Wood v. Colo Dept of Revenue

21CA0335 Wood v Colo Dept of Revenue 01-20-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA0335

Jefferson County District Court No. 20CV75

Honorable Lily W. Oeffler, Judge

John Joseph Dwane Wood,

Plaintiff-Appellant,

v.

Colorado Department of Revenue, Motor Vehicles Division,

Defendant-Appellee.

JUDGMENT AFFIRMED

Division I

Opinion by JUDGE TAUBMAN*

Dailey and Fox, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced January 20, 2022

John Joseph Dwane Wood, Pro Se

Philip J. Weiser, Attorney General, Laurie Rottersman, Senior Assistant

Attorney General, Torrey Samson, Assistant Attorney General, Denver,

Colorado, for Defendant-Appellee

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2021.

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¶ 1 John Joseph Dwane Wood appeals the district court’s

judgment affirming the extension of his interlock restricted driver’s

license by the Colorado Department of Revenue’s Division of Motor

Vehicles (the Department). We affirm.

I. Background

¶ 2 Wood’s driver’s license was revoked due to an alcohol-related

conviction. When his driver’s license was reinstated, the

Department required Wood to install an interlock device on his

vehicle to test his breath alcohol content (BAC) in accordance with

section 42-2-132.5(1)(a)(I), C.R.S. 2021.

¶ 3 Over the following months, the interlock device prevented the

operation of Wood’s vehicle multiple times based on the level of his

BAC (BAC fail). Due to those BAC fails, the Department extended

Wood’s interlock restriction by one year under section

42-2-132.5(7)(d).

¶ 4 Wood requested an administrative hearing on the extension of

the restriction. During that hearing, the Department introduced

the interlock device’s records as evidence. Those records showed

that Wood had eight BAC fails from September through December

2019 as follows:

2

Date

Time

BAC Level

September 8

6:24 p.m.

0.025

September 14

5:51 a.m.

0.026

5:52 a.m.

0.026

October 6

6:48 a.m.

0.061

6:50 a.m.

0.060

October 17

12:31 p.m.

0.036

October 24

7:30 a.m.

0.099

7:31 a.m.

0.040

October 31

7:41 a.m.

0.042

7:45 a.m.

0.042

November 2

10:05 a.m.

0.030

December 26

10:25 a.m.

0.043

10:27 a.m.

0.047

10:35 a.m.

0.047

10:36 a.m.

0.034

10:52 a.m.

0.036

10:54 a.m.

0.041

¶ 5 After considering the interlock device’s records and Wood’s

testimony, the hearing officer sustained the Department’s extension

of the interlock restriction but reduced the extension from one year

to eight months. The hearing officer concluded that Wood’s breath

sample registered a BAC of 0.025 or above in at least three separate

months within a twelve-month time period. In reaching that

conclusion, the hearing officer made the following findings of fact:

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• Wood admitted the BAC fails on October 6 and December

26 but argued the other BAC fails were due to his use of

hand sanitizer or other contaminants.

• The BAC fails on September 14, October 6, October 31,

November 2, and December 26 were supported by the

evidence. In those BAC fails, Wood “waited hours to start

the car or walked away until the next day.”

• The remaining BAC fails were “clearly erratic readings”

that had quickly dissipated.

• There were aggravating factors based on the presence of

BAC fails in more than three months under

consideration, a BAC of 0.05 or greater, and three or

more readings consistent with attempted drinking and

driving.

• That more than one year remained on the interlock

device was a mitigating factor.

• The aggravating factors outweighed the mitigating factor,

warranting an eight-month extension of the interlock

restriction.

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¶ 6 Wood filed a complaint for judicial review of the hearing

officer’s decision with the district court. As relevant to this appeal,

he contended that (1) although he drank alcohol on the night before

October 6 and December 26, he did not drink alcohol on the same

day as those BAC fails; (2) he did not drink alcohol at all on the

days of the other BAC fails; and (3) the other BAC fails were due to

his consumption of spicy and highly seasoned foods and his use of

hand sanitizer. In the brief in support of his complaint for judicial

review, Wood reiterated those contentions.

¶ 7 The district court affirmed the hearing officer’s decision,

concluding that

• Wood’s primary argument was that the BAC fails were

due to heavy use of hand sanitizer or the consumption of

spicy or heavily-seasoned food, but he also argued that

two of the BAC fails were due to consuming alcohol the

night before;

• for purposes of section 42-2-132.5(7)(d), “it is not

relevant when someone drinks, only whether there is

excessive [BAC] once someone attempts to operate their

vehicle,” so Wood’s contention that he drank alcohol the

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night before the two BAC fails cannot justify overturning

them; and

• it was required to defer to the hearing officer as the trier

of fact in resolving conflicts in the evidence and the

weight to be given the evidence — in this case, whether

the erratic BAC readings were due to contaminants.

