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Edwards v. Colorado Department of Revenue

Court of Appeals of Colorado, Sixth Division

September 22, 2016

Robin F. Edwards, Plaintiff-Appellant,
v.
Colorado Department of Revenue, Motor Vehicle Division, Defendant-Appellee.

         El Paso County District Court No. 14CV34046 Honorable Thomas K. Kane, Judge

          Daniel Thorn & Katzman P.C., Steven Katzman, Colorado Springs, Colorado, for Petitioner-Appellee

          Cynthia H. Coffman, Attorney General, Laurie Rottersman, Senior Assistant Attorney General, Denver, Colorado, for Respondent-Appellant

          OPINION

          FURMAN JUDGE

         ¶ 1 Plaintiff, Robin F. Edwards, appeals the district court's judgment affirming the revocation of her driver's license by the Colorado Department of Revenue, Motor Vehicle Division (Department), under provisions of Colorado's revocation and express consent statutes. Edwards cooperated with the person who administered her breath test, but her breath test samples were obtained more than two hours after she drove.

         ¶ 2 We are asked to consider a narrow question: Does Colorado's civil revocation statute require law enforcement officials to obtain a valid breath sample within two hours of the time a person drove before the person's license can be revoked? See § 42-2-126(2)(b), C.R.S. 2016. Contrary to the rulings of the hearing officer and the district court, we conclude that it does. Because Edwards's breath samples were obtained more than two hours after she drove, this statutory requirement was not met and her revocation based on the test results from these samples cannot be sustained. We therefore reverse the district court and remand with directions to set aside the order of revocation. (We note that this case does not address Edwards's criminal prosecution for various alcohol-related driving offenses, which could also lead to adverse consequences concerning her driver's license.)

         I. The Breath Tests

         ¶ 3 The parties do not dispute the relevant facts. A police officer stopped Edwards for speeding at 8:51 a.m. on September 7, 2014. It appeared to the officer that Edwards had been doing more than speeding. Edwards's speech was slurred, her eyes were bloodshot, and she had difficulty locating her driver's license, registration, and proof of insurance. The officer invited her to participate in voluntary roadside maneuvers; she agreed to participate, but her stumbling and lack of balance indicated she was intoxicated. The officer then advised her of Colorado's express consent law and offered her the choice between a breath test and a blood test. Edwards chose to take a breath test. The officer took her into custody and transported her to a local police department where she could take a breath test.

         ¶ 4 Colorado Department of Public Health regulations require a certified operator to administer a breath test in a specific sequence. See Dep't of Pub. Health & Env't Regs. 4.1.3.5, 4.2.3, 5 Code Colo. Regs. 1005-2. This sequence affected the timing of Edwards's test.

         A. The Required Breath Test Sequence

         ¶ 5 On arrival at the facility, the breath test subject must complete a twenty-minute "deprivation period" before taking the breath test. Id. at 4.2.3. After the deprivation period, the subject gives the administrator two breath samples. Id. at 4.1.3.5.

         ¶ 6 The results of these two samples must agree with each other within a certain range. See id. For the purposes of this opinion, the two samples are "valid" if they agree with each other within the specified range and thus can be used to determine whether a person was driving with excessive breath alcohol content (BAC). If the results of the two samples do not agree with each other within that range, they are not valid.

         ¶ 7 If the samples are not valid, the administrator must discontinue the testing sequence and print an "exception report." Id. at 4.1.3.5.1. Then, the breath test subject repeats the twenty-minute deprivation period. Id. at 4.1.3.5.2. After this period, the administrator will retest the subject. See id. at 4.1.3.5.1, 4.1.3.5.2.

         B. Edwards's Test

         ¶ 8 At the police station, Edwards's first breath test attempt resulted in an exception report rather than a completed test because the results from her samples were not within the required agreement range. Another twenty-minute deprivation period then began at 10:30 a.m. and ended at 10:50 a.m. Edwards provided two valid breath samples for testing, one at 10:52:06 a.m. and the other at 10:56:45 a.m.; the results from these samples were within the required agreement range. The intoxilyzer report from these samples showed her BAC to be .229 grams of alcohol per two hundred ten liters of breath, based on ...


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