On May 11, Colorado Governor Hickenlooper signed House Bill 13-1077 (Salazar),“Illegal Traffic Stops May be Raised at License Revocation Hearings.” This bill is important because it reinstates a driver’s right to contest an illegal traffic stop at a DMV hearing based on a DUI arrest. Commonly, DUI defense lawyers challenge the legality of a traffic stop at a DMV hearing.
To initiate an investigatory stop, a police officer must have a reasonable suspicion that a driver is committing or has committed a crime. This right was established in Terry v. Ohio, 392 U.S. 1 (1968). The Colorado Supreme Court adopted the Terry holding in Stone v. People, 485 P.2d 495 (Colo. 1971). Subsequently, the Colorado General Assembly codified this principle at C.R.S. § 16-3-103(1) (2011) and, more particularly, in the DUI and traffic offense context at C.R.S. § 42-4-1302 (2011), which reads,
- A law enforcement officer may stop any person who the officer reasonably suspects is committing or has committed a violation of section 42-4-1301 (1) or (2) and may require the person to give such person’s name, address, and an explanation of his or her actions. The stopping shall not constitute an arrest.
On July 5, 2012 defense was overturned by a division of the Colorado Court of Appeals in Francen v. DMV (No. 10CA2382, 2012 WL 2581029 (Colo. App. July 5, 2012) (pending publication). In Francen, the court held that that the exclusionary rule based on lack of reasonable suspicion is not relevant in a civil revocation hearing. Id. Although the court acknowledged other Colorado court precedent holding to the contrary, the court ultimately declined to follow the holdings in these cases. Instead, the court held that the DUI express consent statute, as currently written, references only “probable cause”; therefore, the DMV need not establish the validity of the initial stop in a DUI case before revoking a license.
Prior to Francen, Colorado courts repeatedly acknowledged that, pursuant to C.R.S. § 42-4-1301.1, lack of reasonable suspicion to justify an investigatory stop is a statutory defense that may be raised in DMV revocation hearings. For instance, in Peterson v. Tipton, the Colorado Court of Appeals held that “questions as to the legality of the initial motor vehicle stop and subsequent arrest for [DUI] may properly be raised as issues in driver’s license revocation proceedings.” 833 P.2d 830, 831 (Colo. App. 1992) (citing Wallace v. Dep’t of Rev., 787 P.2d 181, 182 (Colo. App. 1989)). The court in Peterson further held that a police officer lacks the authority to request a chemical test absent probable cause, and therefore, by implication, absent reasonable suspicion for the initial stop.. More recently, in Baldwin v. Huber, a hearing officer considered evidence and made factual finds regarding whether reasonable suspicion existed so as to justify the initial stop of respondent. 223 P.3d 150, 152-53 (Colo. App. 2009).
The reinstatement of the defense of reasonable suspicion at a Colorado DMV hearing is one of the rare instances where a law is changed to the benefit of the accused. With this new bill being passed and becoming law, drivers and DUI attorneys can once again rest assured that they cannot be pulled over for illegal reasons and lose their driver’s license as a result.