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Rowland v. Department of Revenue

Court of Appeals of Colorado, Seventh Division

March 10, 2016

Brian Rowland, Plaintiff-Appellant,
v.
Department of Revenue, Division of Motor Vehicles, Defendant-Appellee.

Boulder County District Court No. 14CV30911 Honorable Ingrid S. Bakke, Judge

Frechette Law Office, Franz P. Frechette, Nederland, Colorado, for Plaintiff- Appellant.

Cynthia H. Coffman, Attorney General, Laurie Rottersman, Senior Assistant Attorney General, Denver, Colorado, for Defendant-Appellee.

OPINION

BERGER, JUDGE

¶ 1 Plaintiff, Brian Rowland, appeals from the district court's judgment affirming the revocation of his driver's license by the Department of Revenue (department) for "driving with an excessive amount of alcohol in his . . . body" in violation of section 42-2-126, C.R.S. 2015. Because we conclude that the hearing officer improperly admitted an unsworn report of Rowland's blood alcohol content, we reverse the district court's judgment and remand for further proceedings.

I. Relevant Facts and Procedural History

¶ 2 A police officer pulled Rowland over after she saw him driving at inconsistent speeds and crossing the yellow dividing line and the fog line. While the officer spoke to Rowland, she smelled alcohol on his breath, noticed that his eyes were red, bloodshot, and watery, and noticed that his speech was slow and slurred. When asked whether he had been drinking, Rowland said he had had one beer. The officer asked Rowland to get out of his vehicle and saw, as he stood, that he was unsteady on his feet. Rowland unsatisfactorily performed several roadside maneuvers.

¶ 3 The officer arrested Rowland for driving under the influence and, in accordance with the implied consent law, section 42-4-1301.1, C.R.S. 2015, gave him a choice to take a breath test or a blood test to determine his blood alcohol content (BAC). Rowland chose the blood test.

¶ 4 At the police station, an EMT drew a sample of Rowland's blood while the officer watched. The officer then delivered the sample to a private laboratory for a blood alcohol analysis. According to the blood test, Rowland's BAC was 0.158, almost twice the legal limit of 0.08. § 42-2-126(3).[1]

¶ 5 As required by the license revocation statute, section 42-2-126, the officer submitted an affidavit to the department, which reported the BAC test results. The department revoked Rowland's license for nine months, pursuant to section 42-2-126(3)(a)(I)(A), which requires revocation for driving with a BAC in excess of 0.08. Rowland requested and was granted an administrative hearing.

¶ 6 Evidence admitted at the hearing included the officer's affidavit and testimony and the BAC test report. The analyst who performed Rowland's blood test did not testify, nor did Rowland.

¶ 7 The hearing officer affirmed the revocation, finding that the department had proved by a preponderance of the evidence that Rowland drove with a BAC in excess of 0.08.

¶ 8 Rowland appealed the hearing officer's decision to the district court. The district court rejected the hearing officer's conclusion that the BAC test report was properly admitted at the hearing. Instead, the district court held that the BAC test report was an affidavit that had to meet the requirements of section 42-2-126(8) and that those requirements were not met. Nevertheless, the district court affirmed the revocation because it concluded that the test results, though not the BAC test report itself, were admissible through the officer's testimony and that there was sufficient evidence in the record to uphold the revocation order.

II. Admissibility of the BAC Test Report

ΒΆ 9 Rowland contends that a BAC test report prepared by a private organization (as opposed to a law enforcement agency) must comply with the affidavit requirements of section 42-2-126(8)(c). He claims because the report of his BAC test results did not comply, its admission into evidence at the revocation hearing was error. He further argues that because the BAC test report and its contents were the only evidence that his BAC exceeded 0.08, we must reverse the district court's ...


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