DMV Appeal
Home Up

GUSTAFSON LAW OFFICE
Colorado Springs, Colorado    El Paso County
Robert D. Gustafson  *  Attorney at Law  *  Colorado Springs
  COLORADO DMV APPEAL

Email Attorney 

Attorney Vita

ATTORNEY TELEPHONE - NOT DMV
(719) 260-1002
Attorney Fax (719) 260-1003  **  Toll Free (800) 410-1002
Hours Consultation Terms

Fees & Costs

Retainer Documents Driving Directions Maps to Attorney Travel * Trade Area * Courts
 
 
COLORADO DMV APPEAL
COLORADO DRIVER LICENSE DEFENSE
Colorado DMV / DOR appeal to District Court or Colorado Court of Appeals
 

ATTORNEY HOMEPAGE

 APPEAL FROM COLORADO DMV - DOR DRIVER LICENSE SUSPENSION * REVOCATION * DENIAL
Colorado Division of Motor Vehicles  **  Colorado DMV  **  Colorado MVD PRIVATE ATTORNEY
NOT THE DMV

Colorado Springs Criminal Defense Lawyer and Traffic Defense Lawyer
Attorney Trial Practice 30+ years Colorado State Courts, Colorado Springs Municipal Court, Colorado DMV License Hearings & Appeals

representation inquiries are invited & most welcome ** questions from public seeking free advice or information declined ** first consultation terms
attorney does not accept installment payments  *  full payment is due at the time attorney is retained  *  major charge cards accepted
 

WEBPAGE INDEX

 

APPEAL TO DISTRICT COURT
Appellate Procedure - How an Appeal is Done

Taking the DMV Appeal to Final Judgment in the District Court
Readiness for Final Judgment- District Court
Oral Argument Case Under Advisement
Commencing the Appellate Lawsuit in the District Court
Jurisdiction Venue Statute of Limitations
Service of Process Parties and Service
Opposing Counsel Applicable Law - Statutes & Rules
Amendment of Complaint Limitation of Issues
District Court Final Orders
Appeal Win Appeal Loss
Temporary Restraining Order
Evidence - Appeal on the Record
Appellate Legal Briefs Award of Attorney Fees and Costs
Appellate Standards Do I Need an Attorney?

APPEAL TO COURT OF APPEALS

ATTORNEY PRELIMINARY APPELLATE CASE REVIEW
Attorney Provided Representation at DMV Hearing
Attorney DID NOT Provide Representation at DMV Hearing
ATTORNEYS FEES AND COSTS
 

Interlock Vendors

Installation & Monitoring

Driving Under Restraint

ATTORNEY POLICIES
 Cases Outside Colorado Springs - Travel
 No Pro Bono Assistance  *  No Installment Payment
 Legal Advice Limited to Clients - Not General Public
 Representation Now - Another Attorney or Self
 Attorney Representation & Declined Matters
 Post Hearing - Appeal to District Court or Court of Appeals
 
OUT OF STATE RESTRAINED DRIVERS SEEKING COLORADO LICENSE if you are not a Colorado legal resident
please do not call the attorney regarding probationary license eligibility

 

 

fee reduction attorneys - low income qualification required   **   other resources  
 

Colorado DMV appeals, Colorado driver license appeals, Colorado driver license, appeal, appeals, Colorado driver license suspension, revocation, denial, appealing license loss, Colorado Department of Revenue, Colorado Division of Motor Vehicles, Colorado DMV, Colorado DOR, Colorado MVD, Colorado, DMV, driver, license, suspension, revocation, denial, hearing, district court, court of appeals, Colorado Springs, attorney

 
           Related DMV Information * Legal Representation * Traffic Defense * Gustafson Law Office  

TRAFFIC DEFENSE

DUI - DWAI - DEAC  *  Driving Under Restraint  *  No Operator's License  *  Speeding DMV DEFENSE DMV Appeal
Speed Contest - Drag Racing  *  Eluding Police  *  Hit & Run  *  Compulsory Insurance License Hearings * Point Structure * Forms
Reckless Driving - Careless Driving  *    *  Weaving - Roadways Laned for Traffic Habitual Offender  *  Interstate Compact
Minor - Alcohol Red Light - Stop Sign  *  Traffic Definitions  *  Traffic Infraction vs. Crime  *  Traffic Cams Insurance SR-22 Interlock  Driving Records

APPELLATE PROCEDURE
APPEAL TO
DISTRICT COURT
BRIEF SYNOPSIS OF HOW AN AN APPEAL IS DONE
do not rely upon this information to file your own appeal - law is more complex
ATTORNEY PRELIMINARY APPELLATE CASE REVIEW Travel Time & Mileage Attorney Fees and Costs
Attorney Provided Representation at DMV Hearing Attorney DID NOT Provide Representation at DMV Hearing

 

COMMENCING THE APPELLATE LAWSUIT IN THE DISTRICT COURT

Acceptance.  Publishing attorney will accept appeals to the District Court.  Refer to  attorney preliminary review below.
              Attorney Provided Representation at DMV Hearing
  *  *  Attorney DID NOT Provide Representation at DMV Hearing

Jurisdiction.  An appeal is brought in the District Court.  CRS 24-4-106

Venue.  In most circumstances, an appeal is brought in the District Court in the county of the residence of the driver.  CRS 42-2-126, CRS 42-2-135(1), CRS 24-4-106(4)

Statute of Limitations.  In most circumstances, an appeal must be brought within thirty (30) days from the date of the adverse action order.  CRS 24-4-106(4)  Filing with the DOR of a motion to reconsider pursuant does not extend effective date of agency's final decision. Bethesda Found. v. Colo. Dept. of Soc. Servs., 867 P.2d 1 (Colo.App. 1993); rev'd on other grounds, 877 P.2d 860 (Colo. 1994).

Service of Process.  In most circumstances, service of process is required with ten(10) days from filing the appeal.  CRS 42-2-126, CRS 24-4-106(4)

Parties & Service.  The Colorado Department of Revenue, Division of Motor Vehicles will be named as defendant - appellee.  Colorado Department of Revenue, Hearing and Appeals Division may be named as co-defendant - appellee.  In most circumstances, service of process is achieved by USPS certified mail to the Colorado Department of Revenue, Division of Motor Vehicles, to the Colorado Department of Revenue, Hearing & Appeals Division and to the Colorado Attorney General Office.  CRS 24-4-106(4).  As a courtesy, pleadings are also sent via USPS regular mail to the local District Attorney Office.

