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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 the top five questions and answers about express consent hearings (a.k.a. DMV hearings) in Colorado:
Yes. As an express consent state, Colorado requires motor vehicle drivers to submit to a chemical breath test or chemical blood test if they get arrested for driving under the influence of alcohol (DUI), driving while ability impaired (DWAI), or underage drinking and driving (UDD).
Suspected drunk drivers who refuse a chemical test face severe penalties, including:
Additionally, violating Colorado’s express consent laws by refusing a chemical test is admissible as evidence of guilt should the DUI case go to trial.1
An express consent hearing (a.k.a. Colorado DMV hearing) is an administrative hearing where DUI defendants can contest their license suspension by the DMV. It is completely separate from the DUI criminal case: Defendants can win their criminal case and still lose their DMV hearing, and vice versa.
Express consent hearings resemble trials in that defendants can present evidence and cross-examine witnesses, and the defendant can be represented by a DUI defense attorney. They take place at the DMV, but defendants can usually attend telephonically.
DMV hearings are presided over by a hearing officer, who ultimately decides whether or not the defendant was in control of a motor vehicle while intoxicated and should lose their license.2
An express consent affidavit and notice of revocation is a piece of paper notifying Colorado DUI defendants that their license will be revoked in seven days. This paper also serves as the person’s seven-day driving permit.
DUI arrestees who take the evidentiary breath test receive their express consent affidavit right away from the arresting police officer. But DUI arrestees who take the evidentiary blood test get their express consent affidavit mailed to them several weeks after the arrest if their blood alcohol content (BAC) test results come back as 0.08% or higher.3
It depends on whether the DUI defendant takes a breath test or blood test.
DUI arrestees who choose to take the evidentiary breath test must surrender their driver’s license right away. The law enforcement officer then gives 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.4
DMV hearings are more difficult to win than criminal trials.
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 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:
In the event defendants do win their express consent hearing, the DMV will still revoke their driving privileges 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. DUI lawyers can help defendants get an early reinstatement of their 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?
Michael Becker has over a quarter-century's worth of experience as an attorney and more than 100 trials under his belt. He is a sought-after legal commentator and is licensed to practice law in Colorado, Nevada, California, and Florida.
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