Winning a DMV express consent hearing (“administrative hearing”) following a Colorado DUI is actually more difficult than winning the criminal case.
In DUI criminal cases, the stakes are serious – you could go to jail if convicted. Therefore, the prosecutor has the burden to prove guilt beyond a reasonable doubt – which is a very high bar.
At DMV hearings – where only your driver’s license is on the line – the state has a much lower burden. Since the case is administrative and not criminal, the state just has to show that it was more likely than not (“by a preponderance of the evidence”) that you were in physical control of the vehicle:
- while impaired by alcohol/drugs or
- with an illegal BAC (blood alcohol level) level.1
Therefore, winning your criminal trial while losing your DMV administrative hearing based on the same evidence is not unusual. Even though DMV hearings may be difficult to win, it is not impossible.
In this article I discuss what you need to know about winning your DMV hearing in your DUI cases. Also listen to our informative podcast:
What are the best DUI defenses to use in a DMV administrative hearing?
The most effective defenses to DUI allegations always turn on the specific facts of the case. Ten potential defense strategies you can use at your Colorado DMV express consent hearing include:
- The police lacked reasonable suspicion to pull you over, and/or the police lacked probable cause to arrest you for DUI.
- The police did not inform you of the “express consent” law.
- You were not the person driving the vehicle, and the police arrested the wrong person.
- You had a medical episode that mimicked intoxication. Examples include being in a diabetic coma or having a seizure.
- You had dental work such as a bridge that caused alcohol to pool, which caused the breathalyzer to return inaccurate BAC levels.
- You had a medical condition that caused falsely high breathalyzer results, such as acid reflux or GERD.
- The police officer administered the field sobriety tests incorrectly.
- The police officer did not observe you for 15 minutes prior to administering the breathalyzer, or more than two hours elapsed between the arrest and taking the breath or blood test.
- The breathalyzer was defective, it had not been calibrated recently, or the tech who last calibrated the breathalyzer let their certification lapse.
- The blood test results were contaminated or tampered with.
Depending on the case, potential evidence can include eyewitness testimony, surveillance video, breathalyzer maintenance records, and/or medical records.2
Are DMV hearings automatic?
No, you must request an administrative hearing in order to contest your license suspension.
If you took a breath test (or refused to take any test), you must request a DMV hearing within seven days from the arrest. If you do not request a hearing, the license suspension begins after the seventh day.
If you took a blood test following the DUI arrest, you may keep your driver’s license until the blood test results come back. At that point, you have 10 days after the letter was sent to request a hearing. If you do not request the hearing, then the license suspension begins after the 10th day.3
It is very rare that the DMV grants extensions, so it is vital you request a hearing in time. See the table in the following section for how long the DMV will revoke your license if you fail to make a timely request.
What happens if I lose?
If you lose your Colorado DMV hearing, then your license will be revoked. As the following table shows, the more DUIs you have, the longer the revocation period.4
| DUI Offense | Driver’s License Revocation by Colorado DMV |
| First offense | 9 months |
| Second offense | 1 year |
| Third or subsequent offense | 2 years |
| Chemical test refusal (refusing to take a breath or blood test following a DUI arrest) |
|
Since the DMV understands how important driving is, you can usually reinstate your driving privileges immediately if you install an ignition interlock device (IID) in your vehicles. However, if you refused a chemical test, you have to wait two months into the revocation period before you can reinstate your license.
IIDs are breathalyzers that attach to your steering wheel and are wired through the ignition system. They disable your vehicle if it detects alcohol on your breath. You are also responsible for all costs required to install and maintain the IID.
You can appeal a lost DMV hearing, though most people choose not to since reversals are rare.
What happens if I win?
If you win your DMV express consent hearing, your driver’s license will not be revoked. Any fines or fees that were assessed related to the case will be dismissed or refunded. Also, the DMV will remove any pending action from your driving record.
Remember that even if you win the DMV hearing, you can still get convicted of DUI in criminal court and have your license revoked after all. The DMV case and criminal case are separate, and the only way to keep your license is to win both.
Should I hire an attorney for my DMV hearing?
Yes, if at all possible. Having an experienced Colorado criminal defense attorney increases the odds of winning DMV express consent hearings. In practice, administrative judges take you more seriously if you are represented by counsel.
If you hire an attorney, you should expect them to:
- Request your hearing within the required time frame.
