COLORADO COURT OF APPEALS                                     2016COA137


Court of Appeals No. 15CA0620
El Paso County District Court No. 14CV34046
Honorable Thomas K. Kane, Judge


Robin F. Edwards,

Plaintiff-Appellant,

v.

Colorado Department of Revenue, Motor Vehicle Division,

Defendant-Appellee.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division VI
                         Opinion by JUDGE FURMAN
                        Miller and Navarro, JJ., concur

                        Announced September 22, 2016


Daniel Thom & Katzman P.C., Steven Katzman, Colorado Springs, Colorado, for
Petitioner-Appellee

Cynthia H. Coffman, Attorney General, Laurie Rottersman, Senior Assistant
Attorney General, Denver, Colorado, for Respondent-Appellant
¶1   Plaintiff, Robin F. Edwards, appeals the district court’s

 judgment affirming the revocation of her driver’s license by the

 Colorado Department of Revenue, Motor Vehicle Division

 (Department), under provisions of Colorado’s revocation and

 express consent statutes. Edwards cooperated with the person

 who administered her breath test, but her breath test samples

 were obtained more than two hours after she drove.

¶2   We are asked to consider a narrow question: Does

 Colorado’s civil revocation statute require law enforcement

 officials to obtain a valid breath sample within two hours of the

 time a person drove before the person’s license can be revoked?

 See § 42-2-126(2)(b), C.R.S. 2016. Contrary to the rulings of the

 hearing officer and the district court, we conclude that it does.

 Because Edwards’s breath samples were obtained more than two

 hours after she drove, this statutory requirement was not met

 and her revocation based on the test results from these samples

 cannot be sustained. We therefore reverse the district court and

 remand with directions to set aside the order of revocation. (We

 note that this case does not address Edwards’s criminal

 prosecution for various alcohol-related driving offenses, which


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 could also lead to adverse consequences concerning her driver’s

 license.)

                          I. The Breath Tests

¶3    The parties do not dispute the relevant facts. A police officer

 stopped Edwards for speeding at 8:51 a.m. on September 7,

 2014. It appeared to the officer that Edwards had been doing

 more than speeding. Edwards’s speech was slurred, her eyes

 were bloodshot, and she had difficulty locating her driver’s

 license, registration, and proof of insurance. The officer invited

 her to participate in voluntary roadside maneuvers; she agreed to

 participate, but her stumbling and lack of balance indicated she

 was intoxicated. The officer then advised her of Colorado’s

 express consent law and offered her the choice between a breath

 test and a blood test. Edwards chose to take a breath test. The

 officer took her into custody and transported her to a local police

 department where she could take a breath test.

¶4    Colorado Department of Public Health regulations require a

 certified operator to administer a breath test in a specific

 sequence. See Dep’t of Pub. Health & Env’t Regs. 4.1.3.5, 4.2.3,




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 5 Code Colo. Regs. 1005-2. This sequence affected the timing of

 Edwards’s test.

               A. The Required Breath Test Sequence

¶5    On arrival at the facility, the breath test subject must

 complete a twenty-minute “deprivation period” before taking the

 breath test. Id. at 4.2.3. After the deprivation period, the subject

 gives the administrator two breath samples. Id. at 4.1.3.5.

¶6    The results of these two samples must agree with each other

 within a certain range. See id. For the purposes of this opinion,

 the two samples are “valid” if they agree with each other within

 the specified range and thus can be used to determine whether a

 person was driving with excessive breath alcohol content (BAC).

 If the results of the two samples do not agree with each other

 within that range, they are not valid.

¶7    If the samples are not valid, the administrator must

 discontinue the testing sequence and print an “exception report.”

 Id. at 4.1.3.5.1. Then, the breath test subject repeats the

 twenty-minute deprivation period. Id. at 4.1.3.5.2. After this

 period, the administrator will retest the subject. See id. at

 4.1.3.5.1, 4.1.3.5.2.


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                          B. Edwards’s Test

¶8   At the police station, Edwards’s first breath test attempt

 resulted in an exception report rather than a completed test

 because the results from her samples were not within the

 required agreement range. Another twenty-minute deprivation

 period then began at 10:30 a.m. and ended at 10:50 a.m.

