Edwards v. Colorado Department of Revenue, Motor Vehicle Division

COLORADO COURT OF APPEALS 2016COA137

Court of Appeals No. 15CA0620
El Paso County District Court No. 14CV34046
Honorable Thomas K. Kane, Judge

Robin F. Edwards,

Plaintiff-Appellant,

v.

Colorado Department of Revenue, Motor Vehicle Division,

Defendant-Appellee.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE FURMAN
Miller and Navarro, JJ., concur

Announced September 22, 2016

Daniel Thom & 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
¶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

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 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,

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 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.

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 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

the sample provided at 10:56 a.m. Of course, that is well over

the .08 or more level required for revocation for driving with an

excessive BAC. § 42-2-126(2)(b).

C. Edwards’s License Revocation

¶9 The hearing officer and district court considered the timing

of Edwards’s test and concluded that the Department should

revoke Edwards’s license.

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 1. The Hearing Officer

¶ 10 At the revocation hearing, the arresting officer testified that

the .229 BAC result was based on a breath sample Edwards

provided more than two hours after the traffic stop. In response,

Edwards contended that her driver’s license should not be

revoked because she provided valid breath samples after the

two-hour time period required by the revocation statute.

¶ 11 The hearing officer found that the time of driving was 8:51

a.m. and that Edwards provided valid breath samples at 10:52

a.m. and 10:56 a.m. The hearing officer also found that the test

completed at 10:56 a.m. yielded the results showing Edwards’s

BAC to be .229. But the hearing officer rejected Edwards’s

argument, ruling that the test administrator performed the

breath test in “substantial accordance” with the regulations, and

the test, which began at 10:50 a.m., was within two hours of the

time Edwards stopped driving. Based on the results of this

breath test, the hearing officer ordered the revocation of

Edwards’s license for driving with an excessive BAC.

2. The District Court

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¶ 12 On review, the district court affirmed the revocation of

Edwards’s license, but on different grounds than those used by

the hearing officer. First, the court ruled that the revocation

statute does not require that the testing be completed within two

hours after driving. Second, based on Edwards’s high BAC test

results obtained two hours and five minutes after driving and

other evidence of intoxication, the court ruled that it was more

probable than not that Edwards’s BAC was above the statutory

limit at the time of driving and within two hours after driving.

The court determined that these circumstances supported the

hearing officer’s decision to revoke Edwards’s license for driving

with an excessive BAC.

¶ 13 On appeal, Edwards challenges the Department’s revocation

of her license.

II. Our Review of the Department’s Revocation Action

¶ 14 We may reverse the Department’s revocation of a license if

we determine that, based on the administrative record, the

Department “exceeded its . . . statutory authority” or “made an

erroneous interpretation of the law.” § 42-2-126(9)(b), (11); see

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 also § 24-4-106(7), C.R.S. 2015; Fallon v. Colo. Dep’t of Revenue,

250 P.3d 691, 693 (Colo. App. 2010).

¶ 15 In driver’s license revocation cases, we conduct de novo

review of the legal conclusions and statutory construction made

by the district court and Department. Colo. Dep’t of Revenue v.

Hibbs, 122 P.3d 999, 1002 (Colo. 2005); Stumpf v. Colo. Dep’t of

Revenue, 231 P.3d 1, 2 (Colo. App. 2009). When construing a

statute, we ascertain and give effect to the General Assembly’s

intent, reading applicable statutory provisions as a whole and in

context to give consistent, harmonious, and sensible effect to all

their parts. Francen v. Colo. Dep’t of Revenue, 2014 CO 54, ¶ 8.

When a term is not defined in a statute, and if a statute is

unambiguous, we give effect to the statute’s plain and ordinary

meaning and look no further. Id.; Brodak v. Visconti, 165 P.3d

896, 898 (Colo. App. 2007).

