"WHAT IS THIS NOTICE OF REVOCATION?????"
By Brandon R. Ceglian
If you have been arrested in Colorado for a criminal driving violation like Driving Under the Influence ("DUI"), Driving While Ability Impaired ("DWAI"), Driving While Under Restraint,("DUR") or for traffic violations with excessive points, you may have received a Notice of Revocation. Often defendants do not think the DMV hearing is important, or doubt they can win. They may consider hiring an attorney, but only to address the criminal court matter. Defendants figure they have plenty of time to hire an attorney before the court date listed on the summons. They are mistaken; time is of the essence.
It is important to consult immediately with an attorney. Even if you are waiting for money and cannot afford to hire an attorney just yet, you should consult with an attorney to determine whether you should request the hearing yourself. A timely request for a hearing will permit you to obtain a temporary driving permit until the final hearing date and buy you time to hire an attorney. Despite underdog chances against the DMV, this hearing is potentially very important to your criminal case.
If you took a breath test (breathalyzer / Intoxilyzer) test and were arrested for a "per se" alcohol violation due to your blood-alcohol content ("BAC"), the arresting officer gave you an Affidavit and Notice Revocation and took possession of your license. Your Notice of Revocation states you have a week to request a hearing at the Department of Revenue, Division of Motor Vehicles ("DMV"). If you took a blood test, or had a traffic violation giving you excessive points on your drivers license, the Notice will be in the form of a letter from the DMV. The letter usually comes within one to two months. The letter will be an Order or Notice of Suspension or Revocation. The letter states that you have about a week to request a hearing.
For defendants who have an attorney or are planning on obtaining attorney representation for the criminal matter, the attorney should be consulted immediately and given a copy of the Notice or Order of Revocation. The attorney can go over the costs and benefits to your criminal case of defending at the DMV hearing. Though the attorney may not be able to prevent the loss of the driver's license, the DMV hearing permits the subpoena of the arresting officer(s) to testify and produce the documents that they rely on. If the officer fails to show, the DMV officer might dismiss the case, and not take any further action against your license. In every case, the attorney might be able to actually help you keep your license, or help you obtain an Order for a probationary license ("red license") or ignition interlock systems.
If the law enforcement officer does show up to testify against you, your attorney gets a free crack at him/her without the presence of the District Attorney. The hearing will help the attorney determine the strengths and weaknesses of the District Attorney's case against you. The hearing is recorded and the attorney can order a transcript which will be useful and invaluable for trial. The law enforcement officer will be stuck with the testimony he gave. If he forgets or changes his story at the Court trial, the defendant's attorney can use his prior testimony against him.
It cannot be stressed how valuable this hearing can be. Unlike a civil trial, there are few rights to take depositions of witnesses in a criminal trial. A deposition is sworn testimony taken before a court reporter well prior to the actual trial. A written transcript of the deposition is then made and all the parties to the case have the evidence before trial. They know, or can expect, what the witnesses will say on the stand. In a criminal trial, the defense attorney is stuck with the police report/affidavit and written witness statements. He may have difficulty getting the whole story. Sometimes witnesses, or the alleged victim, will not talk. Especially in traffic cases, the law enforcement officer may be the only witness to the case, or to certain important pieces of evidence. The police reports/affidavits are often very vague and are usually very one-sided accounts of the events. An officer's detailed testimony at the DMV hearing will force him/her to stick to that version of events and prevent the officer from explaining away things in the police report or surprising the defendant at trial with facts and accounts not detailed in the police report. The testimony of the officer may be enough to convince the District Attorney to drop the case altogether, or may provide the basis for a motion to suppress evidence and for dismissal of the case.
Defending a DMV hearing is an added expense to the DUI defense, and so the benefits of defending such hearing should be discussed with legal counsel. However, the extra expense, time, and effort, is usually worth the benefit to the defense in having a detailed record of events from the law enforcement officer, or the chance at keeping your driver's license.
(NOTE: For the same reasons, hearings to determine whether to make a restraining order permanent may also be invaluable for the attorney preparing for any number of trials or hearings in criminal, civil, divorce, or child custody matters. Consult an attorney before deciding to ignore the hearing or to represent yourself.)