Opposing Counsel.  In most circumstances, the appellate case in the District Court will be defended by the County District Attorney Office under contract with the Colorado Attorney General Office.  A courtesy service of process mailing will also be sent to the local District Attorney Office.  CRS 42-2-135(2)

Law - Statutes & Rules.  Appeal is brought pursuant to CRS 24-4-106, the Colorado Administrative Procedures Act.  Colorado Rules of Civil Procedure (C.R.Civ.P.) and Colorado Appellate Rules (C.A.R.) apply.  In some circumstances, conduct or rules regarding appeal are also provided in a specific statute.  e.g. refusing a chemical test or excessive alcohol content revocation CRS 42-2-126

Complaint Amendment.  If counsel did not provide representation at the underlying DMV hearing, it is foreseeable that after receipt of the transcript and record the attorney will need to file a motion to amend the complaint   Motion to amend filed after expiration of thirty (30) day period is allowed; leave to amend should be granted under C.R.Civ.P. 15(a) and where the amended pleading relates back to the date on which the original petition was filed, the pleading, as amended, states a timely claim for judicial review.  Cloverleaf Kennel Club, Inc. v. Racing Commission, 620 P.2d 1051 (Colo. 1980)

Limitation of Issues.  Appellate courts will not consider issues which were not raised in the original tribunal - in this circumstance - issues not raised during the course of the DMV hearing.  This is a well established principle in multiple areas of law.  If the driver failed to preserve an argument at hearing, it may not be raised for the first time on appeal.  People v. Valencia - aka Holguin, 169 P.3d 212, 217 (Colo.App. 2007).  A driver who argued a DMV hearing pro se (without counsel) and without knowledge of the law who failed to raise valid defenses or legal issues can be the greatest impediment to a successful appeal. 

 

DMV LOSS OF JURISDICTION.  Once an action for judicial review had been commenced in the District Court, the Department of Revenue has no jurisdiction to enter any further orders in the case until final disposition of the judicial proceedings and a remand of the case to the department.  Marr v. Department of Revenue, 43 Colo. App. 36, 598 P.2d 155 (1979).

 

TEMPORARY RESTRAINING ORDER OR PRELIMINARY INJUNCTION.  In some cases, the driver may move the district court for a temporary restraining order and / or for preliminary injunction which prohibits the DMV from enforcing the adverse action (suspension, revocation or denial) during the pendency of the appeal.  Showing of irreparable injury will be required.  If granted, this would permit driving privileges until final order is entered in the appeal.  CRS 24-4-106(5), Theobald v. District Court, 148 Colo. 466, 366 P.2d 563 (1961), Department of Revenue v. District Court, 193 Colo. 553, 568 P.2d 1157 (1977), Tomasi v. Thompson, 635 P.2d 538 (Colo. 1981).

 

EVIDENCE - APPEAL ON THE RECORD - PROCURING THE RECORD.  Appeal is conducted upon the record.  No new evidence is permitted.  It is the appellant plaintiff's (driver) burden to file a designation of the record, including transcript.  Publishing attorney designates the record at the time of filing.  Designation of the record will cause the DOR to prepare and transmit to the District Court all all pleadings, applications, evidence, exhibits, subpoena, subpoena duces tecum or other filings contained the DOR file and and other papers presented to or considered by the agency, rulings upon exceptions, and the decision, findings, and action of the agency.  With proper designation and identification, a transcript will be prepared by an independent stenographer who is approved by the DOR.  The transcript will include all witness testimony, argument, statements by any person or rulings at hearing or any other relevant time.  It is the appellant plaintiff's burden to pay a transcript deposit, and to timely pay all final expenses of record and transcript preparation.  CRS 24-4-106(6), Harris v. District Court, 655 P.2d 398 (Colo. 1982)

Review by District Court is limited to the record compiled by the agency. Stream v. Heckers, 184 Colo. 149, 519 P.2d 336 (1974)

CRS 24-4-106(6) does not contain any time limitations on filing a designation of record, objecting to or supplementing the record designated, or filing the record. Harris, supra.

 

BRIEFS

Appellant Opening Brief.  Brief of the appellant plaintiff (driver) is due forty (40) days after the record has been filed.  C.A.R. 31(a)

Appellee Answer Brief.  Answer brief of the appellee defendant (State of Colorado) is due within thirty (30) days from after service of appellant's opening brief. C.A.R. 31(a)

Appellant Reply Brief.  Appellant plaintiff (driver) may file a reply brief within fourteen (14) days from after service of appellee's answer brief. C.A.R. 31(a)

Filing & Service.  In the District Court, it is customary to simply e-File file the brief electronically and designate service of process.  In the Court of Appeals, an original and five copies of each brief shall be filed with the clerk, unless the court by order in a particular case shall direct a lesser number.  A copy shall be served on counsel for each party separately represented.  C.A.R. 31(c) 

Compliance with Filing Times.  Timeframes set forth in CRS 24-4-106(4) and C.A.R. 31 to file briefs are not to be disregarded.  It is within the court's discretion to dismiss an appeal or enter judgment against appellee if either has not complied with the statutory time limitations for filing briefs. Warren Village, Inc. v. Bd. of Assmt. Appeals, 619 P.2d 60 (Colo. 1980), DuPuis v. Charnes, 668 P.2d 1 (Colo. 1983)

 

TAKING THE DMV APPEAL TO FINAL JUDGMENT IN THE DISTRICT COURT

Readiness for Final Judgment- District Court.  After the record and transcript have been filed, and all briefs have been filed, the DMV appeal case in the district court is then ready for ruling by the District Court judge.

Oral Argument - District Court.  Appellant plaintiff or appellee defendant may file a request for oral argument within the timeframe provided by the C.A.R.  No new evidence will be received; oral argument is just that - an opportunity for each side to argue the merits of the case and attempt to persuade the court.  The District Court judge may grant the request and set the case for oral argument, or may deny the request and enter final ruling based upon the record.  The District Court judge may also sua sponte order oral argument - without request of either party.

