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Department of Revenue v. Rowland

Supreme Court of Colorado, En Banc

January 8, 2018

Department of Revenue, Division of Motor Vehicles, Petitioner/Cross-Respondent:
Brian Rowland, Respondent/Cross-Petitioner:

         Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 15CA109

          Attorneys for Petitioner/Cross-Respondent: Cynthia H. Coffman, Attorney General Frederick R. Yarger, Solicitor General Glenn E. Roper, Deputy Solicitor General Laurie Rottersman, Senior Assistant Attorney General Grant T. Sullivan, Assistant Solicitor General Denver, Colorado.

          Attorneys for Respondent/Cross-Petitioner: Frechette Law Office Franz P. Frechette Nederland, Colorado.

          Attorneys for Amicus Curiae Colorado Criminal Defense Bar: Tiftickjian Law Firm, P.C. James Nechleba Jay M. Tiftickjian Denver, Colorado.

          Attorneys for Amicus Curiae Colorado District Attorneys' Council: Colorado District Attorneys' Council Thomas R. Raynes Jennifer R. Knudsen Denver, Colorado.

          Han Ng, LLC Han Ng Fraser, Colorado.



         ¶1 This case requires us to interpret section 42-2-126(8)(c), C.R.S. (2017), which provides that in driver's license revocation proceedings, a hearing officer "may consider evidence contained in affidavits, " so long as those affidavits are sworn to under penalty of perjury. After Respondent/Cross-Petitioner Brian Rowland was cited for drunk driving, he argued at his license revocation hearing that section 42-2-126(8)(c) barred the hearing officer from considering an analyst's report on his blood alcohol content ("BAC") because the report was an affidavit and the analyst had not signed it under penalty of perjury. The court of appeals ultimately held that (1) section 42-2-126(8)(c) requires all written statements from non-law enforcement sources to be presented in affidavit form and sworn to under penalty of perjury before they can be considered as evidence in driver's license revocation hearings, but (2) BAC test results may be admitted at a driver's license revocation hearing through a law enforcement officer's testimony even if the laboratory report on which the officer's testimony is based is inadmissible. We granted certiorari on both issues.[1] We reverse the court of appeals as to issue one and, as a result, decline to reach the second issue.

         I. Facts and Procedural History

         ¶2 In February 2014, a police officer pulled Rowland over after the officer observed him driving at inconsistent speeds and weaving over the yellow dividing line and the fog line. During the stop, the officer observed that Rowland had bloodshot and watery eyes, unsteady balance, slurred speech, and the smell of alcohol on his breath. After Rowland unsatisfactorily performed several roadside sobriety tests, the officer arrested him for driving under the influence.

         ¶3 In accordance with Colorado's implied consent law, section 42-4-1301.1, C.R.S. (2017), the officer gave Rowland a choice to take a breath test or a blood test to determine his BAC. Rowland chose to undergo a blood test. At the police station, an EMT drew a sample of Rowland's blood while the officer watched. Then, the officer delivered the sample to ChemaTox Laboratory, a private, state-certified laboratory, for blood alcohol analysis. About two weeks later, the ChemaTox analyst who tested Rowland's blood sent a written BAC test report to the Boulder County Sheriff's Office that indicated that Rowland's BAC was 0.158 at the time of his arrest, almost twice the legal limit of 0.08. See § 42-2-126(3). The ChemaTox analyst signed the BAC test report, but he did not sign it under penalty of perjury. As required by the license revocation statute, § 42-2-126(5)(a), the officer then submitted an affidavit to the Motor Vehicle Division of the Colorado Department of Revenue ("Department") that reported Rowland's BAC as 0.158 at the time of his arrest. The Department revoked Rowland's license for nine months pursuant to section 42-2-126(3)(a)(I)(A).

         ¶4 Rowland requested and received an administrative hearing to challenge the Department's revocation of his driver's license. Evidence admitted at the hearing included the officer's affidavit and testimony, as well as the BAC test report from ChemaTox Laboratory. Rowland's counsel objected to the admission of both the BAC test report and the officer's testimony about the results in the report. The hearing officer overruled his objections and 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.

         ¶5 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 admissible, holding that it was an affidavit that failed to meet the requirements of section 42-2-126(8)(c).[2] 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.

         ¶6 Rowland again appealed, and the court of appeals reversed and remanded. The court of appeals agreed with the district court that the hearing officer erred in admitting the report as evidence because it found that the BAC test report was an affidavit that did not meet the statutory requirements of section 42-2-126(8)(c). Rowland v. Dep't ofRevenue, 2016 COA 40, ¶¶ 19-28, ___ P.3d ___. Specifically, the court of appeals held that "other than testimony presented at the hearing, if the department offers evidence from a non-law-enforcement source, the evidence must be presented in affidavit form to be admitted at the hearing." Id. at ¶ 19. However, like the district court, the court of appeals held that the officer's testimony reporting the BAC test results was independently admissible. Id. at ¶¶ 29-36. Nonetheless, the court of appeals concluded that it could not determine from the record "whether, or to what extent, the hearing officer relied on the inadmissible BAC test report itself in reaching his decision." Id. at ΒΆ 37. The court of appeals thus reversed the district court's judgment with directions to remand the case ...

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