LENGTH OF RESTRAINT AND ISSUANCE OF PROBATIONARY DRIVER’S LICENSES

Basis:	These rules are promulgated pursuant to §§ 24-4-103, 42-2-125, 42-2-126, 42-2-127, 42-2-127.3, 42-2-127.6, and 42-2-405.5, C.R.S. and any subsequently enacted legislation that provide for Hearing Officer discretion either with the term of a driver license restraint, or the issuance of a Probationary Driver’s License. 

Purpose:	These rules regulate the conduct of hearings where the law affords Hearing Officers the discretion to determine the term of a driver license restraint, authorize a Probationary Driver’s License, and regulate the cancellation and re-issuance of a Probationary Driver’s License.  The previous version of 1 CCR 204-8 only regulated the conduct of point suspension hearings under C.R.S. §42-2-127. Since those rules were last modified, the legislature has passed several enactments, referenced above, that authorize a hearing officer to exercise discretion with regard to the length of a driver’s license restraint or whether to grant limited driving privileges. This amendment replaces the previous rules to address the various restraints created by those enactments as well as point suspension hearings. 

Fiscal Impact: These rules have no fiscal impact. 

LENGTH OF RESTRAINT AND ISSUANCE OF PROBATIONARY DRIVER’S LICENSES
1 CCR 204-8
1.	DEFINITIONS
1.1	“Base Period” – One half the maximum term of a restraint allowed by law.
1.2	“Certified Amended Transcript” – a document, certified by a court, correcting a prior filing by that court.
1.3	“Department” – The Colorado Department of Revenue.

1.4	“Division” – The Colorado Department of Revenue, Hearings Division 
1.5	“Driver’s License Restraint” or “Restraint” – Any denial, revocation, or suspension of a person’s license or privilege to drive a motor vehicle in this or any other state.