Oral Argument - Court of Appeals.  Oral argument in the Court of Appeals will be allowed upon the written request of a party or upon the court's own motion, unless the court, in its discretion, dispenses with oral argument.  A request for oral argument shall be made in a separate, appropriately titled document filed no later than ten days after the briefs are closed.  Unless otherwise ordered, argument shall not exceed fifteen minutes for the appellants and fifteen minutes for the appellees.  The court may terminate the argument whenever in its judgment further argument is unnecessary.  C.A.R. 31(a)(2)

District Court - Under Advisement.  The District Court judge frequently takes the matter under advisement while he or she contemplates the merits of the case, facts and applicable law.  In addition to considering the legal precedent set forth by counsel for each party, the court frequently conducts independent legal research.  A ruling may not be received for several months.  From the time an appeal is commenced until final ruling, 9 months lapse of time would not be uncommon.

 

APPELLATE STANDARDS.  The District Court judge may not substitute his or her judgment in place of the hearing officer regarding factual findings.  If any credible evidence exists in the record to support the finding of fact, the finding must be upheld on appeal.  The District Court judge not only may, but is obligated to overturn an erroneous application of law to the facts.  Basis of most DMV appeals: agency action is arbitrary or capricious, an abuse or clearly unwarranted exercise of discretion, a denial of statutory right, contrary to constitutional right, power, privilege, or immunity, in excess of statutory jurisdiction, authority, purposes, or limitations, not in accord with the procedures or APA procedural limitations or otherwise contrary to law.  In all cases under review, the District Court determines all questions of law and interpret the statutory and constitutional provisions involved and shall apply such interpretation to the facts duly found or established.
                  
CRS 24-4-106(7)

No Substitution of Judgment.  District court cannot substitute its judgment for that of administrative tribunal when there is substantial evidence in record to support tribunal's decision.  Institute for Research v. Bd. of Assessment Appeals, 748 P.2d 1346 (Colo.App. 1987).  Weighing evidence and resolving conflicts is the task of the administrative agency, not the reviewing court.  Board of Assessment Appeals v. Arlberg Club, 762 P.2d 146 (Colo. 1988).  Where evidence is conflicting, the hearing officer's finding is binding on appeal, and a reviewing court may not substitute its judgment for that of the fact finder.  Marek v. Department of Revenue, 709 P.2d 978 (Colo.App. 1985); Glasmann v. Department of Revenue, 719 P.2d 1096 (Colo.App. 1986).

Arbitrary and Capricious Standard.  A reviewing court may not reverse the decision of an agency unless the court finds it to be arbitrary and capricious or contrary to rule or law.  Kramer v. Colorado Department of Revenue, 964 P.2d 629 (Colo.App. 1998).  A reviewing court may reverse an administrative agency's determination if the court finds that the agency acted in an arbitrary and capricious manner, made a determination that is unsupported by the evidence in the record, erroneously interpreted the law, or exceeded its constitutional or statutory authority.  Ohlson v. Weil, 953 P.2d 939 (Colo.App. 1997).  In determining whether an administrative agency's decision is arbitrary or capricious, the court must determine whether a reasonable person, considering all of the evidence in the record, would fairly and honestly be compelled to reach a different conclusion.  If not, no abuse of discretion has occurred and the agency decision must be upheld. Ramseyer v. Colo.  Dept. of Soc. Servs., 895 P.2d 1188 (Colo.App. 1995); WCC v. Umetco Minerals, 919 P.2d 887 (Colo.App. 1996).

Standard of Competent Evidence in the Record
     1.)  In order for a court to set aside a decision by an administrative agency on the ground that it is arbitrary or capricious pursuant to section
CRS 24-4-106(7), the court must find that there is no competent evidence supporting the agency's decision.  Dolan v. Rust, 195 Colo. 173, 175-176, 576 P.2d 560 (1978), Board of County Commissioners v. Simmons, 177 Colo. 347, 494 P.2d 85 (1972).
                 In order for a court to set aside a decision of an administrative body on the ground that it is arbitrary and capricious, the court must find that the decision is unsupported by any competent evidence.  Noe v. Dolan, 197 Colo. 32, 589 P.2d 483 (1979); Board of County Commissioners v. Bd. of Assessment Appeals, 628 P.2d 156 (Colo.App. 1981); Mertsching v. Webb, 757 P.2d 1102 (Colo.App. 1988).  A trial court may not set aside the decision of an administrative body as arbitrary and capricious unless the decision is unsupported by competent evidence.  Guildner Way, Inc. v. Board of Adjustment, 35 Colo. App. 70, 529 P.2d 332 (1974). 
     2.)  Abuse of discretion has not been shown where the factual question is debatable.  Board of County Commissioners v. Simmons, 177 Colo. 347, 494 P.2d 85 (1972).
     3.)  Conflicting Testimony or Evidence.
                 Administrative action "taken pursuant to an agency's statutory authority `is entitled to a presumption of validity.'"  People v. Lessar, 629 P.2d 577, 581 (Colo. 1981) (quoting Moore v. District Court, 184 Colo. 63, 67, 518 P.2d 948, 951 (1974)).  The court of appeals has held that where "the inferences to be drawn from the evidence are conflicting, . . . the reviewing court may not displace an administrative agency's choice between two fairly conflicting views, even though the court could justifiably have made a different choice had the matter been before it de novo.Walton v. Banking Board, 36 Colo. App. 311, 313-14, 541 P.2d 1254, 1256 (1975).
                 Where conflicting testimony is presented in an administrative hearing, the credibility of witnesses and the weight to be given their testimony are decisions within the province of the agency.  Mellow Yellow Taxi Co. v. Public Utilities Commission, 644 P.2d 18 (Colo. 1982).  See also Sanchez v. State, 730 P.2d 328 (Colo. 1986) (agency officer who heard conflicting testimony "is in the best position to make the credibility assessments."  Id. at 333); Ram Broadcasting v. PUC, 702 P.2d 746 (Colo. 1985) (where hearing examiner "assigned the expert's opinion no weight," this court held that "a decision as to the weight to be placed on particular testimony is uniquely within the province of the PUC, and this court will not substitute its judgment for that of the PUC."  Id. at 750-51).
                 A hearing officer was presented with conflicting testimony when the licensee testified that he had smoked a cigarette during the twenty minute period between his arrest and administration of the breath test, and the arresting officer testified to the contrary. [fn6].  The hearing officer resolved the conflicting testimony in favor of the department, but was reversed by the district court.  The court of appeals reversed the district court, saying: "To set aside a decision by a hearing officer on the ground that it is arbitrary or capricious, a reviewing court must be convinced from the record as a whole that there is no substantial evidence to support the hearing officer's decision."  Glasmann v. Motor Vehicle Division, 719 P.2d 1096, 1097 (Colo.App.)   The court concluded that when "the evidence is conflicting, the hearing officer's finding is binding on appeal and a reviewing court may not substitute its judgment for that of the fact finder."  Id,
                
