Robin F. Edwards, Plaintiff-Appellant,
Colorado Department of Revenue, Motor Vehicle Division, Defendant-Appellee.
County District Court No. 14CV34046 Honorable Thomas K. Kane,
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
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.)
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
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. 18.104.22.168, 4.2.3, 5 Code Colo. Regs. 1005-2.
This sequence affected the timing of Edwards's test.
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 22.214.171.124.
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 126.96.36.199.1. Then, the breath
test subject repeats the twenty-minute deprivation period.
Id. at 188.8.131.52.2. After this period, the
administrator will retest the subject. See id. at
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 ...