What is an “express consent affidavit and notice of revocation”?

An express consent affidavit and notice of revocation is a document notifying you, after a Colorado DUI arrest, that your driving privileges will be revoked in seven days. This document also serves as a seven-day driving permit.

Once you receive this express consent affidavit and notice of revocation, you have seven days to request a DMV hearing (called an express consent hearing). Once you make the request, you can continue driving pending the results of the hearing (which may not occur for several more weeks).

If you do not request a hearing in time – or if you lose the hearing – the DMV will revoke your license. A first-time DUI carries a nine-month revocation, and a first-time refusal to take a breath test or blood test carries a one-year revocation.

When do I receive an express consent affidavit and notice of revocation?

It depends on whether you took a breath test or blood test following your Colorado DUI arrest or if you refused to get a chemical test at all:

Your actions following your DUI arrest	When you receive the express consent affidavit and notice of revocation
You elected to take a breath test, which returned a blood alcohol content (BAC) of 0.08% or higher	The arresting officer gives the document to you immediately after the failed breath test.
You refused to take a test (and the police then forced you to get a blood test)	The arresting officer gives the document to you immediately after the refusal.
You elected to take a blood test, which returned a blood alcohol content (BAC) of 0.08% or higher	The DMV sends the document to you in the mail, usually a few weeks after the arrest.

Note that you are deemed to have given express consent to take a breath or blood test if you are arrested on suspicion of DUI. If you refuse to take a chemical test, you can be forced to submit to a blood test if the police get a warrant.¹

What happens at my express consent hearing?

The express consent hearing is a mini-trial presided over by an administrative hearing officer. At the hearing, you can:

• present evidence and
• cross-examine witnesses, such as the arresting officer.

Ultimately, the hearing officer has to determine whether:

• you had a BAC of 0.08% or higher within two hours of driving; and/or
• you refused to take a breath or blood test following your arrest.

If the hearing officer finds that you were not drunk driving and did not refuse to take the breath or blood test, no action will be taken, and you can keep your license. However, if the hearing officer finds that you were drunk driving or refused to take a breath- or blood test, then your license will be revoked immediately.

Note that the DMV hearing is a totally separate procedure from the criminal DUI case. You can win the DMV hearing and still lose the criminal case, and vice versa. The only way to avoid a license revocation is to win both the criminal case and the DMV case.

Also note that winning DMV hearings is actually tougher than winning criminal cases. To get convicted of DUI at trial, prosecutors must prove guilt beyond a reasonable doubt. In contrast, at DMV hearings, the hearing officer only has to find by a preponderance of the evidence that you were drunk driving. That is a much lower bar.²

How long will my license be revoked?

The typical license revocation period for a DUI or DUI per se in Colorado is:

• 9 months for a first violation;
• 1 year for a second violation; or
• 2 years for a third or subsequent violation.

If you refused to take a chemical test, you face an additional license suspension period:

• 1 year for a first violation;
• 2 years for a second violation; or
• 3 years for a third or subsequent violation.³

However, it is often possible to get a restricted license if you install an ignition interlock device.

What does an express consent affidavit and a notice of revocation look like?

This document is usually on a white piece of paper or a yellow carbon copy.

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