2012 COA 130
Colo. Ct. App.2012Background
- Long was stopped for speeding and weaving; officer detected intoxication while contact occurred.
- Long elected a breath test; breathalyzer malfunction occurred, was restarted, and officer stated it worked properly.
- Long refused the breath test after being informed the device functioned, triggering express consent revocation.
- Officer served notice of revocation; Department later determined revocation based on the affidavit and documents.
- Hearing officer sustained revocation; district court affirmed; Long appeals challenging authority, voluntariness of refusal, and stop legality.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority for initial revocation determination | Long argues Department lacked initial determination | Department properly determined based on affidavit | Department had initial determination authority |
| Validity of Long's refusal | Long argues extraordinary circumstances invalidated refusal | Officer determines extraordinary circumstances; no valid exception | Refusal upheld; no extraordinary circumstances warranted alternative testing |
| Breathalyzer operability and advisement | Long challenged breathalyzer functioning and advisement clarity | Breathalyzer deemed functioning; advisement correct under statute | Operability not at issue; advisement proper; no reversal |
| Legality of initial traffic stop | Stop lacked probable cause beyond weaving and speeding | Weaving and speeding provided reasonable suspicion; stop lawful | Stop supported by reasonable suspicion and observed violations |
Key Cases Cited
- Duckett v. Tipton, 826 P.2d 873 (Colo.App.1992) (preliminary revocation information sufficient for department to act)
- Alford v. Tipton, 822 P.2d 513 (Colo.App.1991) (department may rely on officer-submitted documents)
- Knaus v. Dep't of Revenue, 844 P.2d 1318 (Colo.App.1992) (initial revocation based on documents submitted)
- Hibbs v. Colo. Dep't of Revenue, 122 P.3d 999 (Colo.2005) (statutory framework for revocation procedures)
- Gilbert v. Julian, 230 P.3d 1218 (Colo.App.2009) (reviewing department's authority and evidentiary standards)
- Nefzger v. Colo. Dep't of Revenue, 739 P.2d 224 (Colo.1987) (evidentiary rights in revocation hearings; testing evidence)
- Thomas v. People, 895 P.2d 1040 (Colo.1995) (judicial notice and testing device requirements; admissibility)