A. Statutory Two-Hour Time Limit
Applicable to Revocations for Excessive BAC

¶ 16 Edwards contends the Department erroneously interpreted

Colorado’s revocation statute. Because her BAC test results were

obtained more than two hours after she drove, Edwards argues

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 that the Department’s revocation was improper as a matter of

law. To address Edwards’s contention, we consider specific

terms of Colorado’s revocation and express consent statutes.

1. Colorado’s Revocation Statute

¶ 17 Colorado’s revocation statute provides two circumstances

when the Department may revoke a person’s driver’s license: (1)

when a driver takes a BAC test and the results show excess BAC

or (2) when a driver refuses to take a BAC test. See § 42-2-

126(2), (3); Stumpf, 231 P.3d at 1. The first scenario applies in

this case.

¶ 18 With respect to breath test results, the term “BAC” is defined

as meaning a person’s BAC “expressed in grams of alcohol per

two hundred ten liters of breath as shown by analysis of the

person’s breath.” § 42-1-102(8.5)(b), C.R.S. 2016. “Excess BAC

0.08” is defined as meaning that a person drove a vehicle in this

state when the person’s BAC was 0.08 or more “at the time of

driving or within two hours after driving.” § 42-2-126(2)(b)

(emphasis added.)

¶ 19 So what is the meaning of the term “within two hours after

driving” in the revocation statute? To answer this question, we

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 first analyze the temporal limitation of when testing must occur

based on current and past versions of the revocation statute.

Then we conclude, contrary to the district court’s analysis, that

in civil revocation proceedings based on BAC test results, the

revocation statute requires that law enforcement officials obtain

valid breath test samples within two hours of when that person

last drove.

¶ 20 It is well settled that, as to revocations based on a refusal of

testing, there is no precise temporal limitation on when that

refusal must have occurred. Rather, a driver’s refusal of testing

will support a revocation on that basis as long as the testing

request was made within a “reasonable time” after driving. See

Charnes v. Boom, 766 P.2d 665, 666 (Colo. 1988); Stumpf, 231

P.3d at 1, 3.

¶ 21 In contrast, as to revocations based on excessive BAC test

results, it has long been understood that there is a precise

temporal limitation on when that testing must have occurred.

See Boom, 766 P.2d at 667; Stumpf, 231 P.3d at 1. This

temporal limitation is now set forth in the language of section 42-

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 2-126(2)(b) providing for revocations based on excessive BAC test

results “within two hours after driving.”

¶ 22 This statutory language has been part of the revocation

statute applicable to revocations based on excessive BAC test

results since 1988. See Ch. 293, sec. 2, § 42-2-122.1(1.5)(a)(I),

(8)(c), 1988 Colo. Sess. Laws 1360, 1362. (We also note that the

criminal misdemeanor offense of “DUI per se” is defined in

identical terms, as this offense is committed when a person

drives a vehicle when the person’s BAC is 0.08 or more “at the

time of driving or within two hours after driving.” § 42-4-

1301(2)(a), C.R.S. 2016.) As originally enacted, the revocation

statute provided a shorter temporal limitation on testing,

requiring revocation based on excessive BAC test results “at the

time of the commission of the alleged offense or within one hour

thereafter.” Ch. 476, sec. 9, § 42-2-122.1(1)(a)(I), 1983 Colo.

Sess. Laws 1641.

¶ 23 In upholding revocations based on excessive BAC test

results under the original statutory language, the supreme court

acknowledged that this language provided a one-hour limitation

for when the testing must have occurred. See Charnes v. Olona,

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 743 P.2d 36, 38 n.8 (Colo. 1987) (stating that this statutory

language required the test to be “performed” within one hour of

the alleged offense); Colo. Div. of Revenue v. Lounsbury, 743 P.2d

23, 24 n.2 (Colo. 1987) (same). Similarly, in a refusal case, the

supreme court stated that, under the original statutory language,

a driver who took a test was not subject to revocation unless the

test was “performed” within the one-hour period after the

commission of the alleged offense. Boom, 766 P.2d at 667.