Conflicting evidence was presented at a revocation hearing on the issue of whether the arresting officer had properly advised the suspected drunk driver, as required by statute.  "[m]uch of [the arresting officer's testimony] was contradicted by appellant," but went on to hold the hearing officer's order binding on appeal because "it is a maxim of appellate law that reviewing courts will not substitute their judgment for that of the fact finder."  Creech v. Department of Revenue, 190 Colo. 174, 176, 544 P.2d 633, 634 (1976).
                 Conflicting BAC evidence.  An administrative hearing officer functions as the trier of fact, makes determinations of witness' credibility, and weighs the evidence presented at the hearing.  By statute, a reviewing court must affirm a DMV revocation order unless DMV has (1) exceeded constitutional or statutory authority; (2) erroneously interpreted the law; (3) acted in an arbitrary and capricious manner; or (4) made a determination unsupported by evidence in the record.  CRS 42-2-122.1(9)(b).  Note - Now
CRS 42-2-126.  Lobato argued that the hearing officer's finding as to his BAC was an abuse of discretion, in light of the conflicting testimony.  The record as a whole supported the hearing officer's revocation order.  Charnes v. Lobato, 743 P.2d 27 (Colo. 1987).  Two witnesses testified regarding separate analyses of the driver's blood alcohol content, performed by different people at different times with different results.  Each witness testified as to his experience, the procedures and equipment used, and the results obtained. One witness testified to a test result of 0.170; the other witness testified to a test result of 0.129.  The hearing officer heard testimony as to possible reasons for the discrepancy, including the opinion of the licensee's toxicology expert that the second sample was probably not affected by the mere passage of time.  After hearing this testimony, the hearing officer determined that the state had established by a preponderance of the evidence that the licensee was driving a vehicle with a BAC of 0.15 or higher.  Based on the record, we cannot say that there was no competent evidence on which the hearing officer could base his finding.  The evidence was conflicting, and when conflicting evidence is offered it is the agency's role, not the role of the reviewing court, to assess credibility and weigh testimony and other evidence.  In holding that "the evidence weighed evenly," the court of appeals incorrectly substituted its judgment for that of the trier of fact.  Many factors may enter into a hearing officer's decision that one test is more reliable than another, including but not limited to such variables as the equipment and chemical standards used, the experience of each witness, and the circumstances surrounding a particular test.  The determination as to which test result has greater reliability and deserves greater weight is within the agency's discretion and not an issue to be analyzed on appellate review.  We conclude that the hearing officer did not abuse his discretion, and the court of appeals erred in reversing the revocation order. Ruling: The record does not reveal any of the grounds for reversible error set forth in the statute - conflicting evidence at the revocation hearing supported the hearing officer's finding that the driver had the requisite BAC.
     4.)  The hearing panel's findings of basic facts must be rejected if they are unsupported by substantial evidence when the record is considered as a whole or if they are not supported by competent evidence in the record.  Ricci v. Davis, 627 P.2d 1111 (Colo. 1981).

 

DISTRICT COURT FINAL ORDERS

Appeal Win.  If the District Court judge rules in favor of the appellant plaintiff (driver), a certified copy of the judgment is mailed to the DMV & DOR which causes the Colorado license or Colorado driving privileges to be reinstated.  The former adverse action is nullified or invalidated.
                   or
the District Court may remand the case to the DOR for further proceedings and such other relief as may be appropriate.

Appeal Loss.  If the District Court judge rules against the appellant plaintiff (driver) and in favor of the State of Colorado, a copy of the judgment is mailed to the DMV & DOR which causes the former adverse action to be reinstated.  Any time that the appellant plaintiff's driving privileges were permitted under a temporary restraining order or preliminary injunction stay is added to the remaining driving privilege reinstatement eligibility date.  This stops drivers from getting the benefit of a stay during appeal and driving in the interim without paying the piper his due - full loss of license as exacted in the original adverse action order will be enforced.  The power of the court in a temporary or preliminary injunction is to stay the effect date or enforcement, not to modify the agency order.  Tomasi v. Thompson, 635 P.2d 538 (Colo. 1981).

 

AWARD OF ATTORNEY FEES AND COSTS

Driver Liability - Frivolous Appeal or Purpose of Delay.  If the District Court finds that the appeal is frivolous or brought for the purpose of delay, award of fees and cots to the State of Colorado is mandatory.  CRS 24-4-106(8)  Moral of the story - don't bring a frivolous appeal.

No Award Against State.  If the driver is the appellant petitioner and wins the DMV appeal, the driver will not be awarded fees or litigation costs.  There is no specific statutory provision allowing for the award of costs where an individual pursues his right to judicial review of an administrative hearing officer's actions under CRS 42-2-127 and this section; such an award is erroneous, because C.R.Civ.P. 54(d) limits the imposition of costs against the state to "the extent permitted by law". Lucero v. Charnes, 44 Colo. App. 73, 607 P.2d 405 (1980).  Upon judicial review of administrative action, while CRS 24-4-106(7) permits the court "to afford such other relief as may be appropriate", this provision cannot be construed to authorize the assessment of costs against the state so as to take precedence over C.R.Civ.P. 54(d). Shumate v. State Personnel Board, 34 Colo. App. 393, 528 P.2d 404 (1974).  He who makes the rules is immune.