- Conduct an independent investigation of your case and compile all the relevant evidence that is favorable to your side, such as witness statements, accident records, your driving record, and certificates of completion of DUI School.
- Prepare all your defenses supported by the best facts and laws.
- Inform you of everything you need to know about the DMV process so that you feel confident you are getting the best defense.
- Arrive to the hearing on time with all the relevant documentation and be ready to cross-examine the arresting officer in your case and argue to the hearing officer why you should keep your license.
For you to lose your license following an express consent hearing, the hearing officer has to find by a preponderance of the evidence (51% likely) that you committed DUI.
If DMV hearings are hard to win, why bother?
The DMV hearing is a good dry run for your DUI criminal case.
Even though the DMV case is far more informal than a criminal trial, the DMV hearing is a valuable setting for your defense lawyer to test certain arguments and probe the police’s testimony. What happens at the hearing can also give your attorney material with which to impeach the state’s witnesses at trial.
Plus, there is always the chance that the hearing officer will find in your favor and allow you to keep your driving privileges.
Where will my hearing be?
When the DMV replies to your request for a hearing, they will give you the address information as well as the date and time to be there. Your attorney may be able to go in your place.
What is the hearing like?
Compared to criminal trials, DMV hearings are very informal. The only people present are the hearing officer, you (and/or your attorney), and the arresting officer. The hearing officer is not a real judge and probably not an attorney either.
The hearing officer will go over your case’s “express consent” packet, which has material relevant to your case such as the police report and any chemical test results. Depending on your case, your attorney can object to some or all of this material being admitted as evidence.
Eventually the hearing officer will swear in the arresting officer. The officer will then recount what led up to your DUI arrest and why they believed there was probable cause you were committing DUI.
Your attorney can also cross-examine the officer. If you wish to testify on your behalf, your attorney should have prepared you beforehand about what to say and what not to say.
The hearing must bide by the Colorado Rules of Administrative Procedures (as opposed to the stricter Rules of Criminal Procedure). The Colorado Rules of Evidence does apply to DMV hearings, but they are also more relaxed in criminal cases.
Why are DMV hearings called “express consent” hearings?
If you are pulled over on suspicion of drunk driving in Colorado, you are required to give “express consent” to take a chemical breath test or blood test. If you are suspected of drugged driving (with or without alcohol), you must submit to a chemical blood test since breath tests cannot detect drugs.
What is a failing chemical test score?
In Colorado, driving with a blood alcohol content (BAC) of .08% or higher is DUI per se. As long as your BAC is illegal, you can be convicted of driving under the influence even if you are not technically impaired.
Note that the BAC threshold is only .04% if you are a commercial driver. Meanwhile if you are under 21, you face underage drinking and driving (UDD) charges for driving with a BAC of only .02%.
Also note that driving with a BAC above .05% but below .08% is the lesser crime of DWAI (driving while ability impaired).
Does the DMV hold hearings just for DUI cases?
No. You are entitled to a hearing anytime you are at risk of getting your license suspended, revoked, cancelled or denied by the Colorado DMV. This typically happens if you:
- accumulate too many points on your license or
- develop a medical condition that inhibits your driving.
As with DUIs, it is important to hire an attorney to represent you in any DMV cases where your license is at issue.
What are the criminal penalties?
If you are convicted of DUI in Colorado, you face criminal punishments even if you win the DMV case. The following table spells out these penalties.
| DUI Offense | Colorado Criminal Sentence |
| First-time DUI or DUI per se | Misdemeanor:
If your blood alcohol concentration (BAC) was at least 0.15%, you are labeled as a persistent drunk driver (PDD) and sentenced as a repeat-DUI offender. |
| Second-time DUI or DUI per se | Misdemeanor:
|
| Third-time DUI or DUI per se | Misdemeanor:
|
| Fourth or subsequent DUI or DUI per se | Class 4 Felony:
|
Additional Resources
For more information, refer to these official Colorado DMV (Department of Revenue) websites:
- The DUI Process – A general overview of the DMV’s role in DUI cases.
- DUI Administrative Process – A step-by-step summary of DMV hearings and how they work.
- Alcohol DUI – General overview of Colorado DUI laws.
- SR-22 and Insurance Information – Information on when you need to obtain proof of financial responsibility as a condition of reinstating your license.
- Reinstatements – Instructions on how and when to reinstate your driver’s license.
Criminal trials can drag out for hours or days, while most express consent hearings are done in 20 minutes.