 Edwards provided two valid breath samples for testing, one at

 10:52:06 a.m. and the other at 10:56:45 a.m.; the results from

 these samples were within the required agreement range. The

 intoxilyzer report from these samples showed her BAC to be .229

 grams of alcohol per two hundred ten liters of breath, based on

 the sample provided at 10:56 a.m. Of course, that is well over

 the .08 or more level required for revocation for driving with an

 excessive BAC. § 42-2-126(2)(b).

                  C. Edwards’s License Revocation

¶9   The hearing officer and district court considered the timing

 of Edwards’s test and concluded that the Department should

 revoke Edwards’s license.




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                         1. The Hearing Officer

¶ 10   At the revocation hearing, the arresting officer testified that

  the .229 BAC result was based on a breath sample Edwards

  provided more than two hours after the traffic stop. In response,

  Edwards contended that her driver’s license should not be

  revoked because she provided valid breath samples after the

  two-hour time period required by the revocation statute.

¶ 11   The hearing officer found that the time of driving was 8:51

  a.m. and that Edwards provided valid breath samples at 10:52

  a.m. and 10:56 a.m. The hearing officer also found that the test

  completed at 10:56 a.m. yielded the results showing Edwards’s

  BAC to be .229. But the hearing officer rejected Edwards’s

  argument, ruling that the test administrator performed the

  breath test in “substantial accordance” with the regulations, and

  the test, which began at 10:50 a.m., was within two hours of the

  time Edwards stopped driving. Based on the results of this

  breath test, the hearing officer ordered the revocation of

  Edwards’s license for driving with an excessive BAC.

                          2. The District Court




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¶ 12   On review, the district court affirmed the revocation of

  Edwards’s license, but on different grounds than those used by

  the hearing officer. First, the court ruled that the revocation

  statute does not require that the testing be completed within two

  hours after driving. Second, based on Edwards’s high BAC test

  results obtained two hours and five minutes after driving and

  other evidence of intoxication, the court ruled that it was more

  probable than not that Edwards’s BAC was above the statutory

  limit at the time of driving and within two hours after driving.

  The court determined that these circumstances supported the

  hearing officer’s decision to revoke Edwards’s license for driving

  with an excessive BAC.

¶ 13   On appeal, Edwards challenges the Department’s revocation

  of her license.

         II. Our Review of the Department’s Revocation Action

¶ 14   We may reverse the Department’s revocation of a license if

  we determine that, based on the administrative record, the

  Department “exceeded its . . . statutory authority” or “made an

  erroneous interpretation of the law.” § 42-2-126(9)(b), (11); see




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  also § 24-4-106(7), C.R.S. 2015; Fallon v. Colo. Dep’t of Revenue,

  250 P.3d 691, 693 (Colo. App. 2010).

¶ 15   In driver’s license revocation cases, we conduct de novo

  review of the legal conclusions and statutory construction made

  by the district court and Department. Colo. Dep’t of Revenue v.

  Hibbs, 122 P.3d 999, 1002 (Colo. 2005); Stumpf v. Colo. Dep’t of

  Revenue, 231 P.3d 1, 2 (Colo. App. 2009). When construing a

  statute, we ascertain and give effect to the General Assembly’s

  intent, reading applicable statutory provisions as a whole and in

  context to give consistent, harmonious, and sensible effect to all

  their parts. Francen v. Colo. Dep’t of Revenue, 2014 CO 54, ¶ 8.

  When a term is not defined in a statute, and if a statute is

  unambiguous, we give effect to the statute’s plain and ordinary

  meaning and look no further. Id.; Brodak v. Visconti, 165 P.3d

  896, 898 (Colo. App. 2007).

                 A. Statutory Two-Hour Time Limit
             Applicable to Revocations for Excessive BAC

¶ 16   Edwards contends the Department erroneously interpreted

  Colorado’s revocation statute. Because her BAC test results were

  obtained more than two hours after she drove, Edwards argues



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  that the Department’s revocation was improper as a matter of

  law. To address Edwards’s contention, we consider specific

  terms of Colorado’s revocation and express consent statutes.