1.6	“Driver Record” – Any and all records pertaining to the Respondent held by the Department pursuant to § 42-2-121, C.R.S. as amended from time to time.
1.7	”Hearing Officer” – An authorized representative of the Executive Director of the Department, designated under the authority of Title 42 of the Colorado Revised Statutes.
1.8	”Hearing Record” – The audio recording and the written record of the hearing made by the Hearing Officer, together with the evidence presented at hearing.
1.9	“PDL Authorization” – A document issued by the Division that authorizes and sets forth the specific terms and conditions of the Probationary Driver’s License. The PDL Authorization may serve as a license document for the first ten days after issuance, but thereafter must be carried with the Probationary Driver’s License for the term of the suspension under which the Probationary Driver’s License is authorized.
1.10	“Probationary Driver’s License” or “PDL” – A document issued by the Division evidencing a driving privilege that is restricted to driving only at certain times and locations and for certain purposes established either by statute, by rule, or upon terms and conditions set forth by a Hearing Officer at hearing.  PDLs may be issued for a period no longer than the term of the suspension under which the license is authorized. 
1.11	“Respondent” – The person whose driving privilege is the subject of the hearing.
2	PDL CONSIDERATION AND LENGTH OF RESTRAINT	
2.1	The Hearing Officer shall review the Respondent’s Driver Record for the purposes of ensuring that the Respondent is eligible for a PDL.  The Hearing Officer shall deny a PDL in the following circumstances:
2.1.1	The Respondent has another active or pending Restraint for which he/she is not fully eligible for reinstatement, and which restraint does not permit the issuance of a PDL. 
EXCEPTION:  If proficiency testing is required for reinstatement under the active or pending Restraint, the Hearing Officer may authorize such testing on the PDL.
2.1.2	The Respondent has never held a valid Driver’s License from Colorado or any other state.
2.1.3	The Respondent has an unresolved alleged violation, where a conviction would result in a Restraint for which no PDL is available.
2.1.4	For the operation of commercial motor vehicles as defined by law.
2.1.5	The Respondent is under the age of seventeen, for driving on the job.
2.1.6	The Respondent has previously had a PDL, unless the Hearing Officer makes specific findings that the mitigating factors outweigh the aggravating factors.
2.2	PDL ISSUANCE:
2.2.1	In any hearing for an action where the Hearing Officer has discretion to issue or deny a request for a PDL, the aggravating and mitigating factors set forth in these rules shall be used in determining whether or not a request for a PDL will be approved.
2.2.2	If the Hearing Officer authorizes the PDL, the Hearing Officer must then determine, based on the aggravating and mitigating factors, other information appearing on the Driver Record, and information gathered at the hearing, the terms, conditions and restrictions under which the PDL will issue.  
2.2.3	Any PDL issued must include all restrictions and conditions required by applicable statute.
2.3	LENGTH OF RESTRAINT
2.3.1	In any hearing for an action where the Hearing Officer has discretion to determine the length of the restraint, other than for actions pursuant to §42-2-132.5, C.R.S., the aggravating and mitigating factors set forth in these rules shall be used for determining the length of the restraint.
2.3.1.1	Where the Hearing Officer finds that the aggravating and mitigating factors weigh evenly, the term of the Restraint shall be the Base Period.  
2.3.1.2	Where the Hearing Officer finds that the aggravating factors outweigh the mitigating factors, the term shall be longer than the Base Period.
2.3.1.3	Where the Hearing Officer finds that the mitigating factors outweigh the aggravating factors, the term shall be shorter than the Base Period.
2.4	AGGRAVATING FACTORS:
2.4.1	The Hearing Officer shall consider the following as aggravating factors.  The Hearing Officer shall have sole discretion in determining the weight to be given any aggravating factor:
2.4.1.1	Any collision involving death or bodily injury to another where the Respondent is determined to be at fault on the basis of a conviction, accident report or other evidence presented at hearing.
2.4.1.2	Any conviction for a violation that carries a point assessment of six or more points prior to any point reductions authorized for prompt payment.
2.4.1.3	Any conviction defined in the Federal Motor Carrier Safety Regulations or subsequently promulgated pertinent federal regulations as a major offense, serious traffic violation or railroad crossing offense.
2.4.1.4	Any conviction for a violation of an out of service order that poses a serious safety risk to the public.
2.4.1.5	Any conviction for an offense specifically designated by the habitual offender law, § 42-2-202, C.R.S.
2.4.1.6	Carelessness as evidenced by the Driver Record and information gathered at hearing.
2.4.1.7	Recklessness as evidenced by the Driver Record and information gathered at hearing.
2.4.1.8	Repeated or willful disregard for the law or public safety as evidenced by the Driver Record and information gathered at hearing.
2.4.1.9	Conviction for any violation involving alcohol or drugs.
2.4.1.10	Any prior driver’s license restraint.
2.4.1.11	Any prior issuance of a Probationary Driver’s License.
2.4.1.12	Repeated commission of the same types of offenses.
2.4.1.13	The reluctance to be truthful or candid at the hearing.
2.4.1.14	The accumulation of three or more points beyond what is required to trigger a point suspension.
2.4.1.15	Any evidence of a violation of the terms and conditions of any previously issued PDL.
2.4.1.16	One or more traffic collisions where the Respondent was found to be at fault.
2.4.1.17	Any evidence of failing to be an insured driver at any time Respondent was operating a motor vehicle.
2.4.1.18	Any evidence of failing to be in compliance with court ordered probation requirements.
2.4.1.19	Any evidence that the Respondent has an alcohol or substance abuse problem that is not under control or not likely to remain under control.
2.5	MITIGATING FACTORS
2.5.1	The Hearing Officer shall consider the following as mitigating factors.  The Hearing Officer shall have sole discretion in determining the weight to be given any mitigating factor:
2.5.1.1	Deprivation of Respondent’s livelihood as a direct result of the Restraint
2.5.1.2	Respondent’s demonstrated efforts to correct behavior that led to the Restraint under consideration.
2.5.1.3	The absence of all aggravating factors.
2.5.1.4	Any errors by the Department that have adversely affected the Respondent’s driving privileges.
2.5.1.5	Time without driving already served under any currently active Restraint if that Restraint was caused by the same event(s) that caused the current restraint.
2.5.1.6	Lack of violations committed subsequent to the time frame under consideration, e.g. if a citation is reported months or years late.
2.5.1.7	Respondent’s need to drive in another state.  
2.5.1.8	In cases where there is evidence that Respondent has an alcohol or substance abuse problem, evidence demonstrating such problem is under control.
2.5.1.9	Any factors which the Respondent presents that mitigate the severity of the record.
2.6	PRECONDITIONS FOR PROBATIONARY DRIVER’S LICENSE
2.6.1	The Hearing Officer may establish any reasonable requirement as a pre-condition to authorizing a PDL, including, but not limited to:
2.6.1.1	Letter from Respondent’s employer confirming employment and authority to drive on the job with a PDL.
2.6.1.2	Evidence of enrollment in and compliance with court-ordered or reinstatement-required Alcohol Education and Therapy.
2.6.1.3	Completion of a  defensive driving course after the last driving offense.
2.6.1.4	Production of documentation necessary to dispose of another pending or active Restraint.
2.6.1.5	Disposition of pending court matters for reanalysis of record for aggravation and mitigation.
2.6.1.6	Compliance with monitored sobriety, including but not limited to ignition interlock devices, disulfuram, participation in alcohol education or therapy, monitored alcohol detection devices.
2.6.1.7	Report from any probation officer showing satisfactory compliance with the terms of probation.
2.6.1.8	SR22 Endorsement to insurance coverage. 
3	CANCELLATION OF PROBATIONARY DRIVER’S LICENSE
3.1	A Hearing Officer may summarily cancel a PDL upon receipt of any of the following, including ex parte communications:
3.1.1	Citation, incident report, or other reliable communication from a law enforcement officer that Respondent has been cited for a moving violation while on the probationary driving privilege. 
3.1.2	Incident report or other reliable communication from a law enforcement officer or identified witness that Respondent has driven outside the restrictions prescribed on the PDL Authorization or failed to carry the PDL Authorization while driving. 
3.1.3	Reliable evidence that Respondent has failed to maintain conforming insurance during the term of the PDL.
3.1.4	Reliable evidence that Respondent was at fault in a collision during the term of the PDL.
3.1.5	Reliable evidence that Respondent has been in actual physical control of a vehicle during the term of the PDL after consuming alcohol or drugs.
3.2	The Hearing Officer canceling a PDL shall enter specific findings of fact regarding the basis for the cancellation on the Hearing Record as an update to the initial hearing on the merits, and shall send notice of the cancellation to the Respondent.
3.3	The Respondent may request a hearing on the issue of PDL cancellation.  Respondent must surrender any license or permit at the time of the request, unless the PDL has been previously surrendered to the Department or to a law enforcement officer.
3.4	The hearing shall be held as expeditiously as possible with consideration given to the docketing requirements for the hearing location, the schedule of the Respondent and any representative of the Respondent, and the availability of the Hearing Officer.
3.5	The Hearing Officer who entered the summary cancellation shall hold the hearing.
3.6	At the hearing, the Respondent shall have the right to view the evidence supporting the summary cancellation, and to present evidence to dispute the cancellation.  All testimony presented by the Respondent on this issue shall be under oath.
3.7	After consideration of the evidence, the Hearing Officer shall make a final decision regarding the cancellation of the PDL.  The Hearing Officer may sustain the cancellation, re-issue the PDL, or modify the terms and conditions of the PDL.