¶ 24 We next consider whether the temporal limitation for testing

applicable to revocations based on excessive BAC is consistent

with the express consent statute.

2. Express Consent Statute

¶ 25 Colorado’s express consent and revocation statutes work

together. The express consent statute provides the authority for

an officer to ask a driver to take a breath test, § 42-4-1301.1,

C.R.S. 2016; the revocation statute provides the consequences

for driving while intoxicated, § 42-2-126(3), (4).

¶ 26 Certain provisions of Colorado’s express consent statute also

relate to the temporal limitation for testing applicable to

revocations based on excessive BAC test results. Colorado’s

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 express consent statute requires a suspected intoxicated driver

to take a breath test or a blood test “when so requested and

directed by a law enforcement officer [who has] probable cause to

believe” that the driver has committed an alcohol related driving

offense. § 42-4-1301.1(2)(a)(I). If a law enforcement officer

requests a test under section 42-4-1301.1(2)(a), “the person must

cooperate with the request such that the sample of blood or

breath can be obtained within two hours of the person’s driving.”

§ 42-4-1301.1(2)(a)(III). The General Assembly initially added

this section to the revocation statute in 1999 and later recodified

it as part of the express consent statute. See Ch. 35, sec. 1, §

42-2-126(2)(a)(II), 1999 Colo. Sess. Laws 90; Ch. 342, sec. 3, §

42-4-1301.1(2)(a)(III), 2002 Colo. Sess. Laws 1908; see Stumpf,

231 P.3d at 2.

¶ 27 The General Assembly amended the express consent statute

in 2007 to add an “extraordinary circumstances” exception to the

general rule that a driver is entitled to choose between taking

either a blood test or a breath test. See Ch. 261, sec. 1, § 42-4-

1301.1(2)(a.5), 2007 Colo. Sess. Laws 1023-24; People v. Null,

233 P.3d 670, 678 (Colo. 2010). As pertinent here, we note that

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 section 42-4-1301.1(2)(a.5)(I) describes the time period set forth

in section 42-4-1301.1(2)(a)(III) as “the two-hour time period

required” for the “completion” of the chosen test. Thus, taken

together, the provisions of section 42-4-1301.1(2)(a)(III) and

section 42-4-1301.1(2)(a.5)(I) indicate that timely “completion” of

a test is synonymous with obtaining the test samples within the

two-hour time limit.

¶ 28 Based on the provisions of section 42-4-1301.1(2)(a)(III), the

courts have stated in more recent refusal cases that there is a

two-hour time frame for a test to be “completed” or “a sample to

be obtained.” Gallion v. Colo. Dep’t of Revenue, 171 P.3d 217,

220 (Colo. 2007); see Haney v. Colo. Dep’t of Revenue, 2015 COA

125, ¶ 15.

3. The Operative Language of the Revocation Statute

¶ 29 We now return to the operative language of section

42-2-126(2)(b) of the revocation statute, providing for revocations

based on excessive BAC test results “within two hours after

driving.” We conclude that, when read in context, the plain and

ordinary meaning of the language in section 42-2-126(2)(b) is

that test samples must be obtained within two hours after the

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 time of driving to support a revocation based on excessive BAC

test results from these samples. See § 42-4-1301.1(2)(a)(III);

§ 42-4-1301.1(2)(a.5)(I); Gallion, 171 P.3d at 220; Haney, ¶ 15;

Stumpf, 231 P.3d at 1.

¶ 30 Applying the plain and ordinary meaning of the term

“within,” we conclude that the two-hour time limit set forth in

section 42-2-126(2)(b) for obtaining the test samples includes the

entire one hundred-twentieth minute after the time of driving.

See Bath v. Dep’t of Revenue, 762 P.2d 767, 767-68 (Colo. App.

1988) (holding that the one-hour time limit under the original

statutory language included the entire sixtieth minute after

driving).

