Opinion
No. 84CA0406
Decided January 31, 1985.
Appeal from the District Court of Boulder County Honorable Michael R. Enwall, Judge
No appearance for Plaintiff-Appellee.
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, Steven M. Bush, Assistant Attorney General, for Defendants-Appellants.
The Department of Revenue appeals from an order of the district court requiring the department to grant plaintiff, John Lloyd Baulsir, a hearing concerning revocation of his driver's license pursuant to § 42-2-122.1(7), C.R.S. (1983 Cum. Supp.). We reverse.
On July 3, 1983, plaintiff was arrested for driving under the influence of intoxicating liquor. Following his arrest, a chemical test of his blood showed an alcohol concentration of .178. Pursuant to § 42-2-122.1(4), C.R.S. (1984 Repl. Vol. 17), the arresting officer served plaintiff with a notice of driver's license revocation. The notice, among other things, advised plaintiff that, unless he requested a hearing within seven days after the date of the notice, the order of revocation contained in the notice would become effective on the eighth day. See § 42-2-122.1(5), C.R.S.(1984 Repl. Vol. 17). He was further advised that, pursuant to § 42-2-122.1(7)(a) and (b), C.R.S. (1984 Repl. Vol. 17), "if a hearing is requested, request must be in writing and can be made to any Colorado Department of Revenue Motor Vehicle Division and driver license office."
Plaintiff gave all the documents relative to his arrest and advisement to his attorney on July 5. However, the attorney did not request a hearing until July 26, 23 days after plaintiff had received the notice of revocation. In the meantime, on July 11, the revocation order became effective. The department, by letter dated July 27, denied plaintiff's request for a hearing on the revocation since it was made more than seven days after service of the notice of revocation and the request was not made "due to factors of physical incapacity such as hospitalization or incarceration." It stated that "[w]e do not believe that the negligence on the part of the attorney places the individual within the scope of the statutory provisions for providing a hearing beyond the 7 day limitation."
Plaintiff sought judicial review of the department's action. The district court ordered the department to grant the driver a hearing and stayed the revocation pending the hearing. The department contends that the court erred in its order. We agree.
Sections 42-2-122.1(3) and (4), C.R.S. (1984 Repl. Vol. 17), provide for a notice of revocation and specify what is to be contained therein. Sections 42-2-122.1(7)(a) and (b), C.R.S. (1984 Repl. Vol. 17) provide for a revocation hearing if request therefor is made within seven days after receipt of notice, and state that the right to a hearing is waived if not requested within that time. Subsection (7)(c) states:
"If a written request for a hearing is made after expiration of the seven-day period and if it is accompanied by the applicant's verified statement explaining the failure to make a timely request for a hearing, the department shall receive and consider the request. If the department finds that the person was unable to make a timely request due to lack of actual notice of the revocation or due to factors of physical incapacity such as hospitalization or incarceration, the department shall waive the period of limitation, reopen the matter, and grant the hearing request. In such a case, a stay of the revocation pending issuance of the final order following the hearing shall not be granted."
The statute does not state that a revocation hearing may be granted on a showing of good cause for untimeliness of the request. Instead, it sets forth specific grounds that must be found to exist prior to granting the request. It leaves no discretion in the department to grant an untimely request for reasons other than those set forth therein.
The department is legally bound to comply strictly with this statute, and cannot ignore or circumvent the legislative mandate. Dodge v. Department of Social Services, 657 P.2d 969 (Colo.App. 1982). The power to administer a statute does not include the power to make law. Big Top, Inc. v. Schooley, 149 Colo. 116, 368 P.2d 201 (1962).
It is undisputed that plaintiff had actual notice of the revocation and that he was not physically incapacitated during the seven-day period so as to be unable to make a timely request. Since he did not, and could not, satisfy the statutory criteria for obtaining a hearing after expiration of the limitation period, the trial court erred in ordering the department to provide plaintiff with a hearing and in ordering a stay of the revocation. See § 24-4-106(7), C.R.S. (1982 Repl. Vol. 10).
Since plaintiff was given adequate advance notice and had an opportunity for an appropriate hearing before the revocation of his license became effective, he was not deprived of his constitutional right to procedural due process of law. See Patterson v. Cronin, 650 P.2d 531 (Colo. 1982); Denver v. Eggert, 647 P.2d 216 (Colo. 1982). See also Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1971).
The orders of the district court are reversed, and the cause is remanded for reinstatement of the order of revocation.
JUDGE PIERCE concurs.
JUDGE TURSI dissents.