II. Argument Raised for the First Time on Appeal

¶ 8 Wood did not argue before the hearing officer that there was

no way to know the age or accuracy of the interlock device he used

since no agency regulations governed the maintenance and testing

of interlock devices. Because Wood did not raise this argument

before the hearing officer, he did not preserve it for our review, and

we may not consider it. See Debalco Enters., Inc. v. Indus. Claim

Appeals Off., 32 P.3d 621, 624 (Colo. App. 2001).

III. Analysis

¶ 9 Wood argues that the district court erred by not considering

his arguments that the results of an interlock device are affected by

the use of alcohol-based products (like hand sanitizers,

mouthwash, and cough and cold medicines) and certain foods and

beverages. He reiterates his contentions that (1) he did not drink

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alcoholic beverages on October 6 and December 26 but only drank

one glass of wine the night before; (2) he did not drink alcoholic

beverages the night before or on September 8, September 14,

October 17, October 24, October 31, and November 2; and (3) the

BAC fails were caused by his use of hand sanitizer and eating

certain foods. Wood also argues that his use of other alcohol-based

products and his consumption of certain foods caused the BAC

fails.

¶ 10 We discern no reason to set aside the hearing officer’s

decision.

A. Standard of Review

¶ 11 As relevant here, we may set aside the hearing officer’s

decision only if it is (1) “[a]rbitrary or capricious” or (2) an “abuse or

clearly unwarranted exercise of discretion”. § 24-4-106(7)(b)(I), (VI),

(11)(e), C.R.S. 2021. A hearing officer’s decision is arbitrary and

capricious if substantial evidence does not support the decision

when reviewing the record as a whole. See Baldwin v. Huber, 223

P.3d 150, 152 (Colo. App. 2009).

¶ 12 “The credibility of witnesses, the weight to be given to the

evidence, and the resolution of conflicting evidence are factual

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matters solely within the province of the hearing officer as the trier

of fact.” Long v. Colo. Dep’t of Revenue, Motor Vehicle Div., 2012

COA 130, ¶ 7, 296 P.3d 329, 332 (Colo. App. 2012). If there is

conflicting evidence, “the hearing officer’s finding is binding on

appeal” and we “may not substitute [our] judgment for that of the

fact finder.” Glasmann v. State, 719 P.2d 1096, 1097 (Colo. App.

1986). Moreover, if the person seeking review of the hearing

officer’s decision fails to provide a copy of the hearing transcript for

our review, we presume that the evidence supports the hearing

officer’s findings. See Nova v. Indus. Claim Appeals Off., 754 P.2d

800, 801 (Colo. App. 1988).

B. Applicable Law

¶ 13 If an interlock device’s records show that the device was

“interrupted or prevented the normal operation of the vehicle due to

excessive [BAC] in three of any twelve consecutive reporting

periods,” the Department must extend the interlock restriction for

an additional twelve months after the expiration of the existing

interlock restriction. § 42-2-132.5(7)(d).

¶ 14 When the Department holds an evidentiary hearing on the

extension of an interlock restriction, the hearing officer has the

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discretion to reduce the twelve-month extension. See Dep’t of

Revenue, Div. of Motor Vehicles Rule 5.3(a), 1 Code Colo. Regs.

204-30. In such a case, the hearing officer must determine if “an

Excessive BAC Event occurred in any three months within twelve

consecutive Reporting Periods and, if so, shall determine an

appropriate extension period for the Interlock-Restricted License not

to exceed twelve months.” Id.

C. Application

¶ 15 The hearing officer’s finding that there were BAC fails on

September 14, October 6, October 31, November 2, and December

26 is supported by the interlock device’s records. Those records

show that Wood’s vehicle was prevented from starting on those

dates due to a BAC level of 0.025 or above. Specifically, Wood had

BAC levels on those dates of 0.026, 0.061, 0.042, 0.030, and 0.047.

Thus, the evidence shows that Wood had excessive BAC events in

four of the twelve consecutive reporting periods.

¶ 16 We recognize that Wood disputes the validity of those BAC

readings from his interlock device. However, Wood failed to

designate the hearing transcript for our review. Indeed, he

indicated in the notice of appeal that a transcript was not necessary

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to review the issues on appeal. Because we do not have a copy of

the hearing transcript in the appellate record, we presume that the

hearing officer’s findings of fact about the validity of the BAC

readings were supported by substantial evidence in the record. See

Nova, 754 P.2d at 801. The hearing officer found that those BAC

fails were supported by the evidence.

¶ 17 Under these circumstances, we conclude that the hearing

officer’s decision to sustain the extension of the interlock device

restriction on Wood’s driver’s license was supported by substantial

evidence in the record. Therefore, we may not set aside the hearing

officer’s decision on review.

IV. Conclusion

¶ 18 The judgment is affirmed.

JUDGE DAILEY and JUDGE FOX concur.