUI arrest creates both a criminal case as well as a DMV administrative case. In the same way DUI defendants are entitled to a criminal trial to fight the criminal charges, defendants are also entitled to a DMV trial – called an express consent hearing – to fight the license revocation. Here are three things to know about express consent hearings (a.k.a. DMV hearings) in Colorado:

1. There is a limited time period to request an express consent hearing

DUI arrestees who choose to take the evidentiary breath test must surrender their driver’s license right away. The police then give them a notice of revocation. At that point, the defendant has seven days to request a DMV hearing. During those seven days, the defendant can continue to drive – the notice of revocation serves as a seven-day temporary license.

DUI arrestees who take the evidentiary blood test get to keep their license until the DMV mails them a notice of revocation. At that point, the defendant has ten days after the postmarked date of the letter to request a DMV hearing. During those ten days, the defendant can continue to drive – the notice of revocation serves as a seven-day temporary license.

In order to request a hearing, defendants must go to the local DMV office. The DMV clerk will then give them a temporary license pending the results of the DMV hearing – which may be weeks away.

DUI arrestees who fail to request a DMV hearing in time get their license automatically revoked once the deadline passes. A first-time DUI offense carries a nine-month revocation, and successive DUIs carry a year-long revocation.

2. Express consent hearings are harder to win than criminal trials

In criminal DUI trials, the prosecution has the burden to prove beyond a reasonable doubt that the defendant 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 the defendant was DUI.

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

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

1. There is always a chance that the defendant will win, and a license revocation is the worst that can happen if the defendant loses.
2. There is always a chance the arresting officer will not show up, allowing the defendant to win by default.
3. DMV hearings are a cost-free opportunity to cross-examine the arresting officer, which will then help the defendant’s attorney craft a defense in the criminal case.

3. Defendants can still lose their license if they win the express consent hearing

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

However, DUI defendants who lose their license often have the opportunity to resume driving after only one or two months on a restricted license if they install an ignition interlock device in their vehicle.