On Monday, June 30, 2014, the Colorado Supreme Court affirmed rulings by the Colorado Court of Appeals in a pair of 2012 decisions, Francen v. Colorado Department of Revenue, Div. of Motor Vehicles, _ P.3d _ (2012 COA 110) and Hanson v. Colorado Dept. of Revenue, Motor Vehicle Div., _P.3d _ (Colo. App. No. 11CA1351, Aug. 30, 2012), which held that, contrary to many years of practice, the legality of a traffic stop is not a defense at a DMV hearing.
Fortunately for proponents of privacy rights, after the Court of Appeals rulings, and while these cases were still pending review by the Colorado Supreme Court, the Colorado Criminal Defense Bar successfully lobbied Colorado lawmakers to change the law and restore the rights of Colorado drivers. Under the current law, drivers facing a revocation of their license at the DMV for a DUI may argue that the case to revoke their driver’s license should be dismissed because the initial traffic stop was illegal.
The amendments in question provide as follows:
42-1-228. In any administrative proceeding for a revocation of a driver’s license pursuant to article 2 of this title, where the hearing officer is engaged in finding facts and applying law for an incident or offense reported directly to the department by a law enforcement officer, and where the revocation was not triggered in whole or in part by a record of a conviction, the driver may challenge the validity of the law enforcement officer’s initial contact with the driver and subsequent arrest of the driver. The hearing officer shall consider such issues when a driver raises them as defenses.
42-2-126(8)(h) Pursuant to section 42-1-228, a driver may challenge the validity of the law enforcement officer’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.
As such, while today’s supreme court announcements were bad news for motorists who had their privacy rights ignored prior to May 11, 2013, the amendments have presumably restored the right to contest probable cause for everyone since that time.