The DMV does not have the final say on driver’s license revocations in DUI Cases – Here are the some effective arguments to present.
In a previous post, I discussed the process for appealing a DMV revocation. That article laid out the framework for DMV appeals, including timelines and what to expect. In this article, I will discuss some effective arguments to make to the courts.
Requirements to Overturn the DMV Decision.
Pursuant to Colorado law, the rulings of administrative agencies, including the DMV, can be appealed to the judicial courts. However, in order to overturn a DMV decision revoking your license, it must be shown that the DMV hearing officer did one (or more) of the following: (1) exceeded his or her constitutional or statutory authority; (2) erroneously interpreted the law; (3) acted in an arbitrary and capricious manner; or (4) made a determination that is unsupported by the evidence in the record.
So, Which Ones Are Best?
This is where an experienced appellate attorney can help. Specifically, your attorney will need to review the evidence in your case, such as the officer’s report and any body camera video, and then compare that to the DMV hearing officer’s decisions. In doing that, it should become apparent which of the four should be argued. That said, in my experience, the best issues to argue are that the hearing officer either erroneously interpreted the law or made a determination that is unsupported by the evidence in the record (or both). Why? First, it is hard for the DMV to exceed its statutory authority. They are authorized to revoke your license. Period. So, unless they revoke your license for a period of time beyond that authorized by statute, or for a reason not authorized by statute, this really won’t come into play. Even the DMV usually gets this right.
Second, acting in an arbitrary and capricious manner is an incredibly high standard. Based on the Colorado case law, an arbitrary and capricious
“exercise of discretion by an administrative board can arise in only three ways, namely: (a) By neglecting or refusing to use reasonable diligence and care to procure such evidence as it is by law authorized to consider in exercising the discretion vested in it. (b) By failing to give candid and honest consideration of evidence before it on which it is authorized to act in exercising its discretion. (c) By exercising its discretion in such manner after a consideration of evidence before it as clearly to indicate that its action is based on conclusions from the evidence such that reasonable men fairly and honestly considering the evidence must reach contrary conclusions.
Accordingly, an error in interpreting the law or making findings not supported by the record are usually the cleanest and most compelling arguments to make.
For example, imagine a driver who refuses to take a chemical test after being asked to do so by the police. What if the person, after refusing, “recants” (takes back) their refusal, tells the officer that they want to take the test, but now the officer says no? If the DMV hearing officer nevertheless revokes the driver’s license, there is a strong argument that the hearing officer misinterpreted the law. That is because the law requires the officer to accept the driver’s recantation if the officer “remains engaged in the process of requesting and directing the completion of the chemical test.” As such, under these facts, your attorney would want to consider raising the issue of misinterpretation of the law because the DMV hearing officer acted in a way counter to established precedent.
The purpose of this article is for education. Put simply, I have found that well-informed clients are happier and better able to both understand the complexities of their case and assist in their defense. If you or someone you know has had their license revoked by the Colorado DMV, give me a call. As a highly experienced appellate attorney, I welcome the opportunity to discuss your case with you, and all initial consultations are free of charge.
 See Gallion v. Colo. Dep’t of Revenue, Motor Vehicle Div., 171 P.3d 217 (Colo. 2007).