C.R.Civ.P. 54. Judgments; Costs.  Except when express provision therefor is made either in a statute of this state or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the state of Colorado, its officers or agencies, shall be imposed only to the extent permitted by law. Costs may be taxed by the clerk on one day's notice. On motion served within five days thereafter, the action of the clerk may be reviewed by the court.

C.A.R. 39(b) Costs For and Against the State of Colorado.  In cases involving the State of Colorado or an agency or officer thereof, if an award of costs against the State is authorized by law, costs shall be awarded in accordance with the provisions of section (a) of this Rule; otherwise, costs shall not be awarded for or against the state.

C.A.R. 39.5. Attorney Fees on Appeal.  If attorney fees are otherwise recoverable for the particular appeal, the party claiming attorney fees shall specifically request them, and state the legal basis therefor, in the party's principal brief in the appellate court. Any opposition to a request for attorney fees shall be set forth, as pertinent, in either the answer or reply brief. The appellate court may determine entitlement to and the amount of any attorney fees for the appeal. In its discretion, the appellate court may remand to the trial court or tribunal below the determination of entitlement to or the amount of any attorney fees.

 

APPELLATE PROCEDURE
APPEAL TO
COURT OF APPEALS
 

APPEAL TO DISTRICT COURT

do not rely upon this information to file your own appeal - law is more complex

 

FURTHER APPEAL TO COLORADO COURT OF APPEALS.  After final judgment has been entered by the District Court, either party may take the case on appeal to the Colorado Court of Appeals.  If the appellant plaintiff driver wins the District Court appeal, that is not necessarily the end of the matter.  The State of Colorado may appeal the District Court judge's ruling. 

District Court Original Proceeding.  Publishing attorney has referred to the District Court proceeding as a DMV Appeal because that phraseology is commonly known to the public; similar to a dissolution of marriage action being referred to as a divorce.  Judicial review pursuant to CRS 24-4-106(6) is an original proceeding and not an appeal.  Tassian v. People, 696 P.2d 825 (Colo.App. 1984), reversed on other grounds, 731 P.2d 672 (Colo. 1987).  Since the District Court action is an original proceeding, the District Court judgment may be appealed to the Court of Appeals as a matter of right.

CRS 24-4-106(9).  The decision of the district court shall be subject to appellate review as may be permitted by law or the Colorado appellate rules.

CRS 24-4-106 (9)(11).  Notice of intent to seek appellate review must be filed in the District Court within 45 days from final judgment, and notice of appeal must be filed in the Court of Appeals within 45 days from the date of service of District Court final judgment together with a certificate of service showing service of a copy of said notice of appeal on the agency and on all other persons who have appeared as parties to the action before the agency. The date of service of an order is the date on which a copy of the order is delivered in person or, if service is by mail, the date of mailing.  C.A.R. 3, 4(a) are in accord regarding the 45 day limitation.

Court of Appeals Case Acceptance.  Publishing attorney will accept appeals to the Court of Appeals.  Refer to Attorney Fees and Costs.

Final Appeal As a Matter of Right.  The Colorado Court of Appeals is the end of the line for appeal as a matter of right.  From a Court of Appeals final judgment, either party may petition the Colorado Supreme Court for certiorari.  If it is a case of first impression (new idea), a novel or unique theory or if the matter may impact a significant number of persons or have a significant impact on society, or if the decision is in conflict with previous Supreme Court or Court of Appeals decisions, the Supreme Court may accept the case for review.

Certiorari is a two bit, fancy legal word.  In this context, it means an appellate proceeding for re-examination of action of an inferior legal tribunal.  Black's Law Dictionary

Potential for Appeal.  Rulings of District Court judges are not reported in the case law books.  The Colorado Reporters contained in the Pacific Reporters are full of appellate decisions entered by the Colorado Court of Appeals and the Colorado Supreme Court.  DMV appeals are no exception.

ATTORNEY PRELIMINARY APPELLATE CASE REVIEW

 

        If the undersigned attorney provided representation at the DMV hearing and adverse ruling entered, client will be provided with a synopsis letter regarding:

1.  Fact of hearing loss

2.  Statement of period of driving privilege loss and potential consequences of unlawful driving

3.  Whether a probationary license is available, and if so, under what terms and attorney recommendation

4.  Attorney opinion whether meritorious appellate issues exist, and if so, identification of potential appellate issues
      Notice: on-line legal research may be required for opinion regarding appellate merits.

5.  Quote regarding appellate attorney fees and estimated costs, including a requested appellate trust deposit

6.  Statement of the last day the attorney will accept appellate representation (time is required to prepare and file the appeal)

 

        Synopsis and Appellate Merits Opinion - Fees & Costs This synopsis is included in the flat fee paid by the client for DMV representation.  Included in the synopsis at no additional cost to the client will be a preliminary opinion regarding appellate merits absent on-line legal research.  However, on-line legal research and attorney time invested in legal research for merits of appeal opinion would not be included in the DMV hearing flat fee, but would be billable upon an hourly fee basis if on-line legal research is required.  If client retains attorney to appeal & elects a District Court appellate flat fee, legal research hourly fees would be charged off and included in the appellate flat fee.

 

        District Court Appeal Case Acceptance.  Publishing attorney will accept appeals to the District Court.  Refer to Attorney Fees and Costs below.  If the attorney renders an opinion that counsel does not believe meritorious issues exist for appeal but the client requests appeal against advice of counsel, appellate attorney fees and costs will not be refunded, and client will be required to indemnify and hold attorney harmless for fees and costs which may be awarded to the State.

 

        Trust Deposit Requirement The attorney takes no action regarding appeal unless the client requests appeal and pays the appellate trust deposit.  If the trust deposit is timely paid, attorney will timely commence an appeal of the DMV adverse ruling on behalf of the client.

 

        Time Limitations Refer to statute of limitations regarding filing of an appeal.  The attorney will likely decline an appellate case if not retained at least fourteen (14) days in advance of the statute of limitations deadline, and attorney will decline if insufficient time exists to prepare the appeal in conjunction with his other workload.

