Jansma v. Colo. Dep't of Revenue

536 P.3d 859

2023 COA 59

Maggie JANSMA, Plaintiff-Appellant,

v.COLORADO DEPARTMENT OF REVENUE, MOTOR VEHICLE DIVISION, Defendant-Appellee.

Court of Appeals No. 22CA0761

Colorado Court of Appeals, Division II.

Announced June 29, 2023

The Life & Liberty Law Office, Sarah Schielke, Loveland, Colorado, for Plaintiff-Appellant

Philip J. Weiser, Attorney General, Danny Rheiner, Assistant Attorney General, Denver, Colorado, for Defendant-Appellee

Opinion by JUDGE FURMAN

¶ 1 Plaintiff, Maggie Jansma, appeals the district court's judgment affirming the revocation of her driver's license by defendant, the Department of Revenue, Motor Vehicle Division (Department). She contends that the evidence presented by the Department at her hearing was insufficient to support the hearing officer's factual findings, and therefore the hearing officer's order upholding the Department's revocation was unsupported by the evidence and arbitrary and capricious. We agree with Jansma. So we reverse the judgment and remand the case with directions to reverse the revocation.

I. The Car Accident

¶ 2 One night in January 2022, a witness spotted Jansma's SUV "speeding" at an estimated sixty miles per hour or more "in icy conditions." Shortly thereafter, her SUV "sp[u]n out" and struck another driver's car. The witness reported seeing Jansma unsuccessfully try to drive away from the scene of the accident. And when she tried to get out of her vehicle, the other driver and the witness noticed that Jansma seemed intoxicated. The police were called, and two officers responded to the accident.

¶ 3 The investigating officer arrived first and approached Jansma, speaking with her while she sat in the driver's seat of her SUV. In his written report, he noted various indicia of intoxication and Jansma's behavior during the investigation. He observed that (1) she "was confused"; (2) she "was slurring heavily and could not complete a sentence"; (3) he "could smell the odor of alcohol emitting from her breath"; and (4) "her eyes were bloodshot and watery." Based on his observations, his training and experience, and "his personal knowledge of Jansma" (a police report noted that the investigating officer knew Jansma "previously" due to her relationship with the officer and the officer's wife), he concluded that she was intoxicated. She admitted to drinking two margaritas, but she refused to perform roadside maneuvers. Although she was generally uncooperative with the investigating officer, she eventually agreed to get out of her SUV. And when she did, he noticed that "she was unsteady and had trouble maintaining [her] balance." So he placed Jansma under arrest for driving under the influence of alcohol (DUI).

¶ 4 The transporting officer arrived. In his own written report, he described her at-times-contentious behavior during the interaction and her post-arrest transport, along with his observations that led him to conclude based on his training and experience that she was "obviously intoxicated."

¶ 5 Neither officer filled out — or served Jansma with — an "express consent affidavit and notice of revocation" form during this encounter, nor did they confiscate her driver's license. And while both officers filed detailed reports on their interactions with Jansma, neither report mentioned either officer giving an express consent advisement to Jansma, one of them requesting that she undergo chemical testing, or her refusing to take such a test.

¶ 6 A few days after her DUI arrest, Jansma contacted the Department to inquire whether it was issuing an express consent revocation notice and to ask for a hearing if so. Almost two weeks from the day of the incident, the transporting officer filled out an express consent affidavit and delivered it to the Department. But the express consent affidavit was incomplete; the officer left the section of the form affidavit that asks "what did officer see or hear" in connection with a refusal to take a chemical test blank. The Department served Jansma with a notice of revocation, and she timely requested a hearing.

II. The Revocation Hearing

¶ 7 At the revocation hearing, only Jansma's counsel appeared. Without objection, the Department's Exhibit A was entered into evidence. Exhibit A consisted of the express consent affidavit and notice of revocation, a police report (including both officers’ written reports), a custody report, an affidavit for warrantless arrest, two vehicle tow reports, and a witness statement. The total evidence documenting "refusal" was in the express consent affidavit, and it consisted of this:

And the only evidence in Exhibit A documenting Jansma's interaction with law enforcement that night consisted of the officers’ written reports and the substantially similar affidavit for warrantless arrest.

¶ 8 Jansma's counsel presented no evidence at the hearing but argued that Exhibit A was insufficient evidence to establish that an express consent advisement was given, that chemical testing was requested, or that what Jansma said or did in response to any advisement or request constituted a refusal.

