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Jansma v. Colorado Department of Revenue, Motor Vehicle Division.

2023 COA 59. No. 22CA0761. vocation of Driver’s License Based on Administrative Determination—Probable Cause to Believe Person Should Be Subject to License Revocation for Excess BAC or Refusal—Express Consent Affidavit—Burden of Proof.

June 29, 2023

A witness reported to police that Jansma’s SUV was speeding in icy conditions, spun out of control, and struck another driver’s car. The responding investigating officer and transporting officer noted indicia that Jansma was intoxicated, and she admitted to drinking two margaritas. Although she was generally uncooperative, she eventually agreed to get out of her SUV but refused to perform roadside maneuvers. Neither officer filled out or served Jansma with an express consent affidavit and notice of revocation form during the encounter, nor did they confiscate her driver’s license. Jansma was arrested for DUI, and a few days later, she contacted the Colorado Department of Revenue, Motor Vehicle Division (department) to ask whether it was issuing an express consent revocation notice and, if so, to request a hearing. About two weeks from the day of the incident, the transporting officer filled out an express consent affidavit and delivered it to the department. The department served Jansma with a notice of revocation, and she timely requested a hearing. The hearing officer upheld the department’s one-year revocation of Jansma’s driver’s license, and the district court affirmed the revocation.

On appeal, Jansma argued there was insufficient evidence to support her license revocation. Under Colorado statute (1) anyone who drives a motor vehicle in Colorado is required to take a blood or breath test when requested by a law enforcement officer having probable cause to believe the driver is under the influence of alcohol; (2) a driver’s refusal of chemical testing must result in the revocation of the driver’s license for at least one year; and (3) the department must present evidence sufficient to support a factual finding that the law enforcement officer had probable cause to believe the driver should be subject to driver’s license revocation. Here, the only evidence entered at the hearing was exhibit A, which included the transporting officer’s express consent affidavit, the officers’ written reports on their encounter with Jansma, and an affidavit for warrantless arrest that contained substantially the same information as the officers’ reports. While exhibit A provided a detailed account of Jansma’s behavior and responses during the encounter, it did not reference an advisement of rights under the express consent law, a chemical testing request made by either officer, or the circumstances supporting refusal by Jansma. Because the express consent affidavit asserted only legal conclusions without factual support and the officers’ written reports and warrantless arrest affidavit did not describe a chemical testing refusal, the evidence was insufficient to meet the department’s burden of proof to establish that Jansma refused chemical testing. Therefore, the hearing officer’s order upholding the department’s revocation was unsupported by the evidence and arbitrary and capricious.

The judgment was reversed, and the case was remanded with directions that the Department’s driver’s license revocation order be reversed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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