No One Beats the DMV - a case study
A brief Colorado case study on DUIs, ATVs, Natty Lights, and our private property rights.
Howdy folks. We are going to do something different today. Recently I worked on a case involving a situation that happens quite often in rural parts of Colorado: drinking and driving with ATVs. The legislature has carved out a specific section in the law for farm utility vehicles and ATVs, which I think is fascinating.
The main statute we are working with in regards to a suspension is C.R.S. 42-4-1301.1, which codifies Colorado’s Express Consent law. If you have an excessive limit of BAC1 or refuse to give a blood or breath sample, your license is subject to automatic suspension in Colorado.
Here’s a common situation:
Guy drives car from liquor store without putting his lights on2 and cop pulls him over immediately. Come to find out, our guy had a few shooters on his way home, because it is only like five minutes away. Cop makes him do SFSTs3 and smells alcohol on him, finds probable cause4 and asks him to take a chemical test. Guy tells him he’s not taking a test and tries to drive away. Once the officers get this guy and he is arrested with presentation of Express Consent revocation (finding he refused), his license is no longer valid for at least a year pursuant to C.R.S. 42-2-125/126.
But what if we switch the facts and he’s on a dirt road and on an ATV? Does it change? Lets see!
The Arena: Garfield County, CO
The Judge: Denise Lynch
Practicing since 1983, on the bench since 2006
From Michigan, or at least did her studying in Michigan (MSU to WMU)
District Court Judge presiding over a pretty full docket for a county that is huge and encompasses parts of Aspen Valley and Glenwood Springs.
The Issue: Can you get a DUI on an ATV if the road is unpaved? Do you have to submit to chemical testing in that situation?
Answer: You can, but you need a judge or prosecutor to meet specific elements or make a finding as to whether or not the highway is “public” as defined in the statute.
The Legal Framework
The past four weeks have likely taken off more than a few years from my life, but within that time I had the great news of knowing my former client5 got his driver’s license reinstated from an appeal I wrote against the Colorado DMV. No one beats the DMV. In Colorado, when you get your driver’s license you sign a sheet of paper normally that says “You consent to the taking of your blood or breath if you are suspected of driving while intoxicated” which applies to anyone driving in Colorado, non-resident or otherwise. This is called “Express Consent” and is stated in C.R.S. 42-4-1301.1. This means if a law enforcement officer has probable cause to believe you are intoxicated, sufficient for a DWAI (intoxicated in the slightest) or DUI, they can ask you to take a chemical test (breath or blood).
Now the “driving” element has to be met by driving a “motor vehicle” or “vehicle” (which most attorneys miss), which covers both “self propelled” and “person propelled” vehicles e.g., cars, low powered scooters and bicycles.
A person who drives a motor vehicle or vehicle under the influence of alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, commits driving under the influence.
C.R.S. 42-4-1301(a)
The interesting part about this, is that it meets the necessary elements for actus reus (or voluntary act) and other qualifiers (under the influence and motor vehicle/vehicle) it does not specify where you need to be driving.
When looking at the definition of “motor vehicle” in C.R.S. 42-1-102, which is required to find probable cause or even a conviction, there is a better idea of exactly where one has to be driving. The definition of “motor vehicle” necessarily includes the language “on a street and highway” when describing the type of actus reus needed for someone to be convicted of DUI on an ATV or tractor.
(58) "Motor vehicle":
...
(c) Does not include a farm tractor or an off-highway vehicle, except for the purposes of the offenses described in sections 42-2-128, 42-4-1301, 42-4-1301.1, and 42-4-1401, when operated on streets and highways.
But isn’t a highway or street…the same thing? I’m all for useless nuances but, I’m holding my breath for these definitions.
(43) “Highway” means the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel or the entire width of every way declared to be a public highway by any law of this state.
Surely street makes more sense. Wait, but there’s no definition in this specific statutory section? Noooooooooooooo.6 There isn’t even a definition for street.
What about road? Isn’t that about the same?
Yikes okay. We are stuck with our first definition for highway.
So in order to meet the definition of highway it must be either: (1) open to the use of the public or (2) declared to be a highway by any law of this state. This is pretty broad right? It is easier to see how many roadways this would not affect. Open to the use of the public is broad, but necessarily means no private roads. However, what about right of ways, easements, or other service roads? One way of measuring whether it is accessible to the public or not is whether taxpayer money is used to maintain the highway or street.
So, if you are drunk and driving a farm tractor or an off-highway vehicle on a dirt path on your property, you may have bad judgement skills or a drinking issue, but you can’t be convicted of DUI/DWAI. Logically it stands that unless you are getting on a highway with others, you aren’t considered a serious danger to anyone other than yourself.
The Facts
Since this is my former client, I am obligated to keep his information confidential as a matter of my representation.7 Long story short, many people in the area have post office boxes because UPS drivers can’t get up to their houses. The DMV in Colorado, when issuing their order of revocation, sends an email and a paper copy. Sometimes it never gets there. Other times, clerical mistakes happen and people get entirely different orders from other cases electronically. These things happen and are “generally known” about the DMV, no matter where you live.
The first issue here? Can we even write an appeal. The second golden rule of appeals is that they must be timely and by the letter as to formating, and any slight deviation is usually cause for dismissal. These things happen, and happen pretty often. Luckily, I knew my due process violations and accurate notice is one of them.8
The Judge sided with us and actually gave us 30 days from the date of the order, which wasn’t even something I had asked for. The game was on!