                   1. Colorado’s Revocation Statute

¶ 17   Colorado’s revocation statute provides two circumstances

  when the Department may revoke a person’s driver’s license: (1)

  when a driver takes a BAC test and the results show excess BAC

  or (2) when a driver refuses to take a BAC test. See § 42-2-

  126(2), (3); Stumpf, 231 P.3d at 1. The first scenario applies in

  this case.

¶ 18   With respect to breath test results, the term “BAC” is defined

  as meaning a person’s BAC “expressed in grams of alcohol per

  two hundred ten liters of breath as shown by analysis of the

  person’s breath.” § 42-1-102(8.5)(b), C.R.S. 2016. “Excess BAC

  0.08” is defined as meaning that a person drove a vehicle in this

  state when the person’s BAC was 0.08 or more “at the time of

  driving or within two hours after driving.” § 42-2-126(2)(b)

  (emphasis added.)

¶ 19   So what is the meaning of the term “within two hours after

  driving” in the revocation statute? To answer this question, we


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  first analyze the temporal limitation of when testing must occur

  based on current and past versions of the revocation statute.

  Then we conclude, contrary to the district court’s analysis, that

  in civil revocation proceedings based on BAC test results, the

  revocation statute requires that law enforcement officials obtain

  valid breath test samples within two hours of when that person

  last drove.

¶ 20   It is well settled that, as to revocations based on a refusal of

  testing, there is no precise temporal limitation on when that

  refusal must have occurred. Rather, a driver’s refusal of testing

  will support a revocation on that basis as long as the testing

  request was made within a “reasonable time” after driving. See

  Charnes v. Boom, 766 P.2d 665, 666 (Colo. 1988); Stumpf, 231

  P.3d at 1, 3.

¶ 21   In contrast, as to revocations based on excessive BAC test

  results, it has long been understood that there is a precise

  temporal limitation on when that testing must have occurred.

  See Boom, 766 P.2d at 667; Stumpf, 231 P.3d at 1. This

  temporal limitation is now set forth in the language of section 42-




                                     9
  2-126(2)(b) providing for revocations based on excessive BAC test

  results “within two hours after driving.”

¶ 22   This statutory language has been part of the revocation

  statute applicable to revocations based on excessive BAC test

  results since 1988. See Ch. 293, sec. 2, § 42-2-122.1(1.5)(a)(I),

  (8)(c), 1988 Colo. Sess. Laws 1360, 1362. (We also note that the

  criminal misdemeanor offense of “DUI per se” is defined in

  identical terms, as this offense is committed when a person

  drives a vehicle when the person’s BAC is 0.08 or more “at the

  time of driving or within two hours after driving.” § 42-4-

  1301(2)(a), C.R.S. 2016.) As originally enacted, the revocation

  statute provided a shorter temporal limitation on testing,

  requiring revocation based on excessive BAC test results “at the

  time of the commission of the alleged offense or within one hour

  thereafter.” Ch. 476, sec. 9, § 42-2-122.1(1)(a)(I), 1983 Colo.

  Sess. Laws 1641.

¶ 23   In upholding revocations based on excessive BAC test

  results under the original statutory language, the supreme court

  acknowledged that this language provided a one-hour limitation

  for when the testing must have occurred. See Charnes v. Olona,


                                   10
  743 P.2d 36, 38 n.8 (Colo. 1987) (stating that this statutory

  language required the test to be “performed” within one hour of

  the alleged offense); Colo. Div. of Revenue v. Lounsbury, 743 P.2d

  23, 24 n.2 (Colo. 1987) (same). Similarly, in a refusal case, the

  supreme court stated that, under the original statutory language,

  a driver who took a test was not subject to revocation unless the

  test was “performed” within the one-hour period after the

  commission of the alleged offense. Boom, 766 P.2d at 667.

¶ 24   We next consider whether the temporal limitation for testing

  applicable to revocations based on excessive BAC is consistent

  with the express consent statute.