¶ 9 Relying only on the contents of Exhibit A, the hearing officer found that Jansma had been advised on the express consent law and that she had refused chemical testing. The hearing officer also found that Jansma refused to take a chemical test of her blood or breath "by acting uncooperative and combative with law enforcement." And based on these findings, the hearing officer upheld the Department's one-year revocation of Jansma's driver's license under section 42-2-126(3)(c), C.R.S. 2022.

¶ 10 Jansma sought judicial review in the district court, arguing again that the evidence was insufficient to support the administrative action because it only included legal conclusions without factual details to support them. The district court affirmed the Department's revocation. She appeals, raising substantially the same arguments.

¶ 11 Her appeal poses this question: Does a police officer's statement that a legal standard was met, alone, sufficiently support a factual finding that the officer had probable cause to revoke a driver's license? In this case, we conclude that it does not.

III. Sufficiency of the Evidence

A. Express Consent Law

¶ 12 Anyone who drives a motor vehicle in Colorado is required to take a blood or breath test when requested by a law enforcement officer having probable cause to believe the driver is under the influence of alcohol. § 42-4-1301.1(2)(a)(I), C.R.S. 2022. As relevant here, if a driver refuses "to take or complete, or to cooperate in the completing of, a test of the" driver's blood or breath as required by statute, § 42-2-126(2)(h), that refusal shall result in the revocation of the driver's license for at least one year, § 42-2-126(3)(c)(I).

If a law enforcement officer has probable cause to believe that a person should be subject to license revocation for excess BAC [blood or breath alcohol content] or refusal, the law enforcement officer shall forward to the department an affidavit containing information relevant to the legal issues and facts that shall be considered by the department to determine whether the person's license should be revoked as provided in subsection (3) of this section.

§ 42-2-126(5)(a).

Upon receipt of an affidavit of a law enforcement officer and the relevant documents required by paragraph (a) of subsection (5) of this section, the department shall determine whether the person's license should be revoked under subsection (3) of this section. The determination shall be based upon the information contained in the affidavit and the relevant documents submitted to the department, and the determination shall be final unless a hearing is requested and held as provided in subsection (8) of this section.

§ 42-2-126(6)(a)

¶ 13 The motor vehicle code does not define the term affidavit. "When a term is not defined in a statute and the statute is unambiguous, we give effect to the statute's plain and ordinary meaning and look no further." Dep't of Revenue v. Rowland , 2018 CO 1, ¶ 7, 408 P.3d 458 (citing Francen v. Colo. Dep't of Revenue , 2014 CO 54, ¶ 8, 328 P.3d 111 ). Black's Law Dictionary defines affidavit as "[a] voluntary declaration of facts written down and sworn to by a declarant, usu[ally] before an officer authorized to administer oaths." Black's Law Dictionary 71 (11th ed. 2019) (emphasis added).

¶ 14 "Refusal" is defined in section 42-2-126(2)(h) as "refusing to take or complete, or to cooperate in the completing of, a test of the person's blood, breath, saliva, or urine as required by section 18-3-106(4) or 18-3-205(4), C.R.S. [2022], or section 42-4-1301.1(2)." "[A] finding of cooperation or non-cooperation requires that the court look to a driver's statements and behavior indicating willingness or unwillingness to submit to testing." Gallion v. Colo. Dep't of Revenue , 171 P.3d 217, 222 (Colo. 2007) (citing Dolan v. Rust , 195 Colo. 173, 175, 576 P.2d 560, 562 (1978) ).

B. Standard of Review

¶ 15 Under section 42-2-126(9)(b), a reviewing court may reverse the Department's revocation action if, based on the administrative record, the court determines that the Department acted in an arbitrary and capricious manner, exceeded its constitutional or statutory authority, made an erroneous interpretation of the law, made clearly erroneous factual findings, or made a determination that is unsupported by substantial evidence in the record. § 24-4-106(7)(a), (b), C.R.S. 2022; see § 42-2-126(11) (applying § 24-4-106 to review of driver's license revocation to the extent statutes are consistent). A hearing officer's decision is arbitrary and capricious if the record as a whole lacks substantial evidence to support the decision. See Charnes v. Robinson , 772 P.2d 62, 68 (Colo. 1989). "Substantial evidence is the quantum of probative evidence that a fact finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence." Black Diamond Fund, LLLP v....