STATEMENT OF PURPOSE The purpose of these rules is to establish guidelines for the issuance, service and enforcement of subpoenas compelling the attendance of witnesses and the production of documents at the Department of Revenue Hearing Section (Section) that all persons may have equal access to the subpoenas and that they be issued in uniform fashion.

STATEMENT OF BASIS These rules are promulgated pursuant to section 42-1-204 C.R.S. Authority to issue subpoenas exists under sections 24-4-105(4), 42-2-126 (9)(b) C.R.S. The authority to hold separate standards for the appearance of officers in cases held under section 42-2-126 C.R.S. exists under the language of section 42-2-126(8)(e)(2) C.R.S. by identifying that the only officer required to appear is the officer who submits the affidavit and notice of revocation. Case law also establishes the “Fellow Officer Rule” for such hearings: Department of Revenue v. Kirke 743 P.2d 16 (1987); Renck v. Motor Vehicle Division 636 P.2d 1294 (1981); Sheldon v. Department of Revenue 742 P.2d 968 (1987). 1 APPLICATION FOR SUBPOENAS 1.1 All parties to a motor vehicle proceeding before the Section who request the issuance of subpoena by the Section shall do so in writing at the main Hearing Section office at Room 106, 1881 Pierce St., Lakewood, CO 80214-1493. The request may be served personally, by mail, or by facsimile transmission at (303)205-5700 or whatever the main Hearing Section office fax number becomes.

1.2 The request must provide complete information for the proper issuance of the subpoena. It must include the following information:

Name of respondent Case number Date of hearing Location of hearing Time of hearing Name of subject to be subpoenaed Address of subject (home or business)

Specific documents to be provided if the subpoena is duces tecum. Name, address and phone and fax number (if facsimile issuance of the subpoena is desired) of person requesting subpoena.

1.3 A separate request shall be made for each subpoena requested.

1.4 The request must be made in a timely fashion to allow the Section two full working days in which to generate and issue the subpoena, and allow for sufficient time to serve the subpoena thereafter in conformance with C.R.C.P., applicable statutes under title 42, and these rules.

1.5 Proof of the request for subpoena, at any motor vehicle hearing under Title 42 or any appeal of such hearing, shall be the burden of the party requesting the subpoena. 2 ISSUANCE 2.1 The Section must generate and issue the subpoena within two working days of the request. Transmittal by facsimile or placement in the U.S. Mail of a properly completed subpoena, signed by a hearing officer, constitutes issuance of the subpoena.

2.2 Proof of the subpoena request is the burden of the party making the request at any proceeding. However, the Section shall duly note on the computerized record, or in writing to be microfilmed, referring to the case number which is referenced in the request for subpoena, that a subpoena was requested and that one was issued pursuant to that request. 3 SERVICE OF SUBPOENA

3.1 Service of subpoena is the duty of the party requesting the subpoena.

3.2 Witness and mileage fees shall be tendered at the time of service consistent with Rule 45(c) of the Colorado Rules of Civil Procedure.

3.3 All subpoenas must be served at least 48 hours prior to the hearing; except that, in the case of any police officer, who signed the affidavit and notice of revocation, required to appear at a hearing set under the authority of §42-2-126, the subpoena must be served at least 5 days prior to the hearing.

4 ENFORCEMENT OF SUBPOENA 4.1 Dismissal. In the event the hearing officer deems the non-appearance of a witness substantially impairs the right of the respondent to present a defense, the hearing officer shall have authority to dismiss the case with prejudice. Failure of the police officer who signed the affidavit and notice as required in §42-2-126(3)C.R.S. to appear shall result in dismissal of the case with prejudice. If the case is dismissed, the dismissal and the non-appearance of the officer shall be reported to the police agency. Other officers subpoenaed by the respondent shall be treated as witness for the respondent. It is the obligation of the respondent to provide for their attendance.

4.2 Quash. In the event a subpoenaed witness fails to appear, the hearing officer may require an offer of proof of the party moving for the appearance of that witness as to the nature of the expected testimony. In the event the hearing officer finds based on the offer of proof that the appearance of a subpoenaed witness would not provide relevant evidence, or that the evidence would be cumulative, he or she may quash the subpoena. In no event, however shall the hearing officer quash any subpoena requiring the appearance of the officer who signs the notice and affidavit required in §42-2-126(3)C.R.S..

4.3 Reschedule. If the respondent's witness fails to appear after proper subpoena, and that witness is not the officer who signed the affidavit and notice of revocation required under §42-2-126(3), the Hearing officer may reschedule the hearing to allow the respondent further opportunity to have the witness appear. If the hearing is under §42-2-126, the hearing may not be rescheduled outside 60 days from the request for the hearing.

4.4 Petition for contempt. The hearing officer may petition the District Court for enforcement of contempt proceedings to compel the witness to testify. If the witness is a witness for the respondent, the hearing officer may require that the respondent draft the affidavit and petition for contempt proceedings.