                      2. Express Consent Statute

¶ 25   Colorado’s express consent and revocation statutes work

  together. The express consent statute provides the authority for

  an officer to ask a driver to take a breath test, § 42-4-1301.1,

  C.R.S. 2016; the revocation statute provides the consequences

  for driving while intoxicated, § 42-2-126(3), (4).

¶ 26   Certain provisions of Colorado’s express consent statute also

  relate to the temporal limitation for testing applicable to

  revocations based on excessive BAC test results. Colorado’s


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  express consent statute requires a suspected intoxicated driver

  to take a breath test or a blood test “when so requested and

  directed by a law enforcement officer [who has] probable cause to

  believe” that the driver has committed an alcohol related driving

  offense. § 42-4-1301.1(2)(a)(I). If a law enforcement officer

  requests a test under section 42-4-1301.1(2)(a), “the person must

  cooperate with the request such that the sample of blood or

  breath can be obtained within two hours of the person’s driving.”

  § 42-4-1301.1(2)(a)(III). The General Assembly initially added

  this section to the revocation statute in 1999 and later recodified

  it as part of the express consent statute. See Ch. 35, sec. 1, §

  42-2-126(2)(a)(II), 1999 Colo. Sess. Laws 90; Ch. 342, sec. 3, §

  42-4-1301.1(2)(a)(III), 2002 Colo. Sess. Laws 1908; see Stumpf,

  231 P.3d at 2.

¶ 27   The General Assembly amended the express consent statute

  in 2007 to add an “extraordinary circumstances” exception to the

  general rule that a driver is entitled to choose between taking

  either a blood test or a breath test. See Ch. 261, sec. 1, § 42-4-

  1301.1(2)(a.5), 2007 Colo. Sess. Laws 1023-24; People v. Null,

  233 P.3d 670, 678 (Colo. 2010). As pertinent here, we note that


                                   12
  section 42-4-1301.1(2)(a.5)(I) describes the time period set forth

  in section 42-4-1301.1(2)(a)(III) as “the two-hour time period

  required” for the “completion” of the chosen test. Thus, taken

  together, the provisions of section 42-4-1301.1(2)(a)(III) and

  section 42-4-1301.1(2)(a.5)(I) indicate that timely “completion” of

  a test is synonymous with obtaining the test samples within the

  two-hour time limit.

¶ 28   Based on the provisions of section 42-4-1301.1(2)(a)(III), the

  courts have stated in more recent refusal cases that there is a

  two-hour time frame for a test to be “completed” or “a sample to

  be obtained.” Gallion v. Colo. Dep’t of Revenue, 171 P.3d 217,

  220 (Colo. 2007); see Haney v. Colo. Dep’t of Revenue, 2015 COA

  125, ¶ 15.

         3. The Operative Language of the Revocation Statute

¶ 29   We now return to the operative language of section

  42-2-126(2)(b) of the revocation statute, providing for revocations

  based on excessive BAC test results “within two hours after

  driving.” We conclude that, when read in context, the plain and

  ordinary meaning of the language in section 42-2-126(2)(b) is

  that test samples must be obtained within two hours after the


                                   13
  time of driving to support a revocation based on excessive BAC

  test results from these samples. See § 42-4-1301.1(2)(a)(III);

  § 42-4-1301.1(2)(a.5)(I); Gallion, 171 P.3d at 220; Haney, ¶ 15;

  Stumpf, 231 P.3d at 1.

¶ 30   Applying the plain and ordinary meaning of the term

  “within,” we conclude that the two-hour time limit set forth in

  section 42-2-126(2)(b) for obtaining the test samples includes the

  entire one hundred-twentieth minute after the time of driving.

  See Bath v. Dep’t of Revenue, 762 P.2d 767, 767-68 (Colo. App.

  1988) (holding that the one-hour time limit under the original

  statutory language included the entire sixtieth minute after

  driving).

¶ 31   To summarize, since BAC is defined as a person’s alcohol

  content as shown by an analysis of the person’s breath, that

  analysis cannot occur until an alcohol evaluation is reported, or,

  in other words, the test is completed and the results are

  obtained.

