In a Colorado DUI case, the DMV hearing (also called an express consent hearing) is an administrative proceeding to determine whether the state will suspend your driver’s license. The DMV hearing must be requested
- within 7 days of the DUI arrest in the case of a breath test or a test refusal, or
- within 7 days of receiving the blood test results in the case of a blood test.
The DMV hearing is a separate proceeding from the criminal case that takes place in the court system.
In this article, our Colorado DUI defense attorneys discuss:
- 1. What are DMV hearings in Colorado DUI cases?
- 2. How are they different from criminal trials?
- 3. What happens if I win?
- 4. What happens if I lose?
- 5. How do I get a DMV hearing?
- 6. Can I reschedule my hearing?
- 7. Can I get an interpreter?
- 8. Should I have a DMV hearing if odds are I will lose?
- 9. Can I appeal a decision from a Colorado DMV hearing?
- 10. How do I fight the criminal charges?
1. What are DMV hearings in Colorado DUI cases?
Also called “express consent hearings,” DMV hearings are administrative trials at the Colorado DMV where DUI defendants can argue against having their driver’s license suspended. The sole issue of the hearing is whether the defendant was driving under the influence of alcohol or drugs.
During the hearing, defendants – or their attorneys – can introduce evidence, call witnesses, and cross-examine the arresting officers. Ultimately, the administrative law judge – also called the DMV hearing officer – determines whether to suspend the defendant’s driving privileges.
Everyone who is arrested for DUI is entitled to a DMV hearing. DUI defendants who choose not to have a DMV hearing will definitely have their license suspended.
Note that DMV hearings are entirely separate from the defendant’s criminal DUI charges. A defendant can lose a DMV hearing but still win the criminal case, and vice versa.
Currently, DMV hearings are being conducted over Zoom.1
See our related article, What is Colorado’s express consent law?
2. How are they different from criminal trials?
The primary difference between DMV hearings and criminal trials is the burden of proof. It is a lot harder for defendants to win DMV hearings than criminal trials.
Colorado DUI proceeding
Burden of proof
|DMV administrative hearing||By a preponderance of the evidence (“more likely than not”)|
|Criminal trial||Beyond a reasonable doubt|
The other main difference is the potential consequences. All the DMV has the power to do is suspend the defendant’s driving privileges. Meanwhile, criminal courts can impose jail time and other criminal penalties in addition to driver’s license suspensions.
Finally, defendants in criminal trials can choose to have a jury deliver their verdict. In DMV hearings, the administrative law judge made the final decision – there is no jury.
Note that another name for a DUI defendant in DMV hearings is respondent.2
3. What happens if I win?
Colorado DUI defendants who win their DMV hearing keep their driver’s license pending the results of the criminal case. The only way to avoid a license suspension following a Colorado DUI arrest is to win both
- the DMV case as well as
- the criminal case.3
In short, winning the DMV case but losing the criminal case will still trigger a license suspension.
4. What happens if I lose?
Colorado DUI defendants who lose their DMV hearing will have their license suspended. The length of the revocation period depends on the specific DUI charge:
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)|| |
|* Defendants may be eligible for early reinstatement of their driving privileges immediately (or after two months if the defendant refused a chemical test) if they install an ignition interlock device in their vehicles. Visit the Colorado DMV website – early reinstatement procedures.4|
5. How do I get a DMV hearing?
DUI defendants – or their attorneys – must appear at a full-service driver’s license office to make a DMV hearing request. This request must occur within seven days of the DUI arrest if the defendant took a breath test or refused to take a test. Otherwise, the request for a DMV hearing must occur within seven days of the defendant receiving his/her blood test results (which may be weeks after the arrest).
When defendants go to the DMV to request their hearing, they should bring with them the Express Consent Affidavit and Notice of Revocation that they received from the arresting officer (or in the mail, if they took a blood test). People who do not request a DMV hearing within the seven-day time period will have their license revoked after the seventh day.
The hearing will likely be scheduled within the next two months. For more information, call the DMV Hearings Office at 303-205-5606.6
See our article, How to Request a DMV Hearing after a Colorado DUI Arrest – 5 steps.
6. Can I reschedule my hearing?
Defendants can ask the Colorado DMV to reschedule their hearings by submitting this reschedule request form. But there is no guarantee the DMV will comply.
7. Can I get an interpreter?
The Colorado DMV does not provide foreign language translators, so non-English speakers must bring their own translators who are at least 18 years old to the hearing.
The DMV Hearings Division does provide American Sign Language interpreters if defendants request one at least two weeks prior to the hearing date. Requests can be made through this online form.
8. Should I have a DMV hearing if odds are I will lose?
It is very possible to win DMV hearings in Colorado. And they are an invaluable opportunity for the defendant’s criminal defense attorneys to cross-examine the arresting officers.
Sometimes, the officers will admit to committing misconduct such as administering the breathalyzer too early or giving bad instructions for the field sobriety tests. And this may be enough for the hearing officer to find in the defendant’s favor.
And even if the hearing officer finds against the defendant, the DMV hearing serves as a dry run for the criminal case. Information the criminal defense attorney learns during this hearing could help fight the criminal charges.
9. Can I appeal a decision from a Colorado DMV hearing?
Yes. Defendants who lose their Colorado DMV hearing can file an appeal in the local district court within 35 days of the decision. Defendants must include a written copy of the hearing transcript, which the DMV does not provide. Therefore, defendants must both:
- Request an audio transcript from the DMV, and
- Have it transcribed by a legal transcriber
An appeal is not a re-hearing. Instead, the judge reviews the transcript to decide whether the administrative law judge was correct to suspend the defendant’s driving privileges.7
10. How do I fight the criminal charges?
There are many possible defenses to a criminal DUI charge – which is entirely separate from the DMV case. Learn more in our article, 20 Ways to Beat a Colorado DUI.
Our DUI attorneys practice throughout Colorado, including Denver, Greeley, Colorado Springs, Lakewood, and more.
In California? Learn about California DMV hearings.
In Nevada? Learn about Nevada DMV hearings.
Disclaimer: Past results do not guarantee future results.
- CRS 42-2-126; Hearings Division at the Colorado Department of Revenue – Division of Motor Vehicles.
- Same; CRS 42-4-1301.
- CRS 42-2-127; Jackson v. Dept. of Rev., (Colo. App. 1990) 791 P.2d 1206.
- CRS 42-2-125; Ignition Interlock Restricted License – Colorado DMV.
- CRS 42-2-127.
- Frequently-Asked-Questions – Colorado DMV; CRS 42-2-126; Kelley v. Dept. of Rev., (Colo. App. 1989) 780 P.2d 67.
- Hearings Division at the Colorado Department of Revenue – Division of Motor Vehicles. SB21-055.