District Court Statute of Limitations Court of Appeals Statute of Limitations

ATTORNEY PRELIMINARY APPELLATE CASE REVIEW

 

        If the undersigned attorney DID NOT provide representation at the DMV hearing and adverse ruling entered, the matter of preliminary case review is more complex.  When attorney provided representation, attorney is familiar with the facts of the case, legal issues presented at hearing, and merits of the case.  Attorney has no such knowledge if he did not defend the case in chief at the DMV hearing.

 

        It is not possible to fully ascertain issues for appeal until receipt of the DMV record and transcript.  That is a disadvantage.  Refer to complaint amendment above.

 

        There exists a high probability that prospective clients seek appellate review at no or limited cost.  If so, please refer to the links at right; I decline. On-line legal research will likely be required for opinion regarding appellate merits regarding the DMV hearing and ruling.  Investment of time and resources needed to review a case for potential appeal is not economically justifiable for any attorney absent client financial commitment.

 

        Attorney DOES NOT offer a free assessment of a DMV case for appeal nor does attorney offer a no cost consultation regarding appeal unless he provided representation in the underlying DMV hearing.  Synopsis of DMV appeal procedure is identified above and fee / cost estimate is provided below.  The equivalent of a non-billed consultation is provided in this webpage.  If the prospective client desires to proceed with an appeal, attorney would require a trust deposit for estimated fees and costs as indicated below before proceeding with a DMV appeal.  This policy is non-negotiable.  Attorney welcomes appellate cases, but not free legal work.

 

        When retained, attorney would require copies and a written statement from the client as follows.

1.  Copy or fax of all summons and complaints (criminal or traffic charging documents), DMV notices of suspension, revocation or denial, DMV notices of hearing, client request for hearing, any communications from or to the DMV, any hearing exhibits, DMV rulings or any other written materials in the client's possession pertaining to the DMV hearing or the underlying criminal charges related to the DMV case.

2.  Statement of facts presented by the law enforcement officer.

3.  Statement of facts presented by or on behalf of the driver client.

4.  Statement of issues perceived by the driver client or reasons client believes the DMV ruling is improper or unlawful.

 

        After receipt of the above, if the attorney rendered an opinion that he can find no meritorious issues for appeal, attorney fees would be billed on an hourly basis and costs as incurred, including but not limited to computer legal research.  The balance of proceeds, if any, remaining in trust would be refunded.

 

        After receipt of the above, if the attorney rendered an opinion that meritorious issues exist for appeal, attorney fees would be billed on the below flat fee basis (if client elects flat fee) plus costs as incurred.  Time expended reviewing the case would not be billed independently.  Alternatively, if client elects an hourly fee billing basis, attorney would simply proceed with the appeal upon an hourly fee billing plus costs as incurred.  Time expended reviewing the case would be billed.

 

        District Court Appeal Case Acceptance.  Publishing attorney will accept appeals to the District Court.  Refer to Attorney Fees and Costs below.

Appellate Attorney Fees & Costs - District Court Appellate Attorney Fees & Costs - Court of Appeals

 

        Trust Deposit Requirement The attorney takes no action regarding appeal unless the client requests appeal and pays the appellate trust deposit.  If the trust deposit is timely paid, attorney will timely commence an appeal of the DMV adverse ruling on behalf of the client.

 

        Retainer Data Information Link to retainer agreement data information sheet.  Document is not password protected.  The completed form may be faxed to the attorney for preparation of a proposed fee agreement or attorney can take the necessary information by phone.  Retainer agreement will be emailed to prospective client within 1 business day.

 

        Time Limitations Refer to statute of limitations regarding filing of an appeal.  The attorney will likely decline an appellate case if not retained at least fourteen (14) days in advance of the statute of limitations deadline, and attorney will decline if insufficient time exists to prepare the appeal in conjunction with his other workload.

District Court Statute of Limitations Court of Appeals Statute of Limitations

DMV Addresses and Links Driving Abstracts and Records DMV Point Structure On-Line Colorado Driving Records
Driver License & Hearing Defense DMV Appeal Legal Research Selected Statutes & Regs "Red" License & Interlock Devices
Insurance Actions SR-22 Insurance Habitual Traffic Offender Interstate Compact Accident Reports & DMV Forms
DMV Hearing
Defense
DMV Appeal
statute of limitations

Driving in Colorado is a constitutionally protected privilege, but nevertheless a privilege which may be lost.  Multiple statutes can cause loss of driving privileges for different driver behavior.  Drivers are entitled to a DMV hearing.  In some circumstances the right to hearing precedes potential DMV adverse action; under other Colorado traffic laws the adverse order is entered, then the driver is provided notice of the adverse action and right to request subsequent hearing.  If hearing has been held or a DMV final order has otherwise entered and the Colorado driver's license or Colorado driving privileges have been suspended, revoked or denied, the driver's remaining recourse is appeal to the District Court.  DMV appeal is subject to a statute of limitations.  Right to appeal may be lost if the driver delays.  Upon final order in the District Court, either party make take the case on appeal to the Colorado Court of Appeals.  Refer to links for information.

CSPD Accident Cold Report    due within 72 hours of accident
obtain hardcopy cold report from CSPD Police Operations Center
State of Colorado On-Line Accident Report
accident report obsolete 8/4/04 unless no officer accident report
 

INDEPENDENT SERVICE PROVIDERS
private investigators * process service * laboratories * transcription
refer to attorney-client privilege and attorney work product doctrine

ADVICE BY LAYMEN
forewarned is forearmed
advice by unsupervised paralegals & street corner lawyers

DO I NEED AN ATTORNEY?
DRIVER LICENSE DEFENSE

 

Do I need an attorney?

Probably time to loosen the pocket book and hire an attorney familiar with DMV hearings and appeals.