              B. Edwards Was Not Subject to Revocation

¶ 32   Because Edwards did not give the breath sample that

  established her BAC within two hours after she stopped driving,


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  the test results from those samples provide no basis for

  revocation based on an excessive BAC under the revocation

  statute. § 42-2-126(2)(b).

¶ 33   No one disputes that Edwards stopped driving at 8:51 a.m.,

  as the hearing officer found. Thus, to sustain a revocation based

  on excessive BAC test results, Edwards was required to give the

  breath samples that established her BAC no later than 10:51

  a.m., two hours after driving. See § 42-2-126(2)(b). But,

  Edwards gave breath samples at 10:52 a.m. and 10:56 a.m.,

  more than two hours after driving. See Boom, 766 P.2d at 667

  (in a refusal case, stating that a driver who consented to a test “is

  not subject to” revocation for driving with an excessive BAC

  unless the test was performed within the then-applicable

  statutory one-hour time limit); Pierson v. Colo. Dep’t of Revenue,

  923 P.2d 371, 373 (Colo. App. 1996) (similarly stating in another

  refusal case that a driver who consented to and failed a test “is

  not subject to” revocation for driving with an excessive BAC

  unless the test was performed within the then-applicable

  statutory two-hour time limit), superseded by statute as stated in

  Gallion, 171 P.3d 217; cf. Francen, ¶¶ 10, 13 (noting that a driver


                                    15
  “is subject to” revocation when the requirements of section 42-2-

  126(2)(b) have been met).

¶ 34   We disagree with two of the hearing officer’s and district

  court’s conclusions. First, contrary to the hearing officer’s

  analysis, section 42-2-126(2)(b) does not include a “substantial

  accordance” standard concerning the two-hour time limit

  requirement. Thus, it is irrelevant when the breath test

  sequence begins. Rather, when, as here, the breath test subject

  gives the samples that establish her BAC after the statutory two-

  hour time limit, she is simply not subject to revocation for driving

  with an excessive BAC under the requirements of section 42-2-

  126(2)(b). See Boom, 766 P.2d at 667; Pierson, 923 P.2d at 373.

¶ 35   Second, contrary to the district court’s analysis, the

  revocation statute provides no basis for a fact finder to use test

  results obtained after the two-hour time limit to infer that a

  driver had an excessive BAC at the time of driving or within two

  hours after driving.

¶ 36   In this regard, we note that test results may give rise to

  permissible inferences concerning the criminal misdemeanor

  offenses of “DUI” or “DWAI,” but the criminal misdemeanor


                                    16
  offense of “DUI per se” is based solely on tests administered

  within two hours after driving. See § 42-4-1301(2)(a), (6)(a). Like

  the offense of DUI per se, revocation for driving with an excessive

  BAC under section 42-2-126(2)(b) must be based solely on test

  results showing a BAC of 0.08 or more from samples taken

  within the two-hour time limit.

¶ 37   Finally, we note that a driver is subject to revocation for

  refusal for failing to cooperate with a testing request such that

  the samples of blood or breath can be obtained within two hours

  after driving. See § 42-2-126(2)(h), (3)(c); § 42-4-1301.1(2)(a)(III);

  Stumpf, 231 P.3d at 3. But, in this case, the evidence did not

  show that the failure to obtain breath samples within the

  statutory two-hour time limit was due to any noncooperation by

  Edwards. To the contrary, the hearing officer expressly found

  that Edwards was not at fault in this regard, so she is not

  subject to revocation for refusal.

                              III. Conclusion

¶ 38   Because the Department revoked Edwards’s license for

  driving with an excessive BAC based on its application of

  erroneous legal standards, we cannot sustain its order on


                                       17
  judicial review, and the district court erred in upholding it. See §

  42-2-126(9)(b).

¶ 39   Accordingly, the district court’s judgment is reversed, and

  the case is remanded with directions to set aside the order of

  revocation.

       JUDGE MILLER and JUDGE NAVARRO concur.




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