Department of Revenue, Division of Motor Vehicles, Petitioner/Cross-Respondent:
Brian Rowland, Respondent/Cross-Petitioner:
to the Colorado Court of Appeals Court of Appeals Case No.
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
Attorneys for Amicus Curiae Colorado District Attorneys'
Council: Colorado District Attorneys' Council Thomas R.
Raynes Jennifer R. Knudsen Denver, Colorado.
Ng, LLC Han Ng Fraser, Colorado.
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. We reverse the court of appeals as to
issue one and, as a result, decline to reach the second
Facts and Procedural History
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.
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).
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.
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). 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
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
¶ 37. The court of appeals thus reversed the district
court's judgment with directions to remand the case ...