 

DMV appeals involve rules of Colorado Rules of Civil Procedure, Colorado Appellate Rules, multiple statutes and case law.  This simply exceeds the capabilities of most laypersons.  You may retain my services or the services of another attorney, but hire competent counsel if you plan to appeal.

 
bear in mind the time limitations to file your appeal and give your the attorney time for appellate case preparation
District Court Statute of Limitations Court of Appeals Statute of Limitations

 
 

ATTORNEY'S FEES AND COSTS
DMV APPEAL  **  DRIVER LICENSE DEFENSE
Colorado Traffic Defense and Criminal Defense Trial Practice 30+ Years

APPEAL TO THE DISTRICT COURT

APPEAL TO COURT OF APPEALS

 
 
 

At the time of the first visit or after initial case review, a prospective client will be given a quote for fees and estimated costs. The quote will be honored for a period of seven (7) days, after which quotes are subject to change without notice if this office has not been retained.  Fee quote and costs trust deposit is dependent upon the facts and circumstances of each individual case.  Attorney fee options + litigation costs: 1) hourly attorney fees only  2) flat fee through appellate court final order  3) hourly fees or flat fee at client's discretion.  Attorney determines options to be offered.  Litigation costs are not included in fees - client's obligation.  Attorney is a sole practitioner with need to manage his caseload.  Pending proposed client acceptance and payment, retainer agreement proposals are subject to withdrawal.  Attorney reserves the right to decline any case.  Refer to:  a) first consultation  b) attorney fees * costs * billings page  c) additional information.

 
FIRST CONSULTATION AND DMV APPELLATE CASE PRELIMINARY REVIEW
 
 
 
 
POTENTIAL FEE QUOTE
DMV APPEAL TO DISTRICT COURT
 
 
 
 
APPEAL FLAT FEE QUOTE  $3,500*
Appeal to District Court Only
refer to Appeal to Colorado Court of Appeals
HOURLY FEE RATE
TRUST DEPOSIT TO RETAIN ATTORNEY
 
map * travel policy - time & expenses * travel rates click jitney for travel tables
outside El Paso County
 
 

hourly fees may be less than offered flat fees, however are not capped and more likely may exceed offered flat fees
hourly fee option election by client --- payment of flat fee + estimated costs total trust deposit required to retain
trust deposit overage - refunded at case conclusion   **   undercapitalization - immediate trust deposit required
CLIENT'S INITIAL ELECTION RE FLAT FEE OR HOURLY FEES SHALL BE BINDING AND FINAL

 

 

attorney does not accept installment payments  *  full payment is due at the time attorney is retained  *  major charge cards accepted

 

DMV APPEAL TO DISTRICT COURT
 

Colorado Springs Attorney Robert D. Gustafson
ATTORNEY FEES

LITIGATION COSTS DEPOSIT

 
 
 

$ 3,500  
$ 1,500  
 
common trust deposit request
Appeal to District Court
including attorney's fees & appellate costs - excluding travel
additional cost deposit may be requested as appellate preparation proceeds & anticipated litigation expenses solidify

$5,000*

 
 
 
 
 
 
* this shall not constitute an offer, nor be construed as a binding estimate
Out of pocket litigation cost expenditures are the client's responsibility - trust deposit for attorney fees & costs noted above.

Client authorization is obtained for any large cost expense.  Final expenditure may run less or client may periodically be asked for additional amounts to be deposited to trust if fees and costs will exceed previous deposits. 

Client will be provided with a trust accounting and itemized billing statement when there has been activity on the account.  At the end of each case, a detailed accounting summary is provided and remaining trust proceeds are refunded.

trust deposit for anticipated fees & costs is due when retained

attorney does not accept installment payments

regular billings are scheduled on the 1st and 15th
if fees and costs are not paid as agreed, representation is withdrawn

 
PARTIAL LIST OF POTENTIAL COSTS
out of pocket costs are the responsibility of the client
appellate e-Filing District Court mandatory requirements
eService personal service of process
litigation costs fluctuate - not within attorney control
note: costs change & below cost information may be obsolete
 
link to Colorado Judicial Branch website
current costs information published by state
COLORADO STATE
COURT COSTS & FILING FEES
DMV Transcriptionists
generic costs litigation generic costs criminal
Price   Client Background Search
Varies   DMV Out of State Driving Record
224.00   District Court filing fee
60.00   Electronic File and Serve e-Filing fees
125.00   DMV Transcript Deposit initial retainer - dependent upon transcriptionist
175.00   DMV Transcript Final Payment - dependent upon length of hearing and transcript
250.00   District Court appellate lawsuit process service expense - depends upon whether personally served or by USPS certified mail
15.00   Postage expense estimate (actual may be more or less)
75.00   Attorney photocopy expense estimate (actual may be more or less)
75.00   Local court copy expense and certification - restraining order or final order estimate (actual may be more or less)
10.00   Court records search & copy costs (actual may be more or less)
37.50   OJW fee to court (outstanding judgment warrant) - anticipating Integral Recoveries collection agency referral costs
95.00   DMV reinstatement fee
4.40   DMV clearance letter - certified copy of Colorado driving abstract
$3 per page   Transcriptionist - preliminary injunction hearing if relevant and of potential use at final orders hearing
Varies   On-line legal research - dependent upon issues requiring legal research, if any
Rates   Travel time and expenses if the case is outside El Paso County

CAVEAT: Not all above costs will be relevant to any given case, and additional expenses not identified may be incurred in any individual case.  Costs quoted are subject to change by independent providers; actual costs paid will be billed.

 
 
****************************** ****************************** ******************************
Thank you for considering my services; I appreciate your inquiry.
 
 
 
 
POTENTIAL FEE QUOTE
DMV APPEAL TO COLORADO COURT OF APPEALS
 
 
 
 

APPEAL FLAT FEE QUOTE  $7,500*
Appeal to Court of Appeals Only
refer to Appeal to District Court

 HOURLY FEE RATE
 TRUST DEPOSIT TO RETAIN ATTORNEY
 
map * travel policy - time & expenses * travel rates click jitney for travel tables
outside El Paso County
 
 
 

hourly fees may be less than offered flat fees, however are not capped and more likely may exceed offered flat fees
hourly fee option election by client --- payment of flat fee + estimated costs total trust deposit required to retain
trust deposit overage - refunded at case conclusion   **   undercapitalization - immediate trust deposit required
CLIENT'S INITIAL ELECTION RE FLAT FEE OR HOURLY FEES SHALL BE BINDING AND FINAL

 

 

attorney does not accept installment payments  *  full payment is due at the time attorney is retained  *  major charge cards accepted

 

DMV APPEAL TO COLORADO COURT OF APPEALS
 

Colorado Springs Attorney Robert D. Gustafson
ATTORNEY FEES

LITIGATION COSTS DEPOSIT

 
 
 

$ 7,500  
$ 2,500  
 
common trust deposit request
Appeal to Colorado Court of Appeals
including attorney's fees & appellate costs - excluding travel
additional cost deposit may be requested as appellate preparation proceeds & anticipated litigation expenses solidify

$10,000*

 
 
 
 
 
 
* this shall not constitute an offer, nor be construed as a binding estimate
Out of pocket litigation cost expenditures are the client's responsibility - trust deposit for attorney fees & costs noted above.

