Opinion
No. 79CA0955
Decided May 29, 1980. Rehearing denied June 26, 1980. Certiorari granted September 29, 1980.
Plaintiff appealed the judgment of the district court affirming the revocation of his driver's license under the habitual offender statutes.
Reversed
1. AUTOMOBILES — Revocation of Driver's License — Habitual Offender Statute — Attack on Validity — Underlying Conviction — Failure — Follow Criminal Rule — Acceptance of Plea — Should Have Been Allowed. Where driver's license was revoked under habitual offender statute, the hearing officer should have permitted driver to attack validity of underlying conviction for driving while his ability was impaired because of trial court's alleged failure to comply with requirements of applicable rule of criminal procedure before accepting driver's guilty plea to that charge.
2. DRIVING UNDER THE INFLUENCE — Driving While Impaired — Not Minor Offense — Trial Court — Must Comply — Crim. P. 11 — Before Acceptance — Guilty Plea. Since person convicted of driving while ability impaired is subject to possible imprisonment, such charge is not a minor traffic offense, and the trial court must comply with Crim. P. 11 before accepting a plea of guilty thereto.
Appeal from the District Court of Adams County, Honorable Jean J. Jacobucci, Judge.
Feuer, Flossic Rich, Philip A. Cherner, Dana L. Larson, for plaintiff-appellant.
J. D. MacFarlane, Attorney General, Richard F. Hennessey, Deputy Attorney General, Mary J. Mullarkey, Special Assistant Attorney General, Richard H. Forman, Assistant Attorney General, for defendants-appellees.
Billy Ray Laughlin appeals the judgment of the district court affirming the revocation of his driver's license under the habitual offender statutes. See §§ 42-2-202 and 42-2-203, C.R.S. 1973. He argues that the hearing officer should have permitted him to attack the validity of an underlying conviction for driving while his ability was impaired because of the trial court's failure to comply with the requirements of Crim. P. 11(b) before accepting his guilty plea. We agree and therefore reverse.
[1] In Anderson v. Colorado Department of Revenue, 44 Colo. App. 157, 615 P.2d 51 (1980) we held that a jurisdictional challenge to a conviction may be raised at a driver's license revocation hearing because a void judgment is subject to attack directly or collaterally at any time. Likewise, since a conviction based on a guilty plea accepted in violation of Crim. P. 11(b) is constitutionally infirm, it may be challenged in a later proceeding to impose a statutory liability, see People v. Heinz, 197 Colo. 102, 589 P.2d 931 (1979), and such a challenge may also be raised at a license revocation hearing.
[2] The question remains, however, whether a trial court must comply with the requirements of Crim. P. 11(b) before accepting a guilty plea to the charge of driving while impaired. We hold that it must. In Cave v. Department of Revenue, 31 Colo. App. 185, 501 P.2d 479 (1972), responding to a challenge to a guilty plea to a speeding violation, the court held that more simplified procedures than those prescribed in Crim. P. 11(b) could properly be used for receiving guilty pleas in "minor traffic offenses." Driving while impaired, however, is not a minor traffic offense since the person convicted is subject to possible imprisonment. See § 42-4-1501(2)(a), C.R.S. 1973 (1979 Cum. Supp.); cf. Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530, 538 (1972); People v. Lucero, 196 Colo. 276, 584 P.2d 1208 (1978). Furthermore, in Heinz, supra, the court assumed that Crim. P. 11(b) applied to the acceptance of a guilty plea to the charge of driving while impaired.
Here, Laughlin offered evidence to show that the trial court did not strictly adhere to the requirements of Crim. P. 11(b) in accepting his guilty plea to driving while impaired. If the requirements of the rule were not followed, the guilty plea is subject to collateral attack.
The judgment is reversed and the cause is remanded to the district court with directions to remand the cause to the hearing officer for further proceedings and such factual determinations as may be appropriate.
JUDGE COYTE and JUDGE SMITH concur.