¶ 31 To summarize, since BAC is defined as a person’s alcohol

content as shown by an analysis of the person’s breath, that

analysis cannot occur until an alcohol evaluation is reported, or,

in other words, the test is completed and the results are

obtained.

B. Edwards Was Not Subject to Revocation

¶ 32 Because Edwards did not give the breath sample that

established her BAC within two hours after she stopped driving,

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 the test results from those samples provide no basis for

revocation based on an excessive BAC under the revocation

statute. § 42-2-126(2)(b).

¶ 33 No one disputes that Edwards stopped driving at 8:51 a.m.,

as the hearing officer found. Thus, to sustain a revocation based

on excessive BAC test results, Edwards was required to give the

breath samples that established her BAC no later than 10:51

a.m., two hours after driving. See § 42-2-126(2)(b). But,

Edwards gave breath samples at 10:52 a.m. and 10:56 a.m.,

more than two hours after driving. See Boom, 766 P.2d at 667

(in a refusal case, stating that a driver who consented to a test “is

not subject to” revocation for driving with an excessive BAC

unless the test was performed within the then-applicable

statutory one-hour time limit); Pierson v. Colo. Dep’t of Revenue,

923 P.2d 371, 373 (Colo. App. 1996) (similarly stating in another

refusal case that a driver who consented to and failed a test “is

not subject to” revocation for driving with an excessive BAC

unless the test was performed within the then-applicable

statutory two-hour time limit), superseded by statute as stated in

Gallion, 171 P.3d 217; cf. Francen, ¶¶ 10, 13 (noting that a driver

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 “is subject to” revocation when the requirements of section 42-2-

126(2)(b) have been met).

¶ 34 We disagree with two of the hearing officer’s and district

court’s conclusions. First, contrary to the hearing officer’s

analysis, section 42-2-126(2)(b) does not include a “substantial

accordance” standard concerning the two-hour time limit

requirement. Thus, it is irrelevant when the breath test

sequence begins. Rather, when, as here, the breath test subject

gives the samples that establish her BAC after the statutory two-

hour time limit, she is simply not subject to revocation for driving

with an excessive BAC under the requirements of section 42-2-

126(2)(b). See Boom, 766 P.2d at 667; Pierson, 923 P.2d at 373.

¶ 35 Second, contrary to the district court’s analysis, the

revocation statute provides no basis for a fact finder to use test

results obtained after the two-hour time limit to infer that a

driver had an excessive BAC at the time of driving or within two

hours after driving.

¶ 36 In this regard, we note that test results may give rise to

permissible inferences concerning the criminal misdemeanor

offenses of “DUI” or “DWAI,” but the criminal misdemeanor

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 offense of “DUI per se” is based solely on tests administered

within two hours after driving. See § 42-4-1301(2)(a), (6)(a). Like

the offense of DUI per se, revocation for driving with an excessive

BAC under section 42-2-126(2)(b) must be based solely on test

results showing a BAC of 0.08 or more from samples taken

within the two-hour time limit.

¶ 37 Finally, we note that a driver is subject to revocation for

refusal for failing to cooperate with a testing request such that

the samples of blood or breath can be obtained within two hours

after driving. See § 42-2-126(2)(h), (3)(c); § 42-4-1301.1(2)(a)(III);

Stumpf, 231 P.3d at 3. But, in this case, the evidence did not

show that the failure to obtain breath samples within the

statutory two-hour time limit was due to any noncooperation by

Edwards. To the contrary, the hearing officer expressly found

that Edwards was not at fault in this regard, so she is not

subject to revocation for refusal.

III. Conclusion

¶ 38 Because the Department revoked Edwards’s license for

driving with an excessive BAC based on its application of

erroneous legal standards, we cannot sustain its order on

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 judicial review, and the district court erred in upholding it. See §

42-2-126(9)(b).

¶ 39 Accordingly, the district court’s judgment is reversed, and

the case is remanded with directions to set aside the order of

revocation.

JUDGE MILLER and JUDGE NAVARRO concur.

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