House Bill 13-1077 Would Overrule Francen and Restore a Driver’s Right to Contest the Legality of Traffic Stops for Purposes of the Express Consent Law.
Colorado State Representative Joseph Salazar (D, Dist 31) has introduced House Bill 13-1077, which would essentially overturn the Colorado Court of Appeals decision in Francen v. Colorado Department of Revenue, Division of Motor Vehicles, __P.3d __ , (Colo. App. no. 12CA110).
In a 2-1 decision last July, the Francen case departed from twenty years of Colorado caselaw on the subject, in ruling that the lawfulness of the initial stop of a motorist is irrelevant for purposes of Colorado’s express consent law. The decision was based on the majority’s disagreement with previous statutory interpretation, going all the way back to the case of Peterson v. Tipton, 833 P.2d 830, decided in 1992. Under the Francen rule, police may stop and detain motorists for no reason whatsoever, and require them to submit to chemical testing (or to refuse, thereby losing their driver’s license), so long as the officer has “probable cause” prior to the demand.
The proposed bill would add a subsection (h) to C.R.S. section 42-2-126(8) concerning administrative revocation of driver’s licenses. The amendment reads as follows:
A driver may challenge the validity of the law enforcement’s initial contact with the driver and the driver’s subsequent arrest for DUI, DUI per se, or DWAI. The hearing officer shall consider such issues when a driver raises them as defenses.
The bill would settle any question of legislative intent and restore the law to the manner it which it was applied for the past two decades.