First things first, look at the statute. I knew that ATVs were squirrely with the DUI statute because of my time as a DDA, but didn’t know if that would in fact work here. In the end, because there was no explicit finding that he was on a “highway” or “street” or “road” as is required by the statutory language, there was no probable cause and thus no basis for the express consent finding to invoke a chemical test. This means no refusal and in turn, no license suspension.
Intoxication is usually the key, or actually driving a vehicle, for anyone trying to prove up a DUI/DWAI. There are tomes and tomes of literature explaining HGN, Drug-Alc reactions, and how to properly use a blow and go. As to this subject? Not a lot of Colorado case law. Given this specific statutory framework, there was insufficient evidence presented to uphold the suspension of my client’s license, and all you had to do was read the sections together.
The Judge agreed, stating:
However, if a person is driving an ATV on a public street or highway, they are subject to the DUI statute contained in 42-4-1301. C.R.S. 42-1-102(58) provides that the term "motor vehicle" does not include an off-highway vehicle EXCEPT for the purpose of an offense under 42-4-1301 (Colorado's DUI Statute). The issue thus becomes what is a highway, public road or street?
C.R.S. 42-1-102(43) defines a "highway" as being ''the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel, or the entire width of every way declared to be a public highway by any law of this state." "Road" is defined as "any highway." C.R.S. 42-1-102(83). Street is not defined.
So, to arrest (him) (sic) for DUI he had to be driving his ATV on a highway or road. The hearing officer did not make any finding that he (sic) was driving on a highway or road. He (sic) testified a few times that he was on a private road. This was not explored at the hearing. The hearing officer defines an easement in her order, but she doesn't apply the definition to the facts. Nor did the hearing officer make a finding that the road was an easement or highway.
The People argue that it is a highway because Garfield County maintains the road. The People also argue that Garfield County has a prescriptive easement through the property and therefore it is a road. However, these were not facts raised or testified to at the OMV hearing and therefore this Court cannot consider them.
Live look at the People - Photo by Chris Curry
In conclusion, without finding that he was on a public highway or road, the Colorado Express Consent law was not applicable because he could not have been arrested for a DUI. The Court finds that the Hearing Officer's ruling in this case was arbitrary and capricious and was unsupported by substantial evidence in the record. Therefore, the decision is reversed…
Based on the above ruling that the Hearing Officer's failure to make a finding that he (sic) was driving on a highway or road, her decision is reversed, and his (sic) driver's license shall be restored immediately.
The Court affirms the Hearing Officer's finding regarding the express consent refusal. However, because the express consent law did not apply to this case, his driver's license shall be reinstated.
Sometimes the best defense is saying that whatever happened, couldn’t happen at all. That is what we have here, and well, the legislature has spoken. I had a professor is law school that was especially sympathetic to judges, and implored myself and my classmates to consider judges’ workloads for not the sake of them only, but also to curry favor in court. I haven’t always followed this rule (sorry Judge Schultz) but in this case, I stuck to simplicity. It worked because sometimes the best thing to do is read the fucking statute.
Because the result was that the lower court judge got it wrong, one assumes that the appellate court would remand9 it to the DMV hearing officer, but sometimes that isn’t the case. Either way, I was not so sure many roads in rural GarCo would actually be maintained by the county, and as to being established by law, there was a syntax problem. Utility easements are recorded which isn’t quite the same as established by law. Could it have been established by a Colorado law? Sure, but it would be a very detailed and hard brief to try to overcome that minor but axiomatic legal difference.10 Also the Judge just gave him his license back. I’m fine with that result.
The people who live in rural Garfield County, and the Western Slope, generally deal with lots of snow, high mountain climbs, and hard to reach areas. This makes not having a license a really regrettable misunderstanding. I understand this because this was my reality with my Aunt back in Arkansas. The deputies likely know what my former client drives too, which means he is likely getting pulled over every time he gets out on the road.
So what is the lesson we take from all of this? We value other people’s lives in addition to motorists more than one solo ATV rider or drunk tractor conductor. A simple cost benefit analysis. The legislature has explicitly said, we value those on public highways because there is more risk to the public at large in turning on a paved and maintained public road with your ATV while intoxicated, rather than you knocking. afew back with your buddies on the trail behind your house.
The other thing the legislature says here is a practical argument. Police are not going to camp out next to dirt roads or trails in order to do a DUI stop. It just makes no sense as far as manpower and resources go. It also becomes very hard to police when it is on someone’s private property. Notice it delineated the line between being drunk in your own home and a DUI.
Bathtub? Safe.
Patio? Safe.
Your neighbors garage with your tractor in it? Probably safe.11
A paved highway to the liquor store two mins away in your side-by-side? TOAST.
In the same way, if you live close to a dirt ATV trail and have a way to get there without hitting a paved road, you can party on Wayne. For now, beating the DMV will suffice for me.
Thanks for reading - HJRC
Blood Alcohol Content - over .08% is typically the mark
This is old school, because now everyone has automatic lights
Standard field sobriety tests
More than likely it happened and more than likely it was this guy
I changed his name and some of the facts to protect privacy concerns and client confidentiality
Judge Lynch says this in her order
See ABA RPC 1.9(C)(1)
I figured this was fair, and I don’t like asking appellate judges to overreach with remedies.
Sent it back down for the judge to make a different decision
I’m thinking you levy a bunch of amici briefs, some including the theory that in 1066 A.D. the Normans intended recording to be the same as the law because we found a Medieval Restatement of Property.
I say this because an alley way you share with your neighbor likely doesn’t meet the definition of highway or street as well as a dirt road you both live on NOTWITHSTANDING you are in a tractor, farm equipment or an ATV as defined in the statutes.