Client authorization is obtained for any large cost expense.  Final expenditure may run less or client may periodically be asked for additional amounts to be deposited to trust if fees and costs will exceed previous deposits. 

Client will be provided with a trust accounting and itemized billing statement when there has been activity on the account.  At the end of each case, a detailed accounting summary is provided and remaining trust proceeds are refunded.

trust deposit for anticipated fees & costs is due when retained

attorney does not accept installment payments

regular billings are scheduled on the 1st and 15th
if fees and costs are not paid as agreed, representation is withdrawn

 
PARTIAL LIST OF POTENTIAL COSTS
out of pocket costs are the responsibility of the client
appellate e-Filing District Court mandatory requirements
eService personal service of process
litigation costs fluctuate - not within attorney control
note: costs change & below cost information may be obsolete
 
link to Colorado Judicial Branch website
current costs information published by state
COLORADO STATE
COURT COSTS & FILING FEES
DMV Transcriptionists
generic costs litigation generic costs criminal
Price   Client Background Search
Varies   DMV Out of State Driving Record
30.00   District Court records search & copy costs (actual may be more or less)
250.00   District Court appeal bond
_______   District Court Transcript Deposit initial retainer - dependent upon transcriptionist
350.00   District Court Transcript Final Payment - dependent upon length of hearings and transcript
223.00   Court of Appeals filing fee
60.00   Electronic File and Serve e-Filing fees
250.00   Appellate lawsuit process service expense - depends upon whether personally served or by USPS certified mail
40.00   Court of Appeals copy expense and certification estimate - final judgment & mandate (actual may be more or less)
125.00   Attorney photocopy expense estimate (actual may be more or less)
40.00   Postage expense estimate (actual may be more or less)
95.00   DMV reinstatement fee
4.40   DMV clearance letter - certified copy of Colorado driving abstract
Varies   On-line legal research - dependent upon issues requiring legal research
Rates   Travel time and expenses if travel is required to file, procure or return the record on appeal, for oral argument
  or procuring the mandate

CAVEAT: Not all above costs will be relevant to any given case, and additional expenses not identified may be incurred in any individual case.  Costs quoted are subject to change by independent providers; actual costs paid will be billed.

 
 
****************************** ****************************** ******************************
 
First Consultation Accounting Structure Hourly Fees Costs Flat Fee - Definition
Settlement Phase Contested Phase Settlement Flat Fee Trial Flat Fee
Flat Fees - Phases Earned Compare Hourly vs Flat Fees Client's Election Final Travel Time & Expenses
Security for Fees & Costs Trust Account Withdrawal or Termination Alternatives to Private Counsel
Client Duty to Disclose Omission or Non-Disclosure Attorney Selection Retaining Gustafson Advice by Laymen

please feel free to call or email if you are a client or are seeking representation

DISCLOSURES
Privacy
 
Notice & Disclaimer
 
Ethics & Client Disclosures
 applicable whether site visitor
reads or not

 
INITIAL CONSULTATION TERMS
not an offer for legal advice - refer to link
attorney is a sole practitioner with need to manage his caseload
attorney reserves the right to decline any legal matter

PRIMARY WEBSITE

 

GUSTAFSON LAW OFFICE TOPICAL WEBSITES

DUI DEFENSE - DWAI & DEAC DRUNK DRIVING DEFENSE MIP - UNDERAGE ALCOHOL TRAFFIC TICKET DEFENSE DRIVING UNDER RESTRAINT SPEEDING TICKET DEFENSE
HIT AND RUN DEFENSE DRIVER LICENSE DEFENSE CRIMINAL DEFENSE PROSTITUTION DEFENSE DOMESTIC VIOLENCE DEFENSE
SEALING CRIMINAL RECORDS NUISANCE FORFEITURE DEFENSE SHOPLIFTING - THEFT DEFENSE
FAMILY LAW DISSOLUTION OF MARRIAGE COLORADO DIVORCE LEGAL SEPARATION STEP-PARENT ADOPTION GRANDPARENT ADOPTION
PATERNITY - LEGAL PARENTAGE CHILD SUPPORT SUPPORT ENFORCEMENT RESTRAINING ORDERS DEBT COLLECTION PRIVATE INVESTIGATORS

 MAJOR SEARCH ENGINES

AltaVista AOL Search Ask Jeeves aka Teoma Bing - Microsoft Network Dogpile Excite Google
InfoSeek - Go Lycos Netscape Search WebCrawler Yahoo!
 

 Serving Colorado Springs Area Zip Codes

80918 80920 80919 80917 80915 80908 80132 80909 80913 80916 80921 80922 80925 80901 80902 80903 80904 80905 80906 80907 80910 80911 80912 80914 80921 80926 80928 80929 80930 80931 80933 80934 80935 80936 80937 80940 80941 80942 80943 80944 80945 80946 80947 80949 80950 80960 80962 80970 80977 80995 90997
 

Colorado DMV appeals, Colorado driver license appeals, Colorado driver license, appeal, appeals, Colorado driver license suspension, revocation, denial, appealing license loss, Colorado Department of Revenue, Colorado Division of Motor Vehicles, Colorado DMV, Colorado DOR, Colorado MVD, Colorado, DMV, driver, license, suspension, revocation, denial, hearing, district court, court of appeals, Colorado Springs, attorney

Website Copyright 2003 - All Rights Reserved - Document Revised January 30, 2012
mountains photo image, attorney photo image & law office logo copyright Robert D. Gustafson - all rights reserved - no copyright claimed to other images
Website Initial Publication Date: October 18, 2003 - Republication Date:
July 22, 2011

Hit Counter